R. v. D.(R.), 2013 ONCJ 485

Citation: R. v. D.(R.) , 2013 ONCJ 485 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. R.D. REASONS FOR JUDGMENT AS GIVEN BY THE HONOURABLE MR. JUSTICE D.A. HARRIS on January 23, 2013, at CAYUGA, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE BY ORDER OF THE COURT DATED NOVEMBER 23, 2010 APPEARANCES : A. Paparella Counsel for the Crown J. Kerr Counsel for R.D. ONTARIO COURT OF JUSTICE

TABLE OF CONTENTS HER MAJESTY THE QUEEN v. R.D. INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE BY ORDER OF THE COURT DATED NOVEMBER 23, 2010 Transcript Ordered January 23, 2013 Transcript Completed February 12, 2013 Ordering Party Notified February 12, 2013 INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE BY ORDER OF THE COURT DATED NOVEMBER 23, 2010 THE COURT: Are you ready to proceed, Counsel? MR. KERR: Yes, Your Honour. THE COURT: I will remind everyone that there are publication bans in place with respect to publication of any information that would tend to identify any of the victims or witnesses who testified in this particular case. REASONS FOR JUDGMENT HARRIS, J. (Orally): R.D. has been charged with one count of sexual assault that is alleged to have occurred between July 15, 2010 and August 15, 2010 with respect to S.L.

He has also been charged with one count of sexual assault, one count of invitation to sexual touching, and two counts of sexual interference, all of with are alleged to have occurred on September 4, 2010 with respect to S.O. These charges are set out on two different Informations but counsel agreed that these should be tried together since the facts overlap. We

proceeded on that basis. Mr. D. entered a plea of not guilty with respect to all charges. I heard evidence on three different days. S.O. and S.L. testified for theCrown. H.S., Mr. D., and K.K. testified for the defence. Mr. D. is before me today for judgment. S.O. is Mr. D.’s daughter. She testified that she was six weeks shy of her 15th birthday as of September 4, 2010. She testified furtherthat her father sexually assaulted her on that day. More particularly she said that while they were sleeping together in the same bed, Mr.D. put his hands up her shirt, pulled her bra down and rubbed her breast.

He also grabbed her hand and guided it so that it brieflytouched his penis. S.L. was a friend of S.O. She testified that one night earlier during the summer of 2010, she and S.O. slept over at Mr. D.’s residence. She was 16 years old at the time. That night, when the three of them were sleeping together in the same bed, Mr. D. took S.L.’s righthand and guided it down his pants so that her hand touched his genitals. She later specified that by genitals she was referring to hispenis. Mr. D. testified.

He agreed that the two girls had slept over on the two occasions but stated that he had not touched either of them in theway that they alleged. Clearly then, in light of the Supreme Court of Canada decision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, if I believeMr. D.’s testimony, I must find him not guilty. Even if I do not believe his testimony, if it leaves me with a reasonable doubt about hisguilt, I must find him not guilty.

Finally, even if his testimony does not raise a reasonable doubt about his guilt, if after considering allthe evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. In going through this process, I must remember that Mr. D., like every other person charged with a crime, is presumed to be innocentunless and until the Crown has proven his guilt beyond a reasonable doubt. It is not enough for me to believe that he is probably or likelyguilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

Conversely, it is nearly impossible to proveanything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist inlaw. However, I must remember the direction from the Supreme Court of Canada in R. v. Starr (2000), 2000 SCC 40 , 147C.C.C. (3d) 449 at page 545 where the court stated that “the reasonable doubt standard ... falls much closer to absolute certainty than toproof on a balance of probabilities.” This is a tough standard and it is so tough for very good reason.

As Justice Cory said in the Supreme Court of Canada decision in R. v.Lifchus (1997), (SCC), 118 C.C.C. (3d) 1, at page 6, “The onus resting upon the Crown to prove the guilt of theaccused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.” I did not believe Mr. D. Nor did his evidence leave me with a reasonable doubt as to his guilt. On the contrary, I found that his evidence was internally inconsistent at times. At times it was inconsistent with the evidence of otherwitnesses. At times it made no sense at all.

One area in which his evidence displayed all three of these problems was his evidence with respect to whether or not the girls were everallowed to sleep in the house instead of in the bunkie and his evidence as to why that was so. During examination in-chief, Mr. D. stated that they always stayed in the bunkie and they stayed there so as not to bother hisgrandmother with noise. During cross-examination, however, he said that he did not leave the girls alone in the house because he had to keep an eye on them. Those were the rules that had been set out by S.O.’s mother.

His friend K.K. on the other hand stated that it was R.D.’s rule that because of his father, no female could sleep in the house alone. Sharing the bunkie with two grown men was better than staying in the house with a “wacko.” There was no mention by any other witness about Mr. D.’s father, let alone the suggestion that he was a “wacko.” I should note here that I will have more to say later with regard to the reliability of K.K.’s evidence. Counsel for Mr. D. argued during final submissions that the decision to have the two girls sleep in the bunkie with two grown men was perfectly reasonable in that Mr.

D. did not want to disturb his 90-year-old grandmother with either noise or smoking. Counsel did not address the other explanations advanced by Mr. D. and his friend. In addition, Mr. D.’s supposed reasons for keeping the girls out of the house made no sense in light of certain other evidence. According to him, in September, S.O. and H.S. went to bed about 5:00 or 5:30 a.m. Just before they went to bed, he sent the girls into the house to change from their ATV clothes into bedclothes. Now we are talking about two teenage girls. They had been drinking. They had been riding on ATV’s.

They had been involved with events around a bonfire. There would be a considerable amount of excitement in what they had been doing up until then. At 5:00 or 5:30 in the morning, it strikes me as being a bad idea to send these two young ladies, under those circumstances, into the house to change at that hour if Mr. D. was, in fact, concerned about noise bothering his grandmother. I note that in saying that he sent the girls into the house to change, he was agreeing with the evidence of S.O. on that point.

S.O. and S.L. both testified that on the earlier occasion that summer they had both changed into their sleeping clothes in the basement in the house at approximately 2:00 or 3:00 a.m. Again, this does not make sense if there was a rule that the girls are not to be alone, out of sight, or if there was a rule that is supposed to prevent the 90-year-old grandmother being disturbed by noise. There are, however, further inconsistencies in the evidence on this point. S.O. and S.L. both testified that they had slept over in the basement, in the house, on a previous occasion. Mr.

D. agreed that S.O. had slept in the house sometimes, and he also said that S.L. might have slept over before and that she might have slept in the house on that occasion. As I stated earlier, his evidence with respect to this subject was all over the place and did much to damage his credibility in my eyes. I note also that Mr. D. continuously downplayed the amount of alcohol consumed by him or any of the girls. A careful examination of his evidence and that of the three girls, however, suggests that alcohol was a big part of the activities on both nights.

According to him, he had a little water bottle containing alcohol with him on his ATV when he picked up his 14-year-old daughter and her 15-year-old friend, H.S. I am not certain why one would need to take alcohol with one while riding on an ATV for the intention of picking up two young girls. Mr. D., however, stocked up in such fashion before doing so. But I note that according to the evidence, he was not the only one drinking on that occasion. According to H.S., Mr. D. gave her and S.O. a couple of sips of that drink while they were on the ATV. Mr.

D. conceded that he had about three beers plus a mixed drink later that night but that nobody was intoxicated. The evidence of H.S., however, was that while she was not intoxicated that night, she and S.O. had split one-quarter of a twenty-sixer of Captain Morgan’s Rum, which Mr. D. had given them. S.O. drank considerably more than H.S. did, at least twice as much. H.S. also said that Mr. D. was drinking from a bottle of Wiser’s and he was getting a little drunk or a little tipsy.

I note, as I do continuously through this matter, that H.S. was called as a defence witness in this particular case. On the earlier occasion involving S.L., Mr. D. had one beer at his friend’s house when they stopped there en route to the farm. According to S.L., Mr. D. continued to drink beer that night and was “somewhere between drunk and sober.” Mr. D. admitted to drinking maybe three or four beers over the course of that night. Mr. D. was contradicted on a number of other key points by his witness, H.S.

She said that he suggested that she, and he, and S.O. would share the same single bed, a bed designed for one person. Mr. D. denied that. In addition, he described the bed as being a king-sized bed. I note that K.K. said he thought it was a queen-sized bed. I note further that S.O. said it was a double bed. It was possible to fit three people in that bed but it was “kind of tight.” S.O. agreed with H.S. that it was Mr. D. who wanted the three of them to sleep in that bed that night. H.S. said further that Mr. D. “called the middle,” indicating that he would sleep between the two girls. He denied that.

H.S. said that when she was asleep, he got up and played with her finger and twirled her hair around his fingers. He denied that. Mr. D. said that H.S.’s phone rang that morning and woke him up. H.S. never mentioned that in her evidence. However, she was never asked about it by either counsel. The first mention of this fact came during Mr. D.’s evidence. Mr. D.’s evidence was also inconsistent with that of S.O. and S.L. with respect to their allegations of sexual assault. I believe both of them. Neither overstated their allegations against Mr. D.

Neither suggested he had done anything like this before or that he had done anything that might even be considered to be inappropriate that night or on any other occasion. Neither seemed particularly pleased to be in court testifying against Mr. D. The evidence of each one was consistent with that given by the other. With one notable exception, the evidence of S.O. was also consistent with that of H.S. I will say more about that one notable exception shortly. I note that Mr. D. has one very powerful reason to lie in this case.

He has been accused of very serious offences and he presumably does not wish to suffer the consequences that might follow should he be convicted. Needless to say, the existence of such a motive to lie does not mean that Mr. D. is necessarily lying. It is simply one more factor that I have taken into account. I also note that S.O., on the other hand, had no reason to make false allegations against her father. Mr. D. testified that there had been no falling out with his daughter. They had not argued. S.O. said that she had no other axe to grind with Mr. D. In fact, she liked going to the farm.

She liked seeing the animals, and riding on the ATV, and drinking alcohol, and having bonfires, and staying up late. As Crown counsel argued, what teenager wouldn’t like to do those things? S.O. had to know that accusing her father of sexually abusing her would bring all of those activities to an end. So, S.O. not only had nothing to gain by making false allegations against her father, she had a great deal to lose.

Neither did S.L. have any reason to make up her allegations against Mr. D. Counsel for Mr. D. suggested that she did so in order to help out her friend, S.O. That does not make any sense, however, in light of the fact that these events have actually led to the disintegration of any relationship between S.O. and S.L. As S.L. testified, they stopped talking to each other likely because they both felt awkward. As she also testified, best friends don’t lie to cover for each other. Now, with respect to the evidence that was given by S.L., I also note that during cross-examination certain propositions were put to S.L.

Counsel suggested to her that she spoke to certain individuals during the luncheon break and told them that she was only in court because she was under subpoena. She denied having done that. It was suggested to her that she said to them that she had told S.O. that she did not want to get involved in this and that she didn’t want to be here, be in court. She denied that. It was suggested to her that she had said to them that she did not want to testify because when she lied her nose twitched and got red. She denied that.

Now I also noted that later during re-examination, questions were asked of her as to how she got to court and who she came to court with. She indicated that she had attended court with her sister. She indicated that her sister spent the lunch hour with her. She indicated that from the time she arrived with her sister until the time that she testified in court, there had not been a time when she had been in the courthouse alone.

I do not know whether there is a connection between the latter set of questions and answers and the fact that no evidence was called to contradict the answers that were given to the first set of questions, but I note that there was no such evidence called. With respect to K.K. and his evidence, I need to make a number of observations. At one point, K.K. testified that S.O. and S.L. were outside driving the ATV around the yard and out into the back field. They did this by themselves for about 20 or 30 minutes. I note that neither Mr.

D. or either of the girls made any mention of them driving the ATV at any time that particular night, or on any other occasion. K.K. testified that he saw no alcohol. Again, I note that Mr. D. and both girls testified as to the presence of alcohol on that occasion. K.K. indicated that he saw Mr. D. driving the ATV with both girls on it. Mr. D. was in the driver’s seat, right behind the handlebars. S.O. was behind him. S.L. was behind her. Again, this runs counter to the evidence that was given by, not just Mr. D. but S.O. and S.L. All of them testified that on each and every occasion Mr.

D. was in the middle with one girl in front of him and one girl behind him. K.K. testified that Mr. D. was not drinking. Once again, this is contrary to the evidence that was given by all three of the witnesses I have referred to so far. K.K. indicated he did not have dinner with them. He did not participate in the pork chops near the fire. He is contradicted by the evidence of Mr. D. on this point. K.K. indicated that generally he goes to sleep around 11:30 or twelve o’clock. He seemed to be suggesting that they had come in before he went to sleep that particular night.

The evidence from the girls indicated that they got to bed in the early morning around 2:00 or 3:00 a.m. K.K. indicated that the television is always on in there. It is not very loud, but Mr. D. needed background noise to be able to sleep. That left me with the question as to what K.K. might expect to hear over and above that background noise. I note that in the evidence that was given by S.L., there was no conversation between herself and Mr. D. The suggestion was that both S.O. and K.K. were sleeping soundly while the sexual assault took place.

In

summary, the evidence that was given by K.K., his recollection of events was often at odds with that of both S.O. and S.L. and that of Mr. D. In addition, he cannot say that nothing happened between Mr. D. and S.L. The most he was saying was that he did not see or hear anything unusual that night. H.S. was called as a defence witness. She testified that she stayed on the couch that night but that she did not go to sleep. She did not see anything happen between Mr. D. and S.O. while they were on the bed, “They didn’t even move around or anything.” S.O. did not get up and get out of the bed.

Neither did H.S. hear anything out of either of them. If believed, this evidence could cast doubt on S.O.’s evidence that after Mr. D. had molested her, she asked him, “What are you doing?” and he answered, “It’s okay.” She also testified that she then got up, got out of the bed and went to a chair in the room. She testified that H.S. was sleeping during this time. I did not believe H.S. on this point, however. I did not believe her for a number of reasons. She made a statement to police shortly after the incident and she stated that she was asleep between 6:30 and 8:00 a.m. that morning.

In court, she admitted making the statement but she insisted it was incorrect. She insisted that she had not been asleep. She could not, however, provide an explanation as to why she had told the police that she had been asleep. She also testified that Police Officer Lewis “got me to read it over after she wrote it and everything was fine.” H.S. also testified that after S.O. told H.S. what her father had done to her, H.S. felt scared. She felt that it could have been her.

If, as she claimed, she was awake the entire time and did not hear or see a thing, there would be no reason for H.S. to feel scared and to think that it could have been her. The only logical reason why she would feel that way was that she had, in fact, been asleep for some period of time and she knew that Mr. D. might have molested S.O. during that time. H.S. certainly did not defend Mr. D. in her evidence. In some ways, she accused him of more than either S.O. or S.L. did. H.S. said that when Mr.

D. first picked them up, he brought out the bottle of rum and lemonade and “asked if we wanted some.” To keep this in context, I remind myself that he made this offer to two 15-year-old girls. She said that while they were riding on the ATV, “It was kind of weird that he kept wanting me to be in front of him when originally he wanted S.O. to be in front of him.” She also said that, “He had his hands on my hips the entire time. Instead of on the handles, he kept putting one hand somewhere on my hip, or my rib, or on my shoulder.” She testified that this made her uncomfortable.

She testified further that she was “weirded out” and thought that it was kind of “creepy” that he wanted to sleep between the two girls. Again, to keep this in context, I remind myself that this was a 40-year-old man and two 15-year-old girls and I can imagine why she was really “weirded out” by the suggestion. She said he made her uncomfortable when he was playing with her finger and her hair. She said she was so uncomfortable that she texted her mother immediately, asking her mother to come and take her away.

She was so uncomfortable that she would not go back to that residence either later that day or sometime later on. With respect to certain points raised by counsel for Mr. D. in final argument, I note the following.

The Supreme Court of Canada has made it clear that uncertainty or a lack of specificity with respect to dates is not a bar to conviction. I note that Mr. D. seemed to be perfectly aware of when it was that S.O. visited his grandmother’s farm and when she brought S.L. with her, and he was able to provide us with his recollection of the details of those visits. I note also that I have no evidentiary basis for concluding that had the sexual assault actually occurred then, S.L. would have had a clear recollection of when it happened.

I have no evidentiary basis for concluding that it is implausible or unlikely that she rolled over and went back to sleep after being assaulted in the fashion she described. I also have no evidentiary basis for concluding that it is implausible that anyone would have done anything this brazen. I am not about to even attempt to determine what teenaged girls might do in any particular circumstances let alone these. Nor am I going to assume that people do not perform brazen acts. I accept the evidence of S.O. I accept the evidence of S.L. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr.

D. committed a sexual assault on S.L. and that he committed a sexual assault, and sexual interference, and invitation to sexual touching with respect to S.O., and I find him guilty of those offences. I am not satisfied that there was a further separate act of sexual interference and, therefore, the remaining count of sexual interference will be dismissed.

Now, I propose to hear from counsel as to whether convictions should be registered with respect to all of the offences involving S.O. or whether certain charges should be stayed. ...FURTHER PROCEEDINGS NOT REQUIRED FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, J.H. Fleet certify that this document is a true and accurate transcription of the recording of R. v. R.D. in the Ontario Court of Justice held at 55 Munsee Street North, Cayuga, Ontario, taken from Recording No. 1111-3-20130123-7, which has been certified in Form 1.

February 12, 2013 ________________________________ (Date) (Signature of authorized person) This certification does not apply to the Reasons for Judgment, which were judicially edited.