HER MAJESTY THE QUEEN – v. –, 2013 ONSC 4060

CITATION : R v AGH, 2013 ONSC 4060 COURT FILE NO. : 12-40000475-0000 COURT FILE NO.: 0274/12 DATE: 20130821 ONTARIO SUPERIOR COURT OF JUSTICE SUBJECT TO A PUBLICATION BAN FOR THE IDENTITY OF THE COMPLAINTS AND THE DEFENDANT MADE PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE BETWEEN: HER MAJESTY THE QUEEN – and – A.G.H. Defendant )) )) )) )) ) ) Anna Stanford, for the Crown David Costa , for the Defendant HEARD: May 27, 28, 30, 31, June 10, 11, 12, 17, 18, 20, 2013 J. Wilson J.

REASONS FOR JUDGMENT [ 1 ] The defendant, A.G.H. is charged with touching for a sexual purpose each of his three female grandchildren when each complainant was under age contrary to s. 151 of the Criminal Code . He is also charged with sexual assault against the eldest complainant .

At the time the complainants disclosed the alleged sexual abuse, the complainants were 20 (D.G.), 16 (I.L.) and 13 (Z.F.) years old. [ 2 ] The defendant denies the allegations and asserts that it is not plausible for the defendant, now 70 years of age, to have been abusing the three complainants without it having come to the attention of other family members residing in the home. [ 3 ] The position of the defence in this trial is that: • The complainants, under the influence of their mother, and perhaps also their father, were pressured into fabricating the allegations of sexual abuse.

There was a family plan to remove the defendant from the home to solve various family problems, including to avoid the payment of rent. The evidence of sexual abuse was fabricated to advance this plan. • The evidence of the complainants is unreliable and not credible as there was the opportunity for the complainants to communicate and some actual communication took place between the complainants before they gave their statements to the police.

The evidence of the complainants is contaminated by conscious or unconscious tainting and tailoring of their evidence. • The evidence of the complainants is unreliable and not credible as there were major inconsistencies in their evidence, their allegations are implausible, there are no dates and details of the allegations. Further, there is no independent corroboration of this unreliable evidence. • The evidence of the defendant should be accepted. The grandfather testified that he was a loving, generous grandfather who was affectionate, but that he never sexually abused any of his three granddaughters.

It is the defence position that the application of the three part test in R. v. W.(D.) , 1991 CanLII 93 (SCC) , [1991] 1 S.C.R. 742 , considering the evidence as a whole, should clearly result in an acquittal of the defendant on all charges. [ 4 ] It is the position of the Crown that: • The suggestion by the defence that there was a master plan by the mother and perhaps the father to remove the grandfather from the house to avoid paying rent and to avoid other tensions and problems in the family is speculative and makes no sense. There is no evidence to support this defence theory.

• The evidence of the complainants is reliable, credible and independent. There was the opportunity for the complainants to communicate and although some actual communication between the complainants did take place prior to giving their statements to the police, each gave evidence that was independent and not tainted or influenced by the information that they may have had about allegations made by their sisters. • The evidence of the complainants is reliable, credible and consistent throughout on all essential matters. Any inconsistencies raised in painstaking detail in cross-examination are minor.

Their allegations make sense, are not exaggerated and are totally believable. • There is important independent corroboration of aspects of the complainants’ evidence in their aunt’s factual observations of the defendant’s questionable conduct. Their aunt was an independent adult witness living at the home during part of the time the abuse is alleged to have taken place. • Applying the three part test in W.(D.) and the cardinal principles applicable in all criminal trials, it is clear that the Crown has proved the allegations beyond a reasonable doubt.

Convictions should be entered on all counts. [ 5 ] The witnesses at the trial for the Crown’s case included the three complainants, their mother, C.H., the father, B.F., three police officers, two of whom attended at the hospital following the call to 911, as well as the investigating officer, and M.A.H., the aunt of the complainants and sister to C.H.

The defendant testified on behalf of the defence. [ 6 ] Several evidentiary issues have arisen during this trial including: • The Crown application to introduce similar fact evidence as between the complainants. • The Crown application to admit portions of the videotaped statement of the aunt given to the police for the truth of its contents pursuant to the principles in R. v.

K.G.B ., 1993 CanLII 116 (SCC) , [1993] 1 S.C.R. 740 . • The Crown application to admit the evidence relating to a prior reporting of sexual abuse by D.G., for the limited purpose to assess the reasonableness of the mother’s concerns about possible sexual abuse in August 2011. • The Defence application to admit the transcript of the reasons of the Provincial Court judge in a hearing for a breach of recognizance relevant to assessing the reliability and credibility of the evidence of I.L., one of the complainants. [ 7 ] I gave rulings on all of these issues during the course of the trial. I will outline a

summary of these applications and my rulings in these reasons to provide context. 1. OVERVIEW OF PRIOR RULINGS The similar fact application [ 8 ] The Crown applied to have the evidence of each complainant admitted as similar fact evidence respecting each of the other complainants to prove that the acts alleged took place.

The defence opposed the application. [ 9 ] The theory of the defence argued in the similar fact application, and in this trial, was that the mother, aided by her husband, B.F, orchestrated the concoction and fabrication of the evidence by the three complainants to solve the problems of the family. [ 10 ] The defence theory is that the mother had motive to fabricate as if the grandfather was removed from the home, then the mother and father’s financial problems would be solved, as they would no longer be required to pay rent, and any tension in the home between her husband and her father would end.

The issues of I.L.’s suicide attempts and depression would be solved, and the depression and isolation of D.G. would also be solved. [ 11 ] In the similar fact argument, defence counsel outlined various alternative theories on the theory that there was a master plan to remove the grandfather from the house with the mother inducing or convincing the children to make up the false allegations of sexual abuse.

The defence suggested three variations to this theory including: • First, that C.H. dreamed or imagined the allegations as a solution to all of her problems, both financial and personal, and that she pressured and convinced her daughters to make allegations of sexual abuse that never happened; • Second, that she deliberately orchestrated the concoction of evidence and dictated its terms to the children; and • Third, that C.H., in conjunction with her husband and controlled by her husband, fabricated the evidence and convinced the children to make false allegations. [ 12 ] Defence counsel in the similar fact application did not raise the alternative argument that the evidence of the complainants may have been unconsciously tainted or influenced by the sharing of information between the complainants before statements were given to the police. [ 13 ] In the similar fact ruling, I concluded that there was no air of reality to the argument that the mother and/or the father had deliberately colluded with the complainants and pressured them to fabricate their evidence. [ 14 ] I did conclude that there was an air of reality to the concern that there was the opportunity for communication between the complainants that may have consciously or unconsciously influenced their evidence given to the police.

After considering the evidence, however, I concluded that the Crown had proved, on a balance of probabilities, that there was no such tainting or tailoring of evidence.

[ 15 ] The alleged similar acts of abuse by the defendant include kissing the complainants on the lips, attempting to or putting his tongue in the complainants’ mouths, placing the complainants on his lap and grinding, touching the complainants in the car, and groping of the complainants’ body parts while hugging. There are significant similarities the unity of time, place, type of sexual activity as well as the use of guilt to encourage compliance.

There are also significant dissimilarities and unique features to each of the complainant’s evidence. [ 16 ] I concluded that the probative value of the evidence outweighed any potential prejudicial effect, and therefore the similar fact evidence was admissible, applying the three part test in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 , and the criteria outlined in R. v.

Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33 . [ 17 ] The issue of what weight, if any, to give to the similar fact evidence in the trial, and the assessment of the impact of the allegations of potential collusion, including both the alleged concoction of the evidence and the potential unconscious tainting or tailoring of the evidence of the complainants, was left for me to consider as trier of fact in this trial.

The K.G.B. application with respect to the aunt’s evidence [ 18 ] During the trial the Crown sought to cross-examine M.A.H., the aunt, on inconsistencies between her evidence at trial and aspects of her videotaped statement given to the police, pursuant to s. 9(2) of the Canada Evidence Act . The Crown submitted that there were material discrepancies between the evidence at trial and her prior statement.

The defence did not oppose this request, and both the Crown and defence counsel conducted a detailed review of the evidence contained in the police statement in cross-examination of the aunt. [ 19 ] At the conclusion of the aunt’s evidence, the Crown brought a K.G.B. application to admit into evidence for its truth the parts of the aunt’s police statement upon which she was cross-examined. Defence counsel opposed the application. I allowed the application. It was obvious that the aunt was very conflicted in giving her evidence.

I concluded that she was doing everything she could to diminish the impact of her prior police statement to protect her father by minimizing her concerns and observations of her father’s conduct with the complainants. [ 20 ] The parts of the statement identified by the Crown met the test in K.G.B. for reliability: see K.G.B. , at pp. 787-96; R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R 787 , at para. 49 ; and R. v. Trieu (2005), 2005 CanLII 7884 (ON CA) , 74 O.R. (3d) 481 (C.A.) , at paras. 72-78 .

While M.A.H. was not administered an oath, the examiner confirmed that the statement was given voluntarily, was important, and told M.A.H. that she may be a witness in a trial. The statement was videotaped. M.A.H.’s evidence was tested by meticulous cross-examination by the defence. The necessity criterion was also met, as the aunt effectively recanted portions of her prior statement at trial: see K.G.B. , at p. 796. The portions of the aunt’s statement upon which she was cross-examined were admitted as substantive evidence on the trial.

The admissibility of evidence of the prior reporting of sexual abuse by D.G. [ 21 ] During the trial, the admissibility of a prior reporting by D.G. to the grandmother of alleged sexual abuse by her grandfather when she was six or seven years old arose. The indictment refers to incidents of abuse of D.G. dating back to the age of 6 years old. D.G. now has no memory of any sexual abuse from the age of six years old, when she first came to Canada from Portugal, to the age of twelve.

Therefore, this alleged prior incident can form no part of the alleged sexual interference and sexual assault against D.G. [ 22 ] The evidence before me on the voir dire was that it is alleged that at the age of six, D.G. had reported to the grandmother in Portuguese that “grandpa pee-peed in [her] mouth”. At some point, the grandmother told the father, B.F., what was said and B.F. reported the allegation to the police. The evidence is clear that the grandmother spoke no English and could not report the incident.

The police came to the house at some point after the alleged reporting, and when they questioned D.G., she did not make any disclosure to them. The matter was closed. [ 23 ] The Crown sought to introduce this evidence for the limited purpose of understanding the mother’s state of mind when she heard the statement made by I.L. while in the hospital that I.L. had “concerns with a man in the house that was not [the mother’s] husband”.

According to the mother, this statement reasonably triggered concerns of potential sexual abuse by the grandfather due to the prior reporting of abuse many years ago. [ 24 ] This evidence is clearly not admissible for its truth and is highly prejudicial. [ 25 ] I made the ruling that if defence counsel did not challenge the reasonableness of the mother’s belief that I.L.’s statement while she was in the hospital that she had an issue with a man in the house who was not her mother’s husband, reasonably raised concerns of potential sexual abuse by the grandfather, then the evidence was inadmissible.

Unless defence counsel challenged the reasonableness of the mother’s concern, the evidence would have no probative value. However, defence counsel vigorously challenges the reasonableness of the mother’s concerns. [ 26 ] In the circumstances, I made a ruling at the trial that the Crown was entitled to ask questions about D.G.’s prior allegation of sexual impropriety by her grandfather without going into any of the factual details.

I held that this evidence was relevant only as to why the mother was concerned after hearing what I.L. said to her at the hospital and why she interpreted I.L.’s statement to mean that there may have been some sexual impropriety with I.L. involving her grandfather. [ 27 ] The Crown agreed that she did not need to ask any the mother any specific questions if it was agreed as a fact that there had been a prior reporting by the grandmother via the father to the police of sexual impropriety involving D.G..

In light of my ruling, defence counsel agreed that it was not necessary to ask the question of the witness, and the fact of the prior reporting was admitted for the limited purpose only of assessing the mother’s state of mind. Mr. Costa said, “Well, if that is what Your Honour is ordering and, I agree we don’t have to call the witness and ask. There is that understanding.”

[ 28 ] I asked counsel to write out the exact words of the facts to be admitted as evidence at this trial for the limited purpose of assessing the mother’s state of mind after the statement by I.L. [ 29 ] The agreed statement of fact relevant only to the reasonableness of the mothers concerns about potential sexual abuse is: “CH was aware of a previous report to the police of alleged sexual impropriety by the grandfather based on what DG was alleged to have said when she was 6 or 7 years of age”.

Admissibility of findings of credibility of I.L. in another proceeding [ 30 ] In March 2012, I.L. telephoned the investigating officer and reported that the grandfather was in breach of the terms of his bail. She testified that she had seen her grandparents in a gas station near their home when she was riding her bicycle. The gas station was within the distance restriction to the home where the complainants were residing and would be a breach of the defendant’s terms of bail.

The matter came before Justice Pringle and the charge was dismissed after a hearing. [ 31 ] The defence sought to introduce the reasons of the provincial court judge into evidence and argued that this decision is helpful in assessing the reliability of the evidence of I.L. in this trial. Applying the decisions of R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA) , 46 O.R. (3d) 63 (C.A.) and R. v.

Barnes (1999), 1999 CanLII 3782 (ON CA) , 46 O.R. (3d) 116 (C.A.) , I concluded that the decision of the provincial court judge in an unrelated matter was not admissible to assess the credibility of I.L. or the reliability of her evidence in this proceeding. [ 32 ] I did read the decision as part of my ruling to ensure that the incidents and factual allegations were entirely separate. If I am wrong in my conclusion that the reasons should have been admissible in assessing the reliability and credibility of I.L., I find the findings with respect to the credibility of I.L. in the other matter to be quite innocuous.

Some of the factual errors in I.L.’s evidence raised a reasonable doubt on the facts of that case (for example, the date of the alleged breach and the model of the car driven by the grandfather). I.L. was not cross-examined on any facts relevant to the other proceeding. [ 33 ] If the reasons are admissible for the purpose of assessing the credibility and reliability of I.L.’s evidence in this proceeding, I conclude that they have no impact or relevance upon my findings with respect to the reliability and credibility of I.L.’s evidence in the matters before me.

The findings of Justice Pringle with respect to credibility are fact-specific and quite innocuous, as I.L. made some factual errors in the evidence that she gave. [ 34 ] Defence counsel in the opening of his argument at this trial suggested that I should reconsider my prior ruling. I reiterate my prior ruling that the findings of credibility by Justice Pringle on an unrelated matter are not admissible in this trial as relevant to the credibility or reliability of the evidence of I.L. 2.

FACTUAL OVERVIEW AND BACKGROUND OF THE FAMILY [ 35 ] Before reviewing the evidence in detail, I will outline my findings of fact as to the dynamics of this family. [ 36 ] The defendant is the maternal grandfather of the three complainants. He is presently 70 years old and was 68 years old when the alleged abuse was disclosed. [ 37 ] The defendant is Portuguese and came to Canada in 1991 with his family, including the grandmother, C.H., the mother of the complainants, and M.A.H., the aunt of the complainants. [ 38 ] The complainants each have different biological fathers. B.F. is the biological father of Z.F.

C.H. and B.F. married in 1997. Shortly thereafter, Z.F. was born. B.F. is considered by all complainants to be their father. [ 39 ] The oldest complainant, D.G., was born in Portugal and arrived in Canada at the age of six. Initially she lived alone with her grandparents for a period of time while her mother, B.F. and the other two complainants lived in Barrie.

The other two complainants were born in Canada. [ 40 ] In August 2011, when the allegations of sexual abuse arose, D.G., was 20 years of age, the middle child, I.L., had just turned 16, and the youngest complainant, Z.F., was 13 years of age. [ 41 ] For a period of many years beginning in 1998, and during the period of the alleged abuse, all three complainants lived in two different homes together with their maternal grandparents and their mother and father. [ 42 ] The aunt, M.A.H., lived on and off with C.H., C.H.’s family and her parents for a period totaling six years.

She had lived in the second home from the spring of 2011 until several months after August 2011, when the complainants’ allegations came to light. [ 43 ] The grandfather was a hard worker and largely assisted in supporting his extended family. He worked as a mechanic and as a janitor for many years in the same job, generally rising very early in the morning and finishing work in the afternoon. He speaks only Portuguese and has very limited English. [ 44 ] The grandmother was a traditional homemaker who enjoyed cooking and who went to church frequently.

She expressed concerns that the complainants did not attend church. It appears that she was rigid and judgmental about the religious lacuna of others in the family. She speaks only Portuguese. She has various physical health ailments. The aunt testified that the grandmother also has dementia which has been going on for some six years, and has worsened significantly in the last three years. [ 45 ] The mother, C.H., completed studies in marketing design in 2009, but did not always have stable employment. She worked as a waitress until completing her studies. The father is a chef.

At times the father and mother were unemployed, and the

grandfather shouldered much of the financial responsibility for looking after his extended family. [ 46 ] At the time the disclosures were made by the complainants in 2011, C.H. was not working, and had been in an accident and was using crutches. Her husband was working part time as a chef in a restaurant.

They were getting by, but clearly in 2011 when the allegations of sexual abuse came to light, the family was under financial pressure and the assistance from the defendant was both needed and appreciated. [ 47 ] The grandfather owned the two homes in the City of Toronto where the extended family resided beginning in 1998. The mother and father paid rent throughout the period of shared habitation. They were paying rent in the amount of $750.00 in 2011 for the upstairs of the home owned by the defendant.

The rent was paid in full until the date the disclosures of abuse were made. [ 48 ] At time the rent payments were late, due to financial difficulties, but I accept the evidence of C.H. and B.F. that the rent was always paid. I accept the defence evidence that the rent was under the market rate for the space allocated to C.H. and her family, although there were privacy issues for the upstairs unit, as there was no door separating the upstairs unit from the rest of the house. [ 49 ] C.H. testified that she was happy with the living arrangement with her extended family.

She felt that living with her parents, and at times with her sister and her nephew, was the right way to bring up her children after the move to Canada, reflecting traditional Portuguese family traditions and values.

There was what she described as a “symbiotic relationship”, with all family members helping each other. [ 50 ] The family moved from the first home to the second home in June 2010. [ 51 ] Each complainant referred to allegations of sexual abuse that occurred in the old house, and the new house. [ 52 ] The space in the first and second home was divided so that generally the mother, father and three complainants had their bedrooms on the second floor.

The main floor was the space of the grandparents, with a television in the living room, a kitchen that was spotless and rarely used, as there was a kitchen in the basement. The children had free access to the entire house. B.F., the father did not often come downstairs to the quarters of the grandparents. [ 53 ] At one point D.G., the eldest complainant, moved her bedroom down into the basement of the first house, as she had some conflict with her middle sister and the space was cramped upstairs for the three sisters in one bedroom.

When the family moved from the first house to the second house, D.G. continued to sleep in the basement. The grandfather built a separate bedroom for her, and bought new furniture for her bedroom. [ 54 ] At D.G.’s request the defendant provided a lock for her door. Only D.G. and the grandfather had the key to her bedroom. [ 55 ] The grandparents did not occupy or sleep in the same room. In the first house, the grandfather slept on the couch in the living room on the main floor and the grandmother slept in the basement.

At the time of the disclosure of the sexual abuse, the grandmother slept on a couch in the basement and the grandfather slept on a couch in the living room on the main floor. The aunt was sleeping in a bedroom on the main floor with her son. [ 56 ] The mother and father did not own a car. The grandfather owned a car and would often take one of the complainants with him to assist in shopping or running errands.

Each of the complainants allege that inappropriate sexual touching took place while they were alone in, the car with their grandfather. [ 57 ] None of the complainants told anyone about the allegations of abuse until August 2011. Each complainant thought that she was the only one being abused by her grandfather. [ 58 ] Early in the relationship between C.H. and B.F., in 1998, B.F. was charged and pleaded guilty to an assault upon his wife, C.H. On one other occasion, the defendant came upstairs when B.F. and C.H. were arguing and it was alleged that B.F. assaulted the grandfather.

The eldest child, D.G., confirmed that many years ago the police were called to the house on several occasions when B.F. had been drinking. C.H. testified that B.F.’s problems with drinking ended in 2005. B.F. confirmed that as a term of his conditional discharge on his guilty plea to assault he received assistance for his drinking problems. [ 59 ] Clearly, the aunt and the defendant do not like B.F. and blame him for controlling C.H. and preventing her from connecting with her family. They gave extensive negative evidence about B.F.

I heard extensive submissions from defence counsel about the theory that B.F. was very persuasive and was controlling his family and C.H. to mastermind the fabrication of allegations of sexual abuse to avoid paying rent. [ 60 ] The complainants were clear in their evidence that they are each very close to B.F. and consider him to be their loving father. It is clear that in the early years of the marriage between C.H. and B.F., B.F. had a drinking problem. At times, this drinking problem led to assaultive behaviour that frightened the complainants.

I find that although there had been problems in the past involving B.F. and alcohol, these problems had resolved long before the allegations of sexual abuse arose, and this unfortunate past between C.H. and B.F. serves only as background for this extended family. [ 61 ] I accept that at times there was tension between B.F. and the defendant as confirmed in the evidence of the aunt, M.A.H. and the grandfather. I accept that B.F. kept to himself in the upstairs of the home.

This is perhaps understandable, as B.F. does not speak Portuguese, which would leave him out of his wife’s family circle, as all communication on the main floor with the grandparents occurred in Portuguese as they did not speak English. [ 62 ] C.H., the mother, had a history of anxiety, stress disorder and depression. She had an episode as early as 16, had

another episode after the birth of Z.F. and again after she completed her education in 2009 and was unable to find employment. At one point C.H. had been diagnosed as bipolar, but that diagnosis has since been revised. [ 63 ] M.A.H., the aunt, also had some history of depression and was on medication when she gave her statement to the police. [ 64 ] The eldest child, D.G., had a history of depression. According to her aunt, D.G. was isolated, withdrawn and depressed prior to the disclosure being made. [ 65 ] I.L. had been diagnosed at one point in time as bipolar.

That diagnosis has been revised, and I.L. is presently diagnosed as having obsessive compulsive disorder and attention deficit hyperactive disorder. [ 66 ] The aunt confirmed that the defendant drank alcohol to excess, and that some of her observations of conduct by the defendant that she considered questionable in her statement to the police were while he was under the influence of alcohol.

Z.F. also testified that the incidents of sexual touching occurred when the grandfather was drunk. [ 67 ] The grandparents did not socialize with outsiders, aside from when the grandmother socialized through her connection with her church. The kitchen on the main floor of the second house was never used and the grandmother did her cooking in the basement. It was a family joke that the kitchen and living room were kept spotless, like a “mausoleum” ready for visitors that never came. C.H. described the grandfather as isolated and said that he did not like social visits and did not like people coming to the house.

He was jokingly referred to as a “caveman”, as he spent long periods in the basement alone without socializing with others. [ 68 ] I accept that in all of these circumstances, there would have been tensions in the home, with essentially three different family units living under one roof. At the time of the disclosure of the alleged abuse, nine people were living in one home together. In spite of some tension, I conclude that the shared living arrangement overall worked well for everyone until these allegations of sexual abuse arose. 3.

OVERVIEW OF CONCLUSIONS WITH RESPECT TO ALLEGATION OF COLLUSION [ 69 ] Before outlining my findings with respect to the credibility of each of the witnesses, I will summarize my conclusions regarding the defence’s allegations of deliberate collusion and fabrication of evidence amongst the mother, possibly the father, and the complainants, as well as my conclusions regarding the possibility of innocent or unconscious tainting due to communication between the complainants prior to their police statements relevant to the issue of credibility. [ 70 ] The defence alleges that the mother, C.H., coordinated the fabrication of evidence by the complainants, perhaps under the influence of her husband. [ 71 ] For reasons that I will fully outline, I find that the defence theory of fabrication and concoction of evidence is entirely without foundation, and makes absolutely no sense.

I conclude that the Crown has proved beyond a reasonable doubt that the defence theory that C.H. masterminded, perhaps with the aid of her husband, the fabrication and concoction of the complainants’ evidence is pure speculation, not true, and not supported by any evidence. [ 72 ] As outlined in my ruling on the similar fact evidence, there was an opportunity for collusion in the form of conscious or unconscious tainting or tailoring of the evidence due to the two day delay in D.G. and Z.F. reporting their allegations to the police. [ 73 ] The initial delay between the reporting of the abuse by D.G. and Z.F. and giving their statements to the police was as a result of directions received from the hospital, over the protestations of the mother.

The mother wished to contact the police right away when the allegations were revealed by D.G. and Z.F. on Friday August 19, 2011. The nurse from the hospital arranged a family meeting with I.L’s treating psychiatrist first thing on Monday August 22, 2011 to be followed by the reporting to the police. Unfortunately, the psychiatrist was not available to meet with the family before the Monday morning.

D.G. and Z.F. gave their statements on August 22, 2011 after the meeting at the hospital. [ 74 ] There was an opportunity for I.L. to talk to her sisters after she was released from the hospital on August 25, 2011, before giving her statement to the police on August 26, 2011.

The possibility of conscious or unconscious tainting or tailoring of the complainants’ evidence is a live issue in this trial. [ 75 ] For reasons that I will fully outline, I conclude that the Crown has satisfied me beyond a reasonable doubt that there was no tainting or tailoring of evidence by any of the complainants as a result of having information as to the nature of the allegations of their sisters.

Although there were similarities in some of the acts complained of, each complainant gave unique evidence as to the history of abuse that contained individualized details, distinct from the evidence provided by the other two complainants. Each complainant, in her own way was very private, and very reluctant to talk about the specifics of any of the allegations. I conclude that the opportunity for collusion does not impact on my assessment of the credibility and reliability of the witnesses, including C.H., B.F., D.G., Z.F. and I.L. 4.

FINDINGS OF CREDIBILITY [ 76 ] The defence challenges the credibility of all of the family members, including C.H., the mother; B.F., the father; and each of the complainants, D.G., I.L. and Z.F. The defence argues that the aunt’s evidence at trial should be accepted and that the evidence of the defendant should be accepted, and, applying the three part test in W.(D.) , that the evidence relied upon by the defence should raise a reasonable doubt with respect to all the charges. [ 77 ] The Crown asserts that the Crown witnesses were reliable and consistent in the face of exacting, lengthy cross-

examination by the defence. Any inconsistencies are minor. The Crown relies on the videotaped evidence of the aunt as corroboration of the allegations by the complainants and challenges the credibility and reliability of the defendant’s evidence. [ 78 ] I make some general comments with respect to this trial before outlining my specific findings of credibility for each of the witnesses. [ 79 ] Defence counsel conducted an exacting, often repetitive cross-examination of each of the witnesses, particularly the complainants.

His theory was that close scrutiny of the details of the allegations made would expose the weaknesses in the complainants’ evidence. Focus upon the details is entirely fair.

However, if counsel seeks to cross-examine a witness on a discrepancy between a witness’s evidence at trial and his or her prior statement, the prior statement must actually contain a discrepancy, and the prior evidence must be fairly and accurately put to the witness. [ 80 ] At times, particularly with the evidence of Z.F., defence counsel was confused with respect to the prior evidence given and he would put to the witness an inaccurate statement of her evidence, causing the cross-examination to go off track, with interruptions by either me or the crown to ensure that the evidence was accurately put to the witness.

This situation of misstated evidence presented to witnesses during cross-examination improved as the trial progressed. [ 81 ] This recurring problem was perhaps partly a reflection of the method of questioning conducted by the police and the Children’s Aid Society (CAS) of the complainants. [ 82 ] Each complainant was questioned by three different people when giving her statement to the police. This was a joint investigation by the police and the CAS. At times each of the three would take the lead in the questioning to follow up on what had been said during questioning by another.

The goal of the questioning was to obtain spontaneous, unprompted disclosure from each complainant. However, I observe that the technique used resulted in a somewhat jumbled transcript, as one of the questioners would often go back to clarify or elaborate on evidence previously given, creating some confusion not in the answers given, but in following the transcript and distinguishing the different incidents in the allegations made.

This kind of free flowing questioning, where the questioners jumped around from incident to incident, may explain why defence counsel had some difficulty differentiating between the different incidents and allegations of abuse in the questions that he asked. [ 83 ] When there is a joint police/CAS investigation involving a child, perhaps a clearer method of asking questions that would facilitate spontaneous disclosure without confusion, would be to agree which person would be the lead in asking questions, with the other people involved asking questions to elaborate and clarify at the end, rather during the questioning.

Such an approach may produce a transcript that is easier to follow. As well, it may be easier for the person being questioned to respond to the questions of one person at a time. The aunt, M.A.H. [ 84 ] I will begin with considering the credibility of the aunt. She was called as a Crown witness but was also subpoenaed by the defence. Both rely upon different aspects of her evidence. [ 85 ] From the Crown’s perspective, M.A.H. is an independent witness to some of the abuse by the grandfather, as is confirmed by her police statement of August 26, 2011.

In her police statement, M.A.H. described various observations she made of inappropriate or questionable contact between the grandfather and the complainants. Her evidence at the trial largely removed any sexual content from the observations she outlined in her police statement. Her trial evidence is helpful to the defence position that this was a very affectionate family, with lots of hugging and lots of innocent playful physical contact devoid of sexual content. [ 86 ] As outlined in the K.G.B. ruling, I found that the aunt was very conflicted in her evidence.

Although she loves her nieces and her sister, in her evidence at the trial she was back-peddling from the evidence given in her statement to the police. Clearly she was trying to rescue her father. [ 87 ] I accept as true her evidence given in her police statement on August 26, 2011, including her factual observations as well as her concerns with respect to the defendant’s conduct with the complainants, particularly with respect to observations made of interactions with the complainants when he had been drinking.

These are concrete, factual observations. [ 88 ] In her police statement, M.A.H. expressed concern about hugging that, based upon her observations, may have involved fondling, crossing the line from affectionate hugging to fondling. She said, “Um I remember [at the old house] my dad would be drinking a lot and he would look like he was fondling them sometimes. … Because I couldn’t appreciate if he was hugging them or fondling them sometimes”. The fondling she described included touching the sides of their breasts. She went on to say how guilty she felt, and thought that her nieces would have confided in her.

At trial, she tried to diminish the word “fondling” to mean simply innocent play. This attempt to downplay what she said in the police statement was part of her attempt to rescue her father. [ 89 ] I conclude that the aunt used the word “fondling” in her police statement deliberately, knowing and understanding its sexual connotation. Her suggestions that she did not understand the questions or that she improperly used the English language are not accepted by me. While English is not her first language, I find that M.A.H. has an excellent command of the English language.

She has worked as a translator from Portuguese to English and English to Portuguese and she has studied English literature at university. [ 90 ] M.A.H.’s observations of the grandfather’s behaviour around and contact with the complainants corroborate in a significant way aspects of the complainants’ testimony.

These observations include the defendant kissing I.L. on the lips and I.L. pushing him away; persistent hugging, at times under the influence of alcohol, which included running his hands down their bodies and touching the sides of their breasts, with the complainants reacting by always pushing the defendant away.

[ 91 ] The aunt also observed the defendant using the key to go into D.G.’s locked bedroom without knocking, which she thought was “really weird” and invasive of D.G.’s privacy. [ 92 ] At trial, M.A.H. said that the context of her police statement needs to be considered, as she had observed conduct that she questioned in light of the filter of the surfacing of the allegations of sexual abuse.

M.A.H. now appears to be clearly aligned with her father and responsive to questions by defence counsel giving an innocent explanation for her observations. [ 93 ] It may be that at the time she gave her statement her observations were in the context of the surfacing of the allegations of sexual abuse. At that time, her son had made allegations against his grandfather. It is an agreed upon fact that charges against the grandfather in relation to his grandson were discharged at the preliminary hearing in this matter.

At the trial, M.A.H.’s testimony tried to de-sexualize any of her observations, explaining it all as just play and joking. [ 94 ] While I agree that the context for her now is different compared to when she made her police statement, I cannot accept M.A.H.’s explanation for the differences in her evidence. Rather, I find that she was telling the truth about the actual observations she made when she gave her police statement, and she is now trying to minimize the impact of her evidence to rescue her father. What matters not is the filter or perspective, but what she actually observed.

Her direct observations corroborate in significant ways the complainants’ evidence. The mother, C.H. [ 95 ] C.H. has a history of depression, anxiety and stress disorder. At one point in her life there was a diagnosis of bipoloar disorder, which has since been revised. At the time of the disclosures C.H. was not working. She had been in an accident and was on crutches.

In spite of the insinuation by the defence counsel, I find that there was no mental or physical condition that would impact my assessment of her credibility, either at the time the disclosures were made or at this trial. [ 96 ] I find C.H. to be an intelligent, credible, straightforward witness who did not exaggerate.

She candidly acknowledged her husband’s prior problems with drinking and one incident of assaultive behaviour dating back to 1998. [ 97 ] C.H. interpreted I.L.’s statement to her in the hospital that “it concerned a man in the house that was not her husband”, as indicating possible sexual abuse of her middle daughter by the only other man in the house, her father.

This concern in C.H.’s mind stemmed in part from the statement itself, in part from the severity of I.L.’s situation requiring psychiatric hospitalization, combined with the prior reporting by D.G. many years of allegations of sexual impropriety involving the grandfather when D.G. was six or seven years of age that did not proceed. I accept C.H.’s evidence as to her concerns and the reasons for these concerns.

When she had concerns about possible sexual abuse of I.L. by the defendant, I accept her evidence that she reasonably had concerns about potential abuse of her other two daughters and that she therefore decided to question them about possible abuse. [ 98 ] C.H. is, as defence counsel suggested, high strung and emotional. I accept that C.H. asked the questions of her daughters D.G. and Z.F. in the manner and with the words as described in her testimony and as confirmed by D.G. and Z.F. C.H. was listening and posing questions, not suggesting answers. This evidence is confirmed by D.G. and Z.F.

She was, however, clearly upset by the answers to the questions posed. [ 99 ] I accept the evidence of C.H. that she did not at any time suggest to D.G. and Z.F. that they fabricate allegations of sexual abuse. She could not have influenced I.L., who was in the hospital receiving psychiatric care. She was not allowed to meet with her daughter without a staff member. I.L. disclosed the abuse to her psychiatrist sometime in the week before the allegations of abuse of D.G. and Z.F. surfaced.

C.H. could not have influenced I.L. in these circumstances. [ 100 ] I accept C.H.’s evidence that she did not mastermind a plan to remove her father from the house to avoid paying rent and to solve other family problems. This defence theory makes no sense and is not founded on any evidence. At the time the allegations of abuse surfaced, C.H. was not working, and her husband was just working part time, although he had a full time job that was to start at the end of August 2011. They needed the financial support of the defendant.

Having the defendant removed from the home was to their significant financial detriment as it is acknowledged that the defendant assisted the family financially for many years. The theory that there was a financial benefit by removing the defendant from the home makes no sense and is not supported by any evidence. The family had to pay rent into court pending the resolution of the Landlord and Tenant proceeding. [ 101 ] I accept C.H.’s evidence that she was understandably devastated by the situation, but that she did nothing to encourage her children to make false or exaggerated allegations.

I do not accept that anything in C.H.’s demeanour or level of stress consciously or unconsciously encouraged D.G. or Z.F. to fabricate or embellish their evidence. C.H.’s behaviour was entirely consistent with a loving mother in shock when the allegations about her father, whom she loved and trusted, surfaced. [ 102 ] C.H. clearly was devastated when she learned of her daughters’ allegations of abuse by her father in her discussions with D.G., Z.F. and later when she became aware that I.L. had also disclosed allegations of abuse to her psychiatrist.

She considers this behaviour to be a terrible breach of trust committed by the father she loved and respected. C.H. is intelligent and was at times emotional when she gave her evidence. [ 103 ] I found C.H. to be a credible, reliable witness who did not exaggerate and who had a good memory of the details of the events as they unfolded. She exhibited some anger in response to the suggestions of defence counsel that she orchestrated the concoction and fabrication of evidence to avoid paying rent and to solve problems in her family.

Her reaction was understandable, and I find that she was unshaken in her cross-examination. I accept C.H.’s evidence. The father, B.F. [ 104 ] B.F. is the natural father of Z.F. and is considered by D.G. and I.L. to be their loving father.

[ 105 ] Clearly B.F. has had a problem with alcohol in the past, culminating in a guilty plea to assault in 1998, some thirteen years before the allegations of the abuse surfaced. I accept the evidence of C.H. and B.F. that in response to the terms of the conditional discharge he received, B.F. received treatment in 1998, and there were no further incidents of assault between C.H. and B.F. They did quarrel. On one occasion the grandfather came upstairs in response to yelling and B.F. and the grandfather engaged in a physical fight.

No charges were laid with respect to this incident, which again occurred many years ago. [ 106 ] Clearly, from the tenor of their evidence, the grandfather and the aunt M.A.H. do not like B.F. M.A.H. testified that B.F. is controlling of C.H., obstructing her relationship with her family. [ 107 ] I conclude that it must not have been easy for B.F. to live with his extended family where he was the only person who did not speak Portuguese.

There were in all probability tensions in the home, where essentially three different family groups were living together at the time of the disclosure of sexual abuse. [ 108 ] The aunt described various behaviours of B.F., such as pretending he was an animal, holding a family member’s arm while saying he was feeling their energy and incidents of difficulty between B.F. and the grandmother after the disclosures, including difficulties in showing the property to prospective purchasers. These suggestions perhaps explain why the defendant adopts the theory that B.F. was the hub of the alleged fabrication of evidence.

In my view, none of these alleged behaviours, even if true or partially true, have anything to do with B.F.’s credibility or reliability with respect to the dynamic of how the allegations of sexual abuse arose. [ 109 ] Whatever the relationship was with B.F. and other family members, as will be outlined in the facts, I find that B.F. had almost no involvement in the divulgation of disclosures of sexual abuse as he was at work, and certainly could not from the restaurant, coordinate the fabrication of the allegations of abuse. He worked until midnight on August 19, 2011.

He spent very little time in the grandparents’ space in the home, and could not make any observations about the grandfather’s conduct in relation to his children. He was called as a witness to temper some of the innuendo about his behaviour presented by the aunt and in anticipation of the theory of the defence. [ 110 ] It appears clear that C.H. took charge of the situation once she heard the concerns raised by I.L.

She testified that she did not wait for B.F. to be present during any questioning of D.G. and Z.F., as in her view it was not appropriate for a man to partake in this, and that in her words, “her children had suffered enough”. B.F. testified that in matters involving the children, C.H. was the boss or the controlling person. This appears borne out in the facts of this case, as C.H. took charge of the situation and B.F. played a supportive role.

I accept that B.F. was very emotional when he heard of the allegations and that he was very angry with the complainants’ grandfather. [ 111 ] I conclude that the defence’s suggestion that B.F. was controlling his wife to concoct or fabricate allegations of sexual abuse while he was at work at the restaurant is not supported by any evidence and does not make sense. [ 112 ] I found that B.F. gave his evidence in a fair manner and did not dodge the issues about his past problems with alcohol and assaultive behaviour.

Although clearly B.F. is no angel, and at times his behaviour may have been eccentric, I find that he is very much in the background with respect to the surfacing of the allegations of sexual abuse. He obviously loves his wife and children and is very upset and emotional about this proceeding. He obviously does not think much of the complainants’grandfather. I found B.F. to be a credible witness. Z.F. [ 113 ] Z.F., the youngest complainant, was the first witness to testify. She is now 15 years old. She is obviously very bright. Her aunt refers to her as a butterfly.

In spite of her tiny stature, she is very mature, intelligent and articulate for her age. [ 114 ] Her evidence in chief was largely her videotaped statement to the police. She was subjected to a lengthy cross- examination by defence counsel. [ 115 ] She reported that her grandfather would kiss her on the lips, touch her in the car and give her hugs that would turn into groping. Her grandfather engaged in this behaviour repeatedly, such that she cannot pinpoint dates and times when such activity occurred. She also reported four particular incidents that she remembered.

Z.F. gave specific details about these four incidents, including the surrounding circumstances, the location, in which house the incidents occurred, the season, and in some cases what she was wearing. Defence counsel made much of not knowing the date of the incidents. Not knowing a specific date does not diminish the credibility of her evidence. [ 116 ] At times during cross-examination, defence counsel, probably inadvertently, presented Z.F. with misstatements of her prior evidence to the police, at the preliminary hearing, or at the trial.

As I have pointed out, the misunderstanding of counsel as to the evidence may be a reflection of the disjointed method of questioning during her videotaped statement to the police. These misstatements of fact required clarification of the question to ensure that the proposition put to the witness was accurate and fair.

What was abundantly clear to me, was that Z.F. was able to respond without becoming confused by the questions that she was being asked by defence counsel. [ 117 ] Z.F. did not exaggerate, did not get confused in spite of at times confusing questioning, and was consistent in the answers she gave. [ 118 ] Z.F.’s police statement is peppered with the expression “kind of”.

I find that this does not mean that she is equivocal about whether the incident she describes happened, but is a reflection of the manner of speaking of a shy 13 year old. [ 119 ] The grandfather made comments in his testimony about Z.F. being unstable, impulsive, arrogant, changing her manner of being from one moment to the next, and having psychological and psychiatric problems. That is not the young person that I observed. In spite of the negative commentary about Z.F. by the grandfather, I found Z.F. to be a very credible, steady and

reliable young witness. She was stable, consistent, and patient with the lengthy cross-examination. She did not exaggerate and if she could not remember a detail she would say so. In short, I believed her evidence. I.L. [ 120 ] I.L., now 17 years old, is a complex, multifaceted young woman. On the surface she appears to be tough and self assured-a no-nonsense, take control kind of person. She sees herself as strong and mature.

She testified that her grandfather’s abuse went on from when she was in about the age of about 11 when she began “to get her lady parts”, until shortly before she disclosed what was happening while she was in the hospital under psychiatric care. Although the abuse may have started at the age of 11, I.L. has no specific memories of any incidents prior to grade 8 when she would have been 12 or 13 years old.

She testified that she remembers that her grandfather began groping her in the car when he was taking her to her therapy session at the Child Development Institute when she was in grade 8. [ 121 ] Defence counsel challenged the idea that such a forthright, loud person would remain silent about a history of abuse that went on for several years, as it was not consistent with her take charge nature. In his view, a person with a personality like I.L. would not put up with abuse in silence.

In spite of I.L. being loud and appearing to be in control, she has a variety of problems, and it is obvious from the undisputed facts that she was very emotionally affected by these allegations or other events, contributing to her three suicide attempts in the summer of 2011 and hospitalization for psychiatric treatment. To this day, I.L. is very secretive about any details of the sexual abuse involving her grandfather. [ 122 ] I.L. told the police in her statement that she was “a very good liar”. Crown counsel in her submissions acknowledged that she “winced” at those words.

However, in her police statement and at trial, I.L. explained what she meant by this statement.

I.L. explained that she was able to appear happy and fun loving in front of her friends, hiding what was going on at home, by “putting [her] game face on” or by “wearing a mask” and that in this context, she was a very good liar hiding effectively what was going on beneath the surface. [ 123 ] I find that for a lengthy time, I.L. was able to compartmentalize what was going on at home and insulate her problems at home from her social life and her strong network of friends and that she continued to appear outgoing and full of life. [ 124 ] I find that I.L.’s outward, controlled appearance of levity and maturity was cracking in the summer of 2011.

I.L. testified that the sexual advances by the defendant escalated in the year prior to the summer of 2011. [ 125 ] In any event, the law is clear that the delay in disclosing sexual abuse is not to be a presumptive negative factor in assessing the veracity of allegations of sexual abuse: see R. v. D.(D.) , 2000 SCC 43 , [2000] 2 S.C.R. 275 . In D.(D.) the court noted that there are many reasons for delayed disclosure, including embarrassment, fear, guilt, or a lack of understanding and knowledge.

Failure to disclose, standing alone, will never give rise to a presumptive adverse inference against the credibility of a complainant. [ 126 ] I.L. has issues, including obsessive compulsive disorder and attention deficit hyperactivity disorder (ADHD), and in the summer of 2011 had incidents consistent with suicidal thoughts or actions, including walking into traffic, lightly cutting herself and contemplating taking pills. [ 127 ] The defence suggests that the difficulties experienced by I.L. were caused by a quarrel with her best friend, who was moving away to Nova Scotia, resulting in her being “shattered”, as described by her mother, as well as being depressed about not being able to do more to solve the problems of the homeless people she was working for. [ 128 ] The defence characterizes I.L.’s suicidal behaviour as attention seeking behaviour.

After the incident where she walked into traffic in the summer of 2011, I.L. asked to be taken to her hospital. She was hospitalized for approximately two weeks and came home for the weekend. She again ran wild and took, or contemplated taking, pills. [ 129 ] She testified that when she went back to the hospital on August 12, 2011, there was “such a heavy weight on [her] shoulders”. Sometime that week, I.L. told her treating psychiatrist that she had been sexually abused by her grandfather.

She said in her police statement that she could not lie to her doctor. [ 130 ] I find that a large component of I.L.’s behaviour, whether suicidal or a cry for help, was because the charade of a happy, strong person was no longer possible and she needed to disclose the secret of what was happening with her grandfather. Perhaps other parts of her life were making her sad, but I find that the primary problem precipitating her hospitalization in the summer of 2011 was the sexual abuse by the grandfather. [ 131 ] In spite of a more outgoing and somewhat flamboyant exterior, I.L. is an extremely private person.

To this day her mother and D.G. do not know what I.L.’s allegations of abuse are. The only thing I.L. told her mother after she had made her disclosure to her doctor and to the police was “not to worry, that she was still a virgin”. [ 132 ] The aunt witnessed one incident of the grandfather kissing I.L. on the lips and I.L. pushing him away in anger, looking to her aunt for a reaction.

This occurred sometime after the aunt moved into the new house in March 2011 and before the disclosure of the abuse in August 2011. [ 133 ] Defence counsel acknowledged that I.L. was a compelling witness, but submitted that that is what makes her dangerous, as her evidence lacked the requisite detail respecting any specific incidents of abuse. I.L. described various acts her grandfather would do, such as groping her in the car or kissing her on the lips, but she could not describe a specific incident of such abuse on a given day or at a given time.

I.L. could not name a specific incident that particularly stood out, saying that contact happened so frequently that “it was like drinking milk,” with the exception perhaps the last incident of contact when he licked her ear and put his tongue in her ear, which she found particularly abhorrent.

[ 134 ] I accept the evidence of I.L. that the incidents of abuse were frequent, and followed a pattern particularly in the new house in the year before I.L.’s hospitalization. She describes in detail the type of conduct that took place, the location of the incidents – often on the couch in the living room, or on a weird chair, or in the car when she was alone with the defendant. As well I.L. could remember in detail her conversations with her grandfather trying to convince him to stop.

It is not that I.L. has no memory of the incidents, but as the contact was frequent and repetitive, one incident does not stand out. [ 135 ] I find that I.L. was a compelling, credible and reliable witness who was telling the truth. D.G. [ 136 ] D.G. is the eldest complainant, who was 22 years old when she testified in court. She was 20 years old when she gave her statement to the police. [ 137 ] The allegations of abuse as outlined in the indictment with D.G. go back for many years, from the age of 6 years, but D.G. has very limited, scant memories of the alleged historic abuse.

One specific memory goes back to when she was younger and wanted a $40.00 Halloween costume. The grandfather agreed to buy it if she let him play with her breasts. [ 138 ] Her memory of the details of the abuse is in the later years, focusing primarily on the last several years before August 19, 2011, when she disclosed the abuse to her mother. [ 139 ] D.G. is more mature than the other complainants and has a more nuanced view of relationships. She testified that she was still confused about she feels about her grandfather.

It was obvious in the evidence of both D.G. and the grandfather that apart from these allegations, they were close. [ 140 ] D.G. is the trusted older sister, as evidenced by Z.F. asking if she could whisper what happened to her in her sister’s ear, as Z.F. was too embarrassed to tell her mother directly.

Clearly D.G. and I.L. have had sisterly conflict in the past, and I accept that D.G. moved to her own space in the basement of the old house as conditions were crowded for three sisters sharing a room, and at times there would be conflict with I.L. [ 141 ] D.G. was candid, stating that she has forgotten many details, and frequently responded to defence counsel’s questions by saying she could not remember. As she said, she tried to block things out. [ 142 ] D.G. has a history of depression and was quite a solitary person, staying up late at night playing computer games.

At one point she wanted to develop computer games as a career, but that goal has since changed. She testified that the grandfather would come into her room uninvited, at times opening her locked door. She had difficulties sleeping and would often ask her sisters to sleep in her room to avoid the nocturnal visits from the defendant. [ 143 ] The things that D.G. did remember were consistent and clear. D.G. testified about a recent incident where her grandfather offered to buy her a high power iPod in exchange for letting him “play with her breasts”.

The connotation of play was clearly sexual. [ 144 ] She remembers clearly a pattern of the grandfather trying to kiss her on her lips and put his tongue in her mouth. She would clench her teeth shut. The aunt observed an incident where the grandfather was trying to hug D.G. but D.G. pulled away. [ 145 ] D.G. testified about two incidents when the grandfather came into her locked room at night when she was sleeping. She awoke to find him fondling her vagina.

The aunt corroborated D.G.’s evidence that the grandfather would unlock D.G.’s bedroom door and would go in uninvited. [ 146 ] D.G. was candid and did not exaggerate her evidence. There is admittedly much she cannot remember, what she does remember is credible, consistent and aspects of her evidence are corroborated by the aunt’s testimony. I found D.G. to be a credible, reliable witness who did not exaggerate.

Overall conclusion regarding the credibility of the complainants [ 147 ] For the reasons that I have outlined, I find each of the complainants to be a credible, reliable, believable witness who had no motive to lie. Each had been locked in the secrets and silence of her unique history of abuse with her trusted and loved grandfather until I.L. disclosed the abuse to her psychiatrist in August 2011.

This disclosure at the hospital began the chain of events for the disclosure by all three complainants. [ 148 ] These findings of credibility flow from an assessment of each complainant’s evidence considered on its own, without considering or applying any similar fact evidence in this assessment of credibility. [ 149 ] Obviously these findings are further strengthened and confirmed if I was to consider the similar fact evidence in assessing the credibility of each complainant. The defendant [ 150 ] The defendant testified through an interpreter.

It was at times difficult to follow his evidence as the interpreters (there were several) had difficulty translating some of his answers, as he has a speech impediment. [ 151 ] The defendant had great difficulty answering a question directly. He would tend to go off in tangents, not responding to the question asked and appearing to tell me what he wanted me to hear. At times he was evasive, appearing to deliberately avoid answering direct questions from the Crown. [ 152 ] His evidence was that there was no touching of a sexual nature, and that any touching was in the context of a normal,

affectionate family that was very physically expressive and playful. [ 153 ] The evidence of the defendant was that it was his grandchildren who initiated the physical play that would lead to some physical contact. The evidence of the defendant may have made more sense had the children been much younger. Z.F. described an incident in the old house that began as tickling, which ended with her grandfather groping her breasts. Historically, the allegations of abuse may have begun in the context of apparent innocent play that escalated into touching with a sexual purpose.

However, at the time of the disclosures, the defendant was the grandfather of three teenage children. D.G. was 20 years of age when the allegations of sexual abuse surfaced. I do not accept the evidence of the aunt or the defendant that these young women wanted to engage in physical, playful behaviour with their grandfather, let alone initiate it. [ 154 ] I do not find the defendant’s evidence credible or trustworthy. There were, however, kernels of truth. He did admit to turning I.L.’s face “delicately”, not forcefully, to him for a kiss on the lips, as observed by the aunt.

He confirmed I.L. reacted by pushing him away in anger and turning away. He admitted to going into D.G.’s room using the key, explaining that it was to tell her to turn off the computer late at night. When the aunt, M.A.H., had questioned him as to the appropriateness of this, he acknowledged that he told her in Portuguese to shut up. He admitted to having the complainants sit on his lap when they were teenagers.

This acknowledgment is consistent with the complainants testifying that they were forced to sit on his lap while he was doing grinding or “dog” or “man thrust” kind of movements. [ 155 ] Both Z.L. and the aunt gave evidence that the defendant had a drinking problem, that he drank to excess, and that incidents occurred while he was under the influence of alcohol.

The defendant did not deny his problem with alcohol consumption in his evidence and the crown did not cross-examine him on this issue. [ 156 ] Clearly the defendant was a hard worker, and provided significant financial support to the complainants and their parents. Generosity in providing support and paying for gifts does not translate into entitlement to sexual favours. [ 157 ] I found the defendant to be evasive and opportunistic in his answers.

His suggestion that his teenage grandchildren wanted to play with him, and that any touching was non-intentional in the context of play initiated by them was not supported by the evidence. It is true that he at times asked to “play” with D.F.’s breasts, but that notion of play was clearly in a sexual context. His suggestion that B.F. and C.H. manipulated the children into fabricating a web of lies to get him out of the house to avoid paying rent makes no sense and is not borne out by any of the evidence. In short, I found that the defendant was evasive, and that he was not a credible or reliable witness.

I completely reject his account of his evidence in relation to the allegations except where it corroborates the evidence of the complainants. 5. THE DISCLOSURE OF THE ALLEGED ABUSE [ 158 ] I will review in some detail the history of how the allegations of abuse arose, as the defence alleges that the allegations are fabrications or are tainted. I.L.’s initial disclosure of the alleged abuse [ 159 ] The middle child, I.L., had issues of acting out and with depression beginning in grade 8.

She received counselling at that time at the Child Development Institute. [ 160 ] In the summer of 2011, I.L. was staying out until 4 or 5 a.m., and was working with the homeless doing extensive hours of volunteer work. As her mother said, it appeared that she did not want to be at home. Her mother described I.L.’ appearance as a “ghost” being pale and sickly. She was not sleeping and could not look her mother in the eye. I.L. testified that her increased hours doing volunteer work and staying out all night were avoidance measures to avoid contact with her grandfather.

She also testified that she travelled by TTC during the last year to avoid her grandfather groping her in the car. [ 161 ] She was exhibiting behaviour consistent with obsessive compulsive disorder, including insisting on wearing gloves on public transport in the summer and carrying baby wipes to wash her hands. [ 162 ] I.L. asked her mother to go to the hospital to get help shortly after her 16 th birthday. She said she was not feeling well but provided no details. On August 2, 2011, I.L. was admitted to St.

Joseph’s Hospital and received psychiatric treatment on the pediatric/adolescent unit. [ 163 ] When I.L. was in the hospital she disclosed an incident just before her hospitalization when she tried to walk into moving traffic and was rescued by her friends. I.L. made her friends promise not to tell her mother.

One friend texted C.H., prior to I.L.’s hospitalization, telling her she should not let her daughter go out at night, but providing no details. [ 164 ] There were two other incidents in 2011 of potential suicide attempts or cries for help, including cutting of the wrists and contemplating taking pills. [ 165 ] In light of her history, the hospital placed I.L. on a suicide alert. The mother visited I.L. in the hospital on at least a weekly basis. After I.L.’s hospitalization, I.L.’s psychiatrist encouraged the mother to try to get I.L. to talk to better understand her issues.

At one time the mother used the word “incentive” to try to get her daughter to discuss her problems leading to her hospitalization, to open up to her mother in a supportive safe environment and to tell her what was wrong. [ 166 ] After a one to two week period of hospitalization, I.L. came home for the weekend to see how she adapted. She continued her late nights and acting out behaviour. C.H. testified that I.L. “took some pills”.

I.L. returned to the hospital on August 12, 2011. [ 167 ] I.L. testified that when she returned to the hospital after the weekend at home, “there was too much weight on [her] shoulders”. Sometime during the week of August 12 to 19, when she was hospitalized, I.L. disclosed to her psychiatrist that she

had been sexually abused by her grandfather. I.L. told the psychiatrist that she did not want to “tell the legal people”. No family members were present when I.L. made this disclosure to her treating psychiatrist.

The specific contents of the disclosure are not known. [ 168 ] Neither the psychiatrist nor the hospital staff advised the mother or father of I.L.’s disclosure. [ 169 ] During her first visit with her mother after making the disclosure to the psychiatrist, on Friday, August 19, 2011 I.L. told her mother that she was ready to talk and that it “has to do with a male in [their] house that is not [her mother’s] husband.” C.H. was told nothing else by I.L. or by the hospital staff on that visit. [ 170 ] The conditions of the hospital required that all visits with family had to be in the presence of a staff member.

After I.L. made this statement, she was not permitted by the nurse to say any more to her mother. Her mother was quickly whisked out of the conference room by the nurse and prevented from saying anything further to I.L. The mother’s decision to question the other two children [ 171 ] While the mother was taking the streetcar home after the visit, she was trying to figure out what I.L. meant when she said that the issue was “with a male in the house that was not [her] husband”.

The only other male in the household was the defendant, the maternal grandfather. [ 172 ] C.H. became concerned about potential sexual abuse of I.L. by the grandfather. The mother testified that this concern was triggered by the statement made by I.L., the seriousness of I.L.’s situation in the hospital, her reluctance to talk, and the fact that when D.G. was six years old, she had reported an incident of possible sexual impropriety by the grandfather. [ 173 ] C.H. became concerned about her other two daughters and decided to question them about potential sexual abuse by their grandfather.

The defence vigorously challenges the reasonableness of this concern and takes the position that this unfounded concern was the beginning of the mother’s concoction or imagining of the grandfather’s sexual abuse of the children. [ 174 ] Having considered all of the facts, I find that C.H.’s concern of possible sexual abuse by the grandfather was reasonable.

It was not an alarmist, hysterical, troubled woman jumping to wild, unfounded conclusions and imagining allegations or fabricating concerns, as suggested by the defence. [ 175 ] When the mother returned home on August 19, 2011, she asked questions of each of D.G and Z.F. The mother’s meeting with D.G. and Z.F. on August 19, 2011 [ 176 ] In their statements to the police, both D.G. and Z.F. used the word “interrogate” when they referred to their mother’s questions on August 19, 2011. The defence relies upon this characterization in support of its position that the children were pressured to fabricate evidence.

The defence alleges that the concoction and fabrication of evidence by C.H. and the complainants began when C.H. met with D.G. and Z.F. individually and continued later that day when they had a family meeting with their aunt. [ 177 ] The following are my findings of fact with respect to what occurred in the meeting between the mother and her daughters. [ 178 ] The mother met first with D.G., the eldest. C.H. testified that she told D.G. what I.L. had told her at hospital that “it had to do with a male in the household that was not C.H.’s husband”.

D.G. confirmed in her evidence that her mother told her that I.L. had said something really “weird”, that she had an issue or problem with a male in the household that was not her mother’s husband. Both C.H. and D.G. deny that C.H. gave D.G. any

interpretation of what this statement by I.L. meant. [ 179 ] C.H. testified that she then asked D.G. whether their grandfather had at any time touched her inappropriately. C.H. then said that D.G. looked at her with “gigantic eyes” and hesitated.

D.G. then said that her grandfather had been touching her on a daily basis, that he went into her bedroom and touched her breasts and genitals and that it had been going on for a long time. [ 180 ] D.G. confirmed that her mother was very upset. [ 181 ] C.H. then told D.G. to get Z.F., the youngest daughter, then 13 years old. [ 182 ] I find that C.H. initially spoke to Z.F. alone and asked whether her grandfather had ever touched her inappropriately.

C.H. confirmed that Z.F. was very embarrassed but answered yes. [ 183 ] Z.F. describes the questioning by her mother in her statement to the police as follows: Like I was downstairs … with my cousin watching him play games and then my sister was like [Z,] your mom wants to talk to you, and I was like, why?

And she’s like, it is something important, so I went upstairs and then my mom looked very, very concerned and I don’t know why, like I thought something bad happened, and then she kind of lock, she locked the door and she said Z, I need to talk and if um, I’m sorry if its uncomfortable that I ask you these questions, but I’m your mom so please answer them correctly and then she, she asked me like, what did your grandpa ever ever like be, do inappropriate things to you? And then I was a bit shy to tell her at first, but then I was like, yeah. And then she was like, what kind of things did he do?

And then I said well he would kind of slap me on the butt and stuff, and then after I told her the more severe things that happened she was, she was very very shocked. [ 184 ] The defence relies on this description of the questioning and the family meeting to support its submission that C.H. put

pressure on Z.F. to make up allegations of abuse. [ 185 ] D.G. confirmed that after she had asked Z.F. to speak with her mother in the parents’ bedroom, she waited in the girls’ bedroom to give her mother and Z.F. privacy while they talked. I accept this evidence and find that C.H. initially met with Z.F. alone. [ 186 ] While alone with her mother, Z.F. confirmed that she had been touched inappropriately, but was very shy about speaking to her mother about anything that she alleged had happened.

Z.F. asked her mother if she could whisper in the ear of her sister D.G. the response to her mother’s questions, with D.G. being be her mouthpiece to provide Z.F.’s answers to the questions. [ 187 ] D.G. then came into the parents’ bedroom, listened to Z.F.’s whispers and repeated the words to her mother. In this way, D.G. was aware of the allegations of sexual abuse by Z.F. [ 188 ] Z.F. whispered to D.G. that the grandfather had gone upstairs and licked her on the ear and that he put his tongue in her mouth. Z.F. said that in the old house the grandfather had put his fingers in her vagina.

When C.H. heard this aspect of Z.F.’s disclosure, the mother used the term “fingering”. I find that at no time did C.H. make any suggestions as to what happened to Z.F. However, in response to the disclosure, C.H. did place this label on the conduct. [ 189 ] C.H. confirmed that initially both D.G. and Z.F. were reluctant to talk. C.H. was vehement that she never put suggestions to the children to fabricate evidence and that the allegations of abuse came from them. D.G. and Z.F. deny that their mother put suggestions to them.

I accept this evidence. [ 190 ] Clearly, C.H. was upset and under stress based upon what I.L. had told her at the hospital and her concerns of possible sexual abuse. C.H. spoke to D.G. and Z.F. separately to begin with and asked each whether her grandfather had ever touched her inappropriately. This question does not necessarily impute sexual abuse; it could have been inappropriate discipline that was of concern. [ 191 ] I find that there was no pressure imposed by C.H. upon the children to disclose fabricated allegations of sexual abuse by the grandfather, either consciously or unconsciously.

Nothing in C.H.’s words or method of questioning would result in her daughter feeling compelled to make false or exaggerated allegations against her grandfather. C.H. initially spoke to each daughter separately. This enhances the reliability of each daughter’s initial disclosure that she had been touched inappropriately. In my view, the complainants’ use of the word “interrogate” to describe their mother’s questioning reflects how shy and reluctant they were to disclose the allegations of abuse.

The meeting between C.H., M.A.H., D.G. and Z.F. on August 19, 2011 [ 192 ] C.H. testified that she was horrified and shocked by the disclosures of her children, D.G. and Z.F. [ 193 ] Immediately following the disclosure by D.G. and Z.F., C.H. asked D.G. to get the aunt, M.A.H., to come upstairs. A meeting took place. B.F., the father, was still at work and did not participate in this meeting. He returned home after completion of his shift at approximately midnight on August 19, 2011.

The defence relies on this meeting as part of the theory that D.G. and Z.F. were pressured by their mother into concocting allegations of abuse in order to advance the mother’s plan to get the grandfather out of the house. [ 194 ]

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