2022 ONCJ 454, 2022 ONCJ 454

WARNING The court hearing this matter directs that the following notice 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1 ,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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 victim of the right to make an application for the order; and (

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

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

summary conviction.

CITATION: R. v. S.P., 2022 ONCJ 454 DATE: September 26, 2022 COURT FILE NO.: 21-Y015 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HIS MAJESTY THE KING -AND- S.P. Before Justice M. G. March Evidence heard on June 27 & 28, July 18 & 27, 2022 Reasons for Judgment released on September 26, 2022 Richard Morris………………...……………………….….Counsel for the Provincial Crown Joshua Clarke…...……………………………………………………………..Counsel for S.P. March, M.G., J. : Introduction: 1 . The accused, S.P., a young person within the meaning of the Youth Criminal Justice Act , stands charged that between January 23, 2002 and January 21, 2008 at the Township of Killaloe, Hagarty, and Richards, Ontario, did:

a) for a sexual purpose touch R.P. contrary to

section 151 of the Criminal Code of Canada (“the Code ”), and

b) commit a sexual assault on R.P. contrary to

section 271 of the Code . 2 . The trial proceeded over the course of four days. The accused, S.P. is the older brother of the complainant, R.P., his sister by just over 6 years.

3 . As with so many criminal trials, the issues for determination require a central focus to be placed on the credibility and reliability of the evidence of the witnesses called by both Crown and defence, especially in light of the historical nature of the allegations. The Relevant Evidence: R.P.: 4 . When she testified on June 27, 2022, the complainant, R.P., was 26 years of age. She was married with four children ranging in age from two months to eight years. 5 . R.P. was born on February x, 1996. 6 . She asserted that she had a good memory of certain instances which brought her brother, S.P., before the Court.

Prior to charges being laid against him, she recalled that she visited the Killaloe OPP detachment to provide a statement to police. 7 . The earliest memory R.P. had of a sexual encounter was when she was playing hide and seek outside in the yard of her rural home. Her brother, S.P., pinned her down near some rocks. He held her there. They were both wearing all their clothes and he started “humping” her. 8 . Her final recollection of S.P. sexually abusing her was when she had just turned 12 years of age. They were watching TV. He picked her up and carried her to his bed.

He began removing her pants and became angry when he saw that she was menstruating. 9 . When pressed for more details regarding the first incident, R.P. stated that she was in grade 1 and was approximately 7 years of age. Her mother, E.B., had left S.P. in charge of her. Her younger sister by 4 years, M.P., was napping in her crib. 10 . R.P. could not remember what she was wearing at the time of the occurrence. It was a hot day. S.P. was wearing a red T-shirt and baggy, athletic type shorts which went down to his knees. 11 . R.P. felt scared, uncomfortable and really hot. S.P. had wrapped himself around her.

She did not understand what he was doing to her. She recalled the grass about her. 12 . The event itself did not last long – only a few moments. When it abruptly ended, she got up and ran into the house. She brushed the dead grass off herself. She was scared for the remainder of the day. 13 . She did not know where her parents were, nor her two other older brothers. 14 . She did not talk to S.P. about it later, nor did he try to bring it up with her. She was nervous around him thereafter. He had taken care of her before and had not done anything of that sort in the past. 15 .

In total, R.P. reckoned that there were a dozen or so sexual incidents involving S.P. when she was between the ages of 7 and 12. 16 . S.P.’s sexual conduct toward her changed and intensified over time. 17 . In describing in greater detail the final incident, R.P. added that S.P. began touching her sexually in the living room. He then carried her up the stairs to his bed over his shoulder like a baby in a burping position. She did not recall anyone else being at home that day. 18 . She laid there as he pulled her pants partway down.

He then got mad and told her to get out after he noticed she was wearing sanitary napkin. 19 . On another occasion, R.P. was playing with a Polly Pocket birthday gift her sister had recently been given. It was a treehouse type toy. S.P. approached her and touched her over her clothing. He was on all fours. She was on her back. He began grinding on her and dry humping her. He took his pants down and asked her to kiss his penis. He kept coaching her and telling her what to do. He told her to use her hands and to put her lips all around it to see how far it would go in. 20 .

She did so and he held the back of her head and held her toward his crotch. She remembered her knees hurting as she was bent down on them. She did not understand why this was occurring nor what was happening. He then told her to “stop, stop stop.” He just left the room. 21 . She recalled that her sister, M.P., was watching TV in the living room. She had an episode of Barney on. R.P. testified that she felt sick afterward. 22 . R.P. then went to the living room to be with her sister. She was not sure if S.P. would come back and do it again to her. She remembered nothing else from that incident. 23 .

At the time, R.P. estimated that she was eight years of age in grade 2. 24 . Another time she remembered that S.P. began kissing her “like a make out”. He then told her he had to go. He told her he would be back. He went outside, got on a skidoo and left.

25 . When he returned, he sat her on his lap in front of a computer screen. They began watching porn. He told her to look at what they were doing and how she likes having his penis in her mouth. Then he said, “Let’s go try”. 26 . They went upstairs. He touched her. He pulled her clothes down and was fingering her. He asked her to give him oral sex. He said, “This time lick it till the white stuff comes out.” 27 . He began forcing his penis in and out of her mouth. She could sense liquid in her mouth and did not know if it was urine. He told her to swallow it and she did. That is when it ended. 28 .

She recalled that this incident occurred during the winter. She could not provide an exact date. She was able to testify that it occurred after the Polly Pocket event. She knew she was in grade 3. She was supposed to practise stepdancing that night. She was 9. 29 . The porn website that S.P. found on the family computer was called “drunkmoms.com”. It depicted a number of adult women drinking and doing sexual things. There were still images and videos. They watched for 10 to 15 minutes. 30 . The next incident which R.P. could recall involved S.P. calling her into the basement of the family home.

He asked her to perform oral sex on him. She could hear her parents upstairs. She knew if she could get up there, she would be safe. 31 . She managed to run up the stairs and left him there. He called her to come back, but she did not respond. She went to the living room and waited for lunch to be ready. She remembered that her parents and sister were getting the table set. 32 . On another occasion in the basement, S.P. and R.P. were in the cold storage area. He began pushing her head toward his crotch and told her to keep going till the white stuff came out. She heard a voice of someone calling them.

She ran to it. He was blocking the door and she had to get around him to get out. She could not recall what happened next. She reckoned she was 10 years of age and in grade 3. 33 . R.P. testified that both basement incidents occurred during summertime. For the second one, she remembered S.P. wanting her to wait until his pants were up before she left to go upstairs. 34 . R.P. characterized the occasion when S.P. made her swallow his ejaculate as the most intrusive. He added that there were other times when he would have her perform oral sex, but he would not ejaculate.

In total, she estimated that there were 8 or so occasions when this occurred. Other times it would go from him touching her to her rubbing him with her hand. It would not involve her putting her mouth onto his penis. 35 . R.P. recalled that when she went into grade 5 at age 10, S.P. went to Queen’s University in Kingston. The sexual touching nevertheless continued when he would come home for reading week. She reconfirmed that the last time he “interfered” with her was when she was 12. S.P. was 19. 36 .

When R.P. was in grade 3 and her mother was working as a school principal, she told her about what was occurring at the hands of her brother, S.P. and one of her other brothers, N.P. Her mother was in the living room on her laptop. R.P. told her, “Both S.P. and N.P. are touching me.” 37 . Her mother was initially silent. She then sighed and said, “I’ll talk to them”. 38 . R.P. did not witness her mother speaking to either S.P. or N.P. However, a new family rule emerged. No boys were allowed in the girls’ bedrooms and no girls were allowed in the boys’ bedrooms. 39 .

R.P. recalled that she had other exchanges with her mother thereafter about the sexual abuse she was suffering at the hands of her brothers. She wrote a letter and left it on her mother’s pillow. R.P. wanted to go to therapy. She did not know what happened to the letter. 40 . A week later, R.P. asked her mother, E.B., if she got the letter. Her mother told her she could not talk to anyone. If she did, E.B. would lose her job. 41 . R.P. recalled that she wrote that letter in grade 4. 42 . R.P. explained that her mother and she also shared a journal.

They would write in it and leave notes for one another that would travel back-and-forth. That practice began when she was in grade 3. 43 . R.P. added that she was frustrated. She wanted to get help outside the home. The rule regarding where boys and girls could go was spoken a lot, but not fully obeyed. S.P. continued to touch her in the living room and in the basement. Eventually, R.P. told her cousin, A.B. about the abuse. 44 . Specifically, R.P. told A.B. that S.P. and N.P. were touching her under her underwear. R.P. asked A.B. if her brothers did similar things to her.

A.B. responded that they never touched her like that. R.P. recalled that A.B. was angered and upset by the news. 45 . R.P. could not recall telling anyone other than her mother, E.B., and her cousin, A.B., about the sexual abuse. She did later tell a boyfriend in grade 10. She had also spoken to counsellors, therapists and a few priests as an adult about it. Once after a hockey game in Pembroke, she spoke about the abuse with her father. Apparently, he had raised it with her. It was, as R.P. described it, an awkward moment. 46 . R.P. testified that S.P. married in 2019.

Prior to the wedding, his fiancée, Na.P. wanted R.P. to participate in it. R.P. chose not to. However, she invited S.P. and his fiancée over to her house to explain why she would not. R.P. felt she owed it to Na.P. 47 . Under cross-examination, R.P. confirmed that she went to speak to police about the sexual abuse incidents on September 12, 2020. She was given an opportunity by police to provide a second statement and she did so several days later.

48 . She understood that police would take the matter seriously. She did not wish to withhold any information from them. She appreciated the need to be fulsome and complete. She did acknowledge difficulties with dates and ages in terms of her memory. 49 . As an example, she agreed that she could not remember the year that S.P. was born. She pointed out that she struggled in math. 50 . She conceded also that she may have told police that she was 6 years old when S.P. committed the first assault upon her. She agreed in giving her evidence to the Court that she would have been 7. 51 .

She acknowledged that one simply could not trust how old she thought she was when the incidents occurred. She was capable of mixing the timeline up. 52 . R.P. admitted to struggling with addiction as well. She was ‘out in the open’ about that issue. However, she stated that the ‘elephant in the room’ within her family was not drinking. It was sexual abuse. 53 . R.P. agreed that there was only one family computer when she was young. It was a desktop located in the corner of the playroom. The house was fairly open concept on the main floor. 54 . Everyone used the computer. Access to the Internet was dial-up.

She did not recall when the family upgraded to high-speed. 55 . As a general proposition, R.P. agreed that her family members were fairly close. The children were all busy with activities. 56 . She recalled that her father was their bus driver. In their early years, he was responsible for transporting all his children to and from school along with the other students. Her siblings and she would be the last to be dropped off at home. 57 . R.P. explained that the family lived on a 200 acre farm roughly. Her father was around often tending to it.

Her mother, especially after she became a school principal, was less so. 58 . R.P. added that she did not have a good relationship with her mother. She believed that she got into trouble with her often for not being good at piano, especially her studies in theory. 59 . When confronted with the suggestion that S.P. was never left in a caregiving role, R.P. was insistent that her oldest brother did babysit her. Her mother could not always be present to watch over her, nor presumably her father. If R.P. told the police S.P. did not babysit, that was incorrect.

If S.P. was placed in charge, it was just her younger sister, M.P., and her, who were left with him. 60 . R.P. agreed that when her first child was born, she would have her mother, E.B., babysit. On occasion, S.P. would watch her son as well. Since R.P. decided to go forward with her allegations to police however, her relationship with her family has been strained. 61 . R.P. added that S.P. lives with their parents. It was hard not to be around him over the years. 62 . R.P. insisted that S.P. was the first of her siblings to sexually touch her. He would pin her down, but otherwise he would not use force.

She was very uncomfortable with his penis in her mouth. It caused her discomfort, not pain. 63 . R.P. could not recall an instance where S.P. threatened her if she told anyone. 64 . When challenged as to the colour of the T-shirt S.P. was wearing during the first “humping” incident, R.P. agreed that she did not tell police it was red. What she told police was that she was 6 years of age; her brother was older. He pinned her down and rubbed himself on her. 65 . She agreed that she left out many of the details when she spoke to police.

She gave more while providing her evidence regarding the first incident in Court, such as that:

a) she ran 100 m;

b) his shirt was red;

c) she was scared, and

d) it was a very hot day. 66 . She added that when she spoke to police, she had a memory of those details, but she did not think they were important. 67 . She explained that she was a young child, who knew nothing about sex. She had no idea that there was a sexual purpose at all to what her brother, S.P., was doing to her. She denied that with the benefit of therapy, she came to understand the nature of his behaviour. 68 . She vehemently disagreed that it was roughhousing. She was clear - he was humping her body. S.P. was not playing. 69 . She reasserted that she ran away afterward, but he did not threaten her.

She was scared from having been pinned down. She wanted to get away from him. 70 . She agreed there were no adults in the house to assist her when the “humping” incident ended. Her parents were gone. She denied that she ever wrote down any of the details regarding the event in a journal or anything of that nature. She agreed that she was relying upon a 20-year-old memory of what occurred, but that it was true. It happened. 71 . She confirmed that the next incident was the kissing. She did not want it to happen. When S.P. left on the skidoo, she did not pick up the phone to call her mother.

72 . She was still worried about the kissing after he left. She was sure that when S.P. returned, they were able to watch porn notwithstanding the Internet connection was ‘dial-up’. She did not recall S.P. downloading the video. He pressed play on the website, and it did buffer. 73 . She agreed that her assertion that S.P. told her to lick it until the white stuff came out was a detail not provided to police previously, nor did she mention going up to S.P.’s bedroom with him. In addition, she did not tell police that:

a) he had ejaculated in her mouth,

b) she thought it was urine,

c) she swallowed it, and

d) she was supposed to be practising step dancing in the living room. 74 . She added that her recollection of being required to do her stepdance practice was how she knew she was in grade 3. 75 . When confronted that the incident did not occur, R.P. was adamant that it did happen. 76 . Regarding the Polly Pocket incident, R.P. believed she did speak to police about it. However, she agreed that in giving her testimony, she provided double the detail. She did not mention to police that:

a) S.P. was on all fours,

b) he was holding her head, and

c) he told her to suck it like a lollipop. 77 . She confirmed that it was the first time she saw S.P.’s penis. 78 . In explaining why she performed oral sex upon her brother, R.P. testified, “I did it because my brother asked me to do it.” 79 . Regarding the first allegation of S.P. trying to sexually engage her in the basement, R.P. acknowledged that everyone was home. She believed that if she could get upstairs, she would be safe. She reckoned that she would have been heard if she had yelled. 80 . She agreed that S.P. was physically bigger than she was. She would be unable to fight him off.

She confirmed that she told police it happened “one time”, not summertime. 81 . She added that she did tell police that the basement incident occurred around the same time as the porn incident. She agreed that, if that were so, they would have happened six months or so apart. 82 . R.P. acknowledged that the sexual activity between her brother and her involved only digital penetration and oral sex. It never escalated beyond that. There was never any intercourse. 83 .

Her attention was drawn to the passage from the transcript of the statement she gave to police where she said, “I think he wanted to have sex with me.” However, she did also tell police that he pushed her down. She did not believe it was particularly significant that she had not testified during her examination by Crown counsel how she thought he wanted to have intercourse with her. If he had had intercourse with her, then it would have been worthy of mention. 84 . She insisted that S.P. pinned her down. She felt it, but she was able to get away and overcome his resistance.

She agreed that she had a perfect opportunity to tell someone about her distress, but did not. She did inform her mother when she was in grade 3. 85 . Regarding the second incident in the cold storage area of the basement, S.P. told her to keep going till the white stuff comes up. It was distinct from the time when he pinned her down, and she was able to get away. 86 . The cold storage incident involved S.P. pushing her head up against his crotch and telling her, “Don’t stop, don’t stop”. 87 . She agreed that she only told police about one incident in the basement. 88 .

When it was suggested to R.P. that the porn, Polly Pocket and basement incidents did not happen, R.P. was adamant that they did. 89 . In respect of disclosing the incidents to her mother for the first time, R.P. did not agree that S.P. was called into the room immediately afterward. R.P. explained that if S.P. was 14 or 15 years of age at the time it was being discussed, it was the third time, or even later again, when the abuse was being talked about. 90 . R.P. denied that the kissing was the first sexual touching that occurred. 91 .

She denied as well that the second incident occurred roughly a month later when he wanted to see what a girl looked like, and she took off her clothes for him. 92 . R.P. agreed that thereafter, incidents of oral sex did occur as between S.P. and her, but she did not report it. S.P. did tell her it had to stop, and not to tell anyone, but R.P. did inform her mother. 93 . Upon disclosing to her mother, R.P. was told that her mother, E.B., would speak to S.P. and N.P. She believed E.B. did. There was a household rule change, but the incidents did not stop.

R.P. knew her parents would do something, but it happened again and again.

Following the verbal disclosure, she complained to her mother in a letter a few years later. Nevertheless, the inappropriate sexual touching continued still. 94 . In discussions about preparations to be made for S.P.’s wedding in the summer of 2018, R.P. agreed that she told S.P.’s fiancée, Na.P., about the abuse. R.P. confirmed that she was surprised when Na.P. told her she already knew. 95 . These discussions occurred in R.P.’s home. She had been drinking. She took out a journal in which her therapist had told her to write things down. R.P. did not utilize it to remember things, she testified.

Rather, it was to “work through things”. 96 . R.P. agreed that there had been a phone call to arrange the meeting between Na.P. and her. During the conversation they agreed to speak more of the past. 97 . R.P. explained that she wanted to let Na.P. know why she would not stand in the wedding. At the meeting at R.P.’s house, she handed the journal to Na.P., who skimmed it. R.P. had opened it to a page during one point of the visit, where she had written “intercourse?”. S.P., who had accompanied Na.P. to the meeting, suggested R.P. was mistaken. He ventured that someone else must have done those things to her. 98 .

S.P. asked R.P., “Do you not remember?” R.P. agreed that she did not remember if they had had intercourse. 99 . Regarding the final incident of sexual abuse that R.P. said she experienced when she was in grade 6, she agreed that it had been several years after the other sexual incidents she had described. She maintained that she was uncomfortable for the three years in the lead up to that incident. She had asked if she could leave the family home. She thought her aunt might take her in, but her mother would not allow her to go. 100 .

R.P. pointed out that she was under the age of 12 when she had the conversation with her mother about potentially residing with her aunt. R.P. testified that her mother knew that she did not feel safe or happy at home. 101 . R.P. vehemently disagreed that she made up the incident of S.P. first touching her over her clothing on her vagina, picking her up and carrying her to his room. She did agree that he shared that room with his brother, N.P. Her other brother, F.P., had his own room. 102 . The incident ended abruptly when S.P. saw her sanitary pad. She had not told him that she was menstruating.

She agreed she was passive in her conduct. 103 . Equally, R.P. denied that she had made a phone call to her mother in a drunken state prior to the commencement of trial where she declared “I’m going to get S.P. and N.P.” 104 . Under re-examination, R.P. confirmed that she was certain about what S.P. did to her irrespective of any problems she had with dates. 105 . She added that she began abusing alcohol at age 11. She now had better control over her drinking. She used alcohol to escape the sexual abuse. A.B.: 106 . A.B. testified that she is the first cousin of R.P. A.B. is 10 months younger than R.P.

The two cousins have known each other their entire lives. 107 . They would see each other regularly while growing up. A.B. described their current relationship as “good”. 108 . As young children, they would see each other weekly. They would go to Mass. Once per month roughly, they would stay over at each other’s house. 109 . Later, they both went to the same high school in Pembroke. 110 . A.B. knew R.P.’s youngest brother, F.P., well. Due to the difference in age, A.B. did not know as well R.P.’s older brothers, S.P. and N.P. 111 .

When A.B. was 15 and R.P. 16, A.B. remembered receiving a text from R.P. one evening indicating that R.P. needed to tell her something. R.P. went on to say that she had been sexually abused by her brothers, S.P. and N.P. 112 . It was A.B.’s recollection that R.P. indicated to her the abuse began when R.P. was five. R.P. was in grade 1 or 2 at the time. It had since stopped. Both brothers, S.P. and N.P., had moved out of their family home by that point. 113 . In attempting to recollect which year R.P. told A.B., A.B. believed it was around the spring or summer of 2012. She was surprised by it.

She had led quite a sheltered life. 114 . To A.B.’s mind, it answered some questions for her. She was aware that R.P. had abused alcohol from a very young age getting blackout drunk by herself in grade 8. A.B. knew that R.P. had struggled as well with mental health issues. 115 . A.B. advised R.P. she should speak to someone. To A.B.’s recollection, R.P. did so within the year. She tried to bring it up with her family members, but it was A.B.’s impression that it was swept “under the rug”. 116 . Under cross-examination, A.B. confirmed that she received no details from R.P. as to what the sexual abuse consisted of.

Nevertheless, A.B. did understand that she had written letters to her parents and put them under their door or on their dresser. A.B. was aware that R.P. had asked for help.

117 . A.B. conceded she was not 100% sure about timelines, but she was certain that R.P. had told her parents. A.B. knew that what had happened to R.P. was very wrong, abusive and needed to stop. R.P. had to find a path forward. She needed to speak about it, but she still lived in her parents’ household. 118 . By grade 10 when R.P. told A.B. about the abuse, R.P. was having less of a problem with alcohol. She found other outlets in sports such as rugby. 119 . A.B. denied that she was aware of any issues that the P. family had with alcohol. 120 .

A.B. was adamant that she did not wish for R.P. to keep quiet about the sexual abuse. A.B. continued to speak with R.P about the historical sexual abuse. The last time they spoke was two weeks prior to A.B. giving her evidence in court. 121 . A.B. asserted that R.P. did not speak to her about what her testimony should entail. She did concede that some months earlier, R.P. contacted her to let her know that she may receive a call from the police. However, A.B. had already given her statement to police by that point. 122 . A.B. added that she would be behind R.P. “no matter what”. 123 .

A.B. emphasized that she was neutral on whether R.P. should go to the police. A.B. wanted R.P. to pray and to consider what she needed to do to find peace. E.B.: 124 . E.B. is the mother of R.P., her three older brothers, S.P., N.P., F.P. and her younger sister, M.P. 125 . When E.B. testified on July 18, 2022, she was aware of the charges that had been laid against her son, S.P. 126 . E.B. is a retired teacher, who went on to become a school principal. She explained that she was someone who worked full-time during the day; however, she had various holiday breaks and summers off. 127 .

She continues to live in the home in which her husband and she raised their children. She confirmed that R.P. grew up in that house. R.P. did not move out until after high school some time following the birth of her first child. 128 . E.B. recounted that when R.P. was in grade 1 or 2, she came to her and told her that S.P. had been touching her. R.P. told her mother that she had been sitting on S.P.’s lap on a chair at the computer desk in the kitchen. E.B. was concerned because S.P. apparently had told R.P. that he was teaching her.

E.B. gathered that whatever had occurred, it was inappropriate because R.P. was upset. E.B. could see it in R.P.’s demeanour. 129 . E.B. could not remember whether R.P. told her specifically that S.P. had touched her privates, or whether E.B. assumed he had. R.P. clearly wanted to have the issue addressed. However, E.B. did not get the sense that the touching was ongoing. To her mind, it had happened in the past. 130 . E.B. was certain that R.P. had use the word “touching”. E.B. could not recall R.P. using gestures. 131 . E.B. reckoned that her conversation with R.P. lasted perhaps 20 minutes.

It could have been only five minutes. However, it did not take longer than an hour. 132 . E.B. wanted to talk to S.P. upstairs in her bedroom. That is where R.P. had disclosed the incident to her. S.P. came into her room after R.P. left, but E.B. could not recall whether she had specifically sent R.P. out before she called him in. 133 . E.B. commented that the disclosure was sufficiently significant that she would have put any other subject R.P. touched upon out of her mind. 134 . Similarly, E.B. thought her discussion with S.P. lasted some 20 minutes.

She told him that that type of behaviour toward his sister, R.P., can never happen again. 135 . E.B. recounted that her husband and she discussed afterwards the consequences that should flow as a result of what had occurred. She explained that living on a farm, S.P. had chores to do including helping with the firewood. Her husband and she made sure he had more work to do. They were also intending to limit his time on the computer and to restrict its use for schoolwork only. 136 . E.B. did not remember what S.P.’s reaction to being confronted was. 137 .

In terms of the timing of the disclosure, E.B. reflected that R.P. would have been in grade 1 or 2 so she would have been 6 or 7 years of age; whereas S.P. would have been in grade 7 or 8, so he would have been 12 in September and turning 13 in January. 138 . E.B. did not have a clear understanding, having spoken to R.P. and S.P., how long into the past the inappropriate touching had occurred. 139 . E.B. was referred to the transcript of the statement she gave to police.

In it, she agreed that she told the investigator that R.P. said S.P. was “touching her privates.” E.B. explained that “privates” means the bosom and vaginal area, what a woman would keep covered in public or when swimming. 140 . E.B. appreciated that when R.P. came to tell her about the incident, R.P. was coming to her for help. R.P. wanted action to be taken. What S.P. did to her had made her feel uncomfortable. E.B. believed what R.P. was telling her. As a result, E.B. was quite stern when speaking to S.P.

141 . E.B. did not believe that the touching was of a violent nature. 142 . Again, E.B. was referred to the transcript of the statement she gave to police. In another portion of it, she stated that “ . . . he [S.P.] apologized to her [R.P.]”. E.B. explained however that the apology came to her attention many years later. She did not witness S.P. offer an actual apology. 143 . E.B. re-emphasized that the discussion she had with R.P. and S.P. in her bedroom took place years after the fact. 144 . When E.B. learned of the incident, she was upset. Her husband and she took action. They dealt with disciplining S.P.

The computer was shut off. It was made clear to him that it must not happen again. 145 . E.B. estimated that R.P. was 5 or 6 years old in 2001 or 2002 when R.P. told her about the touching. 146 . E.B. did not recall having any communication with R.P. in writing. That type of exchange would have taken place in respect of another one of her brothers. E.B. and R.P. kept a journal for messages to be exchanged between them. E.B. thought that R.P. missed her, and that this was a way in which they could remain in contact. E.B. believed that form of communication commenced after R.P. complained about S.P. 147 .

When R.P. wrote in the journal, she left it for E.B. on her pillow. E.B. would reciprocate. 148 . A letter which E.B. wrote to all her children around Mother’s Day in May 2016 was put to her. In addressing R.P. specifically, E.B. wrote; “Because of your maturity and wisdom, it seemed to me sometimes that I was the child, and you were the mother. I realize that an unfair burden was put on you at a young age when I was absent. I am responsible for a great deal of wrong that has been done to you and know that I can never make reparation. That is the great accountability that I carry.

I hope that you see that you are not to blame.” 149 . In describing what she meant by the passage, E.B. acknowledged that when she spoke of the “great deal of wrong”, she was referring to the disclosure made by R.P. of what S.P., and later N.P., had done to her. E.B. felt that R.P. resented the fact that her mother was a working mom. E.B. was not around to accompany R.P. on school trips. E.B. forced her to continue with piano lessons. 150 . E.B. reckoned that R.P. felt as though she were “less” in a family of “brainiacs”. R.P.’s siblings went to university. She did not. 151 .

E.B. testified that she felt that sense of accountability still today as a parent who was not “exemplary”. 152 . When questioned about her use of the words “unfair burden” and “I can never make reparation” from her Mother’s Day letter of 2016, E.B. acknowledged that she was speaking of the abuse R.P. had suffered at the hands of S.P. and another brother. However, E.B. maintained that the second disclosure made to her by R.P. regarding further abuse she was forced to endure was in reference to her other brother, N.P. To E.B., it was clear that R.P. was not complaining about S.P. 153 .

An email of April 28, 2018, was then put to E.B. In it, she wrote: “It is my fault that you were neglected, and not helped when you were being abused. You brought a need to my attention, and I didn’t pay enough attention. I thought that I had addressed the need at the time. I am deeply sorry and grieved by my failure to do so enough. You were abused and neglected. You, who deserved it the least. For this, I understand that you harbour anger towards me. You have every right to do so. I can never go back and change how things happened. Daily, I wish that I could.

Daily, I am filled with sadness and knowledge of my greatest failure as a mother, to protect you. I realize that and it fills me with sorrow. I will never forget this. Please let me know if there is anything that I can ever do to make any measure of reparation, if that is possible. I don’t want to foist myself or attempts at reconciliation upon you. I have no right to do so. I have tried to respect your wishes that you don’t want to talk to me; if and when that changes, let me know. If you want to talk, let me know when the time is right for you. Let me know what you need for any reparation.

Although nothing will ever make it right or change the past. I realize that. I would like to make things better for your future.” 154 . In her testimony, E.B. went on to explain that the letter referred to her other brother, not S.P. To E.B.’s mind, R.P. had previously acknowledged that her abuse at the hands of S.P. had stopped. When pointedly asked by Crown counsel if “three years of radio silence” was good enough for her, presumably to demonstrate that S.P. was no longer sexually touching his younger sister, R.P., E.B. said “yes” it was. 155 .

E.B. acknowledged nonetheless that there would be times when she would receive telephone calls from R.P. where S.P.’s name would come up in addition to the other brother, N.P. Yet E.B. explained that R.P. never added anything about S.P. 156 . Those telephone calls, E.B. reflected, were difficult because the family was in the process of grieving the loss of her youngest son, F.P. R.P. would be drinking. She would try to get E.B. to say she was a bad mother. E.B. reckoned that her April 18 letter was an attempt to bring closure for R.P. 157 .

E.B. explained that most of the telephone calls dealt with N.P., but sometimes R.P. would go back and speak of what S.P. did to her. 158 . E.B. pointed out that there were interactions between R.P. and S.P. as the years went on. After their brother, F.P., passed away,

R.P. would organize a memorial golf tournament. S.P. and his wife, Na.P., would attend. 159 . As another example, E.B. recounted that occasionally, R.P. would light the candles on S.P.’s birthday cake. 160 . E.B. did recall that R.P. phoned her to ask if she was still intending to sell the family home to S.P. E.B. stated that R.P. was upset about that. 161 . R.P. also refused to go to S.P.’s wedding. She told her mother, E.B., that she wished that both her brothers, S.P. and N.P., were dead, instead of her brother, F.P. 162 .

Under cross-examination, E.B. remarked that she called the investigating officer in the lead up to S.P.’s trial because she was concerned. R.P. had asked her if she had received a subpoena. She went on to ask E.B. what she was going to say when she was called as a witness. R.P. asked her, “Which side of the courtroom will you sit on?” E.B. thought she would not have to choose a particular side of the courtroom to sit. 163 . R.P. went on to ask E.B. again if she intended to sell the family home to S.P. E.B. confirmed she would. 164 .

When asked if one could hear yelling from the basement while upstairs, E.B. confirmed that it would be possible. 165 . E.B. remembered that when the family obtained Internet service, it was originally ‘dial-up’. Eventually it was upgraded to high- speed, but because of where they lived, that did not happen until sometime later. 166 . In addressing the family dynamic, E.B. explained that R.P. was close to her brother, F.P. R.P. expressed a lot of anger toward E.B, N.P., S.P. and F.P. himself at the time of F.P.’s passing. F.P. died before N.P.’s wedding. F.P.’s death was hard on everyone. 167 .

E.B. reflected that she never saw anything untoward as between R.P. and S.P. when they were children. E.B. added that R.P. would have S.P. babysit her son. S.P. would take him to the tree stand. They would all play games together. 168 . E.B. emphasized that when she was not around, her husband was. He quit working full-time in Petawawa when their second son, N.P., was born. The decision was made that she would be the main breadwinner. 169 . E.B. was employed at the school where the children attended when they were young. S.P. was never directly responsible for babysitting.

E.B.’s mother would care for the children on an ‘as needed’ basis. 170 . S.P. skipped grade 3 at age 8 and went into grade 4. Prior to turning 18, he left for university. 171 . E.B. reemphasized that R.P. was 6 or 7 when she first told her about the sexual abuse. She was in grade 1 or 2 at the time. There was only one conversation R.P. ever had with E.B. about it prior to R.P. reaching the age of 18. R.P. never came back to E.B. as a child to complain that it was happening again. 172 . In E.B.’s view, she took it seriously when she first learned of it. She thought it had stopped. 173 .

The very night R.P. disclosed it to her, she spoke to S.P. before she spoke to her husband. 174 . E.B. confirmed that it was not possible that R.P. told her it was happening in 2004. R.P. was born on February x, 1996. She was adamant that R.P. was in grade 1 or 2 when she disclosed. 175 . E.B. believed that when the household rules changed about who could be in whose bedroom, N.P. and F.P. were brought into the discussion. E.B. did not recall R.P. being present when she spoke to her sons regarding the new rule. 176 . Afterwards, E.B. noted that her husband and she were more vigilant. 177 .

On the issue of an apology, E.B. testified that it took place years later when R.P. brought it up and S.P. made one. 178 . E.B. reconfirmed that when R.P. came forward with her allegations about sexual abuse a second time, it was only N.P. she was complaining about. R.P. was around 9 or 10 years old at the time. S.P. was roughly 15 or 16 years of age at that point and in grade 12 on the cusp of graduating from high school. 179 . E.B. maintained that the April 2018 letter dealt with the second disclosure which R.P. made about the sexual abuse. Her husband spoke only to N.P. about it. 180 .

E.B. agreed that she would not allow R.P. to quit piano. E.B. would sit with her to help her practice. It was a real source of contention between them. 181 . E.B. was aware that one of R.P.’s cousins was allowed to go and live with Aunt Edna. R.P. wanted to go too. At that point, E.B. believed that R.P. was in grade 9 or 10, around 14 or 15 years of age. 182 . In more recent years, E.B. noted that the phone calls she received from R.P. usually came regarding the sexual abuse when R.P. had been drinking. R.P. would be up and down, angry and distraught.

To E.B.’s recollection, they were fairly frequent after F.P. died. S.P:

183 . S.P. chose to give evidence in his own defence. At the time he testified on July 27, 2022, he was 32 years old. 184 . He continues to live in the family home he grew up in with his parents, and now resides there with his wife and son as well. 185 . He has been employed locally as a radiobiologist for the past 10 years. 186 . Reflecting back on his early childhood, S.P. stated that when he was 8 years old, he skipped grade 3 and went into grade 4. 187 . His father was a school bus driver for all of his elementary schooling. S.P. was never required to walk to school. 188 .

S.P. stated that he always found school easy. He would be able to complete his homework on the bus. 189 . Grades were important to his parents. S.P. graduated from high school with the highest academic average in his class. 190 . He was the eldest of 5 children his parents had. He finished high school at 17 years of age. He later graduated from university at 22 with an Honours degree after a five-year program specializing in biology. 191 . Growing up, he recalled that he was expected to do chores, but as the oldest amongst his siblings, he perhaps did more physical work with his father.

To his recollection, if he was not required to go to school, he was mostly helping his dad. 192 . S.P. asserted that he was never responsible for childcare. 193 . When he was very young, he had a room of his own, but as more siblings came along, he was expected to double up with his brothers. At times he was with his younger brother F.P. At other times he was by himself. 194 . In describing the layout of the family home, S.P. recalled that the living room was off the eating area. There was one communal TV, and a computer and a playroom off the kitchen eating. The main floor was all ‘open concept’. 195 .

S.P. could not remember when the computer was acquired. Access to the Internet was ‘dial-up’. It was still the same computer when he left for university. However, at that point, S.P. had his own laptop. 196 . S.P. recalled getting a Facebook account just prior to graduating from university. He explained that it was hard to upload photos. He noticed a big difference while at university in Kingston on his laptop with high-speed Internet service. 197 . From the location of the family computer in his home, S.P. commented that one would be able to see half the main floor. 198 .

R.P., S.P. testified, was the fourth child his parents had. She is six years younger than he is. He described himself as outdoorsy, whereas R.P. was not so much. She would play most often with his younger sister, M.P., and his youngest brother, F.P. 199 . S.P. told the court that his brother, F.P., died of a drug overdose. F.P. had battled substance abuse over a long period of time. Many of his family members struggled with addiction. His other brother N.P., had gotten into trouble in high school through drinking and drugs. 200 . R.P. developed an alcohol dependence and ended up in hospital.

S.P. commented as well that a couple of his uncles were heavy alcohol users as well. S.P. lost a cousin, who also struggled with drug addiction in Calgary, to suicide. 201 . For that reason, S.P. testified that he tries to keep his own alcohol consumption in check due to what he believed to be a genetic predisposition to substance dependence. 202 . S.P. readily admitted that he had engaged in sexual activity with his younger sister R.P. on four separate occasions. 203 . The first time he explained was when he was 10 years of age. He became curious about the female anatomy.

He had not as yet been taught anything about it in school. 204 . While his father was out shoveling snow, he recalled that his sister, R.P., and he were in the living room. He asked her if she wanted to kiss. She agreed and they did. They were both repulsed. They stopped after a minute or two. 205 . He believed this occurred in the winter of his grade 6 year during the months of either December, January February. At the time R.P. was 4 years of age; however, if it was past her birthday in February, she would have been 5. 206 . S.P. was clear that he brought the subject up.

He reckoned that neither one of them liked the kissing. They both use their mouths. That was the extent of it. 207 . S.P. could not recall where his other siblings were at the time. 208 . The second occasion took place within a week or two of the first. S.P. asked R.P. to accompany him to the bathroom upstairs. He told her he would like to see her body. He asked her to take her clothes off. She did so. 209 . While she was standing naked in front of him, he looked at her. He explained that he had a preconceived idea, and was a bit surprised, that she did not really have any breasts. 210 .

He then inspected her vaginal area. He looked at it closely. He did not do anything to it. As he put it, “I got a lot of information I didn’t expect.” 211 . He touched her with his hands on her thighs and asked her to spread her legs a little. He inspected, but did not touch her labia.

212 . The door to the bathroom was closed. He could not recall if it was locked. They were the only ones at home. 213 . He reckoned his examination of her took 5 minutes. R.P., in his view, did not show any signs of distress. 214 . The third occurrence transpired “shortly after” the second. S.P. reflected that he had remained curious. He had seen or heard something about a “blow job”. 215 . Again, he asked R.P. to go to the bathroom with him. She obliged. He asked her if she would put his penis in her mouth. She said, “Okay”. He then took his pants off. He placed his penis in her mouth.

He could not remember if she was sucking or blowing. 216 . He described the feeling he was experiencing as “weird”. He felt disappointed. It was not what he expected. 217 . The act of fellatio lasted for a couple of minutes. He then said, “Let’s just stop”. He put his pants back on. 218 . He remembered that all 4 incidents happened within a couple of months one another. He was in grade 6. He knew that because in grade 7, a part of the curriculum involved the study of human anatomy. He was the youngest kid in his class. His parents pulled him out.

He had to go to the library for the two or three lessons held on the subject. He thought his parents’ decision to withdraw him from the class during that period of time was stupid. He had already looked at the book the year before. 219 . To S.P., ‘blow job’ meant when someone performs oral sex on a male. 220 . S.P. explained that he had to tell R.P. what it was that he wanted her to try. He thought he may have had an erection at the time, but he did not know for sure. He was certain that there was no orgasm he experienced. It did not feel as good as he thought it would. 221 .

Regarding the fourth incident, S.P. recalled that it was quite similar to the third. His curiosity had not been satisfied. He asked R.P. again to come with him to the bathroom. He asked her if she would try again. As a result, she put his penis in her mouth. Exactly the same as on the third occasion, he thought he may have had an erection, but he knew he did not ejaculate. The act went on for a couple of minutes in duration. 222 . S.P. recollected that he had had erections prior to this period of curiosity, but he had not to that point experimented with masturbation. Nor had he had sexual intercourse. 223 .

He concluded that it was wrong what he was doing to his sister. He said to her, “We shouldn’t be doing this”. He asked her not to tell anyone. She agreed. To S.P.’s memory, she did not for years and years. Eventually however, she did tell. 224 . In commenting upon the accounts of sexual activity given to the Court by his sister, R.P., S.P. denied:

a) the “humping”/grinding incident,

b) the porn incident at the computer and later putting his penis in R.P.’s mouth,

c) the occasion in the basement where he was alleged to have pinned her down and blocked her path;

d) he denied there was ever anything untoward he did to R.P. in the basement, and

e) the act of attempted sexual intercourse when he was a university student and was home for a visit. 225 . When R.P. disclosed the sexual activity which was occurring when they were children, S.P. recalled that he was summoned to his parents’ bedroom. He did not know why. Both his parents were there, as was N.P. and R.P. Everyone was crying or had been crying. 226 . S.P. remembered that his mother, E.B., confronted him. She asked, “R.P. said you touched her. Is it true?” He admitted that he had, but he explained that it was in the past. He believed the incidents occurred 2 to 3 years previously. 227 .

S.P. testified that in his mother’s and his presence, R.P. agreed. 228 . E.B. did not go into specifics. She spoke very generally of touching. He was not sure why N.P. was present. He believed his father was there as well, but did not speak. 229 . E.B. then asked if it happened to his younger sister, M.P., as well. He denied it had. E.B. then told him to apologize to R.P., and he did. 230 . E.B. admonished him that nothing like that was to ever happen again. He assured her it would not. He then did not hear mention of the incident for many years. 231 .

He did recall that there was a new household rule that his sisters were not allowed in his room, nor was he permitted in theirs. 232 . S.P. believed that this conversation involving R.P., N.P. and his parents occurred in 2003 or 2004. He pointed out that he turned 13 in January 2003. He was sure that the sexual incidents involving R.P. and him occurred in either late 2000 or early 2001 when he was in grade 6. 233 . He could not recall whether he was still in elementary school, or whether he had started high school, when he was confronted by his mother. 234 .

The next time he remembered the subject being raised was in 2017 when his brother, N.P., was preparing for his wedding. He recalled that his sister, R.P., was causing trouble with the logistics.

235 . The following year in 2018, the subject came up again as his wife, Na.P., and he were preparing for their own wedding. R.P. contacted Na.P. R.P. wanted Na.P. to come over to R.P.’s place to discuss her participation. 236 . S.P. explained that he had previously told Na.P. about having sexually touched his sister, R.P., when he was a child. 237 . When S.P. and Na.P. arrived at R.P.’s house, it became clear that R.P. did not want to be involved in their wedding. Instead, R.P. wanted to discuss the historical sexual incidents with Na.P. 238 . R.P. had been drinking.

She had a journal that she wished for Na.P. to look at. Na.P. flipped through it briefly, but then gave it back. 239 . R.P. then gave it to S.P. When he perused it, he noticed that R.P. was speaking of other individuals. In relation to him however, she posed the question, “Intercourse?”. 240 . S.P. clarified for R.P. that sexual intercourse never happened between them. In response, R.P. said, “Yeah. I was just thinking about it.” 241 . S.P. further questioned her, “Do you not remember what happened?” She responded, “I was too young.” 242 .

In situating when this conversation took place between R.P. and him, S.P. said it was in the summer of 2018. His wedding with Na.P. occurred in June 2019. 243 . The journal R.P. produced during the meeting looked to S.P. like a diary. It was roughly 100 pages in length by S.P.’s estimation. He believed it had a title. Na.P. looked at it first very briefly, but R.P. motioned it toward him. 244 . Na.P. reassured R.P. that if she did not want to be involved in the wedding, it was okay. 245 . S.P. believed that from the time he was roughly 10 years of age, his relationship with R.P. was “normal”.

The subject of his prior sexual touching of her never came up. He went through school and university. He would come home for summers. Everything seemed fine and he began working a year later. 246 . When R.P. had her first child, S.P. remembered that he would help with the boy’s care, not as an infant, but as a toddler. Even after R.P. expressed her wish not to participate in his wedding, he still felt that the relationship between them was good. He helped her move into her first apartment. He attended a few events at her house. Overall though, the communication between R.P. and him became less frequent. 247 .

However, in 2017, he noted that R.P. was drinking a lot more after their brother, F.P., died. She would drop her children off to their mother for babysitting more often. At social events, she would drink alcohol excessively and pass out. 248 . Under cross-examination, S.P. readily agreed that the family household he grew up in was a busy one with his parents raising five children. His mother had a career as a teacher. His father was a farmer/bus driver/woodsman. 249 . S.P. did not have a lot in common with his sister, R.P.

They would share meals together, but otherwise their interests and activities were different. 250 . S.P. confirmed that there was never a formal requirement that he would have to watch out for and babysit his younger siblings. He conceded nevertheless that there may have been an informal expectation. 251 . When questioned about the first incident of experimentation he engaged in with his sister, R.P., S.P. pointed out that his father was only 60 feet away. He did not know where his other family members were. The kissing involved lip to lip contact.

He did not believe that either his sister or he used their tongues. 252 . He did not think that he was holding her, or that their respective hand placements were of any significance. He could not remember if the TV was on or off. He believed it occurred in the afternoon after school. 253 . Regarding his curiosity with female anatomy, he repeated that he was surprised to find that R.P. did not have breasts at age 4 or 5. He could not recall exactly what he expected to see. He agreed that when she was really young, he would have seen her with only a diaper on, but that was rare.

He did not recall an occasion where he would have been in the room when one of his sisters was having a diaper change. 254 . He remained a “little bit surprised” that R.P. did not have breasts. He did not recall if he had seen by this point a developed breast or not. 255 . He did not recall what she was wearing when he brought her up to the bathroom to inspect her. He did state that more often she wore sweat clothes or jeans than dresses. 256 . He believed that the second incident occurred within two weeks of the first. He knew that all incidents happened in close proximity to one another.

There was no renewal of the kissing. He believed they were alone. He invited her up to the bathroom. He thought he would have enough time to take the opportunity to look at her. He wanted to see what her naked body looked like. There was no reciprocity. She did not ask to see his. Nor did he offer. 257 . Although he had her move around, there was very little in the way of repositioning. He touched her with his hands “a little bit”. He placed his hand on her thigh to see her vagina. Essentially, he agreed that he was looking, but not touching.

He agreed that he was aware that if his parents or siblings were around, he would not be doing what he was doing.

258 . He agreed that as children, they were not to be walking around naked, but he did not understand the full scope of how wrong his behaviour was. 259 . Regarding the third incident of admitted sexual touching on his part, S.P. believed it occurred within two months of the second one. It was sometime after the kiss and his examination of her. 260 . He had found out about “blow jobs” from another kid at school, but he was not completely certain as to how he learned of what was involved. He did know enough to ask his sister to put his penis in her mouth.

He explained however, that the feeling he thought he was going to have, was not what materialized. He thought it would feel good. It did not. 261 . Regarding the fourth incident, he agreed that he was still curious and wanted to try again. He remembered it all happening within a 2 to 3 month span. He was sure that his sister, R.P., and he were the only ones at home. They went to the same bathroom as on the first occasion. It was just him who undressed. He took his pants and underwear off completely. He was not sure about his socks. 262 . S.P. could not recall any specific instruction he gave to his sister, R.P.

The whole incident lasted from 5 to 15 minutes. He recalled that his penis was in her mouth for approximately 5 minutes. He may have had an erection, but he was not sure. There was no orgasm or ejaculation. 263 . Both the third and fourth incidents where he had his sister perform fellatio upon him occurred, he believed, after school. 264 . S.P. reaffirmed that he was never disciplined by his parents with regard to his behaviour for some years later. He had come to his own conclusion that what he was doing was wrong, so he stopped. He did not remember how he came to that realization.

It was not as a result of R.P.’s changed behaviour, or her reaction to him. He did nevertheless acknowledge that he asked her not to tell. 265 . S.P. was certain that the incidents happened in the winter of his grade 6 year when he was 10 years of age going on 11. He knew this to be true because his parents had pulled him out of the classes where human anatomy was to be taught. He was bullied as a result. He was sure that the incidents with R.P. had already occurred by this point. 266 . S.P. added that he was not sure if his curiosity then stopped completely.

He clarified that it was just no longer directed at his sister. It was not until later that he learned how wrong his behaviour was toward her, but he did not know why or how he became so aware. 267 . He testified that it was 2, or perhaps 4 years later, that he was called into the master bedroom by his mother to be confronted about the sexual touching of R.P. He was not able to remember if he was still in elementary or high school by that point. 268 . He believed that his parents, N.P. and R.P. were already in the master bedroom when he entered.

He admitted to touching R.P. sexually; however, the account he provided to his mother dealt with his perspective on time. It happened years ago. He believed it was 2 to 4 years following the fourth incident. 269 . S.P. testified that it was not until 2017 that he found out about R.P.’s allegations that his brother, N.P., had sexually abused her. S.P. acknowledged though that N.P. was present in his parents’ bedroom when S.P. himself was confronted. He agreed that he did not know why N.P. would be present in the bedroom too if he had not been involved somehow in the allegations being made by R.P. 270 .

As a consequence of his conduct toward his sister, R.P., he was told by his mother that he was not allowed to go in his sister’s room. He added that he did not anyway. 271 . When pressed on what he told his then fiancée, Na.P., about what had occurred between R.P. and him, S.P. stated that he was vague. S.P. told her, in late 2017 or early 2018 before they were engaged, but after the relationship had become serious, when R.P. was young and he was 10 or 11 years old, he asked her to put his penis in her mouth. She did. Na.P. did not question him further about the events. 272 .

S.P. agreed that part of the reason why he told Na.P. about what he had done to R.P. was because he did not want Na.P. to hear it from anyone else. 273 . S.P. denied that he was aware of the nature of any discussions occurring between his mother and R.P. about the letters or the messages they exchanged. However, he did become aware of what N.P. was alleged to have done to her around 2018, when N.P. was getting married. Na.P.: 274 . Na.P. is the wife of S.P. The couple married on June 8, 2019. Together they reside with S.P.’s parents in the home where S.P. and his siblings were raised. 275 .

Na.P. testified that she knew S.P.’s brother, N.P., and his sisters, R.P. and M.P. 276 . Na.P. gave evidence that she became aware of inappropriate touching of R.P. by S.P. in February 2018. S.P. told Na.P. that it was a serious matter. 277 . Based on what S.P. told her, Na.P. believed it occurred only a few times. She listened in shock and took some time to process it all. She understood that no physical harm was done to R.P. 278 . In May 2018, Na.P. and S.P. got engaged. A week later, Na.P. received a telephone call from R.P.

R.P. wanted to let her know about something which occurred between S.P. and her when they were young. Na.P. felt that R.P. seemed shocked to learn that Na.P. already knew. 279 . By August 2018, Na.P. and S.P. were preparing for their wedding. Na.P. asked both of S.P.’s sisters, R.P. and M.P., to stand in the

wedding. In response, R.P. texted Na.P. requesting she come to R.P.’s home. 280. Na.P. understood that R.P. had had issues with her brother, N.P.’s earlier wedding. 281. When Na.P. and S.P. attended at R.P.’s house, Na.P. noticed that there were some empty bottles. It appeared to Na.P. that R.P. hadbeen drinking. Her boyfriend, T., was with her. R.P. explained that she had been seeing a therapist, who suggested to her, that she shouldwrite in a journal. She was trying to get things under control. She had recently undergone a change in her medication as well. 282. R.P. handed the journal to Na.P.

Na.P did not read anything in substantial detail. Upon S.P. perusing it for a longer period, some 2to 3 minutes after Na.P. handed it to him, he challenged R.P. that what it contained was not true. Na.P. attributed to R.P. a reply inresponse to S.P.’s confrontation, “No. I don’t remember. This is why I was doing it [journaling].” Na.P. stated she did see the word,“intercourse”. S.P. specifically confronted R.P. that that incident was not true, nor were her other “stories”. 283. S.P. then apologized to R.P. and told her he never meant her harm. 284. R.P. insisted however that she would not stand in the wedding.

Na.P. testified that S.P. and she were fine with R.P.’s decision notto participate. 285. Under cross-examination, Na.P. conceded that she did not know which stories in R.P.’s journal that S.P. was reading. Nor wouldNa.P. know about the truth of any such stories. The Law 286. Fundamentally, this case must be decided on an application of the well-established principles set out in R v. W.(D.), (SCC), [1991] 1 SCR 742.

In W.(D.), Cory J. recommended that trial judges presiding over criminal trials with a jury, where theaccused testified and denied an element of the offence with which he was charged, ought to instruct the jury as follows to guide theirdeliberations: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Trial judges sitting alone, of course, must instruct themselves precisely in the same manner in making findings of credibility on thewhole of the evidence adduced. 287. In a relatively recent, unreported case, R. v. C.S., I touched upon some of the core tenets of the criminal law. Jurists, in my view,should always hearken back to them. The Fundamental Principles: 49.

In R. v. Ghomeshi

(2016) ONCJ 155 at paras. 120-124, Horkins J. reviewed the cornerstone principles, which apply to allcriminal trials in Canada as follows: “[120] The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In thiscase, however, it is important to state this framework clearly. It plays the central role in the determination of this matter. The Presumption of Innocence [121] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamentalprinciple of our criminal justice system.

It is essential to understand that this presumption of innocence is not a favour or charity extendedto the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law is thefundamental right of every person accused of criminal conduct. Proof Beyond Reasonable Doubt [122] Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure aconviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of "proofbeyond reasonable doubt".

This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance ofprobabilities. [123] The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of "reasonable grounds to believe"that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being "areasonable prospect of conviction". In civil litigation, a plaintiff need only establish their case on a "balance of probabilities”.

However tosupport a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proofbeyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that.Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

[124] The expression proof "beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court ofCanada outlined a suggested model jury charge in R. v. Lifchus. This is the definitive guide for criminal trial courts in Canada. It is worthsetting out here verbatim: • The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It isso engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. • A reasonable doubt is not an imaginary or frivolous doubt.

It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. • Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. • On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so.

Such a standard of proof is impossibly high. • In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict sincethis demonstrates that you are satisfied of his guilt beyond a reasonable doubt. Assumptions, Expectations and Stereotypes: 53. Any attempt by a trial judge to determine the manner in which a sexual assault victim ought to behave is fraught with problems. Paperney and Schultz JJ.A. in R. v.

A.R.J.D. [ 2017] ABCA 237, (aff’d on appeal to the S.C.C., 2018 SCC 6 , [2018] 1 S.C.R.218), reviewed and explained the many flaws in logic and reason where courts have erroneously embarked down this path at paragraphs57 to 60 as follows: “[57] “Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assaultfor generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and wouldthereafter not associate with the perpetrator.

In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216.

To the extent that such stereotypes or myths are reliedupon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327. [58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such,cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behavedifferently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalizebehaviour for any number of reasons.

This record speaks to those reasons—the complainant resided in the home of the allegedperpetrator and in her words, it “changes everything . . . [w]hen people know”.

While it might appear logical to suggest that a victim ofsexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealingwith a child complainant, is simply incorrect. [59] In substance, the trial judge’s requirement that this child display corroborative evidence through expected confirmatorybehaviour was akin to a throw-back to the long abolished and wholly discredited “rule” about warning juries of the danger of convictingin child sexual assault cases without corroboration of the victim’s testimony.

Not only did this baseline of reasoning erroneously place anunfair burden on the complainant to provide such evidence, but the expectation was inextricably rooted in a stereotypical notion of how atypical child, and sexual abuse victim, ought to behave.

Adding to this incurable defect was the trial judge’s failure to take into accountthe whole of the complainant’s testimony, through which she provided at least some evidence of how the alleged abuse had affected her—that she became a “closed person”. [60] “As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . .have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions ofsexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para 119, .

The essence of this dicta isthat judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any lessso in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely addjudicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’sacquittal.” Credibility vs. Reliability: 288. In R. v. Ross

(2021) NSPC 54, Bégin J. succinctly explained the distinction between credibility and reliability as follows: [14] Credibility and reliability are different. Credibility has to do with a witness’s veracity, whereas reliability has to do with theaccuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recountevents in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. [15] Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliableevidence.

Reliability relates to the worth of the item of evidence, whereas credibility relates to the sincerity of the witness. A witnessmay be truthful in testifying, but may, however, be honestly mistaken.

289 . I shall take into account, of course, the above legal principles in analyzing the evidence I have heard during S.P.’s trial. Analysis: Do I believe the evidence of S.P.? 290 . In assessing the credibility of S.P.’s testimony against the backdrop of the totality of the evidence called at his trial, I must reject it. I do so for several reasons. 291 . Firstly, S.P.’s defence centred on his youth at the time he admittedly touched his younger sister, R.P., inappropriately when she was incapable of legally consenting to any sexual activity. 292 . S.P. maintained that he was 10 turning 11 when the four incidents about which she testified occurred.

Section 13 of the Code provides: No person shall be convicted of an offence in respect of

an act or omission on his part while that person was under the age of 12 years. 293 . S.P. anchored his recollection that he was under the age of 12 years to when the study of human anatomy, and presumably sex, was being taught to him in elementary school. His parents would not allow him to be instructed on the subject. They pulled him out of class when it was taught. S.P. claims he was bullied as a result. 294 . His mother, E.B., gave evidence at his trial, but was not cross-examined by S.P.’s counsel, as to her decision to remove S.P. from that portion of the curriculum. 295 .

S.P.’s capacity for belief on this point did not require corroboration, of course, but it seems odd that his mother was never asked about extraordinary steps taken by her and her husband as parents to prevent S.P. from receiving education on the topic of human anatomy. It was not something S.P.’s mother, E.B., would have been likely to forget. 296 . Frankly, I disbelieve S.P.’s testimony that he was certain he was below the age of 12. The incidents were conveniently clustered together within roughly a three month time period prior to S.P.’s 12 th birthday.

According to S.P., his curiosity in sex appears to begin at age 10. It does not subside. He pursued his interest in the female body at the expense of his sister, R.P. He knew to secret her off to the bathroom. He was conscious of how wrong it was to use his sister as a specimen for observation and exploitation. I reject his explanation that he did not understand how wrong it was until later. He did not explain how his knowledge of its moral blameworthiness seemed to expand thereafter. 297 . In essence, the brevity of his curiosity in his sister rendered his account of the four incidents most incredible. 298 .

Secondly, I wholly disbelieve S.P.’s “surprise” at not seeing more developed breasts on his sister, R.P., during the second incident of sexual experimentation when he wished to inspect her naked body in the upstairs bathroom. This fact ought to have been obvious to him whenever she wore any relatively tight fitting, upper body garment such as a T-shirt, a sweatshirt, a dress, pyjamas or any other type of typical clothing that a 4 to 8 year-old girl would wear. 299 . Thirdly, I cannot accept that S.P. would not have ever seen what a female looked like naked from the waist down.

It seems unfathomable to me that S.P., as the oldest of the five siblings with two sisters younger than him by six or more years, would not have seen them as toddlers during a diaper change or after a potty accident, where one of his parents would have attended quickly to the situation on the spot. 300 . Fourthly, S.P. testified that he did not know of the allegations R.P. made of sexual abuse she suffered at the hands of his brother, N.P., until 2017, presumably when N.P. was get

[…]