R. v. J.D., 2015 ONCJ 682

Information Nos. 1211-998-14-3461-00, 1211-998-115-1130-00, 1211-998-15-935-00 CITATION: R. v. J.D. , 2015 ONCJ 682 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. J.D. R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on June 23, 2015, at BURLINGTON, Ontario APPEARANCES : M. Ward Counsel for the Crown R. Gibson Counsel for J.D. ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment Page 1

Transcript Ordered: .......................... May 13, 2015 File Received from Recording Management: ..... June 30, 2015 Submitted for Judicial Review: ............... July 6, 2015 Transcript Completed: ........................ July 9, 2015 Ordering Party Notified: ..................... July 9, 2015 TUESDAY, JUNE 23, 2015 R E A S O N S F O R J U D G M E N T HARRIS, J. (Orally): I want to thank both counsel for the written submissions. They were provided promptly despite the short turnaround times that were provided and they were quite helpful.

J.D. has been charged with sexual assault, sexual interference and invitation to sexual touching, all involving his step-daughter T.H. over a 38-month period leading up to her 16th birthday. He has also been charged with two forms of sexual exploitation with respect to her during a 15-month period following her 16th birthday. Finally, he has been charged with the same two forms of sexual exploitation with respect to her during the eight-month period following amendment of the relevant Criminal Code

section with respect to a mandatory minimum sentence for that offence. This period ended upon her 18th birthday. Crown counsel elected to proceed by indictment. Mr. J.D. elected to be tried in the Ontario Court of Justice and plead not guilty with respect to all charges. T.H. and H.S., a friend of T.H., testified for the Crown. Mr. J.D. and his wife, L.C., testified for the defence. Certain admissions were made at the outset of the trial including date, jurisdiction, identification of Mr. J.D., and the date of birth of T.H. There was no issue that T.H. was in a relationship of dependency to Mr.

J.D. at the relevant times. The issue to be decided by me was whether the Crown had proven beyond a reasonable doubt that Mr. J.D. did those things which T.H. said that he did. T.H. testified that beginning when she was 13 and continuing until some months after her 18th birthday, Mr. J.D. touched her in a sexual fashion and had her touch him in a sexual fashion. She said that this touching initially began with him touching her breasts and her vagina over her clothing and with her touching his penis over his clothing.

This quickly progressed to mutual touching of those same body parts directly and then to her sucking on his penis and to him licking her vagina.

Mr. J.D. denied doing any of these things. H.S. and L.C. were not present whenever these things did or did not happen, and testified only to matters going to the credibility of T.H.and Mr. J.D.. This is therefore a classic she said/he said case. I am therefore mindful of the direction provided by the Supreme Court of Canada inRegina v. WD (SCC), [1991] SCJ No. 26. If I believe the testimony of Mr. J.D., I must find him not guilty. Even if I do not believe the testimony of Mr. J.D., if his testimonyleaves me with the reasonable doubt about his guilt, I must find him not guilty.

If I do not know whom to believe, it means I have a reasonable doubt and must find him not guilty. Finally, even ifhis testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am notsatisfied beyond a reasonable doubt of his guilt, I must acquit. In determining this I keep in mind that Mr. J.D., like every other person charged with a crime, is presumed to be innocent unless and untilthe Crown has proven his guilt beyond a reasonable doubt. He did not have to present evidence or prove anything.

It is not enough forme to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certaintyis a standard of proof that does not exist in law. However, I must remember that the reasonable doubt standard falls much closer toabsolute certainty then to proof on a balance of probabilities. This is a tough standard and it is so tough for very good reason. As Justice Cory in R. v.

Lifchus: The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principle safeguards whichseeks to ensure that no innocent person is convicted. I did not believe Mr. J.D.. His evidence did not leave me with a reasonable doubt as to his guilt. There are a number of reasons for this. At the outset, I wish to point out the following: I am attaching no weight to Mr. J.D.’s's criminal record in assessing his credibility. I amalso attaching no weight to the "thumbs up" icon contained in his response to the Facebook message from T.H.'s boyfriend.

I did take into account the following: First of all, there were numerous inconsistencies in his evidence. I note that in assessing the credibility of any witness, it is appropriateto examine the inconsistencies between what the witness said in the witness box and what he or she said on previous occasions. It is alsoappropriate to examine inconsistencies with what other witnesses said.

Inconsistencies on minor matters or matters of detail are normaland do not generally effect the credibility of a witness, particularly a young witness, but one or more inconsistencies involving materialmatters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality ofthe inconsistencies. There were serious inconsistencies in Mr. J.D.’' viva voce evidence. For example, he initially said that he had never given T.H. anyalcohol. During cross-examination he changed his evidence, but only a step-by-step basis.

He first acknowledged that he might havegiven her a sip of beer sometimes. This was expanded to include a drink of hard liquor. This then progressed to giving her a mickey ofvodka on one or then possibly more than one occasion. T.H. testified that Mr. J.D. regularly gave her alcohol as a reward for her sexualfavours. L.C. testified quite candidly that Mr. J.D. had given T.H. a mickey of vodka on one occasion.

Mr. J.D. initially testified that while he had smoked marijuana with T.H., he had not done so on a regular basis. He repeated this during cross-examination. Then he was confronted with his statement to lice where he stated that he had smoked marijuana with T.H. regularly, "lots of times", and he agreed with that statement. He initially said that he was "bedridden" following surgery for his hernia, and accordingly, he could not have committed the offence alleged.

His subsequent evidence made it clear that "bedridden" did not mean confined to his bed because he went downstairs to the living room every day where he spent his time on the couch. Throughout his evidence he insisted that he did not go down into the basement during the period when he was recovering from his surgery. He did not go into the basement because he could not go down stairs. This was inconsistent with his evidence that he went down the stairs from the second floor of his house to the ground floor every day.

Apparently, it was only the basement stairs that he could not descend, although he never explained how these stairs were any different from the others. In fact, on one occasion during his cross-examination he testified that he might have gone down to the basement "once or twice" during that time, that made it clear that he was capable of going down those stairs. Mr. J.D.’' evidence was also inconsistent with that given by other witnesses. He testified that he never gave any Percocets to T.H. T.H. testified that he did. H.S. also testified that he did. Counsel for Mr.

J.D. argued that I should discount the evidence of H.S. here on the basis that she said that Mr. J.D. had given T.H. both Percocets and OxyContin, whereas T.H. had never suggested that Mr. J.D. had given her OxyContin. I disagree with counsel here. First of all, Percocets and OxyContin are both brand name medicines containing the pain killer oxycodone. In the absence of asking H.S. whether she viewed one as being different from the other, I am not prepared to conclude that she did. In that regard, I note that neither counsel asked her anything about this.

Secondly, in my notes I wrote that she said that she and T.H. used Percocet and OxyContin. A short time later I noted her saying, "I saw him giving her perks." I have no note of her saying specifically that Mr. J.D. gave T.H. OxyContin. The evidence from Mr. J.D. is to the nature of his post-surgery scar was very different from that given by L.C., although they both agreed that the scar was very noticeable. They disagreed to a considerable extent as to what it looked like. Of course, his evidence was also inconsistent with that of T.H. I will address her evidence shortly.

I also took into account the fact that there were occasions when Mr. J.D.’' evidence was implausible to the point of being unbelievable. The first example of this is where he claimed to have stopped smoking marijuana for up to two years while he recuperated from his surgery. By his own admission, he smoked marijuana on a nearly daily basis, both before and after this. He did so because it relieved both stress and physical pain. His evidence was that he stopped smoking marijuana during the period when he was experiencing post- operative physical pain and increased stress as a result of him being unable to work.

He said he stopped because he could not go downstairs to the basement to smoke marijuana. I have already referred to the fact that by his own admission he could in fact go downstairs. I also note that he smoked marijuana in the garage in Burlington and showed some flexibility in when and where he both could and would do that. His claim that he stopped smoking and why he supposedly did so are not believable. T.H. testified that Mr. J.D. continued to smoke marijuana throughout this period. L.C. agreed with Mr. J.D. that he did not smoke marijuana during that time. Mr.

J.D. also testified that he never yelled at the younger children to not come down into the basement. Whenever he was going to smoke something or do anything that he did not want them exposed to, he would caution them ahead of time not to come downstairs and they never did. I do not believe that he was that organized that he always cautioned them ahead of time. Nor do I believe that these young children were so well behaved that they never slipped up and came into the basement anyway, causing Mr. J.D. to yell at them to stay upstairs.

T.H. testified that they did start to come down into the basement on occasion and that Mr. J.D. then yelled at them to stay upstairs. Finally, Mr. J.D. testified that he spoke to his son about the need for extra effort in cleaning his uncircumcised penis and that during this conversation Mr. J.D. referred to his own uncircumcised penis. He testified further that this conversation took place in the presence of T.H. I find it unbelievable that any father would have had this very personal conversation with his young son in the presence of an older

teenage sister. I note that T.H. disagreed about this happening. I note further that L.C. was not asked about this and did not say anything about this conversation. As I have noted already, T.H. contradicted Mr. J.D. on all of the above points and on some others. I believed T.H. I found her to be a very credible witness. The following are some of reasons for this. I note that Crown counsel argued that these offences occurred when T.H. was a child.

In dealing with the evidence of child witnesses, I note the following basic principles: Every witness irrespective of age is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate. No inflexible rules mandate when a witnesses should be evaluated according to "adult" or "child" standards. An inflexible category base system would resurrect stereo types as rigid and as yielding as those rejected by the Supreme Court of Canada in its approach to children's evidence.

I note that generally where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location should be considered in the context of her age at the time when the events about which she is testifying occurred. I will indicate that, with respect to these principles of law, I was guided primarily by the decision of the Supreme Court of Canada in R. v. WR , [1992) S.C.J No. 56 and by R. v.

AM [2014] O.C.J No. 5241, a decision of the Ontario Court of Appeal. In this case I am satisfied that T.H. testified as an adult regarding events that occurred throughout her teenaged years, and that I am obliged to assess her credibility according to the criteria applicable to adult witnesses and not the somewhat lessened standard of scrutiny associated with child witnesses. In that regard, I note the comments of the Court of Appeal in the R. v. AM decision in paragraph 25. Counsel for Mr. J.D. argued that T.H. made up the allegations against Mr.

J.D. to get back at him for not bailing her out when she was in jail. I disagree. She testified clearly that she was angry at him. She also made it clear that she was more angry at her mother for this. She was also angry at her mother for others reasons too. She had no other reason to be angry at Mr. J.D. unless he had in fact been sexually abusing her. I note that T.H. could have caused considerable difficulty for both her mother and Mr. J.D. by simply informing the police that both of them had been providing her with illegal drugs.

She could have got back at them for something that even they now admit to doing and so she could have reported these activities without risk of being cut-off from her entire family as occurred when she reported the sexual abuse. I also note that initially she did not go to the police herself. What she did was she told her boyfriend what had happened. He was the one who pressed her to go to the police. He was the one who confronted Mr. J.D.. He was the one who brought the issue to light. So I do not accept that she was motivated to lie in this way in order to get Mr. J.D. in trouble. Mr.

J.D., on the other hand, has powerful reasons to lie. He does not want to be convicted of these offences. L.C. also has reasons to lie. She relies on Mr. J.D., both financially and emotionally. Further, she admitted in Court to lying to the Children's Aid Society in order to keep her family intact. T.H. did not demonstrate a level of animosity towards Mr. J.D. that one might expect considering her allegations. I noted that she seemed to blame herself in part for what she let him do in order to get her rewards. In addition, she carefully avoided overstating what he had done.

She was very clear that he had never used force or threatened to use force with her. She was very clear that he had never had

sexual intercourse with her. She indicated that he persisted for a while in trying to talk her into it, but when she stuck to saying "no", he accepted that. In fact, he also accepted it when she said "no", even in the end when she said that she would no longer do what she had been doing up until then. T.H. was very candid about her own bad behaviour. She admitted stealing drugs from Mr. J.D.. She admitted to committing criminal offences against her boyfriend and to breaching her bail. She admitted to behaving very badly in court during her bail hearing. Counsel for Mr.

J.D. argued that T.H. said that the abuse had occurred weekly and sometimes several times a week. Accordingly, the abuse must have occurred hundreds of times. Counsel argued that it was impossible that the other children never walked in on any of these occasions. I note that T.H. did not say that it happened weekly or that it occurred several times per week. She said that it happened regularly over the years. She did not; however, say "frequently". She in fact stated that she was uncertain as to how often it did happen.

I also note that T.H. testified that there were occasions when the children did start to come in while the abuse was occurring. I note that H.S. corroborated her evidence with respect to Mr. J.D. providing her with pain killers. I note that T.H. said that Mr. J.D. was capable of performing and receiving oral sex following his surgery. Mr. J.D. testified that he was not. L.C. was not asked about this and did not say anything about it. T.H. said that she did not see a noticeable scar from the surgery. Mr. J.D. and L.C. both said that the scars were quite apparent.

As I noted earlier, however, they disagreed as to the appearance of the scars. That leads me to conclude that any scarring is not so obvious as they suggested. For the reasons given, I did not believe Mr. J.D. or L.C. Further, their evidence did not leave me with a reasonable doubt as to the guilt of Mr. J.D.. I did believe the evidence of T.H. Based on her evidence and all the other evidence that I did accept, I am satisfied that the Crown has proven guilt beyond a reasonable doubt with respect to all of the charges before me. I therefore find Mr. J.D. guilty of all charges.

FORM 2 CERTIFICATE OF TRANSCRIPT Evidence Act, Section 5(2) I, Wendy Ponka, certify that this document is a true and accurate transcript of the recording of R. v. J.D. in the Ontario Court of Justice held at Burlington, Ontario, which has been certified in Form 1. Date: July 9, 2015

My signature _____________________________________ Signed Digitally July 9, 2015 Wendy Ponka, COM, CVR, ICDR, ICDT, CLR, CSU, ACT (Commissioner of Oaths, Certified Verbatim Reporter, Internationally Certified Digital Reporter, Internationally Certified Digital Transcriptionist, Certified LiveNote Reporter, Certified SpeechCAT User, Authorized Court Transcriptionist - ACT#5076574572) *This Certificate does not apply to transcripts which have been judicially edited.