) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 2157

CITATION : R. v. R.G., 2010 ONSC 2157 COURT FILE NO.: 08-00733 DATE: 20100430 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – R.G. Defendant ) ) ) ) ) ) ) ) Mr. J. Pearson for the Crown Mr. S. Proudlove for the Defendant ) ) HEARD: April 8-10, 2010 REASONS FOR JUDGMENT bOSWELL J. Introduction: [ 1 ] J.L.G. is 20 years old. She lives in Philadelphia where she hopes to attend teachers’ college. She travelled to Newmarket to testify in this trial against her father, R.G.. She presented at trial as a bright, attractive and articulate young woman.

Juxtaposed against those appealing features was a dreadful story she told of sexual assault and incest. She testified that from the time she was in grade 5 until the completion of grade 11, she suffered ongoing and repeated sexual abuse inflicted by her father. [ 2 ] As a result of a report made by J.L.G. to police in July of 2007, Mr. R.G. was charged with sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, incest and uttering a death threat. [ 3 ] This was a two witness case. Only J.L.G. and her father testified.

It is a classic “she said/he said” case, the ultimate issue being whether any of the alleged events said to form the basis of the charges ever actually occurred. Legal Framework: The Essential Elements of the Offences [ 4 ] Mr. R.G. faces six charges, the essential elements of which overlap in many instances. [ 5 ] To establish the offence of sexual interference, under s. 151 of the Criminal Code , the Crown must prove beyond a reasonable doubt that Mr.

R.G. touched his daughter for a sexual purpose at a time when she was under the age of 14. [ 6 ] To establish the offence of invitation to sexual touching, under s. 152 of the Criminal Code , the Crown must prove beyond a reasonable doubt that Mr. R.G. invited or counseled his daughter to touch his body for a sexual purpose at a time when she was under the age of 14. [ 7 ] To establish the offence of sexual exploitation, under s. 153(1) (

a) of the Criminal Code , the Crown must prove beyond a reasonable doubt that, in the context of a relationship of trust, Mr. R.G. touched his daughter for a sexual purpose when she was between the ages of 14 and 18. [ 8 ] To establish the offence of incest, under s. 155 of the Criminal Code , the Crown must prove beyond a reasonable doubt that Mr. R.G., knowing he was J.L.G.’s father, nevertheless had sexual intercourse with her. [ 9 ] To establish the offence of sexual assault, under s. 271 of the Criminal Code , the Crown must prove beyond a reasonable doubt that Mr.

R.G. intentionally applied force to his daughter, without her consent, in circumstances of a sexual nature. [ 10 ] Finally, to establish the offence of uttering a threat, under s. 264.1(1) (

a) of the Criminal Code , the Crown must prove beyond a reasonable doubt that Mr. R.G. knowingly made a threat to cause death or bodily harm to his daughter.

Credibility and the W.D. Analysis [ 11 ] Mr. R.G. testified in his own defence. He repeatedly denied ever having any sexual contact with J.L.G.. He further denied threatening her with death. [ 12 ] The outcome of this case turns on the court’s assessment of the credibility of J.L.G. and R.G.. It is important to repeat, as the Supreme Court confirmed in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC) , 63 C.C.C. (3d) 397, that this isn’t simply a credibility contest. It is not just a determination of which of two versions of events the court prefers. Mr. R.G. is presumed to be innocent.

He starts the trial with a clean slate. The presumption stays with him throughout the trial and is only displaced when the Crown proves his guilt beyond a reasonable doubt. [ 13 ] The principle of reasonable doubt must be applied to the assessment of credibility. Accordingly, where an accused person, in this case Mr. R.G., has testified, I must first determine whether I believe his evidence and if I do, I must acquit him, because if I believe his denials then I will not have been satisfied of his guilt beyond a reasonable doubt. Even if I do not believe Mr.

R.G.’s evidence, I must determine if, in the context of all of the other evidence, it leaves me in a state of reasonable doubt about his guilt. Finally, even if Mr. R.G.’s evidence does not raise a reasonable doubt, I must still be satisfied that on the balance of the evidence the Crown has established his guilt beyond a reasonable doubt. [ 14 ] There is no magic to the wording of the formula set out in R. v. W.(D.) . What is important is that its principles be applied: R. v. Paul, 2010 ONCA 151 . The language of W.(D.) suggests the starting point of the analysis is a consideration of the evidence of the accused.

Clearly, however, Mr. R.G.’s evidence can not be considered in isolation. In fact, the court has a duty to consider his evidence in the context of all of the evidence presented at trial. The court has a positive duty to compare the evidence of all the witnesses, recognizing of course that one possible outcome of the comparison and overall assessment of evidence is that a reasonable doubt may be raised about the guilt of the accused: see R. v. Hull , 2006 CanLII 26572 (ON CA) , [2006] O.J. No. 3177 at paragraph 5 . [ 15 ] Mr. R.G.’s evidence was largely responsive to J.L.G.’s evidence.

In order to understand his evidence and to put it into context, it is necessary to first review J.L.G.’s testimony. The Evidence The Complainant [ 16 ] J.L.G. was born […], 1990, so she has just turned 20 years old. She lives in Philadelphia. She is the daughter of the accused and M.G.. Her parents are divorced. Her mother is remarried to P.G. and the G. live in South Carolina where Mr. P.G., a member of the U.S. military, is stationed. [ 17 ] J.L.G.’s parents separated when she was quite young – she believes she was about 4 years old at the time.

She described moving back and forth a number of times between their residences as she grew up. She recalled initially living with her father in Ottawa when her parents separated. She said her mother moved to Crystal Lake, Illinois to live with a new spouse, Mr. H.. She stayed in Ottawa with her father. When she was 6 she moved to Crystal Lake to live with her mother. [ 18 ] At 10, she returned to Ontario to live with her father, who by that time had moved to Sutton, where he lived with his mother (J.L.G.’s grandmother).

J.L.G. stayed in Sutton for about a year, while she attended grade four, after which time she moved back to Crystal Lake. She stayed in Crystal Lake until partway through grade 7, when she again moved back to Ontario. She stayed in Ontario until halfway through grade 9, when she returned to Illinois to live with her mother. She stayed with her mother for just a year, returning to Ontario partway through grade 10. She stayed in Ontario and finished her grade 11, then finally returned to the U.S. in early July 2007. By July 2007, her mother had married Mr. P.G. and was living in South Carolina.

J.L.G. did not see her father from July 2007 until the time of the trial. [ 19 ] J.L.G. testified that when she first lived in Illinois, her father came to visit her once a month or once every couple of months. When he visited he stayed in a hotel or sometimes her mother would let him stay in her home. The long history of sexual abuse began, according to J.L.G., when she was in about grade 5 and during one of her father’s visits to Illinois when he stayed in her mother’s home. [ 20 ] In particular, she said they were both sleeping on an air mattress in the guest room.

Her father began touching her on her arms and legs. Then he started touching her breasts. She tried to pretend that she was asleep, hoping he would stop. Then he touched her vagina. She was hoping he was doing it by accident. But then he started to get more aggressive in rubbing her vagina. She asked him to stop. He told her not to say anything to her mother because she wouldn’t let them see each other again. During this incident she said her mother and Mr. H. were asleep in the master bedroom next door. She confirmed under cross-examination that she felt comfortable with her mother and Mr. H..

Nevertheless she did not tell them about the sexual abuse because she loved her father and didn’t want to get him in trouble. She was also afraid she might get hurt. [ 21 ] The next incident of sexual contact she could remember occurred in Sutton, when she was in grade 7 or 8. The home in Sutton was owned by her grandmother. J.L.G. had a bedroom on the second floor of the two storey home. Her father had a room in the basement. On the occasion she recalled, she was in the basement with her father in his room. It was night time and she was downstairs saying goodnight.

Her grandmother was asleep in her bedroom on the main floor. [ 22 ] She testified that her father was being a little aggressive, touching her breasts, trying to kiss them. He took her clothes off. He touched her legs and then her vagina. She told him no, but he kept going. He started to lick her vagina. Then he asked her to suck his penis. She said no. He got more aggressive and told her she was going to do it. So she did. Her father ejaculated. She said she kind of knew what that was from health class.

The whole incident lasted about 15-20 minutes, after which her dad said he was sorry, that it wouldn’t happen again and that he loved her. She didn’t say anything to him. She was very ashamed. [ 23 ] The next day her father took her shopping, to make up for what happened. He said he was really sorry and that he didn’t want to do it again. She said make up shopping trips became a common theme as time went on. Mr. R.G. purchased her clothes, video games

and snacks, such as ketchup chips, to make up for the sexual contact that happened. That said, J.L.G. conceded, under cross- examination, that her father regularly bought her gifts throughout her life, particularly when he was living apart from her. His gifts became a proxy for his presence. The gift buying was not, accordingly, connected only to sexual incidents. [ 24 ] J.L.G. described an ongoing pattern of sexual contact between her and her father. After the first incident in the basement in Sutton the sexual encounters occurred regularly in her room upstairs.

She said oral sex occurred about three times per week and always after her grandmother had fallen asleep. Usually her father would perform oral sex on her first, then have her perform it on him. [ 25 ] She knew that what was happening was wrong. Still, she did not tell anyone. She articulated a number of reasons why she did not tell anyone, despite admitting in cross-examination that she had had a number of opportunities to do so, including extended periods of time when she lived outside of her father’s residence. She said that she feared her father. He was twice her size.

He had convinced her that he would do something to her if she said something. He also made her believe that no one would believe her if she told them. At the same time, she said she loved him and didn’t want him to get in trouble. [ 26 ] J.L.G. said she tried to say no to her father, at least once a week, but when she did, he became violent. He would tell her to stop being a little bitch. He called her a “cunt” a lot.

He would say, “you’re being a cunt, just like your mother.” He would grab her around the neck, hold her up against a wall, push her around a lot, grab her by her arms, and/or shake her until she relented and participated. [ 27 ] Her father, she said, drank regularly and often to excess. She said he drank Labatt’s Blue. He drank on weeknights when he got home from work. He drank on weekends. He always drank to the point of being drunk. When he was drinking he was more violent, so she would try not to say no to his sexual advances on those occasions. [ 28 ] As time went on, the sexual contact progressed. Mr.

R.G., she said, eventually began to try to insert his fingers into her vagina. The first time he did it, it hurt and she asked him to stop, but he didn’t. He usually inserted a finger into her vagina when he was performing oral sex on her. [ 29 ] J.L.G. testified that the sexual contact between her and her father eventually progressed to full intercourse. She said the first incident of intercourse occurred about a week before her 16 th birthday. She had a boyfriend at the time. She was planning a birthday party at Dave and Busters restaurant and she wanted to invite her boyfriend.

Her father was initially resistant, but one night he came to her room and said she could invite her boyfriend provided she had sex with him. She said no, to which he responded that it was going to happen anyway. She said she fought as much as she could. She wanted to save herself for someone special, not her dad. [ 30 ] The intercourse was over very quickly. She said it lasted only 5 to 10 minutes, after which her father said he was very, very sorry and that he loved her very much.

The next day he made the Dave and Busters plans and told her that she could invite her boyfriend. [ 31 ] Intercourse began to occur about twice a week after the first incident. [ 32 ] Under cross-examination, J.L.G. said that her father eventually forced her to engage in sexual acts with him if she wanted things. For instance, if she wanted money for lunch or a new bedset, she had to prostitute herself to him. If she wanted new clothes she would have to give him a blowjob.

If she wanted to spend a day on the internet, she would have to give him a blowjob and later perform sexual intercourse with him. [ 33 ] During cross-examination, J.L.G. was questioned about why she did not report the sexual abuse to her mother at any time prior to July 2007. She said that during the periods of time that she lived in Sutton, she did not see her mother on a regular basis. Her mother did not come to visit her, other than perhaps at Christmas. She did talk to her mother on the phone about once a week, but wasn’t inclined to tell her about the sexual abuse for several reasons.

She said she was afraid of her father. She was afraid he was listening to her calls. She was afraid he would hurt her. He often threatened that if she told anyone he would kill her and then himself, which he described to her as the “perfect crime”. J.L.G. also testified that she did not want to hurt her father. Though she was afraid of him, she still loved him. [ 34 ] J.L.G. admitted that her parents took her views and preferences into account when determining which parent she would live with.

She also confirmed that after a certain age she could have made choices independently of her parents about where she wanted to live. Notwithstanding that power, she acknowledged that she made choices to stay with her father even though he was abusing her. She said it was hard to explain why she would do that. Her father made promises to her that the abuse would stop and she believed him because she loved him and wanted to believe it would stop. She said there were also good times with her father and that they overshadowed the sexual abuse.

She wasn’t getting what she wanted out of a father, but her situation was the only one she knew. [ 35 ] Defence counsel put to J.L.G. that she not only chose to live with her father for extended periods, but, sometime around her 16 th birthday, when the abuse was at its peak, she prepared a project for school in which she named her father as her hero. J.L.G. admitted preparing the project. She said she did so to make her father happy.

She said he read her homework and would see what she wrote and it would make him happy. [ 36 ] Notwithstanding J.L.G.’s expressed fear of her father and the other reasons she gave for not reporting the sexual abuse, there was an occasion where she did report Mr. R.G. to the police. In 2006, at the end of the school year, she had an argument with him about a cell phone bill. She said he grabbed her by the neck and held her up against the wall, much longer than he had ever done in the past. She was having trouble breathing. When she went to school the next day, she told someone about what happened.

It got back to the principal and the police were called. She told the police about the assault. She thought about telling them about the sex abuse but was afraid her father would come after her if she did. It seemed much more serious to her than the assault. [ 37 ] In any event, her father was charged and released on a recognizance of bail that prevented contact between him and J.L.G.. She moved to Sauble Beach and lived with an aunt for about eight months.

[ 38 ] Ultimately J.L.G. declined to attend and testify against her father at his assault trial and the charges against him were either withdrawn or dismissed. She said that afterwards her father began calling her and apologizing for the abuse. She believed him and moved back to his home in February 2007. She acknowledged the obvious in cross-examination: that she had chosen to move back into a sexually abusive environment. [ 39 ] After she moved back, her father didn’t touch her for a couple of weeks. She thought the sex abuse might be over. But she was wrong. The sex in fact increased.

From twice weekly it increased to almost every weekend and evenings when her father got home from work. She said he told her it was a punishment for her lying to the police. [ 40 ] J.L.G.’s 17 th birthday was in April 2007. Her father bought her a laptop. He also got the two of them tickets to see the Phantom of the Opera in Toronto. They saw the show and stayed at a hotel near the theatre. [ 41 ] There were two beds in the hotel room. She went to bed at about 2:00 a.m.. Prior to then she had been on the laptop. Her father told her to come into his bed.

She said it wasn’t really necessary, but he told her to come over. He started to touch her all over her body, then proceeded to have sex with her. He told her she had to do it as a thank you for taking her to the theatre and buying her a laptop. She told him she didn’t want to do it, that it was her birthday weekend and she wanted to have a break. He took off her clothes. She resisted it. She said “please, I don’t want this, stop”. He persisted and she gave in after a while.

She figured if she gave in, he would do it, it would be over and they could go home. [ 42 ] In the Summer of 2007, J.L.G.’s mother expressed an interest in having J.L.G. come and live with her in South Carolina. She was about to have a baby with her new husband, Mr. P.G.. At the same time, Mr. P.G. was being deployed overseas. J.L.G.’s mother wanted her to come and assist with the new baby. She agreed to go. [ 43 ] The last time she reported having sex with her father was just before she left for South Carolina. She said it was rough sex.

The next day she went to Canada’s Wonderland with a friend and then the following day she flew to South Carolina. [ 44 ] She said she tried calling her father about three times in July, 2007. She was able to speak to him once. He seemed upset about a cell phone bill. [ 45 ] When in South Carolina she asked to speak to a therapist. She disclosed the sexual abuse to the therapist and subsequently to an MP at the military base where her mother and new step father lived. She decided to make the disclosure because she had suffered for so long and thought that her father should suffer.

She also didn’t want to have to worry about someday having her own kids and those kids being around her father. [ 46 ] The statement to the police was given in early August 2007. [ 47 ] After her disclosure of the abuse, Mr. R.G. sent her a Facebook message. Facebook is a social networking site that facilitates communication and correspondence between friends and acquaintances. Mr. R.G. created a Facebook identity or profile known as L.T.. An exchange occurred between them, the totality of which was as follows: L.T.

Jesse I need to know if you want me to just go away, forever Please talk to me PLEASE J.L.G., I Love You I need you to help me decide what I’m going to do Puffer Fish J.L.G. Dad Only Mom and P.G. know what happened. No police are going to be called they promised me…I just want this all to stop please don’t contact me anymore Jesse L.T. I promise not to contact you ever again Perhaps time will heal our wounds Good-by my sweet princess, and I hope you have a wonderful life ☺ I will always love you. Daddy

[ 48 ] J.L.G. testified about how the sex abuse affected her. She said her self-esteem was stripped away. Her grades at school were horrible. She didn’t go to classes. She pretended she was sick. She had no drive and didn’t feel like she could do anything with her life. She had trouble sleeping at night, a problem that persists to this day. She was in therapy in South Carolina for six months. Her grades in school improved remarkably after moving to South Carolina. She has moved on with her life. She confirmed that she still loves her father, but wants nothing more to do with him. The Accused [ 49 ] Mr.

R.G. testified that he and J.L.G.’s mother, M.G., met in the military. They married in 1989. They were living in Shiloh, Manitoba at the time of J.L.G.’s birth in 1990. They separated in 1993 and Mr. R.G. moved to Ottawa with J.L.G.. M.G. moved to Halifax to be with another man. When her relationship failed, M.G. moved to Ottawa and reconciled with Mr. R.G.. The reconciliation was short lived. M.G. met a man on the internet and moved in the Summer of 1995 to be with him in Crystal Lake, Illinois. J.L.G. remained with Mr. R.G. in Ottawa. [ 50 ] At Christmas 1995 J.L.G. moved to Illinois to live with M.G..

She lived with M.G. for about three years. During that time, Mr. R.G. says he travelled to the U.S. to visit with J.L.G. roughly three times per year. He says he would plan his visits around a long weekend and would stay at the Holiday Inn when he travelled there. [ 51 ] There were three occasions when Mr. R.G. travelled to the U.S. for longer periods and actually stayed with M.G. and J.L.G.. The first was at Christmas 1999, when he stayed for about 3 weeks during a period that M.G. was having marital problems with her American husband.

Later, in 2001 he stayed for about a month, during a time M.G. was moving to a new residence in Aurora, Illinois, where she moved in with another man. He was not clear in his evidence about when the third extended trip in the U.S. was. He said it was around a time when M.G. was separating from the man with whom she lived in Aurora. [ 52 ] During this last trip to Aurora, Illinois, Mr. R.G. says an incident occurred where J.L.G. called 911 regarding her mother. Defence counsel put this incident to J.L.G. in cross-examination. She said she did not recall it.

She admitted it’s possible that it might have happened. [ 53 ] On those occasions when he stayed at M.G.’s residence, Mr. R.G. stayed on a pull-out couch in the living room. He denied knowing anything about an air mattress and said that while J.L.G. did come and sleep with him sometimes, it was on the pull-out couch in the living room. [ 54 ] Mr. R.G. said he would do anything for J.L.G.. He did his best to make up for the fact that she had a difficult time going back and forth between her parents’ homes as a child. He said she was a very good child growing up. She was an only child and was spoiled.

He would take her places and do things for her. She was spoiled with material things: video games and consoles and clothes. Whenever she needed anything she would just ask and she would get it. [ 55 ] He spoke of sacrifices he made for J.L.G.. For instance, he described a process by which J.L.G. came to live with him in 2003. He said M.G. was having problems in her life at that time. She asked him for $12,000.00 that she needed to pay off debts. She said if he paid that money he could have custody. He says he paid it, they entered an agreement for joint custody, and J.L.G. came to live with him.

Subsequently, in 2005, he got his Class “A” driver’s license and planned on driving a long haul truck. J.L.G. had been living with her mother, but decided to move back to Ontario. In the result, Mr. R.G. abandoned his long haul trucking plans and took a local job driving a York Region transit bus. [ 56 ] Mr. R.G. denied ever having sexual contact with J.L.G.. He said he didn’t understand why she was doing this and that it was ripping his heart out. He expressly denied sexually assaulting J.L.G. at her mother’s residence at any time. He denied touching J.L.G.’s legs, breasts and vagina.

He denied ever inserting his fingers into her vagina. He denied performing oral sex on her or asking her to perform oral sex on him. He denied having sexual intercourse with her. He denied that J.L.G. had to perform sexual favours for him in order to be provided with clothing or other necessities. He said he knew nothing about vibrators. He denied demanding sex from her in exchange for allowing her boyfriend to attend her 16 th birthday party. He said the allegations are completely false.

He said none of the allegations about violent assault, threatening death (either J.L.G.’s life or his own), or withholding things pending sex are true. He said he never did any of those things. [ 57 ] He denied calling J.L.G. a bitch and/or a cunt. He admitted that there may have been occasions where he said, “stop being a little bitch”, but never in a sexual context. [ 58 ] He denied that he was a problem drinker. He said that at one time he may have had a problem, but in 2001 he was charged with driving with a blood alcohol content of “over 80”. He said he cleaned up his act after that time.

He denied drinking to excess after 2001. He agreed his drink of choice was Labatt Blue. [ 59 ] Mr. R.G. gave evidence about the assault allegation in 2006. His evidence was that J.L.G. falsely accused him of assaulting her. He was arrested and placed on bail conditions. J.L.G. moved to her aunt’s. He attended court in October 2006 but J.L.G. did not appear to testify against him so the charges were dropped. Afterwards, J.L.G. called him and apologized and said she wanted to come back. He was apprehensive at first. He said in cross-examination that in fact he really didn’t want her to come back.

He was badly hurt by her false allegations. In addition, there was conflict between J.L.G. and her grandmother. Mr. R.G. testified that J.L.G. had gone so far as to tell her grandmother to “fuck off”. He understandably thought such behavior was totally unacceptable. [ 60 ] Eventually Mr. R.G. relented and allowed J.L.G. to move back. He said she agreed she would change.

In cross-examination he described J.L.G. as “promising to the end of the earth that she would follow the rules.” She agreed to spend less time on the internet, something that had been a significant concern to him and a source of friction with her grandmother. She was going help her grandmother more. J.L.G. moved back into to his home in February 2007.

[ 61 ] J.L.G.’s 17 th birthday came shortly after she moved back in with him. For her birthday he got her a laptop that cost about $1,100.00 and in addition he took her to the Phantom of the Opera in Toronto and they stayed over in a hotel. He denied that there was any sexual contact between them at the hotel. [ 62 ] He admitted in cross-examination that while he had regularly bought gifts for J.L.G., the laptop and trip to Toronto were significant gifts even for him. He explained that J.L.G. had been doing better at home – she had been proving herself.

The hurt from the false allegations was “water under the bridge” by then. He said he was not one to hold a grudge. [ 63 ] Mr. R.G. confirmed that J.L.G. moved to South Carolina in July 2007. The purpose of the move was to assist her mother with the birth of a new child. He drove J.L.G. to the airport. There was no issue with her prior to or during the drive to the airport. There were no immediate issues between him and J.L.G. as of the day she left. [ 64 ] J.L.G. called him when she got to South Carolina to confirm she’d arrived safely. He called her about a week and a half later and they had a nice conversation.

A further week and a half later he received a phone message from J.L.G. asking him to call her back. He did, and left a message. [ 65 ] On or about August 3, 2007, he received a telephone message from M.G.’s husband, P.G.. The message was to the effect that “J.L.G. has told us what you’ve done to her.” He was frantic. He called back and left a message asking J.L.G. to call him and tell him what this was about. Some time later, M.G. called him and said that J.L.G. had told them he’d had sex with her.

She said something about Interpol, told him not to contact them again, and hung up. [ 66 ] The next, and last, communication he had with J.L.G. was in the form of the Facebook exchange that J.L.G. referred to in her evidence. He says M.G. had told him not to contact them again. He wanted to know if this is what J.L.G. wanted, so he started out his communication by asking if she wanted him to go away forever. He says what he meant by his inquiry was “what’s this all about, what do you want me to do?” He said obviously something had gone wrong.

He just wanted J.L.G. to know he would always be there for her. [ 67 ] During cross-examination, Mr. R.G. confirmed that he had not talked to J.L.G. about the sexual abuse allegations prior to the Facebook exchange. He admitted that in his first exchange with her he did not ask what it was that she was saying about him and why she was saying it. He said he was not making an admission, nor a denial, but rather just wanted to find out what all this was about and what J.L.G. wanted him to do. [ 68 ] He did not contact J.L.G. after the Facebook exchange.

He moved to Calgary and got a new job driving a transit bus there. He was arrested in January 2008 while at work. He had not contacted J.L.G. again after the Facebook exchange in August 2007. Analysis [ 69 ] Having reviewed the evidence of the two witnesses, I return to the examination of whether the evidence of the accused leaves me in a state of reasonable doubt about his guilt. [ 70 ] Mr. R.G.’s evidence was, for the most part, unremarkable in either a positive or negative way. He did not contradict himself. He did not collapse under the pressure of cross-examination.

His evidence was consistent in many ways with J.L.G.’s evidence. Although there was some inconsistency in the descriptions each of J.L.G. and Mr. R.G. gave about when J.L.G. lived with each of her parents, Mr. R.G. reasonably conceded that he had no issue with J.L.G.’s descriptions about where she lived and when. In fact their evidence is quite similar in terms of many of the more mundane aspects of their lives. Where they differ significantly, of course, is with respect to the facts and circumstances relating to the charges on the indictment. Their accounts of those circumstances are obviously irreconcilable.

The determination of a verdict turns on the assessment of the credibility of the two witnesses, keeping in mind of course that the principle of reasonable doubt must be applied to that assessment. [ 71 ] There are a several aspects of Mr. R.G.’s evidence that I wish to specifically reference. [ 72 ] One theory advanced by the accused is that J.L.G. was motivated to fabricate accusations about her father in order to leave his home to be nearer to her boyfriends. In the case of the assault accusation, she was able to move closer to her boyfriend, Jake, who resided in London.

In the case of the sexual abuse allegations, she was able to move closer to her boyfriend, Shaun, who resided in the United States. [ 73 ] It is important to note that Mr. R.G. has no obligation to prove anything or even present evidence at all in this case. He certainly has no obligation to prove a motive to fabricate exists, or even to offer an explanation as to why J.L.G. might be making allegations of abuse against him.

I comment on the suggested motive to fabricate only because his counsel raised it in submissions. [ 74 ] In my view, the evidence does not support that J.L.G. had a motive to fabricate. [ 75 ] The evidence does not reveal that J.L.G. had greater access to her boyfriend, Jake, after she moved to Sauble Beach. With respect to Shaun, the evidence is consistent that the reason J.L.G. moved to South Carolina was to assist her mother with a newborn, not to be closer to Shaun. Furthermore, the abuse allegations came out several weeks after J.L.G. had already moved. [ 76 ] There are two areas of Mr.

R.G.’s testimony that I found troublesome. The first relates to the circumstances surrounding J.L.G.’s return to his home in February 2007. J.L.G. testified that it was her father who encouraged her to return to live with him and it was her father who made promises that things would change in their home. Mr. R.G. testified that it was J.L.G. who contacted him and persuaded him to allow her to return, based on promises that her behavior would change.

He was quite emphatic that behavioural changes were necessary and equally emphatic about the promises J.L.G. had made to make those changes. [ 77 ] The behavior that needed changing, according to Mr. R.G., related largely to excessive use of the computer. Mr. R.G. earlier testified that he had to move the family computer from the second floor to the living room, so that his mother could keep an eye on J.L.G.’s computer use and so that J.L.G. would interact more with her grandmother. He was concerned about inappropriate behavior

while J.L.G. used the computer. The inescapable inference from Mr. R.G.’s evidence was that J.L.G.’s computer use was excessive and was a source of friction in the home. [ 78 ] Notwithstanding Mr. R.G.’s concerns about J.L.G.’s excessive computer use, her disagreements with her grandmother, the assault allegation which he says was false and his indication that he didn’t really even want J.L.G. to come back to live with him, two months after J.L.G. moved back in, Mr. R.G. bought her one of, if not the , most expensive gifts he had ever purchased for her.

The gift was a laptop computer - the very item that he wanted to limit use of. The laptop would allow J.L.G. to move about the house with the computer as she saw fit. She could use it privately in her own room if she wished, away from her grandmother’s supervision. In effect, it encouraged, rather than discouraged, computer use. It encouraged, rather than discouraged, private use, meaning less supervision and less interaction with her grandmother. It encouraged more use of the very instrument of strife in the home. I reject Mr. R.G.’s evidence on this point.

The purchase of the laptop simply flies in the face of all of the concerns Mr. R.G. expressed about J.L.G.’s behavior and in addition, a gift of that magnitude strikes me as inconsistent with the profoundly hurt feelings Mr. R.G. professed to be feeling as a result of the allegedly false assault allegation. [ 79 ] On the other hand, the purchase of the computer is consistent with J.L.G.’s version of events. In particular, that it was Mr. R.G. who had encouraged J.L.G. to return to his home. Further, that gifts like the laptop were, in effect, peace offerings. I accept J.L.G.’s evidence that it was Mr.

R.G. who encouraged her to return to live with him and that the laptop, apart from being a birthday present, was, in effect to reward her for returning home. [ 80 ] Of greater concern to me, however, is the evidence of the Facebook exchange. When confronted with the exchange in cross- examination, Mr. R.G. acknowledged that he did not at any point in the correspondence deny that he had abused J.L.G.. He was quick to point out, however, that neither did he admit any abuse. [ 81 ] There are only three communications in the Facebook exchange. They occurred over an eight hour period. Mr.

R.G. said he had not spoken with J.L.G. about her allegations at any point prior to the Facebook exchange. He had very little information about what the allegations were. One might reasonably expect that someone in his position would ask J.L.G. to tell him what she was alleging. He did not do so in either of his communications. [ 82 ] During his examination in chief, Mr.

R.G. said he did not know why J.L.G. was doing this (meaning making these allegations against him) and it was “ripping his heart out.” Nevertheless, he did not ask J.L.G. during their communications in August, 2007, why she was doing this, nor did he tell her how hurt he was by her allegations. [ 83 ] In fact, Mr. R.G.’s first communication with J.L.G. was to ask if she wanted him to go away forever. This communication was from a man who said he had fought many times to gain custody of her. A man who paid $12,000.00 to his ex-spouse to obtain a joint custody and primary residence agreement.

A man who said he had been there for J.L.G. through thick and thin. A man who permitted J.L.G. to return to his home even after, as he said, she made false accusations of assault against him. A man who professed deep love and affection for her. [ 84 ] While I accept Mr. R.G.’s explanation that it’s hard to predict how one might react to this type of allegation, I find his initial communication to be unusual to say the least. He testified that what he was really trying to convey was that he wanted to know what the allegations were all about.

I find that evidence to be inconsistent with the language used and, frankly, I consider it self-serving. Mr. R.G. could very simply have asked J.L.G. what the allegations were all about. He did not do so. Instead, he asked her if she wanted him to go away forever. [ 85 ] J.L.G. reacted by saying that only her mother and P.G. knew what happened and that the police were not going to be called. [ 86 ] Mr. R.G. had considerable time to reflect on J.L.G.’s message.

His reply, again, was not to question what the allegations were, what it was that her mother and P.G. knew about, or what it might be that would be of interest to the police. Instead, he promised not to contact her ever again. And he kept that promise. He moved to Calgary and did not contact her again. He said, under cross- examination, that he interpreted J.L.G.’s response to mean that perhaps in time they could discuss things. But in my view, the words “please don’t contact me anymore” are not reasonably consistent with someone trying to convey a message that they’ll talk about things later. [ 87 ] Again, Mr.

R.G. suggested that a reasonable inference from the Facebook exchange was that he was trying to find out what the allegations were all about. In my view, such an inference is not reasonable based on the language used in the exchange. [ 88 ] I infer from the communications contained in the Facebook exchange that Mr. R.G. knew what J.L.G. was talking about. I infer that he knew what the abuse allegations were and he knew what it was that J.L.G. wanted to stop. [ 89 ] Mr.

R.G.’s communications were, in fact, entirely consistent with someone who knew what the allegations were and who was prepared to do exactly as he was asked in order to prevent further action on the part of J.L.G. or her mother. [ 90 ] Largely because of my concerns about those parts of Mr. R.G.’s evidence I have just referred to, I do not believe his denials in relation to the conduct giving rise to the charges now before the court. Viewed in the context of J.L.G.’s evidence, his denials do not leave me in a state of reasonable doubt about his guilt.

That said, I must still be satisfied, on the basis of evidence I do accept and rely upon, that the Crown has proven the charges beyond a reasonable doubt. [ 91 ] I found J.L.G. to be an entirely credible witness. Her evidence was, with one minor exception, internally and externally consistent, which is somewhat remarkable considering the extensive detail provided and the time period over which her evidence spanned. She was not shaken under cross-examination. [ 92 ] J.L.G. was able to make accurate and complete observations about most events she testified about.

Throughout her evidence, she was able to provide a wealth of details about the sexual contact between her and her father. For instance, she testified that:

(

i) When she performed oral sex on him, he wanted her to swallow his ejaculate, but she usually ran to the bathroom to spit it out and brush her teeth; (ii) One time she accidentally bit his penis and he got quite angry and accused her of doing it on purpose. She said it was an accident and that she just didn’t know how to do it; (iii) Her father loved to look at her bottom. He used to say how perfect it was. “Ass” was the word he would use. She was about 15-16 at the time he was using that language, when her body was a little more matured. He would make comments about her ass when she would walk up the stairs.

He also used to make comments about her breasts, how much he liked them, how supple and beautiful they were; (iv) Her father would not have intercourse with her when she was having her period. He would, however, have her perform oral sex on him; (

v) Her father usually used condoms. He bought the condoms at the Shoppers Drug Mart across the street from their home. Sometimes she would go to the store with him. On those occasions, he would ask her to stay in the car or he would have her go shop in another part of the store; (vi) On occasions when her father did not wear a condom, he would not ejaculate inside her. He would ejaculate on her leg or lower stomach; (vii) Her father wanted to kiss her, but she would not do it. It felt too personal to her.

She usually just turned her head and looked away, waiting for it to be over; (viii) She described two vibrators that her father had and where he kept them. He used the vibrators on her every couple of weeks; (ix) Most of the time when her father had sex with her, it was in the missionary position. As the summer came, after her 17 th birthday, he would get her to move around a lot – on top of him, or on all fours so he could penetrate her from behind. [ 93 ] Not surprisingly, greater detail was given with respect to more recent events, than was provided for events that occurred when J.L.G. was younger.

Such a difference is not uncommon, not only because memory fades over time, but also because children do not have the same ability as adults to recall precise details accurately. As Chief Justice McLachlin said in R. v. W.(R.) (1992) 1992 CanLII 56 (SCC) , 2 S.C.R. 122 at paragraph 26 : In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [ 94 ] J.L.G. was, for the most part, able to give fulsome details about all events she testified about. There was one inconsistency in her evidence surrounding the existence of a Myspace account. J.L.G. testified that she had a Myspace account three or four years ago but had closed the account.

She admitted in cross-examination that in fact she had two Myspace accounts. She confirmed in re-examination that she had posted an entry on one of the accounts about a year ago. [ 95 ] The inconsistency in her testimony about the Myspace account remains unresolved. That said, it relates to a peripheral matter at most. In my view, it does not undermine the credibility and reliability of her evidence on the whole. [ 96 ] Mr. R.G. testified that there was an occasion a number of years ago when J.L.G. called 911 when she lived in Aurora, Illinois with her mother. J.L.G. was 12 or 13 at the time.

She was purportedly having an argument with her mother. Her mother was chasing her and she called 911 to report it. J.L.G. was asked about this incident in cross-examination. She said she could not recall it, but it was possible that it happened. [ 97 ] Mr. R.G.’s counsel suggested that a 911 call is not something a person is likely to have forgotten. I agree with him, but, on the record before me, I am not able to conclude that J.L.G. was lying about not recalling a 911 call. The most I can conclude is that she does not recall something that would likely stick out in most people’s minds.

That said, I am not troubled by her lack of recall on the point. She conceded it may have happened, for what it’s worth. It was 7 years ago and allegedly occurred at a time when J.L.G. was only 13. There are so many other indicia of reliability associated with J.L.G.’s evidence that I do not consider her reliability to be materially diminished by any inability to recall a 911 call. [ 98 ] Mr. R.G.’s counsel submitted that it is dangerous to base a conviction on the evidence of a single, uncorroborated witness.

It is not uncommon, particularly in sexual assault cases, for the complainant to be the sole Crown witness. It is quite proper, in my view, to accept uncorroborated evidence if the witness is trustworthy and reliable. J.L.G. is certainly not an unsavoury witness. I found her to be very trustworthy. Moreover, I find that the Facebook exchange is corroborative of her allegations of sexual abuse. [ 99 ] Defence counsel suggested that J.L.G.’s reliability is undermined by both the delayed timing of disclosure and the fact that she made repeated choices to live with Mr. R.G. when she had other options.

Reasons for delayed disclosure are, of course, many and varied. Similarly, the reaction of children to sexual abuse may also be quite varied. As Chief Justice McLachlin said in R. v. D.(D.) 2000 SCC 43 (CanLII) , 148 C.C.C. (3d) 41 at paragraph 65 : Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for

the delay are many and at least include embarrassment, fear, guilt or lack of understanding and knowledge. In assessing the credibility of a complaint, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. [ 100 ] J.L.G. gave explanations for her delayed disclosure and for the fact that she stayed with Mr. R.G. for so long. I accept her explanations as reasonable and consistent in all the circumstances. [ 101 ] In the final analysis, I reject Mr. R.G.’s denials of the sexual abuse of his daughter.

I do so in part because of the two significant concerns I have outlined in relation to his evidence and in part because I find J.L.G.’s evidence about the sexual abuse to be very credible and I am satisfied beyond a reasonable doubt of the truth of that evidence. In light of my acceptance of J.L.G.’s evidence as proof beyond a reasonable doubt of Mr. R.G.’s guilt, his evidence, and in particular his denials, do not raise a reasonable doubt in my mind. [ 102 ] My conclusions about the evidence of J.L.G. and of Mr. R.G. is more than simply the expression of a preference for J.L.G.’s evidence.

As Justice Doherty said in R. v. J.J.R.D ., 2006 CanLII 40088 (ON CA) , [2006] O.J. No. 4749, at paragraph 53 , “[a] rejection of the accused’s evidence based on a considered acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” [ 103 ] To specifically address the essential elements of the offences: (

i) I am satisfied beyond a reasonable doubt that Mr. R.G. touched his daughter for a sexual purpose at a time when she was under the age of 14. Some of that touching occurred in another jurisdiction, but I accept J.L.G.’s evidence that touching and oral sex began in Sutton, Ontario when she was in grade 7 or 8 and continued thereafter; (ii) I am further satisfied, beyond a reasonable doubt, that Mr. R.G. invited or counseled his daughter to touch his body for a sexual purpose at a time when she was under the age of 14; (iii) I am further satisfied, beyond a reasonable doubt, that Mr.

R.G. stood in a relationship of trust in relation to J.L.G., being her father, and that in the context of that relationship of trust, he touched his daughter for a sexual purpose when she was between the ages of 14 and 18; (iv) I am further satisfied, beyond a reasonable doubt, that Mr. R.G., knowing he was J.L.G.’s father, nevertheless had sexual intercourse with her; (

v) I am further satisfied, beyond a reasonable doubt, that Mr. R.G. intentionally applied force to his daughter, without her consent, in circumstances of a sexual nature; and, (vi) Finally, I am satisfied beyond a reasonable doubt that Mr. R.G. knowingly made a threat to cause death or bodily harm to his daughter, in threatening to kill her and them himself should she ever reveal the abuse to anyone. [ 104 ] In the result, there will be a finding of guilt on all counts on the indictment. Counsel may wish to make submissions regarding the application of the principles set out in R. v.

Kienapple , 1974 CanLII 14 (SCC) , [1975] 1 S.C.R. 729. BOSWELL J. Released: April 30, 2010. R. v. R.G., 2010 ONSC 2157

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – R.G. REASONS FOR JUDGMENT Boswell J. Released: April 30, 2010