R. v. R.R., 2011 ONCJ 121

Information No. F08 – 5794 Citation: R. v. R.R., 2011 ONCJ 121 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - R.R. Mr. A. Brown for the Crown Ms. P. Lucas for the Defendant An order has been made under s. 486.4 directing that any information that could identify the complainant, K. B.-F., shall not bepublished in any document or broadcast or transmitted in any way.

NADEL, J.: Introduction “The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilitiesdisclosed by the facts and circumstances in the conditions of the particular case.” R. v. Pressley (1948), (BC CA), 94 C.C.C. 29 (B.C.C.A.) at p. 34 [1] The thirteen year old complainant, K. B.-F., and her younger brother, C., were invited to spend a few days at the defendant’shome to give their mother some respite. K.’s mother was scheduled to undergo surgery.

She and the defendant’s wife, S.M., hadremained good friends despite K.’s family having moved away from the neighbourhood. The visit took place between Tuesday, August26, 2008 and Friday, August 29, 2008. Nothing untoward is said to have occurred until the last night of the visit when the defendant isalleged to have fondled K. resulting in one count each of sexual assault and sexual interference. The Family Constellations [2] The defendant, R.R., is a horse trainer. He is thirty-seven. He is married to S.M., a casino employee. They have three children.

At the time of this visit E. was turning fourteen and N. was twelve. They have another young daughter, Ashley, a Down’s syndromechild, who is tangentially involved in the narrative. She was eleven in August of 2008. [3] The complainant, K. B.-F., is about to turn sixteen. She was born in February of 1995 and was thirteen in August of 2008. Shehas a brother, C., who was eleven at the time of the visit. Her mother, R. F., works as a hairdresser. Her father works at the casino. The Disclosure

[ 4 ] S.M. dropped K. and C. off in the afternoon of Friday, August 29, 2008, at the salon where R. worked. K. excitedly asked her mother, “Do you know why E. yelled at his dad?” Her mother put K. off so as not to disturb her clients. Later that night at home, at about 8:00 p.m., K. approached her mother again, in the same manner. K. told her mother that the defendant had been inappropriate with her, that he had climbed into bed with her, that he had hugged her in the washroom and that he had invited her to go upstairs with him.

K.’s mother had promptly pursued that disclosure with S.M. and ultimately the police, which culminated in this prosecution. The Evidence Agreed Upon [ 5 ] The essential array of the evidence is undisputed. Everyone agrees that during the last night of the visit C. shared E.’s bedroom in the basement where the two boys played video games. K. and N. slept in the recreation-room, adjacent to E.’s room on a queen-sized blow up air-mattress that took up most of the available floor space of that room. During his examination E. produced a sketch of the basement that was made Exhibit “1” in this trial.

I have attached a copy to these reasons as an aide to following the events described. N. and K. agree that they were in bed with their feet closest to the television shown in Exhibit “1” and that, when looking at the TV, N. was on the left and K. on the right. Ashley was asleep in her own bedroom on the second floor. The defendant’s bedroom was also on the second floor. He was home, although he spent most of his time in the garage drinking beer and reviewing racing charts. S.M. had to work a night shift at the casino. She left the house at about 11:00 p.m. and was not present during the period at issue.

Rashomon Revisited – The conflicting recollections [ 6 ] E. and N. testified to the events of that night. Their s. 715.1 video interviews were played and adopted by them. The voluntary interview of the defendant was also entered as part of the Crown’s case-in-chief. The complainant also testified. As a result, I have been provided with four different versions of the events of that night. [ 7 ] E.’s version of the events , taking his testimony and his adopted s. 715.1 statement into account, is essentially as follows.

By about 10:00 p.m. his mother left for work, Ashley was sleeping, the boys were playing video games and the girls were on the air-mattress with K. asleep and Ashley watching television. The door to his room was shut when at some point N. came in to say that she was anxious because she had heard someone walking about. E. hadn’t heard anything because he was playing video games. N. turned on the hallway light to find her father standing there. She asked him why he was “lurking” (sic) around at night and he said that he was not, that he just wanted to watch some television.

She objected that he had his own but he said that he couldn’t watch his “win” tapes upstairs because he didn’t have the equipment to play them. N. did not want him to watch television downstairs but he went into the rec-room and sat on the bed, although he did not get under the covers. He talked to N. for a bit and she told him to go back upstairs and he did. E. left his door open. He heard snoring and thought it must be K.

Half an hour later he heard his father come back downstairs from the garage. [ 8 ] According to E., when his father came down to the rec-room for the second time, he sat on the chair next to where K. was sleeping. It is clear to me that E. could not have and did not actually make this observation. He was playing video games all night and as Exhibit “1” demonstrates, E. had no line-of-sight into the rec-room while he was doing so. He conceded, during his in-court testimony that he could not see into the rec-room while playing video games.

Further, during his s. 715.1 interview, he described how he was “listening” to everything. His comment that his father came back downstairs and sat on the chair (next to where K. was sleeping) was, I find, a reconstruction of events based upon discussions that he had with family members, likely N., after the events at issue had occurred.

E. said that he heard his sister and his father talking about his father’s wish to watch racing despite it being 2:30 a.m. when K. “woke up not knowing what was going on” at which point she walked to the bathroom “halfway dead asleep.” As she did so, he says that he watched as his father “pretend” (sic) that he was going upstairs and he then saw his father enter the bathroom a minute after K. did. While he did not hear K. open the bathroom door at trial he testified she was in the bathroom and the door was closed. When K. was in the bathroom E. says that he then got up to go and see what his father was doing.

By then K. was coming out of the bathroom and he was talking to his sister. [ 9 ] Once again, as I watched his evidence at trial and compared it to his s. 715.1 statement it is clear to me that E.’s recollections are not pristine. His versions of the events are a product of discussion with his sister. I find that E. did not witness his father leave the rec- room and mount the stairs. That, as will be noted below, is something seen by N. that he has adopted. That must be so because he could not see into the rec-room.

He also admitted that he did not know the location of the people on the bed. [ 10 ] According to E., at the point when he was talking with N. and neither K. nor their father were in view, K. came out of the bathroom and N. asked her if she was okay. The substance of K.’s reply was that she was fine and that their father did not do anything. E. did say that she told them their father just told her how much he misses her but she said that he did not touch her or hurt her. E. said that his father spent five minutes in the bathroom, during which time K. went back to bed and feigned being asleep.

At that point his father came out of the bathroom and sat on the air-mattress and wanted to watch his races. E. yelled at his dad to go back upstairs and he did. [ 11 ] E. said that he was “kind of confused about what was going on” and that he “wasn’t really sure ...” I take that to mean that he did not really understand what was happening between K. and his father that night.

In addition, E. said that he believed his father was drunk during these events, that he had spoken to his father after K.’s complaint was made and that his father professed to have no memory of the events of that night. [ 12 ] N.’s version of the events includes the admission that she never really liked K. Her evidence ranged from being “pretty sure” that both she and K. were under sheets while on the air-mattress to being certain of that fact.

Contrary to E.’s evidence, N. denied hearing a noise that made her anxious although she admits that she did speak to E. about a noise but that was before her father came downstairs. According to N., her father only came downstairs on one occasion that night, while K. was asleep, because he wanted to watch TV in the basement. While not completely consistent on the point, during her viva voce testimony her final word on the subject was that her father did not seek to watch his racing tapes on the television in the basement.

In her video statement she said she did not know why he wanted to use the TV in the rec-room. When she would not let him use the TV he laid down on the “couch” - referred to as a “chair” in Exhibit “1” - beside K. and then he rolled onto the bed over the covers and ended up facing the “couch.” At some point after that, K. got up and went to the bathroom.

[ 13 ] A minute or so after K. went to the bathroom her father got up to go upstairs. He got to the fourth step before coming back down and going into the bathroom while K. was inside. The bathroom was not completely closed and the lights were on when her father entered. She was standing with E. by the TV in the rec-room when their father went into the bathroom. Her father said nothing before going inside. Ten seconds after he went in K. came out.

In her recorded interview she said they were in there “for like half a – half a minute.” In that interview she said that E. got up and asked her where K. was and she told him K. was in the bathroom so he went and knocked on the closed door and that is when K. came out. N. was worried because K. was in the bathroom with her father with the door closed. That is why she questioned K. when she came out.

She does not remember what she asked that elicited an answer denying being touched by her father and confirming that she was fine. [ 14 ] When her father came out he lay down on the “couch” and E. told him to go upstairs. N. described the covers as being up above K.’s elbow and she described her father’s hands as being by his side. According to her, K. was asleep and snoring before getting up to go to the bathroom.

She, too, believes that her father was drinking that night. [ 15 ] The defendant’s version of the events, captured in his recorded and transcribed interview with Detective Rivet, is a complete denial of the allegations.

He said that he never went down into the recreation-room after the children went down to bed; he did not have any physical contact with K., at any time, during her visit; he was not in the basement when his son yelled at him to go to bed; and, he did not need to go down into the recreation-room to watch his race tapes because he could do that on the television in his bedroom. [ 16 ] The complainant’s version of the events, as given by her viva voce , follows. As she got ready for bed the defendant told her that if she lay down he would give her a massage. She declined his offer and finished getting ready for bed.

She was wearing a top, pyjama-bottoms, panties and a bra. All of the children were in E.’s room when the defendant came in and said goodnight at about 9:00 p.m. She fell asleep on E.’s bed until S.M. woke her up and told her to go and lay back on the air-mattress. S.M. then left for work. K. moved to the rec-room and fell asleep until she was awakened by the defendant and N. arguing about his desire to watch horse racing. Both the lights and the television were off. N. was beside her and the defendant was standing by the television in the rec-room.

She heard N. saying that she did not want him watching TV because they were sleeping and he sets the volume too high. When she refused to let him turn on the television he sat down on the chair. When he “thought N. was asleep” (sic) he climbed onto the bed beside K. and told her that N. “was like a police officer because she likes to like watch what people are doing and tell them what they’re not allowed to do.” [ 17 ] N. was lying on her left side facing away from K. who was lying spooned behind her. They were covered by a blanket and sheet. The room was very dark.

The defendant got beneath the covers behind her. She said he was wearing a tank-top undershirt and shorts. [ 18 ] Initially, K. was too tired to know what the defendant was doing when he began to touch her but she came to realize that he had put his right hand under her shirt and was rubbing her back. He then moved his hand around and up to her chest where he started rubbing her breasts under her bra. She testified that she did not like what he was doing and that she was disgusted by it but she lay still and did nothing. She estimated that he fondled her in that fashion for ten to fifteen minutes.

Then he tried to get his hand down the back of her pants between her legs and could not and so moved to the front of her body where he was able to untie the way she had knotted her pyjama-bottoms. At that point she tried to get out of the bed. The first time he grabbed her ankle and pulled her back. She tried again, levering herself up by putting her hand on N.’s leg, causing N. to move. That second attempt was successful. She got up and went into the bathroom. [ 19 ] She turned on the lights and used the commode to urinate. The defendant came in while she was doing so and asked her what she was doing.

She said that she was “peeing” and when he shut the door behind him she quickly finished up, pulled up her pants and began to wash her hands. As she washed her hands he grabbed her arms and gave her a hug. He said that he wasn’t going to see her for two years and asked her if she wanted to go up to his room where he would massage her. She said no and that she was tired and she pushed him away hard as he pulled her with him. She walked out of the bathroom and saw E. and N. standing there.

They asked her where their father was and she told them he was in the bathroom. [ 20 ] K. returned to the bed and said, “I can’t take this anymore” and told them what had happened in the bathroom. E. stood in the doorway of the rec-room waiting for his father to come out and when he did E. yelled at him telling him to get upstairs and that if he wanted to watch horse racing to do it in his bedroom. N. watched television with E. before returning to bed. The Mothers [ 21 ] K.’s mother, R. F. testified that K. has been diagnosed as having attention deficit, hyper-activity disorder and learning disabilities.

As a result she takes a modified curriculum and follows an individualized education plan. She related the circumstances of K.’s disclosure to her as noted previously at paragraph [4]. [ 22 ] S.M. testified that she worked a midnight shift on the Thursday and left home at about 11:00 p.m. She described the day’s events including the fact that the children played both inside and outside of the house that day. She related a conversation she had with K. on Wednesday evening in which K. complained that she was not receiving her mother’s attention.

She said that she, not K., put Ashley to bed on Thursday night and she testified that both C. and K. gave her husband a goodbye hug on Friday afternoon before she took them back to their mother. The Position of the Defendant [ 23 ] Ms. Lucas submits that the evidence fails to prove guilt beyond a reasonable doubt for a variety of reasons, including contradictions that exist within the complainant’s evidence as well as contradictions between her version of the events and the versions offered by the R. children.

Additionally, since Detective Rivet did not disclose K.’s allegations to N. and E. before he interviewed them Ms. Lucas submits their evidence is a reliable recollection of the events and not a recollection skewed to respond to the complainant’s allegations. That, she submits, is why they provided fairly consistent and congruent versions of the events. Their versions contradict the complainant’s evidence, which is also contradicted by S.M.’s evidence. Hence, the court ought to harbour a reasonable doubt about what occurred.

[ 24 ] In addition to these contradictions the defence submits that there are other reasons to doubt the complainant’s credibility because the complainant’s formal statement to the police was not made until almost a month after August 28 th . During that interval she spoke with her mother, her aunt, the prosecutor, Ms. Steckley, from the Victim Witness Assistance Programme, and someone from FACS. In addition, she read the transcript of her police interview over a three-day period before she testified.

Despite taking that much time to review that transcript, the defence submits K.’s recall of the events was hazy except for what was in the transcript and that she had difficulty recalling and relating the events that she alleged occurred. Those difficulties may be a product of innate intellectual limitation.

That is a further reason to be wary of relying upon her testimony. [ 25 ] While there is no onus or burden on the defence to explain why K. might make up these allegations, the defence suggests that an inkling may be found in the evidence of S.M. who testified that K. felt her mother was not paying sufficient attention to her. The defence position is that that evidence supports the existence of a reasonable doubt as to the defendant’s guilt. Additionally, K.’s demeanour was normal when she left the R. home and she hugged the defendant goodbye.

This is another piece of evidence that supports the existence of a reasonable doubt. [ 26 ] The defendant submits the evidence supports the following specific submissions. • The R. children said that K. fell asleep and was snoring on the Thursday night.

That is, she was not awake as she alleges. • There is no evidence of concoction between the R. children and their father. • The R. children’s version is credible, which must raise a reasonable doubt. • The contradictions to the complainant’s evidence about the events of the day – she has it that she spent the day in the basement playing video games – as compared to S.M.’s testimony that the children played inside and outside on Thursday – demonstrates the unreliability of K.’s evidence. • K.’s recollection of first falling asleep on E.’s bed and later moving to the air-mattress is clearly contradicted by S.M.’s testimony.

She testified that she never came downstairs that night at all. • K. says N. was sleeping when the defendant assaulted her but N. says she was awake and watching TV. • K. also said the television was off when the defendant came downstairs but E. said otherwise. • While N. agrees that her father got onto the air-mattress she has him over the covers and never under the covers as K. alleged. Importantly, N. says her father had no contact with K.

She saw this because she was awake when K., who had been asleep, got up to go to the bathroom. • While both R. children do say their father entered the bathroom, it is not clear and there is no evidence to support the view that he knew K. was in that room since K. usually kept the door to the bathroom open, according to N.. • Additionally, both children say that K. and the defendant were only in the bathroom together for about ten seconds. E. heard water running and K. came right out acting normally.

So, there was insufficient time for the events to have occurred as the complainant alleged. • Both R.R. children say that when she left the bathroom K. told them that nothing had happened and that she was fine and she went to sleep. • Finally, the defence submits that while the defendant’s denial of going downstairs is interesting it is of no evidentiary significance. The Position of the Crown [ 27 ] Mr. Brown’s submission is that I ought to believe K. and convict. The defendant took advantage of his wife’s absence to assault K.

He also submits that familial loyalty has caused the R. children to shade their trial evidence so that I ought to prefer and accept the particulars of their s. 715.1 statements, which each adopted. [ 28 ] Specifically, the Crown submits that E. described his father as “lurking” around at night. In fact it was N. who used that word but the point being made by the Crown is that the defendant’s behaviour was identified as suspect by his own children. Further, by the defendant’s own admission he had no basis or excuse for being in the basement.

If he wanted to watch his winning race tapes he could have done so in his own bedroom. Given that admission, the inference that he was lurking downstairs to have the opportunity of attacking the complainant is irresistible and finds support in his return to the basement on the second occasion. [ 29 ] The Crown submits the evidence supports the following specific submissions. • E. said his father was drunk and N. said that he had been drinking. This is not inconsistent with the defendant’s statement to family that he had no memory of the events of that night.

In effect he admits to suffering a black-out. • The defendant spends his time in the garage where he habitually drank. • N. described her father being on the chair beside K. and further described her father as “pretending” to go upstairs when K. went to the bathroom. • The defendant’s suspect behaviour caused E. to listen for him. • Contrary to E.’s trial evidence, in his s. 715.1 statement estimated that his father and K. were in the bathroom together for a minute or so. He was so concerned about that situation that he got up to look for his father. Even N. put them together with the door closed for

half a minute in her s.715.1 statement. • The concern of the R. children about their father’s behaviour is corroborative of the allegations made by the complainant. • K. turned on the light when she went into the bathroom. The fact that the defendant entered and stayed is clinching evidence of hisguilt. He would not have stayed inside with her with the door closed if his entry had been accidental or innocent.

However, his actionsmake sense when viewed as a continuation of the assault he committed moments earlier. [30] While the Crown acknowledges that there are conflicts between S.M.’s evidence and that of the complainant respecting somematters, those conflicts are not germane or of assistance in determining what happened in the basement when she was out of the house. In essence, the Crown’s submission is that those variances are merely collateral and not substantive conflicts, especially given that thiswas a three night visit.

So far as the conflicts between K. and N. are concerned the Crown submits that contrary to her evidence N. hadno opportunity to see what her father was doing, as she was facing away from him with K. in between them in a spooned position. Reasons for Judgment [31] The defendant was interviewed by the police. The Crown tendered his statement. R.R. said that: (

i) he never went down into the recreation-room after the children went down to bed; (ii) he did not have any physical contact with K., at any time, during her visit; he did not even hug her when she and C. first arrived; (iii) he was not in the basement when his son yelled at him to go to bed; and, (iv) he did not need to go down into the recreation-room to watch his race tapes because he could do that on the television in hisbedroom. [32] He also said that his habit was to spend his evenings in his garage drinking “a few” beers and studying racing charts.

He was asmoker who would go out of the house to smoke and he sometimes made noise in doing so by opening and closing doors. [33] Following R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at 409 I have charged myself that if Ibelieve R.R. I must acquit him. I do not believe him because K., N. and E. all say he did come down into the recreation-room on the lastnight of the visit and I accept that evidence.

Indeed they all say he and K. were in the bathroom together with the door closed. [34] If I do not believe the evidence of R.R. but I am left in reasonable doubt by his evidence or by the evidence called or elicited bythe defence or evidence favourable to the defence then I must acquit. I am not left in a state of reasonable doubt by his evidence, or bythe evidence called or elicited by the defence or evidence favourable to the defence.

I reject his evidence that he never went down intothe recreation-room after the children went to bed and I reject his evidence that he did not have any physical contact with K. at any timeduring her visit for reasons I shall set out later in this judgment. In rejecting the defendant’s evidence, I do not find that his denials weredeliberate fabrications because he was conscious of his guilt. On the contrary, he may well have believed all that he said.

Given theevidence of his children and the complainant, the likely explanation for R.R.’s failure to accurately recall the events of that night is anamnesia induced by alcohol. The evidence from his children and the complainant is clear and convincing, viz he was in the recreation-room with the girls, he was on the air-mattress that they used for a bed and he was in the bathroom with K.

Further, for the reasons setout both previously and following, I am not left in a state of reasonable doubt about the guilt of the defendant based upon the evidencecalled or elicited by the defence or the evidence favourable to the defence. [35] As I do not believe the evidence of the defendant, I must go on to ask myself whether, based on the evidence that I do accept, hasthe Crown proved the guilt of the defendant to the exclusion of any reasonable doubt?

The short answer is that it has and I find thedefendant guilty on both counts for reasons that now follow. [36] In my view, while K. is a young person and not a child, she testified in an open and child-like manner. I find that she possesseschild-like qualities that were apparent in her demeanour and in her evidence. It may well be that her presentation is a product of herlearning disabilities. I have taken those matters into account in assessing her credibility and reliability, as I am obliged to do. As theSupreme Court said in R. v.

W. (R.) (2000), (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at [144]: “Every person givingtestimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriateto her mental development, understanding and ability to communicate.” [37] I believe and accept the complainant’s testimony that she was fondled by the defendant as she described and that he accosted heragain in the bathroom as she described. I find that she answered questions in a direct, concrete and guileless fashion and that herevidence was unsophisticated, unexaggerated and unguilded.

What she said rang true to me. More significantly, it made sense and wasconsistent with and corroborated in significant material particulars by portions of the evidence given by the R. children. As well I notethe circumstance of the absence of the defendant’s wife from the home. (See G.B. v. The Queen (1990), (SCC), 56C.C.C. (3d) 161 (S.C.C.) at page 178 h.) [38] An example of K.’s naivety and lack of guile was her testimony that both N. and Ashley were pretty good friends to her. She saidthat N. was a real friend to her. Her view was simple, unsophisticated and unreciprocated by N..

N. and E. said they did not like or carefor K. These are feelings of which she was oblivious. Other examples of her lack of sophistication include her feeling that 50 per cent isa good mark, that the word “confide” was not in her vocabulary and that she defined drunk as “pretty much hung over from having somuch alcohol and beer.” [39] This is not to say that she gave her evidence perfectly or that it did not contain contradictions within it. There are a number ofweaknesses or criticisms that can be levelled against the complainant’s evidence.

They include but are not necessarily limited to all ofthe following matters. In one instance K. sequenced some of the events that took place incorrectly. When that was pointed out to her byMs. Lucas, she accepted that her recollection was wrong and adopted the suggested correction. A more significant error was that during

one of the numbers of times that she was asked to recount the night-time events she moved from falling asleep to getting up to use thebathroom with no mention of the defendant’s assault whatsoever. However, when defence counsel attempted to cement that error K.corrected herself. Another weakness in her testimony was her evidence that she knew what the defendant was wearing despite both theroom being dark and the existence of space between them on the air-mattress.

Without more that professed knowledge would not meritcredit; but, I find that it is accounted for by the fact that she saw him shortly afterward in the light of the bathroom. [40] In addition to these items, on several occasions she was unable to remember certain specific (but ultimately insignificant) factsdue to the passage of time. However, when K. could not remember a fact she candidly admitted that. While K. was mistaken about theday on which certain outings took place, she was not mistaken about the nature or purpose of the trips.

Further, while I do notnecessarily accept her estimation of how long the defendant fondled her breasts or how long they were in the bathroom together, I am nottroubled by these estimates. In the former case, she was lying in the dark with no clock available to her and in the latter, while the eventsshe described need not have taken as long as she estimated, her estimate was not so wrong as to call her credibility into question as aresult. [41] I find nothing significant or concerning about the fact that K. spent three days reviewing the transcript of her police interview.

That transcript was not produced or exhibited so that I do not know its length but I see that answer as confirming my comments atparagraphs [37] and [38]. Further, while K. may have spoken to the people she referred to before being interviewed by the police, thereis no evidence to suggest those conversations had any effect in adding to or subtracting from her memories or her description of whathappened to her. [42] Likewise, the fact that S.M.’s recollection of tangential events from earlier thatevening conflicts with K.’s recollection causes me little concern since nothing turns on which recollection is correct.

Perhaps K. hasconfused events from Tuesday or Wednesday night with the events of Thursday’s bedtime. Perhaps S.M. has done so. In my view Ineed not resolve that conflict. K.’s recollection of these peripheral events is at least as complete and compelling as S.M.’s. Further, K.’srecollection finds at least inferential support in E.’s recollection that at the beginning of the night his mother was sleeping before going towork. If so, then it is likely that K. put Ashley to bed as she recalls. Regardless, in my view, these conflicts are immaterial and irrelevant.

If the issue of who put Ashley to bed on Thursday night was as significant as now contended for by the defence I would have expectedall of the witnesses who might shed light on the issue to have been questioned about it. Further, fairness dictates that the suggestion thatAshley’s mother put her to bed on Thursday and not K. should have been put to K. directly. It must be remembered that S.M. was nothome after about 11:00 p.m. The defendant denied being in the basement yet his children and the complainant put him there. Both hisdaughter and the complainant put him on the bed beside K..

Both R.R. children and the complainant put her and the defendant in thebathroom alone with each other. [43] The defence also urged that since K. said she played video games all Thursday in the basement and since S.M. says the childrenplayed both in and out of the house that day, K. is, if not incredible, at least an unreliable historian. Again, the matter is of noconsequence. E. said that he and K. didn’t talk, never got along and stayed away from each other. E. said he played with C. and thegirls played together. Conflicts on these irrelevant points abound but are of no significance.

They are raised to impeach the reliability ofthe complainant. In my view they are ineffective to do so. [44] The answer to the further defence submission about K.’s apparent lack of distress the next day lies in the ratio of R. v. D.D.,2000 SCC 43 , [2000] S.C.J. No. 44. There is no necessary or uniform reaction to being sexually assaulted. Equally, this was nota violent, extensive or invasive assault that was likely to elicit a marked response. No force was used and no threats were made. K.complained to E. and N. and E. yelled at his father to leave and he left.

In the scheme of things I see nothing unusual about the level ofdiscomfort this assault caused K. Nor do I see anything unusual about her response to it. Likewise, while S.M. swore K. hugged thedefendant on leaving, K. denied doing so. I prefer K.’s evidence on the point but need not make a finding. [45] One other area not specifically raised by the defence but which I considered nonetheless is whether K. contradicted herself whendescribing that portion of the events where the defendant made efforts to put his hand down her pants.

A close reading of the transcriptof K.’s evidence on that point discloses no actual contradiction between her testimony in-chief and in-cross. Finally, K.’s testimonyabout N. picking up a telephone after K. came out of the bathroom but before K. made her complaint cannot be correct. I find theexplanation to be that she is wrong about the sequence but not the event itself. [46] As must be clear, I do not accept N.’s evidence that she was awake and watching television and that her father got onto the bedbeside K. over the covers. I do not accept her evidence that she could see what he was doing.

N. demonstrated a marked bias against K.and she is contradicted by her brother about the number of times their father came down into the basement. Beyond those frailties, forthe reasons noted both previously and below, I accept K.’s evidence as being accurate about what happened in the dark in the recreation-room. [47] In my view, K.’s evidence was corroborated in many material instances by the evidence of N. and E..

The prime instances arethe presence of the defendant in the basement and on the bed and in the bathroom but they both also corroborate K.’s description of thelayout of the basement and its furnishings. Another significant piece of corroborating evidence in support of K.’s version of the eventscomes from E.’s testimony. Recall K.’s evidence of what transpired in the bathroom outlined at paragraphs [19] and [20], above. E.confirms that after K. left the bathroom she told them their father had just told her how much he misses her.

I appreciate that E. does notrecall or relate K.’s disclosure exactly as K. testified but that comment is confirmation that she made a complaint as she describes. Additionally, E. corroborates her testimony that he yelled at his father to go upstairs. [36] Finally, in R. v. L.L., 2009 ONCA 413 , [2009] O.J. No. 2029 (Ont. C.A.) at [19] the court held that evidence suggestingthe absence of any reason to make a false allegation “is a factor which juries, using their common sense, will and should consider inassessing a witness’ credibility” referring to R. v. Batte (2000), (ON CA), 49 O.R. (3d) 321 (Ont.

C.A.) at [120]: Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, asa matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricateevidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will andshould consider in assessing a witness' credibility

I find that applicable in this case. I see no motive for the complainant to create false allegations against the defendant. While both N. and E. professed some degree of disaffection for K., the witnesses were unanimous that the families got along well and were on friendly terms. The fact of the invitation to visit clearly demonstrates that fact. All of that said, I have specifically cautioned myself in the terms required by paragraph [53] of L.L. cited above, as required and confirmed by R. v.

M.B. , 2011 ONCA 76 , at [30] to [32]. [48] In the result, I find the defendant guilty of and enter a conviction on the count of sexual interference. The count of sexual assault is conditionally stayed. Dated at St. Catharines, this 28 th day of January 2011 _________________________ J.S. Nadel, (O.C.J.)