HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 252

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION : R. v. C.P., 2020 ONCJ 252 DATE : May 26, 2020 Toronto Region BETWEEN: HER MAJESTY THE QUEEN — AND — C.P. Before Justice L. Botham Reasons for Judgment released on May 26, 2020

Maggie Brown .................................................................................... counsel for the Crown Joanne Prince ..................................................................... counsel for the defendant C.P. BOTHAM J.: [ 1 ] The defendant is charged with sexual assault, sexual interference and invitation to sexual touching with respect to his nieces, S.L. and H.L. [ 2 ] A 715.1 application was granted admitting the complainants’ previously recorded statements as evidence at this trial. They were then cross-examined.

In addition, their parents testified as did the defendant. [ 3 ] On March 1, 2019, S.L. told her parents that the defendant, had sexually assaulted her. Her parents spoke to her siblings and ultimately her younger sister, H.L. disclosed that she had also been sexually assaulted by her uncle. [ 4 ] Her parents spoke to York Regional police who advised them to contact the Toronto police, since that was where the offences had occurred.

Some two weeks later, the complainants were interviewed and it is the recording of those police interviews, which form part of the evidence at this trial. [ 5 ] Both complainants described the sexual assaults as occurring at their grandparent’s home. The defendant is their uncle. His wife is their father’s sister. He and his wife lived with the girls’ grandparents. The girls and their parents had from time to time also lived in that home. [ 6 ] At the time that S.L. was sexually assaulted, her family were living in their own home.

Notwithstanding that it appears that S.L. frequently stayed with her grandparents, perhaps once or twice a week. She and the defendant have both testified that it was not uncommon for her to sleep with her aunt and the defendant, rather than on her own. [ 7 ] S.L. has described two incidents of sexual assault which occurred when she slept over one Easter weekend. She didn’t feel well, so she asked if she could sleep with her aunt and uncle. She was sleeping between the two of them. She woke up and felt someone touching her in her vagina and then on her breast.

Her back was to her uncle and he was using his hand to rub her vagina. [ 8 ] The next day she went shopping and then after dinner she watched a movie in her aunt’s bedroom. She woke up to being touched again. This time, her uncle had his arm around her and was pushing her into him. Almost immediately, she got up and went to the washroom. She went into her grandparents’ room, but she didn’t want to disturb them, so she returned to her aunt’s bedroom.

Her aunt woke up when she came back to the room and told her to come to bed, which she did. [ 9 ] After this happened, she stopped going to her grandparents’ home without her parents, even though previously she used to visit there a lot. S.L. believes that she was turning 10 or 11 when she was assaulted. She is confident that it occurred over an Easter weekend and that her aunt was pregnant with her second child.

She explained that one of the reasons she had not told anyone at the time that her uncle had sexually assaulted was because her aunt was pregnant and she didn’t want to cause her any stress. [ 10 ] S.L. was asked why she decided to tell her parents about what her uncle had done and she said that she didn’t want to hold it in anymore. She wanted to be able to go to my grandparent’s house without her uncle being there and feeling uncomfortable. [ 11 ] She spoke with H.L. after she spoke to her parents and they shared details about what had occurred with their uncle.

Their aunt came to their home and spoke to them separately. Her aunt asked her if her parents had told her to say this and she said no. She recalls this happened before they were interviewed by the Toronto police. [ 12 ] Her younger sister, H.L. was also interviewed by the police and a recording of that interview forms part of the trial evidence. She told the interviewing officer that she was in the basement doing laundry with her uncle.

She was sitting on something next to the laundry that she usually sat on and “I forget how it popped up but he asked me if he could touch me in my private part, I was shocked and scared and I said no well I froze a bit and then I said no and then after he was just quiet and then he came over and touched me, I tried to cover myself but with his other hand he grabbed me away and he just put his hand down my pants and he touched my private part and then he asked if I wanted to touch his and I said no and he grabbed my hand and put my hand down his pants and he held it there for a minute or so and when he let me move my hand out, my hands were wet”.

She ran upstairs. She never told anyone because she was afraid she might get into trouble because she had touched him on his private parts. When this happened she and her family were living at her grandparents’ home. [ 13 ] She related another incident that she says occurred with her uncle. It doesn’t form any part of the allegations of sexual assault but she testified that he would grab her by her legs and spin her upside down but he would only spin her if she banged her head near his private parts.

This happened in her aunts’ bedroom and it was the only way, she would be allowed to go into the bedroom to see the cats that stayed there. She recalled that this game occurred in the spring before the laundry room incident. [ 14 ] H.L. was also asked about how she came to tell her parents about her uncle touching her in the laundry room. She testified that her sister had told her parents what had happened to her and then her parents came and asked if anything had happened to her. Initially she said no and then finally she told them.

She explained that, ‘They asked if anything bad had ever happened with me and C.P. and at first I said no cause I was scared to tell them but then after a while of them telling me that are you sure like it’s okay you’re not going to be in trouble and then I finally told them’.

[ 15 ] T.L. is the father of S.L. and H.L. He testified that in March of 2019, S.L. spoke to himself and his wife. She was in tears and she told him that she had been sexually assaulted by her uncle when she was staying with her grandparents. He and his wife spoke to all their children separately. They didn’t tell any of the children any details, only asked if anyone had ever touched them inappropriately at school or at someone else’s house. All the children said no. [ 16 ] A few hours later, his wife had him join her with H.L. who disclosed that she had been sexually assaulted by her uncle.

She described what had happened, then he asked questions. He recalled that he was asking her why she hadn’t said anything to them. He was asked if he told H.L. anything that S.L. had said to him and replied that H.L. told them that S.L. had already spoken to her, so he did not. He wasn’t sure when that conversation would have occurred because he and his wife had spoken to S.L. a couple of hours earlier. [ 17 ] He called his father and told him that both girls had come forward with claims of sexual assault against C.P.

He also told his sister and she said that she wanted to speak to the girls and drove out to their house that evening and spoke to them. [ 18 ] The following evening, the family decided to call the police. There had been multiple discussions with his daughters prior to calling the police, not so much with respect to the details of the assaults but more with respect to how they were feeling and why they hadn’t come forward sooner. [ 19 ] T.L. testified that he and his wife had been puzzled when S.L. abruptly stopped going to his parents’ home, since she had been a frequent visitor there.

They questioned her as to why that was happening. His evidence was somewhat vague as to the details of these conversations. He explained that he is hearing that his daughter didn’t feel comfortable going to the house without her parents. She didn’t want to spend the night there and she didn’t feel comfortable around her uncle. He described the information that he was receiving as “bits and pieces of what had happened” but that he did not know exactly what he knows now.

He was asked if he knew why S.L. didn’t want to go to her grandparent’s home and replied ‘There was more, I just don’t recall exactly what” He recalled that information was coming from S.L. and he understood at the time that H.L. had heard things from S.L. One time, H.L. who had overheard S.L. speaking to himself and his wife, asked him if something had happened between S.L. and their uncle. [ 20 ] He testified that he had wanted to get the full story and had had discussions with his mother and his father about what he had heard. He could not recall how much he told his mother or when he had these discussions.

At that time he was reluctant to go to the police because he wanted to know the whole story before he did something that would be so devastating to his extended family. [ 21 ] In re-examination he was asked what S.L. had told him. He replied that any time we asked her if anything happened sexually, she would get really mad and walk out of the room. He was asked by Crown counsel why he was asking S.L. if anyone had sexually touched her and he replied, that he and his wife were asking “did something happen, has anyone hurt you, has anyone touched you?” [ 22 ] M.L. is the mother of both complainants.

She had been concerned about S.L. because she had stopped wanting to go to her grandmother’s house, which was very unusual. M.L. tried to get her daughter to tell her what was going on. She would ask her if there was anything she wanted to tell her parents. She told her daughter that something had changed with her and wondered why. She recalled having had that sort of conversation quite often with her daughter but to no avail.

She believed something had happened between S.L. and her uncle because that was the only time that she would be different or leave the room. [ 23 ] M.L. was asked if there was any time when her daughter told her what was happening and she replied that they had a few conversations in regards to it and then there was the time when S.L. broke down and told her the real reason why she didn’t want to go to her grandparents’ home.

I understand that conversation to be the one in March of 2019 which led to the defendant’s arrest. [ 24 ] M.L. testified that she then spoke to her other children separately, asking them if anything had happened to them that they would like to talk about. H.L. originally said nothing had happened and then later called her mother into her bedroom. She was crying and said something had happened to her. M.L. did not believe that there was any way for H.L. to have known what S.L. had told her.

In contrast to S.L.’s evidence, she was very clear that neither she, nor her husband, ever suggested that the two girls talk to each other about what had happened. She did not recall receiving any ‘bits and pieces’ before that evening, as her husband had suggested. She did not know that her husband had spoken to his parents about his concerns at any time before S.L.’s March disclosure. [ 25 ] She confirmed that their family is not presently living together and have not been doing so, since October 2019.

Her daughters do not live together, both have apparently been placed in separate foster homes although each live with another of their siblings. She does not believe that there would have been any opportunity for her daughters to have had any further discussions about the case, given the present living arrangements. She sees her children twice a week during supervised family visits and there have been no discussions about the case. [ 26 ] C.P. is the uncle of S.L. and H.L. His son S. is 5 and L. is two. S. was born on […], 2015 and L was born in January 2018. His wife is the aunt of S.L. and H.L.

They have always lived with his wife’s parents and they still live with his wife’s father. [ 27 ] At the time these incidents are said to have occurred, he and his wife were living in the master bedroom of the home. Their two cats and cat litter were also kept in the room. The laundry was in the basement, which he described as open concept. There were no dividing walls, however someone coming down the basement stairs would not be able to see the laundry area from the stairs. [ 28 ] Both S.L. and H.L. have always been in his and his wife’s lives.

He had what he described as a typical uncle, niece relationship with S.L. His wife was closer to her then he was, although he also participated in joint activities such as taking her and her siblings out on their birthdays or outings. His relationship with H.L. was more distant than that of S.L., who came over quite frequently. [ 29 ] When his brother-in-law’s family were living in Toronto but not at the grandparents’ home, S.L. would come over once or twice a week and often stay the night. He estimated about 85 % of the time, she would sleep with himself and his wife.

He agreed that S.L. and H.L. may well have stayed over Easter, 2017, since that would not have been usual. [ 30 ] In February or March of 2018, his mother-in-law approached him and his wife and said that her son had told her that S.L. had said that he had touched her inappropriately. He testified that historically the relationship between his wife and her brother had been

rocky and he believed that S.L. had been put up to this by his brother- in-law. [ 31 ] He was angry and shocked by the accusation. He did not confront his brother or sister-in-law but he did tell his wife that he did not want to spend time around the children unless she was there. [ 32 ] He confirmed that even before his mother-in-law told him about her complaint, S.L. had stopped suggesting that she sleep with him and his wife. He also confirmed that although S.L. had been a frequent visitor at the grandparents’ home, she likely only came to the house on her own once in 2018.

On that occasion, he thought she seemed fine. However, when she came with her parents, she would avoid everyone and was sad or grumpy. Although there was this drastic change in her behaviour in terms of distancing herself from the house and his wife, he never spoke to her about it. [ 33 ] He denied having touched S.L. as she had described.

He was asked if she had ever gotten up on the middle of the night and left the room, he replied that she had slept over so many times that getting up to go to the washroom and returning to the bedroom would not be anything unusual. [ 34 ] Both lawyers asked him if he might have touched S.L. in his sleep or still half asleep, thinking she was his wife. He acknowledged that anything was possible and that he had certainly initiated sex in that way with his wife but that he did not believe that could be the case.

He believes he would have woken immediately and realized his mistake and he denied that such a thing had occurred. [ 35 ] He usually did his family’s laundry. He does not ever recall asking H.L. to come down to the basement with him while he was doing the laundry, as she has described. He did recall taking her and her younger sister down to the basement with him. He was doing laundry and one of them asked if they could watch the machine spinning and he took them down and held them up, so they could watch it spin. He brought the children back upstairs.

He didn’t recall H.L. being downstairs with him on any other occasion. [ 36 ] He agreed that none of the children were able to enter his bedroom without permission. He recalled that he had spun the children in the backyard at one point or another but not in the bedroom as there would not have been enough space. He had spun them by their arms. [ 37 ] He found out about H.L.’s accusations on March 2 nd of 2019. His wife told him.

He was concerned that this was the second time an allegation had been made so he went to a police station the next day to see if there was something he could do to protect himself from what he described as harassment. He was cross-examined by Crown counsel about the many negative comments he made to the police concerning his brother-in-law. He acknowledges he maybe went too far because he was very angry.

He does not agree that any of the comments were not true. [ 38 ] The Crown has applied to have the evidence of both complainants admitted as similar fact evidence. [ 39 ] The two sisters complain that while in the company of their uncle, they were touched in a sexual manner by him. The incidents are reasonably close in time, having occurred between the summer of 2016 and the summer of 2017.

The probative strength of this similar fact evidence comes from the unlikelihood that two people would report similar conduct if it had not happened. [ 40 ] Although the evidence as it relates to the disclosure of these incidents raises potential issues as to the overall reliability of the accounts the evidence is probably more appropriately described as one of opportunity for collusion or tainting and as such, would not be a basis to find that the Crown had not met the threshold test for admissibility. [ 41 ] The two incidents are of similar seriousness and since they both arise from incidents charged on the information, I see little concern that the admission of this evidence will occasion moral or reasoning prejudice, as referenced in the case law. [ 42 ] I am satisfied that the evidence of the two complainants meets the threshold test of admissibility as similar fact evidence. [ 43 ] I acknowledge that no adverse inference is to be drawn on the issue of credibility simply because a complaint was delayed and I do not do so.

In fact, I thought the explanations given by both complainants as to why they had not disclosed immediate to the events were quite reasonable and understandable given their ages and the family dynamics. [ 44 ] However the circumstances surrounding the making of a complaint may be relevant when assessing the overall reliability of a witness. For example the questioning of the complainant may have been overly suggestive. There may exist an atmosphere of ill-will motivating the making of the complaint.

One of more of the complainants may have known the details of another complaint, possibly affecting the accuracy of their evidence. None of these factors are determinative in assessing the credibility and reliability of a witness but they are relevant. [ 45 ] Here the complainants and their parents provide different accounts as to how the initial disclosure took place. S.L. has testified that she did not say anything to her parents about what had happened on the Easter weekend for two years.

Her father, although agreeing that he didn’t know all the details until March 2019, suggests that he was aware that something had happened between herself and her uncle and that he had spoken to his mother about it. He recounts a narrative wherein he and possibly his wife questioned S.L. on more than one occasion to establish what the issues were between herself and her uncle.

He is unclear as to exactly what he did ask S.L. or what she said to him but confirms that his discussions with S.L. and possibly H.L. were ongoing from 2017 to her ultimate disclosure in 2019. [ 46 ] T.L. has also testified that he believed from speaking to his daughters that they had had some discussions about what S.L. was saying had happened with her uncle prior to his daughters being interviewed by the Toronto police and possibly before H.L. disclosed that she had been touched herself by her uncle.

His daughter, H.L. has testified that she was asked by her parents if anything bad had happened with her uncle before she disclosed the incidents which form the part of the charges at this trial. I acknowledge that her mother maintains that all questioning was open ended but the record as to how the disclosures came to be made is not clear.

[ 47 ] Although I have found the evidence of the two complainants to meet the threshold test for admissibility as similar fact evidence, the inferences to be drawn from the evidence of multiple complaints can be affected by the context in which the complaints came to be made. The probative strength of the similar fact evidence introduced by Crown counsel arises from assumption that it defies coincidence that unrelated parties would make similar accusations against the same offender.

That assumption can be weakened by evidence of collusion or tainting. [ 48 ] Given the evidence relating to the disclosure by both complainants of sexual abuse by their uncle, I am not persuaded that I can draw the conclusion that the only basis upon which the two complainants would have come to make these allegations would be because the conduct complained of did occur. [ 49 ] I can say that both complainants presented as intelligent and thoughtful. They were able to give details with respect to the incidents and were largely consistent in cross-examination with the accounts given to the investigating officers.

I have concerns about whether there may have been suggestive questioning of both S.L. and H.L. The evidence of T.L. at least raises the specter that prior to disclosing in March 2019, S.L. had been asked indirectly and possibly directly about whether she had been sexually touched or interfered with by him.

The record as to what was said to H.L. to trigger her complaint of sexual touching is not clear, especially given her evidence as to how she recollected the questions proceeding her disclosure, namely whether her uncle had ever touched her. [ 50 ] That is not to say, even if there was suggesting questioning, that the complaints may not be true but it is relevant to my overall assessment of the Crown’s case, keeping in mind the burden to be met by the prosecution. [ 51 ] As so often happens in these cases, the trial judge is left with radically different evidence by witnesses who all appear credible.

S.L. and H.L. are bright and articulate. Their evidence was not shaken in cross-examination. What they are saying could certainly be true. [ 52 ] However, the defendant is entitled to the benefit of reasonable doubt on the issue of credibility and on all issues that I need to decide. Even if I do not believe his evidence, if it raises a reasonable doubt he is entitled to an acquittal. [ 53 ] The defendant has testified and denied the allegations by both of his nieces. His evidence was not shaken in cross-examination.

Contrary to the view expressed by Crown counsel, I was impressed with his evidence. [ 54 ] He has not simply put forward a blanket denial. He has testified about his relationship with both nieces and their parents. He considered the questions asked to him in cross-examination and appeared to do his best to answer them fairly. [ 55 ] He has testified that he was made aware in early 2018 that S.L. had complained of unwanted touching and as a result, he distanced himself from his wife’s family, most specifically the children.

His evidence is corroborated to an extent by T.L. who has testified that he was concerned that something had happened between his daughter and her uncle and had spoken to his mother about it. [ 56 ] He was challenged by Crown counsel as to why he went to the police in 2019 when he was made aware of the complaints by both his nieces. He explained that he felt that these complaints were being triggered by his brother-in-law, with whom he had a rancorous relationship and he wanted to protect himself against further harassment.

Crown counsel couches this as self-serving, quite frankly I could see why someone would respond as he did. Similarly, he was challenged as to why he told the police so many negative details about his brother-in-law.

He acknowledged that he likely had gone too far but he wanted the police to know the family issues that he believed could be sparking these complaints. [ 57 ] That is not to say that there is evidence that these complaints were triggered by T.L. or even that he did in fact have animus towards the defendant but certainly when assessing the defendant’s evidence, I found that his responses to Crown questioning were measured and credible. I was impressed by his evidence and having heard it, I am not satisfied beyond a reasonable doubt that the events described by S.L. and H.L. did occur and I find him not guilty.

Released: May 26, 2020 Signed: Justice L. Botham