2011 ONCJ 505, 2011 ONCJ 505

WARNING The court hearing this matter directs that the following notices should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notices should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Information No. YS10 – 1784 Citation: R. v. R.(J.) , 2011 ONCJ 505 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - J.R. Ms. H. Nickel for the Crown Mr. D. Wolfe for the Defendant An order has been made under s. 486.4 directing that any information that could identify the complainant, B.C., shall not be published in any document or broadcast or transmitted in any way. JUDGMENT NADEL, J.: Introduction [ 1 ] J.R. and B.C. are half-brother and sister. They share the same mother. J.R. is 3¼ years older than B.C.. He was born on July […], 1991.

She was born on November […], 1994. [ 2 ] He is alleged to have committed three offences against B.C.: sexual assault, sexual interference and incest. The evidence in support of these allegations and the time frame of the allegations is the same for each count, viz between May 31, 2006 and October 1, 2008. At the beginning of this period B.C. was not quite 11½ and just finishing grade six while J.R. was two months shy of turning 15.

At the end of the time frame B.C. was about to turn 14 and had just entered grade nine and J.R. was two months past his 17th birthday. [ 3 ] This prosecution commenced as a result of a disclosure made by B.C. to a guidance counsellor on April 23, 2010 when

she was 15 and in grade 10. Later that day her interview conducted by a police officer was recorded. The nature of the trial [ 4 ] This trial has been a classic “she said/he said” proceeding in which credibility findings will play a prominent role. The prosecutor called two witnesses, the complainant and her father. The defence called the accused. No expert evidence was called by either side and no physical evidence was tendered. B.C. said that commencing late in grade six she was repeatedly sexually assaulted by J.R. on Friday nights when her parents left her in J.R.’s charge.

The parents and an older half-brother to B.C. and J.R. were involved in soccer leagues. J.R. concedes that he was often left at home with B.C. on soccer nights but he denies sexually assaulting his sister in any way. A

summary of the evidence of the witnesses B.C.’s evidence [ 5 ] The complainant testified that her brother first had sexual intercourse with her near the end of her grade six year, when she was 11. It was a Friday night and her parents and eldest brother were out at soccer. They normally left after suppertime and returned home after her bedtime. She was trying to fall asleep when J.R. came into her room. He sat on her bed and spoke with her. He then lay down beside her. He offered to give her a back massage so she sat up cross-legged and he massaged her back for a little while.

While she could not recall what was said between them, she recalls him telling her to take her clothes off. She was confused about this request and objected but he made her do so and pulled at her pyjama top, climbed on top of her and sat down over her thighs. [ 6 ] On this first occasion she screamed when he started pulling her pants and panties off and he muffled her with his hand on her mouth although he did not use a great deal of pressure nor keep his hand there very long. She squirmed to stop her pants from coming down but he held her still.

He was able to apply enough pressure to overcome her resistance as she was not very strong. He was able to control her and undress her and spread her legs. He inserted his penis into her vagina and engaged in sexual intercourse with her. When he put his penis into her vagina she felt a ripping sensation and the whole incident made her feel nauseous. [ 7 ] During this first occasion, she did not really understand what was happening until he was inside of her and it began to hurt. In holding her down the accused left a peach-sized bruise on her upper right arm.

The incident took about ten minutes from start to finish and she did not recall a condom being used by him. [ 8 ] This sequence became the template for all of the incestuous acts he perpetrated thereafter. Typically she would read before going to sleep. He would usually knock on her closed door, open it, say hello and then sit on her bed. He would engage her in conversation and offer her a back rub or ask her to give him one, which she sometimes agreed to. While she would decline his request for a massage on occasion, perhaps 30% of the time things would start with her giving him a back rub.

Once one of them was massaging the back of the other “things progressed from there” (sic). He would undress her or make her undress, keep her on her back, push her legs apart and engage in sexual intercourse with her. Eventually, he would stop breathing quickly and roll off and lay beside her. He would try to get her to talk but she would ignore him and he would then get dressed and leave. Afterward, she would curl up and try to fall asleep. Generally, he had a condom that he brought with him into her room.

He would open the wrapper that it was packaged in and put it on but she was not sure if he wore one every time he had intercourse with her. [ 9 ] The doors to their home were left unlocked for her family’s return from soccer. After the assaults she would remain in her room until breakfast. Neither of her parents ever came upstairs to check on her when they came home. [ 10 ] She initially and usually objected and resisted her brother. But, he was much bigger and stronger than she was, especially when the assaults began, (when she was 11 and he was 14).

She did not have the strength to push him off and nothing she could do helped prevent the attacks. She was tiny compared to him and there was no one home to hear her screams. When she yelled he covered her mouth and when she resisted he held her down. On occasion, after having been assaulted several times she would not put up an active resistance. She did not encourage him or willingly participate in these acts although she would sometimes take her own clothes off when he told her to do so. [ 11 ] The assaults started in the spring of 2006.

Their frequency varied but they only occurred when he had the opportunity to be alone with her. They happened less often during the summer because they were away from home more frequently. The assaults occurred most frequently during grade seven and the beginning of grade eight. They stopped just before B.C. entered grade nine. On one occasion J.R. attempted to justify what he was doing by saying that having sex was not wrong for them because he was actually adopted and their mother was not actually his mother. [ 12 ] B.C. described the last time they engaged in sexual intercourse.

He came in and talked to her for a few minutes about “dad” being angry at him. He lay down beside her and asked her for a back rub. He pulled his shirt off and turned over as she was giving him a back massage and then he got up and looked at her and she thought, “well here we go again”. He told her to undress and he did, too; then he pushed her down and climbed on top of her. D. C.’s evidence [ 13 ] C. is B.’s father and J.’s step-father. B.C. is his biological daughter with his wife, A.. A. had two boys before she delivered B.C.. Her eldest child was T.W., who she had with D.W..

Her second child was J.R., who she had with C.R.. [ 14 ] D.C. confirmed that he and his wife and their oldest child, T., were heavily involved in soccer. As a result, since neither B.C. nor J.R. had their avid interest in that game, J.R. was left at home and in charge of B.C., as she was too young to be left unsupervised. From his perspective, he had no reservations about leaving the two of them alone together. [ 15 ] He felt comfortable leaving them alone because, while they fought as much as any siblings did, he had no greater concerns about them than that. He described the family’s soccer

schedule and the hours that that interest kept them away from home.

His recollection of the time at which he and his wife returned home was only marginally similar to B.C.’s estimates. However, hecorroborated her evidence that she wore little girl pyjamas to bed and he corroborated her evidence that she was not a big girl and whenshe was 10, J.R. was considerably larger than her. Throughout that period, when she was 11 and 12, he remained larger than she was. [16] He agreed with B.C.’s recollection that she was constantly asking for a better lock for her bedroom door but he also notedthat she had a hook and eye lock on it, although it was ineffectual as it could be bumped open.

Contrary to B.C.’s evidence, C, said thathe would invariably check on his daughter after returning home from soccer. Half of the time he would ask how her evening had beenand the other half of the time she would be asleep so they would not speak to each other [17] He confirmed B.C.’s recollection that J.R. left home during the beginning of B.C.’s grade nine year. When he checkedJ.R.’s room after he had moved out D.C. found, among other things, boxes of condoms left in his room. J.R.’s evidence [18] J.R. gave evidence. He outlined his present circumstances and his future plans.

He was working for a surface sealingcompany and hoped to attend college to train for sheet metal fabrication or automobile body-work repair. He sketched his life andschooling while living in the C. household including the extent of his participation in soccer as a player, linesman and spectator. [19] While he agreed that he was asked by his parents to watch B.C., he denied all of her allegations. He said that they gotalong well. He said that they fought like all siblings did but he described their relationship as a normal sister/brother relationship.

Hemaintained his denials of any impropriety during his cross-examination, but, as detailed below, his testimony was riven by a majorinconsistency. The position of the defence [20] Mr. Wolfe began by accepting that the assessment of the credibility of the protagonists would play a fundamental

part inthe result of this trial. He submitted that, superficially, B.C. was a good witness. But, Mr. Wolfe submitted that B.C.’s allegations werenot corroborated and that while the law no longer demands corroboration, as a matter of common sense, without corroboration theCrown’s case fails on the second or the third prong of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. Moreover, whileB.C.’s evidence was superficially believable, it failed to retain credence upon detailed examination. The areas where her evidencebreaks down are included in the following submissions and analyses by defence counsel. (

i) By her own admission she protects her personal space and has reflexively struck out at a much larger individual who invadedher personal space boundary. As a result, it is incredible that she would wait for her brother to show up in her room on a Friday nightswithout taking active steps to prevent that from occurring. (ii) She had a good relationship with others (her mother, her grandmother, her aunt, her girlfriends) any or all of whom one wouldexpect would take action, if they knew of her allegations.

She implied that her mother knew of these allegations yet her father said thathe and his wife were comfortable leaving her in J.R.’s care. (iii) Her recollection of the time she retired for bed “about 11:00” p.m. means there was no opportunity for her allegations to occurbecause her father returned from soccer at between 11:00 and “11:30”. (iv) She said her parents never checked on her welfare when they came home but her father, who had no reason to dissemble, saidhe did every time. Even more significantly, her father said he spoke with her on the occasions when she was still awake in her room. (

v) She testified that it was dark in her room when she was being attacked by her brother and so, as a result, she cannot describeany distinguishing characteristics of her brother’s genitals, but how can that be when at least half the time her light is on when her fathercomes home. (vi) If all of these attacks were occurring as she alleges, why did she not, as one would expect, avoid being alone at home with herbrother.

All that she had to do to achieve that would be to go where she was welcome – to soccer with her parents (or to hergrandmother’s or her aunt’s or her girlfriends.) (vii) If all of these attacks were occurring as she alleges, surely as she grew taller and stronger she would have resisted moreviolently or successfully, including by arming herself. (viii) Given J.R.’s characterization, both by B.C. and her father, as a follower, as a person with a weak personality, it is improbablethat he would act as she alleges nor would he be psychologically forceful enough to influence his sister to do something contrary to herwishes. (ix) Her description of the events is inconsistent.

On one occasion she said he made her take off her bra but on another occasionshe said she did not wear a bra to bed. (

x) Beyond all of the foregoing, her memory of these alleged events is so fraught with uncertainty and vagueness that it would beunsafe to rely upon her evidence, and impossible to do so beyond a reasonable doubt. (xi) J.R.’s lack of personality strength was exemplified in his cross-examination, which accounts for any inadequacies in hisperformance during that procedure. He was not trying to be unhelpful despite being somewhat taciturn. Any confusion he exhibitedmay have been the result of his anxiety about being cross-examined. Any frailty in his evidence was more the product of his personality

than any attempt to dissemble. (xii) He was not shaken in his denial of any impropriety. [21] In the result, at a minimum, the court ought to have a reasonable doubt about J.R.’s guilt and the charges ought to bedismissed. The position of the prosecutor [22] Ms. Nickel began her submissions by reminding me that B.C. was very young when these attacks began so that anycriticism of her response to them must be measured against her age. Even adults fail to respond effectively to assaultive or sexuallyassaultive situations. Ms.

Nickel submits that I would fall into error by concluding that since B.C. did not respond effectively thereforethe allegations are false. The Crown referred me to R. v. D.D., 2000 SCC 43 , [2000] S.C.J. No. 44. I am familiar with it,especially the contents of paragraph [65]. Indeed, the Ontario Court of Appeal has said something akin in R. v. Batte, (ON CA), [2000] O.J. No. 2184 (Ont. C.A.) at [145]. [23] In the same vein, Ms. Nickel went on to urge that it is unrealistic to expect this 11 year old to make arrangements toabsent herself from her home every Friday night after the first attack.

Notwithstanding, she did much of that as she became aware of thecontinuing risk J.R. represented to her, going to soccer on a few occasions or making alternative plans to absent herself from her home toavoid him. Further, her continued requests to her father for a lock on her door, while not corroborative in the sense that those requestsare “independent” evidence are, nonetheless, internally consistent with her safety concerns. Likewise, the size and age disparity betweenthe two explains her inability to protect and defend herself.

The defence complaints, that her failure to arm herself or barricade herself inher room by moving her heavy furniture against her door, evince a resort to debunked stereotypical notions that no longer hold sway inthe courts. [24] The alleged contradiction concerning taking off her bra, in one passage of the evidence versus going to bed braless inanother, is not truly contradictory. In the latter case she was initially attacked while quite young and in bed, hence no bra. On anotheroccasion she was attacked before bed while still clothed.

So far as the discrepancy between times testified to, the Crown’s submission isthat those are the kind of discrepancies to be expected between witnesses that are not of consequence. Equally, the contradictionbetween her father’s testimony, (that half the time he would speak to his daughter on returning home from soccer and half the time shewould be asleep in a dark room) and her testimony, (that her parents never checked on her on soccer night), is not a matter ofsignificance, in the Crown’s submission. [25] The Crown submits the complaint is credible and ought to be believed.

Her testimony is corroborated by the finding ofboxes of condoms in the accused’s room by D.C.. Further, as there was no suggestion of recent complaint, the defence’s suggestion thather credibility suffers because her mother did nothing is unmeritorious. The history of any prior complaint was, given the defenceposition on recent fabrication, irrelevant and inadmissible. Hence, no weight can or should be given to her failure to complain or anyfailure to act on her behalf by anyone she complained to.

The Crown submits that there is no relevant evidence about either of thesematters from which any probative inferences can be drawn. [26] While the Crown could not dispute the many occasions when the complainant testified that she tried to block hermemories or that her memories were foggy or vague, the Crown submitted the issue was not the quality of her memories; rather, thebright line question was “[w]hether or not you’ve been sexually assaulted by your brother, ...”. [27] The Crown submits that on a W. (D.) analysis J.R.’s evidence should be rejected, her evidence accepted and findings ofguilt made. In Ms.

Nickel’s submission what J.R. swore to and how he comported himself requires the court to reject his evidence. A brief self-charge [28] I have charged myself on the onus on the Crown to prove the guilt of the accused to the exclusion of any reasonable doubtwith respect to the essential elements of the crimes alleged. I have read and followed both R. v. Lifchus, (SCC), [1997]3 S.C.R. 320 and R. v.

Starr (2000), 2000 SCC 40 , 147 C.C.C. (3d) 449 on the meaning, effect and application of the standardof reasonable doubt. [29] In addition, while the parties are agreed that the Crown need not demonstrate that the evidence of the complainant iscorroborated in order to meet its burden I have, notwithstanding, read and followed R. v. B. (G.), (SCC), [1990] 2S.C.R. 3 on the meaning of corroboration in law. In R. v.

B. (G.), the Supreme Court found at paragraph [46] that the appropriatequestions to ask, on the issue of corroboration are: (1) has the [witness] given evidence which implicates the accused? and, if so, (2) isthat evidence corroborated in some material particular?

A material particular being one which tends to confirm that the witness'testimony is true and could be, but need not be, the "particular" of identification. [30] Beyond the foregoing, given the nature of this case and the importance of my credibility findings on a result in this trial, Ihave read and considered many of the recent cases on the determination of credibility, especially in the context of W. (D.), taking specialcare not to fall into the error of turning this proceeding into a credibility contest, which would be a reversal of the onus of proof, or ofallowing the matter to collapse into the question of asking which witness do I prefer? [31] I charge myself that J.R. is presumed innocent and that the burden remains on the Crown to prove his guilt beyond areasonable doubt.

I charge myself that the burden never shifts; that J.R. is under no burden or obligation to prove his innocence orindeed prove anything. I charge myself that if I believe his denial I must acquit him. I charge myself that even if I do not believe hisdenial but I do not reject his evidence so that I am left in a state of reasonable doubt as a result then I must give him the benefit of thatreasonable doubt and find him not guilty.

I charge myself that even if I reject his evidence so that it does not raise a reasonable doubtabout his guilt I must still find him not guilty unless I am satisfied to the exclusion of any reasonable doubt by the evidence that I doaccept that he committed the acts alleged against him.

[32] As noted previously, I charge myself to avoid the forbidden line of reasoning that I am required and instructed to avoid,as explained in R. v. Maharaj (2004), (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.); R. v. S.J.D. (2004), (ON CA), 186 C.C.C. (3d) 304 (Ont. C.A.) and R. v. Dore (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont.C.A.). Avoiding that forbidden line of reasoning protects against saying to myself, as the trier of fact, that if I accept the evidence of thecomplainant I must therefore reject the evidence of the defendant.

That forbidden line of reasoning fails to honour the presumption ofinnocence and the burden of proof. That forbidden line of reasoning insidiously shifts the burden of proof onto the defendant to explainaway the complainant’s evidence. [33] On the other hand, I am not to require the prosecutor to meet an unlawful burden that demands corroboration where thelaw does not require it. I charge myself in accordance with the governing principles as set out in the foregoing cases and as explained byJustice Duncan in R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.) and the Ontario Court of Appeal in R. v.

J.J.R.D., (ONCA), [2006] O.J. No. 4749 (C.A.) (application for leave to appeal dismissed without reasons, [2007] S.C.C.A. 69, all the while beingmindful of the need for care and caution where the case for the Crown is carried substantially, if not completely, by one witness. I ammindful of the need for special care and special caution where that one witness’ testimony contains flaws in some respects. In addition toall of these cases I find very useful guidance in the decision of Mr. Justice Quinn in R. v. M.J.B., [1999] O.J. No. 2235 (Ont. S.C.) on theissue of assessing credibility.

Judgment [34] I do not accept J.R.’s denial of impropriety. I do not believe his testimony when he denies committing any improprietywith his sister B.C.. Moreover, I reject his evidence of denial, so that I am not left in a state of reasonable doubt by it. I reject thatevidence because his testimony is fractured by a fundamental inconsistency about whether he ever entered B.C.’s bedroom. [35] While the passages are somewhat lengthy, I intend to quote from his cross-examination to identify and demonstrate thisfundamental flaw which renders him to be an incredible witness.

The passages are of varying length, which I shall identify by page andline numbers. [36] Page 40, line 5: Q. What did, what did B.C. wear to bed? To sleep? A. I would have to agree with my step-dad; fleece or flannel pyjamas. Like... Q. And you remember seeing her dressed in, in her pyjamas? A. Well, yah, we lived together. Q. And you’d see her dressed in her pyjamas in her bedroom? A. Yes. Q. All right. And were you ever inside her bedroom? A. Not generally at night-time, no. But ... Q. So, ever—yes – were you ever inside her bedroom? A. I might peek my head in and ask her a question; but, no, I wasn’t. Q.

You never went in? A. No. That was her personal space. I had my personal space. [37] As can be seen from this exchange, J.R. initially said that he “generally” did not enter his sister’s bedroom at night-time. When Ms. Nickel’s questioning of that answer continued, he stated that while he might peek his head in he “never” (sic) went into herroom. While J.R. initially gave a general answer to the Crown’s question, which was directed, inter alia, to the issues of means andopportunity, his answers soon became categorical and in my view unreasonable. [38] Page 40, line 25 to page 41, line 18: Q.

Did she ever go in your bedroom? No? A. No, not really. I don’t like people in my room. Q. What about T.? Did you ever go in T.’s bedroom? A. Yah, he had a T.V. and a 360 in there. Q. All right, so, you were allowed in T.’s bedroom? A. If I asked. Q. And did T. go in your bedroom? A. If he asked.

Q. All right. So it was just B.C. who never went in the bedrooms? A. Well, the relationship between my brother and I was a lot different than between me and my sister; because me and my brother had a lot of the same interests. So we found ourselves hanging out a lot. Q. So you went into each other’s bedrooms, you say, but only if you asked first? A. Who was that? Q. You and T.. A. Yes. Q. And, but you never asked to go into B.C.’s bedroom? A. I clearly just stated that I never went in there. [ 39 ] For the second time J.R. categorically stated that he never went into B.C.’s room.

The Crown pursued the matter. [ 40 ] Page 41, line 28 over to page 43, line 20: Q. And the occasion then when you peeked your head into her, into her room, give me an example of when you would do that? A. I don’t know. I’d walk upstairs say, “Hey, where’s the remote?” Like, I don’t know. A normal question. I can’t put my finger on any of the questions that I’ve asked, but something small and meticulous (sic) like that. Q. So, and the door would be shut? Normally she kept her door shut? A. Sometimes. Q. Okay. So sometimes it would be open, sometimes it would be shut? A. Yes. Q.

And you’re suggesting that anytime you peeked your head into her, into her room would it ... would that have been only when the door was shut? A. Well, if the, if her light was on and she was awake, I’m not going to wake her up and bother her about something stupid. ... Q. I see. Well, and did, was her, and can you say whether she usually kept her bedroom door open or closed? A. I don’t know. Q. Okay. You don’t, you don’t recall that? A. No. Q. And if you were, if the door was closed and you wanted to speak to her, would you knock? A. Yes. Q. Yes.

And then she’d say, “come in”, and you’d open the door and ask her the question you had to ask her? A. Presumably, yes. Q. All right. And, but never ever, not even once, did it ever happen that you ended up inside her bedroom? A. I’m sure I’ve been in her bedroom before; but, like, I don’t just barge in and say, “hey” whatever. Q. Okay. Well originally when we (sic) asked you though, you said you’d never been in her bedroom. Now you’re saying I’m sure I’ve been in there at some point? A. I said I’d never been in there later on in the evening. Q. All right. Well, I, I don’t know that that’s what the question was.

But, the question, my question to you was if you ah ever been in her bedroom. And you said no. Now you’re, the most you’d ever done was poke your head in her bedroom. Now you’re saying yes there have been times you were in her bedroom? A. I don’t know how to explain myself. Um ... Q. Well, it’s either you’ve been in or you haven’t. It’s a yes or a no, right? A. I said that I had been in — I’ve — I have — I can’t put my — I don’t know.

[ 41 ] It is my view that at this point in his cross-examination J.R. has become stymied in answering because he had elected to deny that he has ever been in his sister’s bedroom. It may well be that he has come to the realization that this testimony is incredible. Ms. Nickel continued and pursued the issue. [ 42 ] Page 43, line 23 to page 44, line 18: Q. You don’t know if you’ve ever been in her bedroom? A. I don’t believe I have. Q. All right. So when you said, “I’m sure I’ve been in her bedroom before” that was wrong? A. I guess so, yes. Q. I’m going to suggest you have been in her bedroom.

And you, but you would disagree with me when I say that, right? A. I have never been, like, you’re saying that I’ve been in her bedroom laying down, whatever. I’ve never been like that. I, like, maybe two steps in the door. Poke my head in. Whatever. Like, like, I’ve never spent time in there. I’ve never hung out with her in there that’s what I’m trying to say. Q. All right. So, when I asked the question, have you ever been in her bedroom? You’re now saying ... A. I had said that I poked my head in which is what I’m saying now. Q. Okay.

So, when, when you also suggest, of course, I’ve been in her bedroom; now you’re saying no that part was true? What you meant was you just had poked your head in? A. I just explained myself saying that I had never, you know, hung out with her in her room. I’ve never made a point to go in her room. I’ve never barged in her room. I’ve, you know, like I said, asked her a question, whatever. I’ve never spent time in there. Q. Have you been in her bedroom? A. Yes. [ 43 ] At this point J.R. was trying to explain and rehabilitate his prior testimony.

While it seemed, at least momentarily, that he was attempting to be nuanced and reasonable the next sequence of questions and answers reverts to what I find to be his unbelievable and incredible position once again. [ 44 ] Page 44, lines 20 to 28: Q. Thank you. Have you been all the way in her bedroom, other than just poking, your just taking one or two steps – in other words, have you been completely into her bedroom? A. No. Q. So you’ve only ever been one – in all the years you’ve lived with her, you’ve only been in one or two steps into her bedroom? A.

Except for when we were renovating the house. [ 45 ] I conclude that the accused’s testimony that he had never been completely into his sister’s bedroom is patently unreasonable and incredible. All the more so when he was left at home with B.C.. He was specifically left to supervise her, because at her young age she could not be left alone. In effect, if not in name, the accused, as a 14-year-old was left to babysit his 11-year-old sister.

Aside from this responsibility, it is beyond belief that he had not gone into every room in his home, all the way into every room of his home, including B.C.’s bedroom. [ 46 ] Contrary to Mr. Wolfe’s submission, the weaknesses in the accused’s evidence, as outlined above, were not a product of his weak or dependent character. In my view J.R.decided to deny the possibility of being alone with the complainant; he decided on a mendacious course of denial that precludes any finding that his evidence is credible.

I reject his evidence with respect to his conduct toward his sister. [ 47 ] Since the complainant’s father had no direct evidence implicating the accused I now turn to the evidence of the complainant, B.C.. The Crown’s case stands or falls with her evidence. I agree with Mr. Wolfe that her evidence is credible.

The question remains whether that credibility is merely superficial, as the defence contends, or whether it can withstand the scrutiny levelled at it by the defence and whether it can be believed and relied upon by me, to the exclusion of any reasonable doubt. [ 48 ] I propose to deal with the defence submissions, in the order they were summarized at paragraph [20]. [ 49 ] (

i) To begin with, the defence submits that as a person with a well-developed sense of personal space, who physically enforced her need in that regard while in secondary school, the complainant would not have allowed herself to be abused. This argument is unconvincing, it confuses cause for effect. B.C. was 11 when she says she was first attacked. Her current desire for personal distance is the result of her brother’s actions. Further, as discussed below, the complainant did not demurely wait for her brother to show up on Friday nights, as the defence submitted; at least she did not do so initially.

She testified that she took pains to avoid her brother but was not always successful in doing so. I will have more to say about her attitude towards these acts, subsequently.

[ 50 ] (ii) I agree with the Crown’s submission that as no claim of recent fabrication was advanced, the Crown was not permitted to lead what therefore were irrelevant prior complaints made by the complainant, not even for the purposes of narrative, beyond the complaint made to her guidance counsellor. Hence the inferences which the defence urges cannot be drawn. Moreover, the evidence as to what B.C. told her mother and what her mother understood from that telling is not before me. Further, the defence never confronted the complainant directly by suggesting her allegations were untrue.

Finally, the complainant credibly explained that she feared her father would act precipitously to his disadvantage if she made any disclosure to him. For all of these reasons, I draw no inference against the credibility of the complainant by virtue of any lack of complaint, recent or otherwise. [ 51 ] (iii) There is a contradiction between B.C.’s and her father’s recollections about when he returned home from soccer. In my view, those contradictions are not matters of significance. Each agrees that she was left alone for hours with J.R.. Each agrees that she was in bed when her parents returned home.

The precise time is of no significance in my view. It is clear that the accused had the opportunity to commit the offences as alleged by the complainant and no reasonable doubt about his guilt arises as a result of the contradictions in time referred to by the defence. [ 52 ] (iv) The next point raised by Mr. Wolfe is of more substance. The complainant testified that her parents never checked on her welfare when they came home but her father said he did every time. More significantly, her father said that he spoke to B.C. on the occasions when she was still awake in her room.

In my view, while I have considered this disparity of recollection, this contradiction between father and daughter is not of great significance. The father’s evidence is consistent with his daughter’s that she was asleep when he returned, at least half of the time, according to him. The issue is: Has the Crown proved the charges to the exclusion of any reasonable doubt? I am not left in a state of reasonable doubt about the guilt of the accused by virtue of this contradiction. The father’s evidence was disclosed.

No suggestion was put to the complainant that her father looked in on her half of the time or even often. I do not suggest defence counsel was obliged to make that suggestion. The accused is entitled to let contradictions mount and point to them individually or cumulatively as a basis for raising a reasonable doubt. But, in my view, as in the question of the issue of the time of parental return, this disparity in recollection does not raise a reasonable doubt in my mind. At least half of the time B.C.’s light was out and she was in bed when he returned, as she testified, on her father’s evidence. [ 53 ] (

v) The complainant testified that it was dark in her room while she was being attacked by her brother and so, as a result, she cannot describe any distinguishing characteristics of her brother’s genitals. Mr. Wolfe rightly notes that according to her father her bedroom light was often on when he came home, hence she had the opportunity to see her brother’s genitals, according to the defence submission. Her lack of description about them ought to cause the court to doubt her story.

Once again, the point drawn does not cause me to doubt her testimony, although the lack of detail is a matter I have pondered, as discussed below. That her light was on perhaps half of the times when her parents returned does not mean that her brother did not attack her on other occasions, when her father found her light off. Further, the evidence is not precise on whether J.R. was home on all of the occasions when her light was on when her father returned.

This contradiction, by itself, does not cause me to entertain a reasonable doubt about the accused’s guilt. [ 54 ] (vi) The defence asks: if these attacks were occurring as she alleges, why did she not, as one would expect, avoid having to be alone at home with her brother? Since she had recourses to safety the defence submits the proper inference is that she did not avail herself of them because there was no need as the attacks never occurred.

If all that she had to do to achieve safety was to go where she was welcome – to soccer with her parents, or to her grandmother’s or her aunt’s or her girlfriends, then surely she would have done so, if there was any truth to her allegations. There is much to be said in favour of the submission but it is not a full answer to these allegations. By that I mean the submission does not raise a reasonable doubt in my mind about the guilt of the accused. To begin with, the attacks initially occurred when she was not yet a teenager, when she was a tiny 11-year-old.

Further, before she could determine the pattern of attack and possible defences, the pattern had to develop. Further, the complainant testified that she did not always have someplace to go to. When the pattern developed she feared that telling her father about her brother’s behaviour would cause him to lash out at J.R. and be incarcerated so that she would lose her father. She believed that her mother knew about these attacks but did nothing to help her. Hence, she felt she had no other options.

Her response to her brother’s actions does not cause me to have a reasonable doubt about his guilt. [ 55 ] (vii) Likewise, B.C.’s failure to arm herself or physically resist her brother more aggressively than she did does not raise a reasonable doubt in my mind. The submission that if these attacks were occurring as she alleges, surely as she grew taller and stronger she would have resisted more violently or successfully, including by arming herself, is a stereotypical retort rejected by the authorities of R. v. D.D. and R. v.

Batte cited previously. [ 56 ] (viii) The submission that J.R.’s characterization, both by B.C. and her father, as a follower, as a person with a weak personality, makes it improbable that he would act as she alleges or be forceful enough to influence his sister to do something contrary to her wishes is unconvincing. When these attacks began, she was still 11 and he was 14. [ 57 ] (ix) The alleged inconsistency in her description of the events, viz on one occasion she said he made her take off her bra but earlier she said she did not wear a bra to bed does not raise a reasonable doubt in my mind.

I accept and believe B.C.’s evidence that J.R. and she engaged in sexual intercourse on numerous occasions. While the initial attacks were frightening to her and resisted by her, she concedes that on some occasions she let the act occur. I see no inconsistency in this disparity in her evidence that raises a reasonable doubt in my mind about the accused’s guilt. [ 58 ] (

x) The last defence submission seeking to have me either reject the complainant’s testimony or to be left in a state of reasonable doubt about the accused’s guilt as a result of her testimony is the submission that B.C.’s professed memory of these allegations is so fraught with uncertainty and vagueness that it would be unsafe to rely upon her evidence, and impossible to do so beyond a reasonable doubt. [ 59 ] In my view this is the most substantive defence submission. During her testimony the complainant repeatedly stated that her recollection of the events was poor or foggy or vague.

She said all of the following: • that she cannot remember much; • that her memory is blurry about the first attack;

• that she has no clear memory of the first attack as she actively tried to block it out and it was four years ago; • generally, she does her best not to remember what happened because it’s not something she wants to remember; • generally, it’s kind of foggy; • I can’t really remember much about it; • I just have pushed the memory back so often that I can’t really remember what exactly happened. [60] These admissions require me to carefully weigh the complainant’s evidence. Having done so, I am not left in a state ofreasonable doubt about the accused’s guilt.

I have previously rejected the evidence of the accused. I accept the evidence of thecomplainant that when she was still 11 and in grade six and when her brother had already turned 14, he forced her to submit to sexualintercourse on more than one occasion and he continued to inflict himself on her in that way numerous times during her grade seven yearand into her grade eight year. [61] That said, it is clear to me that as the complainant grew older she offered little or no resistance to her brother’s advances.

I do not find that she connived in or even that she condoned her brother’s attacks but by her own admission, at least near the end, shestopped actively resisting her brother, remaining an unwilling but passive participant in the act of sexual intercourse. [62] I accept the complainant’s evidence because it rings true to my ear. There are many elements and aspects to it that I findcredible. Those elements and aspects include the fact that when she was first attacked she did not realize what was being done to heruntil he entered her and she began to feel pain.

Those elements include her fear that disclosing to her father that his step-son wasviolating her might cause him to harm J.R. to the extent that her father would be jailed. I accept and believe that testimony; it makessense to me. Further, I accept and believe that the complainant believed her mother knew of the attacks but did not help her, given thather mother’s son was her assailant. That testimony also resonates in my mind as being true. Additionally, the complainant did not “gildthe lily” and exaggerate the force that the accused used against her nor did she exaggerate the extent to which she resisted him.

Indeed,she conceded that she gave him massages, which she knew was often a prelude to his assaults on her. Finally, she spoke of her worriesduring grade eight related to these assaults. She said quite believably that she wished her worries were more prosaic – that she could beconcerned about her hair or her clothes instead of worrying about being sexually assaulted by her brother. [63] In arriving at my judgment, I have not merely considered the defence submissions piecemeal.

While I have dealt withthem in a series to segregate out the various submissions made to me, I have considered the full and cumulative weight of the defencesubmissions with respect to the credibility of the complainant. I arrive at the same decision. I am not left in a state of reasonable doubtabout the guilt of the accused. I am satisfied to the exclusion of any reasonable doubt that J.R.committed the offences with which he ischarged. [64] I have had the opportunity to see and hear the witnesses.

One can get a flavour of the quality of evidence given by theaccused from the excerpts provided above – he was an unimpressive witness. Nonetheless, this is not a beauty contest and while thecomplainant was a more impressive witness than the accused, demeanour plays a subsidiary of roles in my assessment of the evidence.

More important than how the testimony was voiced I have considered the substance of it and how it stacks up with respect to the balanceof the evidence including where her evidence is contradicted by other evidence and where it is corroborated by other evidence. [65] In addition, in arriving at my decision I have considered and appreciate that “...the absence of evidence of motive tofabricate is not the same as absence of motive to fabricate. ... ‘it does not logically follow that because there is no apparent reason for awitness to lie, the witness must be telling the truth.’ ...the fact that a complainant has no apparent motive to fabricate does not mean thatthe complainant has no motive to fabricate.” R. v.

L.(L.) (2009), 2009 ONCA 413 , 244 C.C.C. (3d) 149 at [44] (Ont. C.A.) [66] Clearly I have not touched on every point raised in the evidence of the complainant. For example, I have not reviewedher testimony about when he used a condom and when he did not or her lack of knowledge about whether he ejaculated into her on theoccasions when he did not use a condom.

Her lack of such knowledge later in these events, once she appreciated what he was doingmight well have been of greater significance in my assessment of the evidence but those frailties are of little moment as they related tothe early attacks, on my assessment of the evidence and I have no doubt that those earliest attacks occurred as deposed to by thecomplainant. [67] Additionally, I appreciate the corroborating effect of the finding of boxes of condoms in the accused’s bedroom by hisfather and of the corroborating effect of much of the father’s evidence as to the accused’s means and opportunity to commit the offences.Having rejected the accused’s evidence, my judgment is that the accused is guilty as charged because I accept and believe the evidenceof the complainant to the exclusion of any reasonable doubt. [68] I find the accused guilty as charged.

Counsel can speak to what counts are to be conditionally stayed on the principle ofKienapple v. The Queen (1974), (SCC), 15 C.C.C. (2d) 524 (S.C.C.) and on what count a conviction is to be registered,in due course. Dated at St. Catharines, this 28th day of June, 2011. _________________________ J.S. Nadel, (O.C.J.)