R. v. J.V., 2016 ONCJ 399

WARNING The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. CITATION: R. v. J.V. , 2015 ONCJ 815 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. J.V. and P.V. Before Justice David M. Paciocco – Ottawa, ON Decision Released July 14, 2015 Mrs. M. Cunningham ……….……………………………………………………..for the Crown Mr. G. Barnes …..…………….…………………………..…………………for the Accused, J.V.

Mr. W. Murray …………….………………………..………….…………for the Accused, P.V. Paciocco J. I. Introduction [ 1 ] P.V. and J.V. were tried before me on 22 counts alleging the most despicable and odious physical and sexual abuse allegations imaginable. The complainants are their daughters, KI.V. and K.V., and the various charges together span a 10 year period. KI.V., now 21, would have been between 4 and almost 16 years of age during the charging period.

K.V., now 22, would have been between 5 and almost 17 years of age. [ 2 ] These young women testified to almost daily intercourse with their father, J.V., during that period, and being subjected to other sordid sexual indignities by him.

The sexual offence charges against P.V. are based on allegations that she both assisted in the sexual assaults by bringing the girls to their father’s bed, and by participating actively, on one occasion, during a sexual assault on each of the two complainants. [ 3 ] The physical abuse charges against J.V. include what can only be described as allegations of a sadistic pattern of gratuitous torture against his daughters.

The charges against P.V. include assisting him in some of these acts, as well as excessive disciplinary force, including in an effort to intimidate KI.V. and K.V. into silence about the horrors they were allegedly subjected to in their home. [ 4 ] The precipitating event leading to the charges being laid was an attempted suicide, on February 1, 2014, by KI.V.. KI.V. almost succeeded. She hung herself from a tree in the back of the family farm property with an electrical cord. She was found unconscious, barely breathing. Initially she was not expected to live.

Days later she awoke from a coma to learn that her sister, K.V., had told a hospital social worker that they had been abused by their parents. Ultimately KI.V. told the hospital worker the same thing. By March 20, 2014, both young women made police statements, leading to this trial. [ 5 ] The factual allegations that KI.V. and K.V. made are so obviously criminal that there are no issues of substantive law to be resolved.

There are evidentiary holdings to be made in deciding this case, but beyond that, this case is about the credibility and reliability of each complainant in light of all of the evidence, and whether in light of the evidence the Crown has proved any of the offences beyond a reasonable doubt. [ 6 ] Before describing and evaluating the evidence in more detail, there are a number of evidentiary issues that require comment, disposition, and clarification. II. Admissibility Issues a.

The Admissibility of Children’s Aid Society records [ 7 ] On June 23, 2015, I released a decision admitting into evidence three packages of records compiled by Children’s Aid Societies that were involved, during the relevant period, with the V. family. These records had been obtained by the defence after a third party records application, and admission was sought by counsel for P.V..

I found the records to be admissible pursuant to the common law “business records” exception to the hearsay rule, more formally known as the “declarations in the course of duty” exception. [ 8 ] I ruled that those records are admissible to prove the observations recorded by the record-makers, including the receipt of complaints and the conduct of interviews. This ruling permitted counsel for the V.’s to rely, where relevant, on what the records fail to record but could reasonably be expected to have been recorded, if it were true.

It also enabled counsel for the V`s to confront the complainants with comments attributed to them that defence counsel considered to be inconsistent with their evidence. [ 9 ] I ruled, however, that I cannot rely on what the record-makers were told by others, as this would involve the proof of “double hearsay.” Exceptionally, if the information supplied to the record-makers had its own indicia of reliability, such as where the person providing the record-maker with the information was themselves under a business duty to the organization keeping the record, this second-level hearsay could be relied upon.

This part of the ruling did not have to be acted upon in arriving at this decision. The Crown indicated that it was not seeking to rely on any of the double hearsay, and the defence has not identified any double hearsay information that they wish to have admitted for the truth of its contents. [ 10 ] The Crown has not sought to address the voluntariness issue relating to any comments in the records attributable to P.V. or J.V., and therefore such statements cannot be used by me for any purpose in this trial, and I have disregarded them. b.

The Admissibility of Electronic Records [ 11 ] I have also issued a separate ruling bearing today’s date, admitting into evidence various “electronic records.” Specifically, the V`s did not consent to the admission of three electronic communications that the complainants testified they had with J.V. and P.V.. I admitted these “electronic records,” however, after the Crown proved their authenticity and compliance with the “best evidence rule for electronic documents,” housed in subsections 31.1 and 31.2 of the Canada Evidence Act , R.S.C. 1985, c.C-5, respectively.

I was also satisfied on the balance of probabilities that those records contained communications with the accused persons. Comments that are attributable on the balance of probabilities to an accused person put into evidence by the Crown can be used as evidence against that person, or for that person, but not against the other accused person. Comments attributable to the complainants cannot be used to prove the truth of what those statements claim unless those comments satisfy a hearsay exception.

Those comments can be used, however, to give context and, in appropriate cases, meaning to the responses made by accused persons. c. Use of Prior Consistent Statements

[12] During the course of this trial, I permitted evidence to be led about the history of complaints made by the complainants, KI.V.and K.V.. Some of this evidence includes prior statements made by the complainants, consistent with their testimony. This evidence wasadmitted by me, without defence objection, after it was made clear to me during the third party records application that the accusedpersons had made a tactical decision to rely on the failure by the complainants to complain, in order to challenge their credibility.

I ammindful that I cannot use evidence of any prior consistent statements made by the complainants, either as an indication that theirtestimony must be true, or as evidence that corroborates what they said in the witness box. Repetition is not proof of the truth, nor doesrepetition stand as independent confirmatory evidence of what is being claimed. Evidence disclosing the history of complaints made bythe complainants can be used by J.V. and P.V., however, to challenge the credibility of testimony by those complainants about whatcomplaints they made.

Subject to the abrogation of the recent complaint document in the Criminal Code,

section 275, the history ofcomplaints is also admissible to invite relevant inferences that the allegations are untrue, or to permit the Crown to rebut any suchchallenges. d. Bad Character Evidence [13] The Children’s Aid Society records include information that reflects discreditably on the character of the two accused persons,some of which does not relate to the specific allegations charged. So, too, do the electronic documents, and some of the contextualnarration provided by the witnesses.

No effort was made by the Crown to have such information admitted in this case pursuant to thesimilar fact evidence rule to support substantive inferences. I have therefore cautioned myself that I cannot rely on such evidence to drawinferences against J.V. and P.V.. [14] The Crown has, however, brought an application to have the “count to count” information available as similar fact evidence. Inother words, the Crown is asking me to consider evidence relating to each charged act of misconduct by the accused persons when Iadjudicate each of the other charged acts of misconduct.

Specifically, the Crown contends that evidence relating to the conduct of anaccused person on one charge, is useful in proving the actus reus of the other charges facing that accused person. [15] The admissibility of evidence reflecting on the discreditable character of accused persons is brokered through the impreciselynamed “similar fact evidence rule.” This rule is intended to prevent the prejudice that is caused by judging individuals based on theirgeneral character rather than on probative evidence, and to prevent trials of the specific allegations charged from becoming distractedand confused by evidence relating to the alleged conduct and character of the accused on other occasions.

Given these concerns,evidence that the accused has engaged in discreditable or criminal acts or is otherwise of discreditable character is presumptivelyinadmissible. To overcome that presumptive inadmissibility, the onus is on the Crown to satisfy the trial judge, on the balance ofprobabilities, that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs thepotential prejudice and thereby justifies its reception.

If this rule is applied properly as a strict rule of admissibility, evidence that does nomore than invite the general inference that the accused is the kind of person who is capable of committing the offences charged, or whowould commit such offences, will not be admitted. Even when evidence disclosing the discreditable character of the accused is admittedto support other proper, specific inferences, it is only to be used for those inferences and not to draw the prohibited general inferencedescribed: R. v.

Handy (2002), 2002 SCC 56 , 164 C.C.C.(3d) 481 (S.C.C.). [16] When the Crown attempts to use this rule to prove discreditable or criminal acts of the accused that are not alleged in the chargesbefore a court, the similar fact evidence rule is applied to determine whether that evidence will be heard at all. In this case, however, theCrown has not asked me to rely on uncharged conduct by J.V. and P.V.. As indicated, it is asking that I use evidence admitted to proveeach count, in adjudicating the other counts.

In multi-count cases where this is the request, the similar fact evidence rule does notdetermine the admissibility of such evidence. The evidence is already necessarily received so that the Crown can endeavour to prove thecount to which that evidence relates. Instead, the similar fact evidence rule governs whether the evidence relating to one count can berelied upon by the trial judge in adjudicating the other counts.

It is therefore appropriate, in this case, to postpone further consideration ofthe similar fact evidence rule until I begin to analyse what to make of the admissible evidence, for it is only at that stage that the similarfact evidence rule contributes to this case. III. The Evidence a. Background [17] The V. family is comprised of the accused persons, the two complainants, K.V. (22) and KI.V. (21), and two siblings born 4 and5 years after KI.V.. When in the Ottawa area during the period covered by the information, the family lived in a succession of large ruralhouses.

All but possibly one of the homes were owned by J.V.’s parents, who lived with the family. For an undetermined time, ahomeless man, L., also lived in the furnace room in the basement of a home in Osgoode, Ontario. [18] The uncontested evidence before me is that J.V. and P.V. did not work outside the home. They collected public assistance, andoperated an online business buying and selling antiques, predominantly toys.

The accused persons themselves led evidence in this casethat much of their business activity was fraudulent, and that in the later years they enlisted KI.V., who, although not paid, would assist inboth legal and fraudulent business transactions.

When word got out on the internet that J.V. and P.V. were committing internet fraud,they conducted business through accounts in KI.V.’s name, and when they acquired a home in Prince Edward Island, they put that homein her name as well, because of their poor credit rating. [19] It is not contested before me that the money that was brought into the V. home was used predominantly on drugs, primarilycocaine, for both J.V. and P.V., who have serious addiction problems. J.V. also abused alcohol.

This information has been employedtactically by the defence to help explain why K.V. and KI.V. would bear animosity against their parents, and make what defence counselcontend are false allegations. [20] It is also agreed that the family was poor, and the children hungry. The parents fought with each other, and they argued with thegrandparents. Evidence led by P.V. during cross-examination is that J.V. controlled her, including by frequent physical abuse. Children’sAid Society involvement was frequent. Again, this evidence has been relied upon by the defence to underline the horrid upbringing the

girls had, irrespective of the alleged offences, providing the complainants with motivation to now make scurrilous, false allegations against the accused. b. Evidence Relating to KI.V. i. KI.V. on Physical Abuse [ 21 ] KI.V. testified that she has no memory of a time when her father did not physically and sexually abuse her. She testified that she was always in the company of her father, who controlled her completely, and called her abusive names.

She said that he would vacillate between telling her he loved her, and calling her, most commonly, a “slut,” or at times a “whore,” or “cow” or “pig.” [ 22 ] KI.V. described, essentially, two kinds of physical abuse, “evil fun” and what I will call “disciplinary beatings.” [ 23 ] KI.V. explained that “evil fun” was a term her father used for a number of activities that he would force the children to do, which would cause them pain and which she attests that he found amusing. The tamer stuff involved forcing the children to do exercises.

KI.V. said she had to do crunches, and stand in the corner and run without stopping. She described how he would force the children to climb trees, she believed in the hope they would fall out. He would make the children fight aggressively, including punching each other in the face, and kicking each other, and poking each other in the eyes. He would push the children into bee’s nests to watch them get stung, which he found amusing.

She also described how, on a few occasions, he would make the girls take their shirts off and put a scorpion he had on their stomachs to try to get it to sting them, although she does not believe it ever did. [ 24 ] Although KI.V. did not specify whether these activities were part of the “evil fun,” or disciplinary acts, she testified that he also has used pliers to squeeze her fingers, and a vice-grip to squeeze her hands. He would do so hard enough to cause pain and leave red marks, but not forcefully enough to break bones.

Similarly, he would bend her fingers back, and on one occasion she recalls, he tapped her on the knee with a claw hammer, and he hit her on the lower legs with a crowbar. When she was asked in cross-examination if he ever hit her with a sledge hammer, she hesitated and said she thinks she was struck lightly in the lower leg with a sledge hammer.

Again, when provoked by questions in cross-examination she testified that she thinks there was an occasion where he poked her in the back with a small steak knife, but not hard enough to break the skin, and she said he has stabbed her in the back with a fork, on occasion, causing her skin to bleed. [ 25 ] KI.V. said that she received what I have called “disciplinary beatings” on an almost daily basis. She remembers some specific incidents, including after breaking one of her father’s toys, but the most vividly remembered cause of beatings was her father’s obsession with her interest in boys.

When they got home from school, she testified, he would routinely ask K.V. if KI.V. was looking at boys, and he would ask KI.V. about K.V.. If the report was not favourable, they would be beaten. When he beat her, KI.V. said he would use his fists or his feet, and he would use an extension cord, or tree branch to whip her back and legs. He also used broom handles. And he would bite her knuckles or pinky.

These beatings usually happened at home, but on occasion he would take her out in the family van, pull over on a country road, find a stick and beat her. [ 26 ] At times, KI.V. testified, P.V. would assist by holding KI.V. down by sitting on her and trying to keep her quiet when she screamed as her father beat her.

She said that she never had any broken bones from this abuse, but would have welts from the whippings, and she would sometimes have scratches on her face or neck, and “blue eyes like bruises.” She would wear a sweater or track pants to cover her injuries. [ 27 ] KI.V. testified specifically to one occasion - she is not sure of the grade but thinks she was in O[…] Public School at the time - when K.V. replied to their father’s questioning about boys, by telling him that KI.V. had been looking at boys while reading in class.

KI.V. said he took her pants down and whipped her with an extension cord, a device he often used, on the legs and back, leaving purplish and black marks. [ 28 ] KI.V. testified that on one occasion she recalled that J.V. pulled K.V.’s pants down and started whipping her with an extension cord, because she gave a boy at school some money to be her friend. [ 29 ] KI.V. testified that when she was in elementary school her father said she was looking at a boy, and started punching and kicking her, and decided to burn her feet. He enlisted P.V. to help.

She held KI.V. down on the bed while J.V. took a “child safety” cigarette lighter and held it “down off my toes and my feet.” She said that this injured her, causing her feet to swell, and there was puss. This made it difficult to walk, although she said she walked to the bus and went to school the next day. After a week or so she complained to her parents that her feet were still sore. They showed KI.V.’s grandparents the injury, telling them that KI.V. had stepped in boiling water that P.V. spilled.

KI.V. said that she was made to put her feet in salt water and keep her feet elevated, and she missed school while they healed. [ 30 ] KI.V. described another occasion when she was 15 or 16 years of age when J.V. suspected her of having sex with D. and A. Fy.. He sent P.V. next door to see if the boys were there. After P.V. confirmed they were, she returned and started punching and kicking KI.V. in the stomach and face. When P.V. stopped, J.V. began to beat her.

KI.V. said that on more than one occasion, J.V. forced the family to go outside and wait in the woods to watch and see if the Fy.’s were coming to have sex with the females in the house. ii. KI.V. on Sexual Abuse [ 31 ] KI.V. said that her father made her cut her hair short and dress in overalls so that she would look like a boy. He prohibited her from wearing a bra. She was never allowed to have a boyfriend.

She testified he ultimately took her out of high school because he thought she “was going to have sex with guys on the bleachers and stuff.” [ 32 ] KI.V. said that the sexual abuse was always part of her life. She said that her father told her over and over again that he had sex with her when she was young. She testified that he said it started when he came home drunk one night and she began to touch him. She

does not remember this event, but has no memory of a time when she was not sexually abused. She said she never resisted, because she was afraid of him. [ 33 ] KI.V. said that while she believes that one time she shared a bedroom with her sister, her bed would always be in her father’s room. At times she slept on the floor next to his bed, and sometimes in the bed beside him.

She would be made to rub his back, and at times, put her leg over him and rock him to sleep. [ 34 ] K.V. testified that she shared sleeping arrangements with her siblings, with the exception of KI.V., who “slept with our parents.” K.V. testified that at one point the “Smurf room,” was turned into a bedroom for KI.V.. KI.V. testified that the “Smurf room” was a room in the basement of an Osgoode, Ontario home the V. family lived on, which was next to her parents room and which was decorated like a Smurf Village. [ 35 ] KI.V. described a usual pattern the sexual abuse took.

Her mother would come and get her and tell her to go see her father, or take her to his bedroom. This typically happened after she arrived home from school, although it also happened in the evenings. Her grandparents would be gone when this occurred, or “downstairs” and her siblings would be elsewhere. P.V. would then leave. There were times when she was made to have sex with her father at night, and the sex would sometimes last all night, leaving her exhausted.

One time she had sex with her father in a field. [ 36 ] KI.V. said that her mother would also call K.V. to go into the bedroom, and that she knew from her own experience what was about to happen to K.V.. [ 37 ] KI.V. described how when she would be called into the room her father would be watching pornography including threesomes and bestiality, and he would make her watch. She would have to touch his penis, and rub it up and down with her hand, and he would want her to “suck his cock,” which she would do. He would penetrate her vagina with his penis, and ejaculate, without a condom.

He would say things, such as he wanted to get her pregnant, and he would ask her if she liked his “big cock.” He would insist that she would say she wanted to get pregnant and liked his big penis. He would either get on top of her, or she would be made to get on top. When he was done he would tell her to go and wash and to get her mother. [ 38 ] KI.V. testified that on a couple of occasions he penetrated her anally.

When asked during cross-examination if this did not injure her, KI.V. said, “It would cut my butt-hole and that was it… a little cut like a finger.” [ 39 ] KI.V. said that on more than one occasion, perhaps 2 or 3 occasions, he would make her have sex with one of the family dogs. It happened with both Po. and Pi.. She and her father would be watching bestiality pornography, and he would either bring a dog into the room, or have P.V. throw one into the room.

He would “start rubbing the dog’s dick and when it was hard he would put the dick in my vagina until it came inside me and then he would get on and come inside me.” [ 40 ] KI.V. provided graphic testimony of one occasion when she was about 10 years of age when her mother, P.V., participated. KI.V. said that she believes her father told P.V. to come in, when she and her father were having sex. Her mother came in and went under the blankets and licked KI.V.’s vagina and sucked her father’s penis while he was having sex with KI.V..

After about 5 minutes KI.V. told them to stop and that she never wanted to do that again, and her mother never touched her sexually after that. iii. Other Evidence Relating to KI.V. [ 41 ] Other evidence relevant to KI.V.’s allegations was presented, including testimony from S.S., who taught KI.V. in grade 6 at M[…] Public School, from some time in the fall after the school year had started, until some point in the spring, before the school year ended. Ms. S.S. always had neglect-related concerns about KI.V.. On two occasions Ms.

S.S. said she noticed injuries on KI.V. that prompted her to call the Children’s Aid Society. [ 42 ] The first occasion was shortly before Christmas. KI.V. had arrived at school before 7:00 a.m. for an 8:50 a.m. start, and was in the school yard. She was very cold, so Ms. S.S. brought KI.V. in. KI.V. had a black eye and what appeared to be finger marks on her neck and chin, “like she had been held tightly.” Ms. S.S. said that KI.V., who was withdrawn, nervous and lethargic by nature, did not want to talk about it and appeared scared, but explained that the black eye occurred when her brother threw a toy at her.

Although Ms. S.S. could not recall this, it is not contentious before me that this call prompted school interviews of the V. children by the Children’s Aid Society. [ 43 ] The second occasion was in February. Ms. S.S. was concerned because KI.V., who was always thin and lethargic, was extremely distraught and had bags under her eyes. She was falling asleep at the desk. KI.V. had a large bruise on her arm and a rash on her neck. When confronted she said that she had been injured playing with a pet. Ms. S.S. said that the rash did not look like scratches, but like yellowish bruising. [ 44 ] Ms.

S.S. agreed that she saw KI.V. almost every school day during this period, and never observed other signs of suspected physical abuse.

She testified that during this time she was aware of her responsibility to report suspected abuse, and that she would be vigilant in doing so, although she would want to be sure she was right because she was afraid of making accusations. [ 45 ] As indicated, the question of prior complaints was a central defence theme during this case. [ 46 ] With respect to sexual abuse, KI.V. testified that she did not tell anyone that she was being sexually abused until she reported it to the social worker after her suicide attempt.

She had never said anything before because her father had told her she would get hurt or go to jail if she told. [ 47 ] KI.V. testified to a recollection when she was really young of telling a teacher, Ms. S., in a portable classroom at O[…] Public School, that her father had beaten her or had been hurting her. She said she told because she did not want to get beat anymore. KI.V. does not recall precisely what she said. She linked this disclosure, however, to the incident in which she was beaten with an electric cord after K.V. told their father that KI.V. had been looking at boys.

She believes she showed the teacher the marks on her back and legs, although

she was not sure. She recalls the teacher calling her home and asking someone on the other end – KI.V. assumes her parents – if this was true. KI.V. assumes that her parents denied it because Ms. S. told her to put her clothing back on and go outside. No-one intervened to assist KI.V., and when she got home she was beaten by her father, who punched her in the face and kicked her in the gut. There is no reference in the Children’s Aid Society records produced during the third party records application to any complainants made by Ms.

S., or connected in any way to this episode. [ 48 ] During cross-examination by counsel for P.V., KI.V. was confronted with Children’s Aid Society interview notes prepared by K. D., dated June 17, 2003 from O[…] Public School, where KI.V., then 8 years of age, is recorded as having provided Ms. K.D. with information that Ms. K.D. recorded KI.V. making disclosures about excessive discipline by her father, such as spanking to the bottom, sometimes resulting in red marks, and time-outs in the corner administered by both parents.

The recorded disclosure described mother yelling and sending her to bed, and father’s “face getting red and his eyes going funky” and that “father gets maddest of all,” and spanked her when she was 5, causing a bruise on her bottom. She reported that her father hits her mother in the face, sounding like a door slamming, and they yell bad words and throw objects at each other.

The report records KI.V. as having disclosed that mother has bruises on her arms, and father chokes her and she can hardly talk, and father tells the children not to tell the grandparents. [ 49 ] Counsel for P.V. confronted KI.V. about why she would be prepared to make such disclosures, if she was so afraid, and why she would disclose this but not disclose the horrendous physical and sexual abuse she claims was going on at the time. After offering some hypothetical possibilities, KI.V. felt unable to answer why, saying she cannot quite remember what she said. iv.

Evidence about KI.V.’s Police Complaint [ 50 ] Although the charge period ends in 2009, KI.V. testified that she was sexually and physically abused in the ways described until a day or two before her February 1, 2014, suicide attempt. This narration was offered to explain how the matter came before the court. The day she hung herself, her father drove home intoxicated, and beat her mother in the bedroom. K.V. testified that in the days leading up to the suicide attempt, KI.V. had discussed killing herself with her (K.V.) and K.V.’s boyfriend T..

KI.V. said that she hung herself because her father had abused her and her mother and sister “for almost my entire lifetime”. She said she did not want to suffer anymore. [ 51 ] After she regained consciousness, KI.V. testified that her father was contacting her and bothering her, and she did not want to have anything to do with him. She complained to the hospital and he was prevented from visiting.

As part of her effort to break free from her parents, KI.V. did not want the Prince Edward Island property in her name, and was negotiating with her grandfather to sign the property over to him and her father, for $1000.00. Her grandfather was making the monthly payments on the property. During the month or so she remained in the hospital after coming to, she nonetheless stayed in contact with family members using the hospital computer room.

K.V. visited her. [ 52 ] After learning that K.V. had shared allegations of her abuse with a hospital social worker while KI.V. was unconscious, KI.V. testified that she gradually shared her abuse with a social worker at the hospital psychiatric ward. She did not discuss the details, but was encouraged to go to the police. Her sister, K.V. wanted to report their abuse to the police and encouraged KI.V. to do so. KI.V. said that she was afraid to do so, and remained unsure until after she was discharged from the hospital.

KI.V. ultimately decided to make the report because she wanted others to know what happened to her, and she wanted her Dad to go to jail for what he did to her. [ 53 ] While she was in the hospital, KI.V. and K.V. had discussed the process that they would follow in going to the police, in detail, including with Victim Witness Assistance workers who were brought in. KI.V. resisted defence attempts to have her admit that she and K.V. shared their stories of abuse before they were reported to the police.

KI.V. said, “We did not say anything to that degree.” “No, I pretty much knew.” Even before KI.V. was in the hospital she said, “I told her I knew he was touching her and she said she knew he was touching me.” She could not place a time on when this occurred to her but said, “we probably knew in the beginning.” [ 54 ] While still in the hospital, KI.V. had decided that she wanted her father to confirm the abuse, specifically and in writing, and to apologize. She wanted this, both so she could “move on,” and to secure a confession from her father in the event that she did go to the police.

She therefore opened a line of communication with her parents, which includes the “Google Hangout” chat admitted as exhibits 6(a), 6(

b) and 9 in this case. [ 55 ] KI.V. testified that she was not aware that K.V. was trying to get her father to confess in writing around the same time, and that she did not tell K.V. what she was up to. KI.V. testified that she did not know that K.V. was also doing this, until the “beginning of the trial” when K.V. phoned her, and KI.V. told her she was having trouble saving the Google Hangout messages she had exchanged. She rejected a defence suggestion that this was part of a joint plan to secure a conviction for their father. c. Evidence relating to K.V. i.

K.V. on Physical Abuse [ 56 ] Like KI.V., K.V. described being forced to engage in “evil fun,” and to being subjected to significant disciplinary force by both parents, and she claims that she was sexually abused by her father multiple times, and on one occasion with the direct assistance of her mother, P.V.. [ 57 ] K.V. described the “evil fun” as “messed up games” that she was forced by both of her parents to participate in. These events, she said, are her earliest memories of abuse, from the time she was 5 or 6 years of age.

This went on until she was about 16 years of age. [ 58 ] Like KI.V., K.V. described being forced to climb high objects with her sister, having her hands bent back, being thrown into

bees’ nests or being forced to provoke bees into stinging them, and “crazy amounts of exercise” such as sit-ups and squats, and being forced to run for hours. K.V. described her father riding behind her on a “four-wheeler” while holding a branch to whack her to make her fun faster. [ 59 ] Like KI.V., K.V. described being forced to fight with her sister and her cousin, S., ripping at each other’s hair, and punching and choking each other. She said her father would stand by with a stick and threaten to beat them if they did not fight.

She said that once someone was on the ground, the other combatant would be forced to punch them in the face or smash their head on the ground, a move J.V. called “heikiing” someone. [1] [ 60 ] Like KI.V., she also testified to having a scorpion put on their bare stomachs. She said that this happened while her mother held her and her father tried to rile it up to sting the children. K.V. testified that she remembers the scorpion stinging her, and said it really hurt. [ 61 ] K.V. described other “evil fun” activities that KI.V. did not mention.

K.V. described being forced to eat and drink creations her parents made out of feces and worms, and being forced to eat animal feces and insects. She claims she has had her father’s feces rubbed in her face and mouth area. When they camped outside, the children would be forced to take off their shirts and prohibited from removing mosquitoes, and they were not permitted to slap the mosquitoes while they slept.

K.V. described being forced, when the family lived in Jasper, to put her tongue inside a chicken coop while the chickens her father riled up would bite at and even latch onto her tongue, causing bleeding injuries to her entire mouth area. She described her father provoking her dog, Ally, to bite her, and she remembers her father taking her grandfather’s deer antlers and poking them into her in the stomach, pretending to be a deer, while she slept. She recalls being forced to watch horror movies. She would be forced to sit in hot “boiling” water or ice cold water in the bath tub, and made to stay awake.

When she fell asleep he would administer vinegar or hot sauce to her eyes. She was sure this happened more than a dozen times. He would corner her on the stairs and pound her as part of the evil fun. [ 62 ] K.V. said that P.V. would be present during the evil fun, and she too was forced to jump off a high shed with the girls.

P.V. did not seem as pleased by the games as J.V., who “enjoyed it quite a lot really from seeing his face,” although P.V. has forced K.V. outside and whipped her numerous times if she did not participate, and held her down so the dog could bite her. [ 63 ] Like KI.V., K.V. testified that she was constantly subjected to excessive disciplinary force by both of her parents, with tree branches, cords, rocks, BB guns, forks, wrenches. “Pretty much anything,” she said.

K.V. said she and KI.V. were beaten almost every day after school by their father, with cords or his hands, and her mother would assist her father at times by holding them down. She would be kicked by her father, while he wore his brown boots. Like KI.V., she described sustaining whip marks on her legs from electrical cords.

K.V. described being whipped hard enough that her legs bled, and there was blood everywhere, and she had to crawl away, and it hurt to walk the next day. [ 64 ] Like KI.V., K.V. said she was punched in the face and head many times, and she also described being taken to the bush and being beaten with a tree branch. She, too, said that her father would bite her hands, specifically her thumb and pointer finger, and he would not let go unless she stopped screaming. K.V. said he also bit her feet and she claimed to have been choked by her father, including with a cord on one occasion.

Like KI.V., she said her father also put her hand in a vice clamp. K.V. said he also pinched her hand with a wrench. [ 65 ] In addition, K.V. described her father banging her head on the floor, and on one occasion, against a toilet so hard that the toilet broke. She said he gouged her eyes. In her statement she had described him as gouging her eyes “as hard as he could,” but in her testimony she said, “it is more as hard as I could take. It is more of what I meant.” [ 66 ] Like KI.V., K.V. described being hit with a sledge hammer.

K.V. said it happened in the barn on “J[…] Road.” She said he swung it at her a few times and she was hit on the legs and knees. She said she was unable to walk that well for a while, about a week. When confronted with the statement she had typed in which she described her father as hitting her with the sledge hammer “as hard as he could,” she again said, “Well, as hard as I could take.” [ 67 ] The statement that describes the use of the sledge hammer also described K.V. being punched in the stomach so hard that she was coughing up blood, and how her father hit her over the back with the sledge hammer.

It continues, describing how her father took a piece of plywood and hit P.V. in the face when she interceded, and then hit K.V. over the head. “The rest of the day for me is black.” During cross-examination K.V. said that it was true, that she was coughing up blood, and was knocked unconscious, although she corrected the reference to plywood, saying it was a piece of wood you could hold like a baseball bat. [ 68 ] K.V. also testified that after her parents, who had moved to Nova Scotia with KI.V. for less than a year, returned, things changed between her and KI.V.. “She hated me and called me a ‘slut.’” K.V. said that KI.V. would pull K.V.’s hair and beat her, gouge her eyes, and choke her, all at their parent’s command. [ 69 ] She said her father would threaten to kill her, and he would hurt P.V. and then he would tell K.V. about it. [ 70 ] Like KI.V., K.V. linked much of the disciplinary force to her father’s concern about the daughter’s involvement with boys.

She, too, was made to dress like a boy, and she describes her mother being instructed by her father to cut up her feminine looking clothing, and doing so. Like KI.V., K.V. said she, too, was called a “slut” and she was told she would get pregnant or “knocked up” and become a “whore.” K.V. said that her father put her hand in the vice clamp while she was interrogated about boys.

She, too, said she and KI.V. were asked every day if they were talking to boys, although KI.V. was questioned more intensely about this. [ 71 ] K.V. described an occasion when they lived on “J[…] Road” in North Augusta, Ontario, when she told her father that KI.V. had been looking at boys even though KI.V. had not. K.V. said she made this up because she was afraid she would get beaten for lying if she did not tell on KI.V.. K.V. described how her father and mother dragged KI.V. outside and beat her and threw her on a giant beehive.

She said KI.V. was beaten to unconsciousness and thrown into a dog house full of bees. When she woke up, KI.V. was hyperventilating, promising to never do it again.

[ 72 ] K.V. described how, once, her parents found out that she had a boy for a friend, and she got beat for it. She was called a “slut” and a “whore.” [ 73 ] Like KI.V., K.V. testified to an incident in which KI.V. was accused of having sexual intercourse with the boys next door. K.V. said the accusation was levied by her father against her, and against her mother as well. K.V. said that they were made to stay up all night and went into the fields to spy on the boys next door, and that they would not be allowed to sleep.

K.V. said that this went on for about a year. [ 74 ] K.V. testified that when she was around 13, she witnessed her father burning KI.V.’s feet with a lighter, while her mother held KI.V. down, covering her head when she was screaming. K.V. says this occurred when the family was sleeping in the same room, and she held her hand over her sister Ks.V.’s mouth so Ks.V. would not say anything. [ 75 ] K.V. described how she herself had once been burned to discipline her when she was suspected of smoking. She was 13 or 14 at the time.

Her father turned on the stove element and grabbed her hair and pushed her face towards it. She touched it with her left hand, while resisting. The burn on her hand ultimately “bubbled a bit,” and her ear and the side of her face where scorched. She said her face stayed red for a couple of days. K.V.’s video police statement of March 20, 2014 claims that she was asked about her face by her grandparents and told them the scorched face was sunburned, and she was confronted with this during cross-examination.

She said she could not recall that, saying “its very hard to remember.” When challenged during cross-examination that she would not be able to write at school with a burned hand, she said she is right handed and she thinks it happened in the summer, when she was not in class. [ 76 ] K.V. testified that she also got beat for having friends. She said that she was beaten after a classmate named “Kr” phoned for her.

She had told Kr not to call her or KI.V. because their parents are abusive and would hurt them if they had friends, but Kr called anyway. [ 77 ] K.V. also recounted an incident when she and KI.V. were in high school, she believes in grade 9, and the girls were spied on by their parents who saw them talking to another girl and waving at classmates. K.V. testified that their parents signed the girls out of school and went to Groverton Road, where K.V. was beaten with a windshield cleaner stick until it broke, and her parents pulled KI.V. out of the car.

P.V. beat KI.V. with punches, while J.V. punched K.V. until she was getting flashes of light. [ 78 ] At one point during cross-examination, K.V. was asked whether her father had ever cut her. She said he had, but the answer was not pursued. It was followed up in re-examination, and K.V. began to describe an incident in Winchester, Ontario in which she walked into a trailer the family was living in after their house had burned, and witnessed J.V. cutting himself with a knife.

She left that episode and then said that when he cut her it was in Greely, Ontario, when he was chasing P.V. with a knife, yelling and screaming, and when she ran after them. She said he took the knife and slashed at her (K.V.’

s) right arm and cut her a bit, but did not stab her or anything. “He was just threatening I guess.” K.V. then described how, on other occasions, he would use a knife or screwdriver to poke, as quickly as he could, between her fingers as she held her hand against a table or surface. While describing this, K.V. held one hand splayed out flat on the witness’ table, and mimicked swift downward stabbing movements with her other hand. [ 79 ] K.V. also described being assaulted by her mother after K.V. disclosed to her mother that father had been touching her or raping her.

During her evidence in-chief, K.V. said that this happened a month or so after her father started raping her, and that by then it had happened multiple times. Her father told her mother he was going to the gym, and she and the other children went for a walk with their mother on 2 nd Line Road. K.V. said that when she began telling her mother, her mother told the other children to go ahead. K.V. testified that her mother then told her that this was supposed to happen, and that she was not allowed to tell P. (Grandfather) and Granny.

K.V. testified that her mother began to punch her and threw her on the ground and “stomped me, it was more of a kick though not a stomp,” and pulled her hair, and told her that if she ever told anyone, she was going to get worse. ii. K.V. on Sexual Abuse [ 80 ] As this final episode described above by K.V. reveals, like KI.V., K.V. claimed repeated acts of sexual abuse by her father. K.V. said there was too many times to count.

She too, described being taken to her father’s bed by her mother, every day or every second day, and often being sexually abused more than once a day, usually after school or in the evenings, often when their grandparents were at the casino. She testified that she drew an association between the sexual abuse and her father’s drug use. When she knew that her parents were going to get drugs she would try to hide, because either she or KI.V. would be taken to her father. [ 81 ] As KI.V. did, K.V. testified that her father would be watching pornography when she was brought in.

Unlike KI.V., however, K.V. would sometimes resist, resulting in violent rapes. She said that invariably she was subjected to intercourse. Typically he would get on top because when he tried to make her go on top she would sometimes run away.

Unlike KI.V., K.V. testified ultimately that there were times when her father wore a condom, a point I will return to below. [ 82 ] During sex, her father would have mood swings, alternatively telling her he loved her and calling her a “slut,” or “whore.” K.V. testified that he said he was having sex with her because she wanted all the boys, and he wanted to prevent that, and that he would tell her that mother did not love him and it was alright because he wanted to be with her because mother had cheated on him.

K.V. testified that her father expected her to moan and tell him that she loved him, but K.V. would refuse. [ 83 ] K.V. also claims that her father attempted anal sex with her, but only once because, as he partially penetrated her, she was screaming. She said he also tried to force her to have oral sex but she would not co-operate, an episode described in more detail below. [ 84 ] K.V. described the first instance of “rape,” which she said meant sex against her will, occurring in Osgoode, Ontario, when she was maybe 8 years of age.

She testified that her mother told her she was going to the store or post-office with K.V.’s grandparents. K.V. testified that her mother told her to go downstairs, where her father was. K.V. said she did so, and was told by her father to lock the door, which she did by jamming a screwdriver into the broken door lock, as she had been taught. Her father was on his bed watching pornography.

K.V. told her father she did not want to watch it, but he “pretty much jumped up and dragged me over to his bed and sat pretty much on me.” She said he “physically ripped” her clothes off of her and ripped his clothes off, and tried to put his penis inside her. She was crying and resisting, and he put a pillow over her face, telling her to shut up and calling her a “slut.” He said it was OK because

he loved her. She said he put his penis inside her and was beating her, punching her in the stomach as she resisted. She said that her mother returned home and was knocking on the door. She said her father had punched the wind out of her, and told her that if she told about what was going on, he was going to kill her.

K.V. said her father dragged her into the “Smurf room,” a room decorated like a Smurf village adjacent to his bedroom, and that she lay down and pretended it never happened. [ 85 ] K.V. also described another incident where her father caught her playing in the “Smurf room,” with one of the Barbie dolls from his online business inventory. He told her to bring it into the bedroom and play with it there, where he was watching pornography.

She told him he should not be watching that, and he grabbed her and said “if you want the toy you have to earn it.” K.V. said she threatened to tell her grandparents and her father pretty much beat her almost unconscious by punching her in the head and stomach. [ 86 ] K.V. also gave details about an incident when her mother attempted to force her to perform oral sex on her father. K.V. said she was around 15 or 16 years of age. She remembers her mother dragging her into the bedroom and being told to be with her father. This time her mother did not leave.

She stayed and pushed K.V.’s head towards her father’s penis and told K.V. she had to give her father a “blow job.” K.V. said she refused, and threatened to bite her father’s penis off. Her mother held K.V. to the ground while her father beat her. K.V. said she remembers being on the ground on the side of the mattress, being beaten in the stomach. Ultimately, her mother said “no, they are going to hear,” and J.V. punched her mother. He had sex with K.V. while her mother sat beside the computer, kind of like in the fetal position, crying.

Later, K.V. said that J.V. said he was sorry, and was never going to have sex with her again. Her mother ultimately took her out of the room and she, too, promised that she would never let it happen again. [ 87 ] Finally, K.V. described having to tend to her father’s intimate and personal grooming. She said she had to sit in with him when he took a bath, and to rub his body with a “scrunchy,” and that she would have to squeeze pimples in his genital area and bottom. iii. Other Evidence relating to K.V. [ 88 ] K.V. was diagnosed with herpes on October 10, 2001, after being taken to Dr.

T.B.’s medical office, complaining of a painful rash, and stomach pain. She was not quite 7 years of age at the time. Dr. T.B. cultured the rash, and the Herpes Simplex Type 1 diagnosis was confirmed two days later. Dr. T.B. said in his testimony that this diagnosis, in children, is highly suspicious of sexual abuse. He said it was around her anal region. He could not recall the precise pattern that the rash showed, but K.V. testified it was in her vaginal, anal region.

She described the blistered rash in detail. [ 89 ] K.V. testified that her mother, and she believes her grandparents, took her to the hospital because of the rash. She had initially told her father about it when he was walking up from the basement, but he grabbed her arm tightly and told her to shut up and not say anything. Because of the pain, she nonetheless ultimately disclosed the rash to her mother and grandparents when her father was “out to the gym,” and she was taken to the doctor. [ 90 ] Dr.

T.B. testified that he advised P.V. of the diagnosis, and that he would have to report it to the Children’s Aid Society. His medical notes confirm his intention to do so, in two places. Dr. T.B. is confident he did make the report, but there is no record of such a report in the Children’s Aid Society records produced in response to the third party records application. He testified he did not tell young K.V. what he had discovered. [ 91 ] K.V. testified that she overheard her parents discussing the rash, and that she learned that it was caused by sex.

She said that her parents told her grandparents that she had “worms.” In 2014, when K.V. decided to make a police complaint, she went to Dr. T.B.’s office and secured a copy of the medical records, which she provided to the police. [ 92 ] K.V. said that she did not receive medical treatment for anything else when she was a child. She testified that she has had lots of “concussions” from being struck in the head. She testified to passing out as a teenager in Smiths Falls from a concussion, and being taken to hospital.

She said that she still experiences light and noise sensitivity, and occasional vertigo that have been diagnosed as linked to concussions, but no confirming medical records were filed. She testified that the burns she received to her face and hand were treated with ice. [ 93 ] Like KI.V., K.V. said she had to wear pants to cover her injuries. She said she would not allow others to see them, and if they did, she lied. [ 94 ] K.V. testified that, as a child, she never disclosed the sexual abuse she was experiencing to anyone, because her parents had threatened to kill her if she did, and she was afraid to do so.

Her parents also told her that no-one would listen to her, and that if they did, all they would want is money, “and another notch for the belt.” Even her grandparents told her that the “cops” were not her friend. [ 95 ] K.V. said there were times when teachers asked her about injuries, but that she brushed them off because she was afraid. She said, however, that her parents had not threatened to kill her if she disclosed the beatings, so on some occasions she did.

She said she disclosed the physical abuse to some teachers, and she tried to tell the Children’s Aid Society. [ 96 ] She said that she told a teacher at C[…] Elementary School, a Mr. C., who was her track and field teacher, that she was being hurt by her parents. She said, during cross-examination, that he told the Children’s Aid Society. She testified that the Children’s Aid Society came and asked about it, and she said she “pretty much lied” because she did not want to get hurt, but that she got beat for it. K.V. was not sure what year this would have happened.

There is no record in any of the Children’s Aid Society records of any complaint having been made by a Mr. C.. [ 97 ] K.V. testified that she also thinks she told two male teachers, who were friends of each other, at M[…] Public School, also an elementary school, that she was being hurt by her parents. The two male teachers were together at the time, and had noticed choke marks on her. K.V. did not say specifically what happened after this report, although she did testify that when she told teachers, the teachers

would call home and speak to her parents and nothing would be done by anyone, and she would be beaten for having said anything. [ 98 ] K.V. said she had a specific memory of telling the school principal or vice-principal, Ms. W. or W., at O[…] Township High School, when she graduated from grade “12x.” She said she had been beaten the night before. She said she had a bruise on her face at the time. She told the teacher that her parents abused drugs, and hurt her.

She said she was over 16 years of age at the time but hoped that the teacher would call the Children’s Aid Society because Ks.V. and Js.V. were still young, but nothing was done. [ 99 ] K.V. also testified to a memory of having told a female counsellor at a school about getting hurt at home, when interviewed about her bad grades. She does not recall the details other than that she believed the counsellor was pregnant. No time frame was offered. [ 100 ] When the Crown asked her if she had ever shared a classroom with KI.V., K.V. said she believes they were in Ms.

S.’ class together in a portable classroom in grade 3 at O[…] Public School. When asked in-chief whether she had ever told Ms. S. what was going on at home she said, “I am not sure.” During cross-examination she said she may have told Ms. S., but did not know. She said that she does remember being questioned by the Children’s Aid Society at O[…] Public School about witnessing her father “choking out” her mother, and she disclosed that, but she was not sure this disclosure involved Ms. S.. [ 101 ] As indicated, K.V. also testified that she tried to tell Children’s Aid Society workers, but nothing would happen.

She said that most often when interviewed by the Children’s Aid Society she would deny abuse, because she did not want to get beat. She said that she has, however, told them she was hit by sticks, and choked, and hit. “They would just go to my parents, so I stopped.” There are no records of complaints by K.V. to Children’s Aid Society workers in any of the records obtained during the third party records application, that reveal complaints by K.V. of being physically abused by her parents. [ 102 ] Ms.

M., a Children’s Aid Society worker with the CAS United Counties Stormont, Dundas and Glengarry, testified about responding to the V. home on December 11, 2008. This was after the Children’s Aid Society received a complaint from K.V.’s grandfather, relating to concerns about KI.V. being forced to wear boys clothing and being isolated in the family, and about the parents’ drug use. It was K.V. who had gone to her grandfather, prompting the call. [ 103 ] Ms.

M. testified that when she arrived at the V. home there were no adults around, and K.V., who she initially saw coming off the school bus, would not let her in the house. At first, when Ms. M. saw KI.V., she assumed she was “Js.V.,” KI.V.’s brother, because KI.V. looked like a boy and was dressed like a boy. [ 104 ] When P.V. ultimately admitted Ms. M. to the home some time later, Ms. M. asked to speak to the children. P.V. called them in, one at a time, and asked them if they wanted to talk to Ms. M.. None of the children would talk to her. Ultimately, the grandparents came into the room, and Ms.

M. said that the grandfather was “passive aggressive,” and said that “whatever he had to say he would say in front of P.V. and J.V.” In the end, he said nothing. Ms. M/ confronted the parents with the complaint, but did not disclose that the grandfather had lodged it, because of Children’s Aid Society policy. She did, however, tell the parents that the complainant had received the information from K.V.. When K.V. was called in, she denied that she made a complaint, saying it was a lie. [ 105 ] KI.V. ultimately told Ms. M. that she dressed as she did because she wanted to.

The parents refused to consent to having the children see a behavioral pediatrician, or to speak to a family doctor, or the school. In the end the complaint was not verified because the investigation did not produce enough information to make a decision. [ 106 ] Ms. M. was asked in cross-examination whether she observed any signs of drug abuse by the parents, or physical abuse of the children.

She saw no signs of either, but commented that the children were wearing seasonally appropriate clothing. [ 107 ] K.V. described, when she was older, disclosing the sexual abuse to her Aunt T., J.V.’s sister, and to her grandparents. She remembers when she was 16 or so telling her Aunt T., J.V.’s sister, over Facebook, about being sexually abused. They discussed the herpes diagnosis that had occurred when K.V. was a child. When her Aunt T. came to visit while her parents were away in Nova Scotia, they told her grandparents.

K.V. said they did not believe it, and nothing was done. [ 108 ] She also testified to telling her grandparents when she was 19 or 20 or 21 that she was being “sexually harassed” and raped. This disclosure occurred in Kenmore. She said she had been hiding at a friend’s home, and when she got home she “confessed.” K.V. testified that her father was called upstairs and confronted. Both of her parents called her a liar, and nothing was done. iv.

Evidence about K.V.’s Police Complaint [ 109 ] K.V. testified that making the police complaints was one of the hardest things she had ever had to do, because she feared her parents would harm her. She said that she ultimately decided to report the abuse because, while she had a place to stay with her boyfriend at the time, she was really sick after KI.V. hung herself on February 1, 2014. K.V. decided that it was time to do something. She wanted KI.V. and her other siblings to have a better life.

She acknowledged that it was her idea to go forward to the police, even before KI.V. was willing to do so, and that it was more her idea than KI.V.’s to complain. [ 110 ] The exact chronology of K.V.’s complaint is unclear. [ 111 ] She may have spoken about the abuse initially to S.A., a Children’s Aid Society worker. She said she met him at her grandparent’s house when the police were there in the days following the suicide attempt.

The police had been called because her parents had violated an order not to go to the home, where Js.V. and Ks.V. were staying. [ 112 ] In any event, it is clear that, at some point, K.V. believes about 10 days after KI.V.’s suicide attempt, she told a hospital social worker, L.C., about the abuse in the home. This may have happened sooner, as K.V. agreed that KI.V. was still in a coma when this conversation took place. She did not give the social worker details. [ 113 ] Around that time, K.V. went to the police with S.A., and talked to Det. W. about the abuse, but K.V. would not give a formal statement.

She said she “completely wanted to” make a formal complaint, but was very scared to do so. She said she told Det. W. she

might come back if KI.V. also came forward. She said she wanted the support, but at the time, her main motivation was to do this to helpKI.V.. [114] K.V. and KI.V. ultimately each gave their formal videotape police statements on March 20, 2014.

Sometime before that, KI.V.told K.V. that she was going to go to the police, and K.V. promised her support. [115] K.V. explained that the delay in going forward was caused because their parents were in Prince Edwards Island, and she wasfearful that if she complained before they were back in Ontario, they would escape, and may take their younger sister Ks.V. with them toVancouver.

By the time her parents returned to Ontario, K.V. had prepared her typed notes, and she and KI.V. had discussed how thingswould go with Victim Services workers, who arranged for both young women to be placed in a shelter. [116] While waiting for her parents to return, K.V. resolved to try to get her father to confess in writing.

That effort is captured inexhibits 7 and 8, covering from March 5, 2014 to March 8, 2014. [117] K.V. was cross-examined aggressively by both defence counsel, suggesting that she had colluded with KI.V. to make falseallegations against their parents, and that they had discussed the specific allegations before going to the police together. [118] K.V. testified that while the two young women did discuss going to the police, and the process that would entail, they did notdiscuss what happened “too much,” certainly not in detail.

K.V. said they did not have to do so because they had both gone through theirexperiences together. She said that she never showed KI.V. the typed document outlining her story, nor did they discuss it. K.V. said thatdocument was a private thing.

She testified that she and KI.V. discussed their “misery,” and the “step by step” process that this wouldinvolve, but they “never built a story together.” [119] K.V. testified that KI.V. did show her some of the messages she had exchanged with her parents about the Prince Edward Islandhouse, because she was giving KI.V. advice on what do about the house, but they did not otherwise share their electronic exchanges withtheir parents. [120] It was also suggested that the two young women agreed that each would try to secure a written confession from their father. Asexhibits 6(a), 6(

b) and 9 show KI.V. was trying to achieve the same thing between February 25, 2015 and March 8, 2014, datesoverlapping, but much longer, than K.V.’s efforts. [121] K.V. testified that she may have told KI.V. about trying to get an apology or confession, but she did not think so, and she wasinsistent that securing a written confession was not a joint idea or plan. She said that this was something she wanted to do, both forclosure, and to secure proof against her father because she knew he was going to say she was lying. IV. Analysis a.

General Principles [122] To succeed in gaining a conviction, the Crown must prove the specific charge beyond a reasonable doubt. This is a heavystandard, designed to prevent the conviction of innocent persons. It is not enough to convict, for a trial judge to conclude that accusedpersons are probably guilty. Nor is it necessary that their guilt be proved to an absolute certainty: R. v. Lichus (1997), (SCC), 9 C.R. (5th) 1 (S.C.C.). The standard beyond a reasonable doubt is much closer to a certainty, however, than it is to the balance ofprobabilities measure: R. v.

Starr 2000 SCC 40 , [2000] 2 S.C.R. 144. [123] In achieving a verdict, I am permitted to believe all, or none, or some, of a witness’s testimony: R. v. Francois (SCC), [1994] 2 S.C.R. 827 at para. 14. There must, however, be a rational basis for the decision taken. In coming to that decision, I amto consider both the credibility and reliability of witness testimony, in light of all of the evidence before me. Evidence is credible when awitness is attempting to be truthful. Reliability has to do with the accuracy of the evidence.

It is essential to consider reliability separatelyfrom credibility since even an honest witness can be mistaken: R. v. Norman (1993), (ON CA), 87 C.C.C. (3d) 153(Ont.C.A.). Errors can occur because there are impediments in the witness’s ability to see or understand events, or because thecircumstances in which the event was witnessed undermine the ability of the witness to observe and understand events accurately.

Errorscan occur because of memory problems, or because the witness is not able to communicate their information in an accurate ordependable way. [124] While there is no fixed framework for assessing testimony, a judge will consider whether there is reason to be concerned aboutthe honesty of the testimony of a witness, or if there are factors that betray problems linked to the witness’s opportunity to observe, toremember, and communicate.

Data informing these decisions can come from admissible evidence about the witness, and from howplausible their narrative is judged with ordinary human experience, how consistent their testimony is, both internally and externallybased on prior statements by the witness, and how the testimony fits with other evidence.

To a lesser extent, the demeanour or manner inwhich the witness testifies can be consulted. [125] It is therefore important for trial judges to consider and address all significant contradictions and inconsistencies in witnesstestimony, and to offer a rational basis for the weight or importance that the judge chooses to give the evidence in light of materialproblems: R. v. Johnson 2011 ONSC 195 , [2011] O.J. No. 317 at para. 125 (Ont.S.C.J.), and see the cases cited therein; R. v.M.(A.) 2014 ONCA 769 at paras 13-14.

It is also important for the trial judge to search for confirming or contradictory evidence. [126] I must bear in mind, however, that there are not any formal corroboration requirements that apply in this case, and that“confirmation” sufficient to add confidence in the testimony of a witness can be found in evidence that does not directly implicate theaccused in the crime charged, provided that confirming information is capable of supporting a witness’s account: see, R. v. B.(G.),(1990), (SCC), 77 C.R. (3d) 327 (S.C.C.) respecting child witnesses, and R. v.

Kehler (2004), 2004 SCC 11 , 19 C.R. (6th) 49 (S.C.C.) respecting confirmation and dangerous witnesses generally. [127] I must also caution myself that while I can consider the manner in which a witness offers their testimony, I am not to rely unduly

on my subjective impressions of the demeanour of witnesses, since demeanour can be a notoriously unreliable predictor of the accuracyof evidence: R. v. Johnson, supra at para. 126. Where it is appropriate to consider the demeanour of a witness, inferences are confinedsolely to credibility, not reliability, since demeanour is, at best an indicium of the witness’s beliefs about facts, and not a factorconfirming the reliability of those facts: R. v. Rhayel 2015 ONCA 377 at para. 85. No decision to believe a witness should be basedwholly or even substantially on that witness’s demeanour.

When demeanour is relied upon, it is helpful to offer cogent reasons as to whythis is appropriate: R. v. M.(O.), 2014 ONCA 503 , [2014] O.J. No. 3210 at paras 32-34 (Ont.C.A.). [128] When evaluating the testimony of KI.V. and K.V., I must also bear in mind the principles that apply when an adult witnesstestifies to events alleged to have occurred when the witness was a child. [129] When a child is testifying as a child, courts are schooled by appellate authority to judge the credibility and reliability of theirevidence, bearing in mind their mental development and understanding at the relevant time.

Children do not see the world the same waythat adults do, and they may not interpret events as accurately because they are less experienced. People tend to notice what is importantto them, and for children things such as time, place and peripheral details are typically unimportant, and therefore less apt to be noticed.To be sure, the standard of proof is not lowered when children testify, and where the evidence proves to be inadequate because of theinherent frailties in child evidence, an acquittal is required.

Yet in deciding what to make of the evidence of children, it is critical thatjudges attempt to understand their evidence in light of the mental development and understanding at the relevant time, and not treatproblems explicable on this footing as proof of dishonesty, or even of inaccuracy on core matters: R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122. [130] Where, as here, an adult testifies about matters that occurred as a child, a more nuanced approach is required. The credibility ofthe testimony of that witness: “…should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to eventswhich occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should beconsidered in the context of the age of the witness at the time of the events to which she is testifying: R. v. W.(R.), supra at para. 26, andsee R. v. M.(A.), supra at para. 11.” b.

The Motive to Mislead Theories [131] It is convenient to begin my evaluation of the evidence offered, by examining the theories offered by the defence for why KI.V.and K.V. would concoct the horrendous allegations offered to this court. [132] I want to reiterate, however, that the burden of proving the accused to be guilty is on the Crown. There is therefore no obligationon the defence to demonstrate why a witness may have reason to lie.

To require the defence to do so would not only reverse the burdenof proof inappropriately, it would be a reasoning error to trust a witness because there is no proved motive to lie. While the provedpresence or proved absence of a motive to lie is a factor that can be considered, the failure by the defence to expose a viable motive doesnot mean that no such motive exists: R. v. M.(O.), supra at paras 104-109, and see R.v. L.(L.) 2009 ONCA 413 at para. 44, cited therein.Indeed, witnesses have been known to lie for no reason at all: Lloyd v.

Powell Duffryn Steam Coal Co.[1913] 2 K.B. 130 at 138, reversedon other grounds, [1914] A.C. 733 (H.L.). I am entertaining the defence suggestions to determine whether there is sufficient reason toadd a motive to lie as a makeweight against the Crown’s case, as suggested by the defence. [133] Counsel for P.V. offered the most sustained and intricate motive-based attack against KI.V.’s and K.V.’s evidence.

He suggestedthat KI.V. brought the criminal allegations, believing that the only way she could gain freedom from her controlling parents was to havethem locked up, and that a sympathetic K.V. helped KI.V. to concoct the plan. [134] I reject the suggestion that the criminal allegations were prompted by a desire to free KI.V.. This claim is ungrounded in theevidence, and frankly, makes little sense. [135] There is no doubt that J.V. exercised repugnant control over not only KI.V. but the entire family, and I have no hesitation inaccepting that KI.V. wanted her freedom, and that her sister wanted this for her.

I also accept the admission gained by defence counselfrom KI.V. that she felt she needed her sister’s help to achieve freedom. Still, K.V. was able to get her freedom when her boyfriend gaveher a place to live, and she would have helped her sister. In KI.V.’s words, “I wanted a new life but I had other choices. I could have leftwith my sister.” It makes no sense that these young women would have gone to the lengths suggested to get KI.V.’s freedom. [136] Moreover, this suggested motivation does not sit well with the complainant’s reality.

It would have been obvious to thecomplainants, if they were so minded, that it would be a risky, low percentage gambit, apt to antagonize their father, to concoct a litanyof false allegations against him. [137] Whether J.V. committed the offences alleged or not, it cannot be realistically contested that these young women fear their father.There is ample evidence, even leaving aside the criminal charges against him, that J.V. dominated the home and was verbally abusive.Indeed, at one point in his Google Hangout chat with KI.V., J.V. acknowledges the fear that at least KI.V. had of him at the time, saying,“you don’t ever have to be afraid of me again,” and he refers to himself repeatedly as a “monster”: exhibits 6(a),6(

b) ad 9. His reactionwhen he anticipated the risk that KI.V. might bring a criminal complaint against him makes clear that when these young women went tothe police station to make their formal complaint, they had reason to be doing so under the shadow of fear of retaliation. J.V. threatenedK.V. in an email message on March 8, 2014, saying “Im calling your bluff do it bitch and ill wait a long time.” “hurt me ill hurt u bitch Idon’t give up”: exhibit 7.

With reference to KI.V. he said to K.V., “shes trying to make lies up to put me in jail if i get hurt ill hurt back idon’t want this to happen”: March 6, 2014 ex. 8, and he messaged KI.V. directly on March 8 2014 at 2:30 a.m. saying “when I get hurt Ihurt back,” and 10 minutes later, “hurt me ill hurt back I dont give up.” [138] Not only was the prospect of making criminal allegations against their father a frightening one, I have no doubt that these youngwomen came forward knowing that their allegations may not be believed. They knew that they could bring the criminal allegations andyet not succeed.

Indeed, KI.V. testified about her fear of not being believed and how it caused her to hesitate in going to the police, afterK.V. suggested doing so. I believe her testimony about this because it makes sense. The theory that these young women would take the

risk and concoct criminal allegations against both parents as a way of freeing KI.V. from their father does not. [ 139 ] Nor is there any currency in the theory, offered by counsel for P.V., that KI.V. made criminal allegations against her parents so that she could enjoy her ODSP or disability payment, without having J.V. take the money away for himself. KI.V. could have achieved that without having her father locked up, by moving out of the home and using her ODSP money to enable her to do so. [ 140 ] Counsel for J.V. attempted to raise a different financial motivation on KI.V.’s part.

He suggested that she feared that she would lose the house in Prince Edward Island, and that she brought the allegation for her own enrichment. He also suggested that she brought the allegation out of vengeance related to money because her father had spent the money on drugs that KI.V. had helped her father make in their illegal internet business, and when they did break and enter offences together. [ 141 ] These “financial” and “financial revenge” theories are at odds. It is not clear to me how sending her father to jail would enhance KI.V.’s financial position.

If she was interested in money, attacking her father would jeopardize the ownership of the home, as the payments were being made by her grandfather who loaned the money to her father. If she wanted to continue with an internet trading business, honestly conducted or not, she could have taken her accounts with her when she moved out, and continued antique trading. She did not need her father for this.

He needed her or someone else to be the face of the business, because his dishonest business practices had been exposed. [ 142 ] I am fully persuaded that KI.V. did not involve herself in these criminal allegations for financial gain. While I am mindful that, on the evidence before me, KI.V. did, at one point, negotiate for $1000 in return for signing the house over, she ultimately chose not to pursue that.

She just walked away, signing over a home in her name because she wanted nothing to do with her family, a decision that can be seen progressing in her message exchanges with her father. [ 143 ] Similarly, there is no foundation for the theory attempted by both defence lawyers that KI.V. brought the criminal complaint to facilitate a law suit against the Children’s Aid Society, or school board, for not protecting her, or to facilitate a Criminal Injury’s Compensation Board application. KI.V. testified that she has never contemplated suing anyone

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