R. v. D.K., 2013 ONSC 625

CITATION : R. v. D.K., 2013 ONSC 625 COURT FILE NO.: 822/12 DATE: 20130131 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) HER MAJESTY THE QUEEN ) ) ) M. Martin, for the Crown ) ) ) - and - ) ) ) D.K. ) ) ) W. Mathers, for the Defendant ) Defendant ) ) ) ) HEARD: January 15, 16, 17, 2013 REASONS FOR JUDGMENT

Conlan J. Introduction [ 1 ] A mother’s betrayal. And a step-father’s alleged sexual abuse. This is the story of R.K. [ 2 ] D.K. stands charged with three counts of sexual assault and three counts of sexual interference. The alleged victim is the daughter of D.K.’s former common law wife. [ 3 ] The Indictment, as amended, reads as follows. 1 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did commit a sexual assault on R.K. in a residential trailer, located at Unit 30, 1004 Bruce County Road 4 in the former Brant Township, contrary to

section 271 of the Criminal Code of Canada . 2 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did for a sexual purpose touch R.K., a person under the age of fourteen years directly with a part of his body, to wit: his penis, in a residential trailer, located at Unit 30, 1004 Bruce County Road 4 in the former Brant Township, contrary to

section 151 of the Criminal Code of Canada . 3 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did commit a sexual assault on R.K. in a storage shed located at Unit 30, 1004 Bruce County Road 4 in the former Brant Township, contrary to

section 271 of the Criminal Code of Canada . 4 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did for a sexual purpose touch R.K., a person under the age of fourteen years directly with a part of his body, to wit: his penis, in a storage shed located at Unit 30, 1004 Bruce County Road 4 in the former Brant Township, contrary to

section 151 of the Criminal Code of Canada . 5 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did commit a sexual assault on R.K. in a van parked near Marl Lake in the former Brant Township, contrary to

section 271 of the Criminal Code of Canada . 6 . That between the 1 st day April, 1991 and the 31 st day of July 1993 inclusive, at the Municipality of Brockton in the said region did for a sexual purpose touch R.K., a person under the age of fourteen years directly with a part of his body, to wit: his penis, in a van parked near Marl Lake in the former Brant Township, contrary to

section 151 of the Criminal Code of Canada . [ 4 ] This trial took place in Walkerton over less than two full days (January 15 and 16), with submissions by counsel on 17 January. There were four witnesses total including the complainant and the accused. [ 5 ] A publication ban has been issued regarding the name and identity of the complainant. Elements of the Charges [ 6 ] For the Court to find D.K. guilty of sexual assault, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.

i . that D.K. intentionally applied force to R.K.; ii . that the force that D.K. intentionally applied took place in circumstances of a sexual nature. [ 7 ] Note that consent and honest but mistaken belief in consent, which are normally the second and third elements of a charge of sexual assault, are not applicable here because R.K. was under the age of 14 years during the alleged offence period. [ 8 ] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.K. not guilty of sexual assault. [ 9 ] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.K. guilty of sexual assault. [ 10 ] There is no burden of proof on D.K.

He is presumed innocent of the charge. [ 11 ] For the Court to find D.K. guilty of sexual interference, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt. i . that R.K. was under fourteen years old at the time; ii . that D.K. touched R.K.; and iii. that the touching was for a sexual purpose. [ 12 ] If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.K. not guilty of sexual interference.

There is no dispute about the first element; R.K. was certainly under 14 years old at the time. [ 13 ] If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find D.K. guilty of sexual interference. [ 14 ] There is no burden of proof on D.K. He is presumed innocent of the charge. Fundamental Principles [ 15 ] The burden of proof is on the Crown. The Crown must prove, beyond a reasonable doubt, each essential element of each charge against D.K. Evidence amounting to likely or probable guilt is not enough. [ 16 ] D.K. is presumed to be innocent of each charge.

He has no burden of proof. [ 17 ] If I accept the evidence of D.K., who denied the allegations, then I must find him not guilty. If I do not accept the evidence of D.K., I must find him not guilty if that evidence leaves me in a reasonable doubt. If the evidence of D.K. does not leave me in a reasonable doubt, I must find him not guilty unless the evidence that I do accept persuades me of his guilt beyond a reasonable doubt. That instruction applies to each charge. A Brief

Summary of the Evidence R.K. (now R.L.), the Complainant [ 18 ] Now 30 years old, the complainant described six alleged incidents of a sexual nature between her and D.K., her mother’s common law husband at the time. [ 19 ] In direct examination, R.K. stated that all of the alleged incidents occurred in the Spring and/or Summer of 1991 (when she was 9 years old). [ 20 ] The first incident was as follows: she was on her bed; D.K. approached her; his zipper on his jeans was undone; she was crying; he calmed her down.

This is referred to below as “her own bedroom” incident. [ 21 ] The second incident was as follows: she was leaning over a dehumidifier in the shed; her pants and underwear were down; D.K. had anal intercourse with her; it lasted less than ten minutes; she does not think that he ejaculated. This is referred to below as the “shed” incident. [ 22 ] The third incident was as follows: D.K. was driving her to Girl Guides; en route he pulled the vehicle in to a spot among trees near a lake; in the back of the van they had vaginal intercourse; it lasted less than ten minutes; she does not recall him ejaculating.

This is referred to below as the “Guides” incident.

[ 23 ] The fourth incident was as follows: they had vaginal intercourse while she was lying on her back and he was on top of her; the location was the waterbed in her mother’s room which was shared with D.K.; she looked in a mirror and saw the reflection of something on television; it lasted less than ten minutes; she does not recall him ejaculating.

This is referred to below as the “TV” incident. [ 24 ] The fifth incident was as follows: D.K. had anal intercourse with her; the location was the waterbed in her mother’s room which was shared with D.K.; she was lying on her stomach reading something on a bottle on a shelf which was part of the headboard of the bed, while he was lying on top of her; it lasted less than ten minutes; he ejaculated.

This is referred to below as the “bottle” incident. [ 25 ] The sixth and final incident was as follows: while she was standing near the foot of the same waterbed in her mother’s room with her pants and underwear down, he was behind her; they were about to have anal intercourse; that was interrupted when her mother came home; she ran to her own bedroom with her clothing still around her ankles; her mother later asked her what happened but she “downplayed” what happened.

This is referred to below as the “interruption” incident. [ 26 ] Later in direct examination, R.K. clarified that the chronological order of the incidents was the following: her own bedroom; then the TV; then the shed; then the bottle; then the Guides; then the interruption. [ 27 ] In cross-examination, R.K. stated that these incidents happened when she was nine years old. She also stated that she joined Guides when she was 11.

She then said that she could be wrong on the year that the incidents occurred. [ 28 ] R.K. later said in cross-examination that the incidents took place in 1992. [ 29 ] In re-examination, R.K. testified that she is not sure if the incident near the lake took place while she was being driven to Guides or to Brownies. [ 30 ] Then, in further cross-examination (special permission was granted on consent of the Crown), R.K. stated that the incidents took place in 1991 or 1992 and definitely not in 1993. [ 31 ] After being assisted with the timetable by reference to a motor vehicle accident which took place in October 1991, R.K. testified that the incidents occurred after the accident – in the Spring and/or Summer of 1992.

R.W., the Mother of R.K. [ 32 ] The evidence of this witness made me nauseas. She is either mistaken, a liar or a truthful person who betrayed her daughter. [ 33 ] R.W. described an incident where she came home to find the door locked, which was unusual. She entered the home (a campground trailer) and saw R.K. come out of R.W.’s bedroom. Her daughter was pulling up her pants. As D.K. was about to leave the home, R.W. confronted him.

D.K. was saying things which, combined with what she had seen, caused R.W. to conclude that her boyfriend was trying to have sex with her daughter. [ 34 ] Sometime after that evening, while R.W. and D.K. were having sex, D.K. said that R.W. tasted different than her daughter (“the disgusting comment”). [ 35 ] R.W. did absolutely nothing to help her daughter. Rather, she stayed with D.K. for years and had another child with him. When interviewed by the police, she disclosed nothing about what she had seen or heard.

She was afraid that she would be charged with a crime. [ 36 ] Unfortunately, she was not. [ 37 ] In cross-examination, R.W. acknowledged that she never mentioned at the Preliminary Inquiry the alleged disgusting comment. I place no reliance on that alleged comment by D.K.

Detective Constable Linda Weltz of the OPP [ 38 ] The two most important aspects of the detective’s testimony were that it confirmed ownership by D.K., at the material time, of a van roughly matching that described by R.K. regarding the Guides incident; and it confirmed the general area of the lake as roughly described by R.K. regarding the same incident.

The Accused, D.K. [ 39 ] Now 48 years old, D.K. adamantly denied all of the sexual allegations. [ 40 ] Although he acknowledged a conviction for sexual assault against a minor (the young daughter of his then spouse) in 1987 for which he served time in prison, he indicated that he subsequently developed a rule that he adhered to 99.9 percent of the time, that is, that he would not be alone with minors. [ 41 ] Regarding the interruption incident, D.K. testified that there was a discussion once between R.K. and R.W. about sexual impropriety but that the said discussion was with regard to R.K.’s grandfather whom D.K. suspected was behaving offensively towards R.K.

[42] In cross-examination, D.K. admitted that he does not hug kids so as to avoid being accused of sexual assault but also to avoidbeing tempted. He also, however, in re-examination, said that the counselling that he received while incarcerated for the 1987conviction cured him of any desires to sexually harm minors. A Brief

Summary of the Positions of Counsel [43] I thank both lawyers for their hard work, thorough preparation and focused submissions.

The Defence [44] The Defence submits that these factors taken collectively raise a reasonable doubt with regard to all of the charges: the 17 yearsplus between the alleged offences and the first complaint to a public authority; the lack of any reasonable explanation as to why R.K.would not have told someone what was happening especially considering that there were no threats or intimidation by D.K. to keep quiet;the lack of details with regard to the alleged incidents as described by the complainant; the inconceivable testimony of R.K. that the analintercourse caused her no pain or injury; the uncertainty on the part of the complainant as to when these alleged incidents occurred; thelack of any corroboration with the exception of the interruption incident; R.K.’s flat and unemotional demeanour while testifying at trial;the lack of any credibility on the part of R.W. and her motive to be vengeful towards D.K. after the end of their relationship; and thehonest and straightforward testimony of the accused. [45] The Defence submits that the alleged incident in R.K.’s own bedroom does not amount to sexual assault or sexual interferenceeven on the account of the complainant.

The Crown [46] The Crown submits that R.K. was credible and reliable. She did not embellish the allegations. She provided sufficient detailregarding the incidents complained of. Her evidence contained certain hallmarks of truthfulness such as R.K.’s testimony that she wasreading the baby powder bottle to serve as a distraction during that incident of sexual assault. [47] The Crown argues that R.K. demonstrated no animus or motive to fabricate. [48] The Crown cautions the Court against relying much on R.K.’s demeanour while testifying.

A further caution is provided againstdrawing any adverse inference as a result of the delayed disclosure by the complainant. [49] The Crown submits that the accused had ample opportunity to commit the offences complained of. [50] The Crown argues that there was some corroboration from, for example, R.W., whose evidence was credible according to theCrown. [51] Finally, the Crown submits that D.K. was not credible as a witness. His testimony was unrealistic, ridiculous in parts (such as the“rule” about never being alone with minors) and convenient (for example, blaming the grandfather for the sexual abuse).

Analysis and Conclusion [52] I have considered the two Court decisions referred to by both counsel: R. v. L.H., [2007] O.J. No. 1588 (S.C.J. – Hill J.) and R v.H.P.S., 2012 ONCA 117 , [2012] O.J. No. 748 (C.A.). I have assessed the evidence, particularly the testimony of thecomplainant, with a recognition that these alleged incidents occurred long ago. R.K. cannot be expected to have a perfect recall of whathappened. Nor can she be expected to provide exquisite detail.

Her evidence must be assessed as an adult witness who is testifyingabout events that allegedly took place when she was a young child. [53] I do not accept the evidence of D.K., the accused. Further, his evidence does not leave me in a reasonable doubt about his guilt. [54] Although D.K. presented fair in the witness box and was generally consistent and responsive, I do not accept his denials for thesereasons. [55] First, he admitted that he has “a good memory here and there”.

That presents a concern regarding his reliability. [56] Second, his testimony that he abided by his rule (not being alone with minors) 99.9 percent of the time is unrealistic and clearlyan attempt on his part to minimize any opportunity to have committed these alleged offences. That testimony is not credible. [57] Third, his testimony that he has never hugged any of his children, except once, is incompatible with his testimony that hiscounselling cured him. If he was cured, then there would have been no reason to be so careful for the last twenty plus years.

Thattestimony adversely affects his credibility. [58] Fourth, his evidence was that he assumes the discussion between R.K. and R.W. about what he says was possible sexualimpropriety on the part of R.K.’s grandfather is the same conversation that R.K. and R.W. both testified about, which they said occurredthe same evening as the interruption incident. That is absurd. That is not credible. It is an obvious attempt to discredit what R.K. andR.W. testified the discussion was about, yet the attempt is without any foundation. D.K. admitted that he has no idea when the

discussion that he described took place. And he could remember nothing specific that occurred before or afterwards. [ 59 ] Fifth, there are his rantings in cross-examination about R.W. trapping him in a relationship by getting herself pregnant and about him being locked up in a psychiatric ward because of something that R.W. said with regard to him being susceptible to self-harm. Those comments make no common sense. That evidence adversely affects his credibility. [ 60 ] I do not accept the evidence of D.K.

I am not left in a reasonable doubt by it. [ 61 ] That leaves the issue of whether, on the totality of the evidence that I do accept, the Crown has proven these charges beyond a reasonable doubt. [ 62 ] Sexual offences do not require corroboration. The evidence of the complainant, alone, is sufficient in some cases. In fact, that is often all that there is.

Sexual predators lure in the darkness; they do not make a habit of stalking prey among witnesses. [ 63 ] But there are cases where the uncorroborated allegations of a complainant who has testimonial weaknesses is not enough to cross the hurdle of proof beyond a reasonable doubt. This is such a case regarding five of the alleged incidents: her own bedroom, the TV, the shed, the bottle and Guides. [ 64 ] R.K. may very well be telling the truth about those incidents. But I am not sure that they happened. Thus, I have a reasonable doubt.

I am not sure because of the following testimonial weaknesses regarding R.K., and I have no other evidence to in any way corroborate what allegedly happened. [ 65 ] First, R.K. was repeatedly inconsistent in her evidence on the approximate dates of the alleged incidents and whether she was in Guides or not. Although not the most material matters, these were not trivial matters either. Inconsistencies affect credibility.

There were other internal inconsistencies in R.K.’s evidence on matters of substance, such as whether the incidents occurred before or after the addition was put on the trailer (an important matter because it affects the entire layout of the home and the drawing that R.K. produced which was marked Exhibit 1) and what she was wearing during the Guides incident. [ 66 ] Second, R.K. was generally less detailed in her descriptions of the preludes and aftermaths of those five incidents compared to her account of the interruption matter.

Lack of detail affects reliability. [ 67 ] Third, R.K. was inconsistent on very basic matters with other evidence at trial which I do accept. That makes me question her memory. For example, R.K. testified that her mother worked outside of the home on occasion at the material time, yet the testimony of R.W. (which I accept on this point) was very clearly that R.W. did not work at all outside of the home between October 1990 and July 1994.

Although R.K. testified that her motor vehicle accident and resulting moderate to severe brain injury has not affected her long-term memory, I have concerns about her memory generally. And that affects her reliability. [ 68 ] Finally, R.K.’s testimony that anal intercourse (the shed and the bottle incidents) did not cause any pain or hurt at all is hard to accept. I do not accept that evidence. It is not credible.

It makes no common sense given that these incidents of alleged anal intercourse were minutes in duration and committed by a decent sized grown man against a 9 or 10 year old girl. [ 69 ] Thus, as the evidence with regard to the own bedroom, TV, shed, bottle and Guides incidents is limited to the testimony of the complainant, and given the weaknesses in that testimony as described above, although those incidents may very well have occurred, I have a reasonable doubt. [ 70 ] I find D.K. not guilty of counts 3 (shed), 4 (shed), 5 (Guides) and 6 (Guides) on the Indictment. [ 71 ] That leaves counts 1 and 2.

Those counts specify the trailer as the location of the alleged criminal conduct. If those counts could not reasonably include the interruption incident, then I would find D.K. not guilty of those two charges because I have a reasonable doubt whether the own bedroom, TV and bottle incidents occurred. [ 72 ] But the interruption incident could fall within counts 1 and 2.

And I find that the Crown has proven that incident beyond a reasonable doubt because, unlike the other matters, that incident is strongly corroborated by the testimony of R.W., which I accept (other than the alleged disgusting comment attributed by R.W. to D.K.). [ 73 ] I said before that R.W. is either mistaken, a liar or a truthful person who betrayed her daughter. I find that she is the latter. Although far too late, after more than twenty years, R.W. has finally told the truth about what she saw and heard that evening.

I believe that evidence. [ 74 ] That evidence, entirely consistent with what R.K. said, which is remarkable given that they have no relationship and, thus, there is absolutely no risk of collusion, helps persuade me beyond a reasonable doubt that the interruption incident occurred as described by R.K. I am sure that it happened. [ 75 ] I therefore find D.K. guilty of counts 1 and 2 on the Indictment. The findings of guilt are made on the basis of attempted sexual assault and attempted sexual interference. [ 76 ] One of the findings of guilt will have to be stayed and a conviction entered on the other.

I will hear submissions on that from counsel, that is the applicability of the Kienapple principle, at the time of sentencing. [ 77 ] The verdicts are: Count 1 – guilty (as an attempt) Count 2 – guilty (as an attempt)

Count 3 – not guilty Count 4 – not guilty Count 5 – not guilty Count 6 – not guilty [ 78 ] R.K. strikes me as a good person who has been through an awful lot of misery. She is now happily married with children. She has a bright future. I hope that she has found some peace. ___________________________ Conlan J. Released: January 31, 2013 CITATION : R. v. D.K., 2013 ONSC 625 COURT FILE NO.: 822/12 DATE: 20130131

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN - and - D.K. Defendant REASONS FOR JUDGMENT Conlan J. Released: January 31, 2013