R. v. J.L., 2015 ONCJ 777

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

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

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J. L.

Before Justice C. Kehoe

Decision released on March 26, 2015

Ms. Tansey for the Crown

Mr. Hall for the accused, J. L.

KEHOE, J.:

Charges

1Mr. J. L. is charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he committed a sexual assault on J. S-L., contrary to section 271(1) of the Criminal Code of Canada.

2He is also charged that between January 1, 2005 and April 30, 2008 at the City of Ottawa and elsewhere in Ontario he did, with a part of his body to wit his hands, his mouth and his penis, for a sexual purpose touch the body of a person under the age of 14 years, namely J. S-L., contrary to section 151 of the Criminal Code of Canada.

3Mr. L. is charged that between May 1, 2008 and August 31 2012 at the City of Ottawa and elsewhere in Ontario, he did, with a part of his body to wit his hands, his mouth and his penis for a sexual purpose, touch the body of a person under the age of 16 years, namely J. S-L., contrary to section 151 of the Criminal Code of Canada.

4He is also charged that between January 1, 2005 and April 30, 2008 at the City of Ottawa and elsewhere in Ontario he did, for a sexual purpose, counsel a person under the age of 14 years, namely J. S-L. to directly touch with a part of her body to wit her hands the body of J. L., contrary to section 152 of the Criminal Code of Canada.

5He is also charged that between May 1, 2008 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario he did, for a sexual purpose, counsel a person under the age of 16 years, namely J. S-L. to directly touch with a part of her body to wit her hands the body of J. L., contrary to section 152 of the Criminal Code of Canada.

6Mr. L. is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario he did, being a person in a position of trust or authority towards a young person, with a part of his body, to wit his hands, his mouth and his penis, for a sexual purpose, directly touch the body of that young person, namely J. S-L., contrary to section 153(1)(a) of the Criminal Code of Canada.

7He is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he did, being a person in a position of trust or authority towards a young person, for a sexual purpose, counsel that young person, namely J. S-L., to directly touch with a part of his body, the body of J. L., contrary to section 153(1)(b) of the Criminal Code of Canada.

8He is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he did, knowing that another person, namely J. S-L., was by a blood relationship to her as a parent, have sexual intercourse with that person, contrary to section 155(2) of the Criminal Code of Canada.

Procedural Matters

9The Crown elected to proceed by indictment. Mr. L. elected to be tried by a Judge of the Ontario Court of Justice and pleaded not guilty.

10J. S-L. and M. S.-L. were permitted to testify by closed circuit TV.

11The plan was to play the video-taped statements of J. S-L. and M. S.-L. and to proceed with the statements as their evidence if adopted pursuant to section 715.1 of the Criminal Code. Mr. Hall, on behalf of Mr. L. consented to proceeding with the video-taped statements and admitted that all of the threshold requirements concerning the statements had been met.

Evidence of J. S-L. (Complainant)

Initial Testimony and Video Statement Issues

12J. S-L. watched the video statement and then made a promise to tell the truth prior to the Crown asking questions to complete the examination in chief.

13When asked to confirm that when J. was giving her answer to police that she was telling the truth about everything, she stated, "I might be exaggerating a little bit some of it, but yes, some of it, most of it – some of it was the truth".

14J. testified that she was prepared to accept "the parts of her statement that she did not feel that she exaggerated".

15Over the lunch hour, J. was given the transcript of her video statement and asked to indicate parts of the statement that she exaggerated.

16As a result of the changes to the original video statement, the statement was not admitted into evidence pursuant to section 715.1 and a voir dire concerning its admissibility was entered into.

Examination in Chief

17The Crown began the examination in chief. J. testified that she was in court to give some evidence and identified that the person who she was testifying about was her father, J. L.. Identification of Mr. L. is admitted. J. testified that she was 9 years old when "something" started to happen and that the family was living on Limberlost in London, Ontario. J. testified that she would have been in grade 3 or grade 4. J. testified that she entered puberty at age 9. J. testified that "this all started out" with her father when she was 9 or 10 when he began having talks with her about "the fact that she was maturing and that the opposite gender would be maturing as well…just the birds and the bees and puberty talk." When asked to explain what she meant about the "birds and the bees", J. explained, "He would explain what the male would do to a woman during these acts of intercourse or sexual acts…just how they would do it, I mean how they would act on – on the action…that the male would like the female's chest and things along those lines…because that's what man was born to like…they would like to…touch a female's chest…they would like to see their private areas…that one day she would enjoy the feeling of what the male would do to me." J. testified that Mr. L. said that she would like their package downstairs, their anatomy, or genitalia. When asked to use the specific words used, J. testified, "penis" but it was obvious that J. was reluctant and did not feel comfortable saying the word.

18When asked what her father told her about a man's penis and what she should do, she stated, "Well, he didn't really say – I didn't – it's not really idea, he more like he told me that I would most likely like to do…that a male's – the anatomy will have blood flow and it will get hard because it likes what it sees and then I might like to touch it" meaning the penis. J. testified that her father would have told her this when she was 9 years old. J. explained that the talks were random, sometimes in her room, sometimes in the living room and sometimes in the kitchen-dining room. J. could not remember if anyone else was around when the talks took place.

19J. was asked whether her father would tell her anything about what a man might do to her to make her feel good, she stated, "Yes, but not in great detail…he would say that they would very much like to put their mouth on my chest or on my neck or just a kiss". J. clarified that her father used the word "breast" instead of "chest". J. testified that her father also told her, "a man would like to touch a woman's vagina". J. testified that she could not say exactly how long these talks went on but she thought almost a year. She testified that they were random, sometimes they would not talk for a month and sometimes it could be twice a week. J. explained that some of the conversation were just general conversations about school and sports and estimated that there would have been between eight and ten conversations during the year where the subject was of a sexual nature.

20J. did not tell her mother about the conversations her father was having with her. She testified that her mother would also have conversations with her about sex, about how the body would change and things along those lines.

21J. testified, "as the years grew, just talks became, you know, just the same and then they became hands on, that one – that one talk."

22J. testified that the talks started when she was around 9 or 10 and continued when she moved to Ottawa, in November of sixth grade. J. agreed that the talks became hands on when the family moved to Ottawa. J. testified that she was 12 when they moved but turned 13 shortly after coming to Ottawa. The family lived in an apartment on Donald Street in Ottawa. J. testified that her father put his hands on her thigh, and indicated with her hand and fingers pointing down towards her knee. She testified her father would say that if a guy does that and she was not feeling the attraction towards him she should probably tell them to back away. J. also testified that her father placed his hand on her shoulder at the base of her neck. These touches and the talks took place randomly in the apartment, but recalled Mr. L. putting his hand on her thigh in the living room once. J. did not tell her mother about her father touching her thigh or neck because she thought they were doing a simulation of what would happen and did not think much of it.

23When asked what her relationship with her father was like, J. testified that it fluctuated and is pretty rocky as she does not really speak with her father. She testified, "We don't really see eye to eye…we have different ideas and thoughts on certain things. So that kind of creates conflict…".

24J. testified that the hands on talks started when the family lived in Ottawa and she would have been 13 or 14. J. testified that she did not think anything of the hands on demonstrations. When asked whether her father had ever said what should be done with the penis, J. testified, "He said that a woman would like to put their mouth on it, but most of them do not enjoy doing that". J. denied that her father gave her a demonstration of what she might want to do with a man's penis.

25J. was asked to review the transcript of the video-taped statement, dated September 7, 2012, which she did. When asked whether that had refreshed her memory, J. testified that she remembered the scene. Concerning the scene, J. testified, "He was – when I stated that he was letting me touch his package, I wasn't thoroughly clear on that as in I wasn't touching him, I was touching a – an example of a guy's anatomy…for example a banana.

26When asked to explain what "package" meant to her, J. explained, "the guy's anatomy…the lower – the genitalia part of a male's body". When asked to use the proper word, J. testified, "I know, but I don't feel comfortable saying it, that's why I say other words for it". J. explained that "package" meant penis.

27When asked whether her father ever asked her to touch his penis, she stated, "Only just his thigh, but that was just the one time".

28When directed to her video statement to refresh her memory concerning whether her father had at any time asked her to touch him, J. stated, "Yes, like I said it was not on him directly, it was the banana". She testified that her father was holding the banana. She testified that it happened in Ottawa but she could not recall how old she was. She testified that she would have been in grade 6 to grade 8. J. testified that her father asked her to "stroke it or to touch it, to be more specific, to touch it." When asked what stroke meant she stated, "Hand movement up and down…or more caress, probably would be a better word, caress". When asked was she asked to "caress a banana" J. stated, "yes". When asked if she did that, she stated, "I didn't feel comfortable doing it so I only just kind of – like poked it and then I didn't do it anymore because I don't like bananas and yeah". J. testified that she did not tell her mother because she thought it was just like a simulation so I didn't think anything of it. She could not remember which room in the apartment where that happened.

29J. was taken through the transcript of her video statement. When asked what her father told her that she would need to learn to do, she stated, "Just to be comfortable in the presence of the opposite gender…just to be confident and just be – feel okay, just basically be confident in the – yeah, just be confident…in how to pleasure the opposite gender and just in the presence of, just like you don't need to be shy."

30When asked what he told her she would need to learn to do in order to pleasure the opposite gender, J. stated, "Oh, like I said to be confident and to be – I'll explain, to be on the attack and I'll explain that too. So what I mean by to be on the attack to make the first move." J. testified, "that was the hand on the thigh that I mentioned before". J. continued that her father told her, when asked were there other things, "Yes. Like to – I don't know how to explain this properly – to put your mouth on the penis, but I never did though, but he was giving me explanations on such." She would have been 13 or 14. When asked whether there were ever demonstrations, J. stated, "No, but he said that if I ever needed – no, that was something else, no, never mind, scratch that." J. denied there were ever any demonstrations (assimilations) but that her father explained "to put her mouth around it and that she would figure it out herself". J. testified that she did have questions and asked her father "Why would someone want to do that?" and her father explained "it just makes a person feel good".

31When asked whether her father ever put his hands anywhere else on her body, she testified, "On my back". When asked to tell about that, she stated, "I don't really remember the specifics of the details of it, but I do remember there was a hand on the back." She did not recall which room but remembered that it was in the Ottawa apartment. When asked whether her father put his hands anywhere else on her body, after reading the transcript of the video statement J. stated, "He said to me that I should touch my own chest, not him himself, but me. He indicated how the guy would like touch me, if that makes sense…he said to put your hands on it, like just to cup it…referring to her breast…like the top part, not where the nipples are, but like the flat surface, if that makes sense." J. denied that she did it stating, "No, I didn't I – 'cause I don't feel comfortable with my body at the time". She confirmed that her father asked her to touch her breasts. She could not remember the season (time of year) or what she was wearing at the time.

32J. remembered touching her father's chest through a shirt. She testified, "It was – I think it was one of those simulations where there is different kinds of guys out there, there are some that are muscular, some are scrawny, some are in between and her father said, "this is what muscle feels like through a shirt, kind of thing." J. denied that her father asked her to touch his chest but stated that she "did it herself out of curiosity".

33J. was asked whether her father ever touched her body with a part of his body other than his hand. She stated, "Yes, his mouth…on the neck and like where the neck and the shoulder contact, so the same area last where he put his hand." When asked where he put his hand, she stated, "Yes and once on my chest…Yeah, but that was like over the heart, so I say the chest, but it's really over the heart."

34J. testified that her father explained, "Someone – some guys enjoy kissing on the neck and he asked if it was okay he showed me and I said, 'okay' and he placed one and it kind of felt squeamish, so I said, 'that's gross'…and yeah, like he placed a peck on the neck." J. testified that it felt squeamish because she doesn't like it when things touch her neck. She believed that she was 13 or 14. She was not sure but thought it was a different time from when her father had put his hand on her neck and different again from the time of the demonstration with the banana.

35J. never told her mother anything because she did not think anything of it.

36J. explained that her father had "brushed his lips over her chest" and later testified that he kissed her on the upper breast. She testified concerning her reaction, "Nothing really, maybe a little bit confusion, but that was just like I don't understand why would someone want to put a kiss there, but yes." She testified that she felt nothing when it happened. When asked if her father did anything else with his mouth on her breast she stated, "He suckled the skin, if that makes sense". Asked to refresh her memory with the transcript she stated, "So yes, he suckled the area of my breast". When asked to explain how he managed to do that, J. stated, "Oh I mean – sorry, I mean like through the shirt I was wearing, if that – I don't know if that makes sense. Like I wasn't – like my clothes were on and so it was through the shirt. It was a simulation of someone doing that of a guy of the opposite gender doing that." She testified that her father told that "some guys like to do that" when asked whether he told her why he was doing that. J. testified that she felt nothing and did not tell her mother anything.

37J. testified that her father also placed a kiss on her thigh after referring to her transcript. She stated, "He placed a kiss on my thigh, but that was – I'm using my transcript again to make sure I…Q. You're needing to refer to your transcript? A. Yes. There's the part where I say that he told me to lie down to lick my private parts. That's what it said in the transcript. That is not exactly the – entirely true. What actually transpired was what a guy would like to do lick my private parts, but I didn't feel comfortable doing that, so he just placed a kiss on my thigh." J. agreed that her father told her to lie down and agreed that that part of her statement was true. J. testified that she believed they were in the living room. She stated, "…Okay, I wasn't really technically lying down, I was sitting up, so like sitting up lying down position, if that makes sense"…"slouching". She stated, "I was slouching. He said to lie down, but I didn't really want to, so I kind of did a slouching position instead." Asked why she did not lie down when her father asked her to, J. stated, "Because we were on the couch and you don't lie down on the couch". Asked if she was saying that her father wanted to lick her private parts, but she didn't feel comfortable, J. stated, "I didn't say he wanted to – I didn't say he wanted to, I said we were doing a simulation that a guy would like to. So he was showing a demonstration of how they would approach to do that, but then it felt kinda weird so he placed a kiss on my thigh." J. explained the demonstration/simulation: "I was slouching and then he kind of – kind of crouched where my knees are, so when I'm sitting where my knees are. I instinctly(sic) like kind of – no, that's not true. I don't know how to explain this. He said – okay, so he put his hands on my knees and explained that the opposite gender would enjoy licking my vaginal area. I said, 'That's kinda weird since that's where you urinate', and he tried to – he was explaining to me that it's just one of those things that people like to do or sorry, men like to do. I said, 'that's kinda weird' and he just kinda placed a kiss there and says like, 'you will like it when you're older' or something like that…like sort of near the thigh and the knee", indicating about 3 to 4 inches above the knee between the front and side of the thigh.

38J. explained that her father was crouching on his knees in front of her as she slouched on the couch.

39J. agreed that she would have had a better memory of the events when she gave the video statement. She was again referred to the transcript of the video statement. J. testified that what she was referred to at page 8, last paragraph was a different talk or example. J. testified that this was referring to an incident in her bedroom when she was 15. She testified that the incident on the couch was when she was 13 or 14.

40Concerning the incident in her room she testified that it was after they had had a "very harsh argument and he was trying to reconcile". J. could not remember what the argument was about but she was saying, "Get out of my room, I hate you" and her father said to her, "You know I love you, you're my daughter, it doesn't matter, you know I'm your father and you can't really hate me" and she was saying things like, "No, I can hate you". When asked what her father was saying to her when he was trying to reconcile, referring to the words in the transcript, J. testified, "We started – he was trying to reconcile and then I ended up forgiving him and then we started to have just a general conversation of how was school and things like that and I told him about this one girl in school who I didn't particularly was fond of and how – how she acted in school and then we begin to have one of our talks and that's when he said, 'You are ready'. The Crown repeated, "He said, 'You are ready?'" and J. testified, "Yes. Well, not exactly, 'You are ready', something, it was like – I can't even remember the words exactly, 'You are ready', doesn't really sound correct, but he said – what did he say? I think, 'Would you like to' would probably be more accurate, 'would you like to?'…I think, 'Would you like to try something new' or something like that. I can't really remember, but you are ready doesn't really sound correct."

41Asked what happened and she stated, "Okay. I believe that it was that time when we were having – when I was telling you of the – when we were trying to make up. We did the talking and whatever and he told me to lie down. I think I was wearing pyjamas, I don't really remember. He got on top – top of me and put his penis on my pants, like where the thigh is, like where the groove between where – the groove line, if that makes any sense. No? Anyways, yes." Asked to name the part of the body she was referring to, J. stated, "the crotch".

42Asked if she was saying that was where her father's penis was, she stated, "Through the material of his pants – well no that's not true, it was his – of shorts, it was more like shorts, boxer shorts type of thing…you could see that it was erect through the pants. J. testified that she was wearing underwear and that her father did not do anything with her underwear but that the underwear was probably rubbing against her during… When asked to refresh her memory at page 9 of the transcript, J. stated that her memory was refreshed as to responding to the question of whether her father did anything to her underwear, truthfully and correctly, she stated, Yes, it technically shifted, not exactly come off, it shifted. Asked who shifted her underwear she stated, "In the process it was shifting, so I suppose you could say it was him, but really it was – it shifted by itself."

43J. testified that when her father was on top of her and her underwear got shifted, he was "sort of grinding on top of her". She testified that she could tell that he had an erection because "something was poking her or something was hard, I felt something hard, and it was near his lower region so it was an educated guess". Asked if she said anything to her father, she stated, "No, not really, I think I felt that I had an out of body experience really". When asked if she tried to escape, she stated, "No, I kind of just lie there not really sure what was going on. I kind of felt like I was watching it from above if that really makes sense".

44J. testified that the incident happened in her bedroom on her bed. Asked if her father told her why he wanted to do this, she stated, "No, he just gave me a – he just say lie down and I did". J. was not sure if her father ejaculated but asked how the incident ended, she stated, "He sort of shuddered or shivered and then he got up and I went to use the washroom".

45Asked to refresh her memory from the transcript, J. testified that she remembered the incident vividly. She told the Crown that the area in the transcript she was referring to was about another incident. J. was asked to describe what happened in the 'other incident'. She stated, "Well, it happened just like the one where he was on top of me except this time my undergarments are removed and he was inserted inside". She testified that this incident happened in her bedroom in the Ottawa apartment. She testified that the incident where her father was inserted inside happened a couple of months after the grinding incident. She believed that she was wearing a nightgown. J. testified that her father asked her to lie down. She testified that she was on her back. She testified her father was wearing track pants and a longish – a long shirt, like a long sleeved shirt. She testified that he just shifts her underwear to the side and that's it…inserted his penis inside her. She testified that he thrust his penis while he was inside her. Asked if he ejaculated she stated, "Yes he – I think it was either on his hand or on my stomach or a tissue, I'm not – I don't really remember, but I know he did." Asked what made her remember, she stated, "Because he did a shudder, he kinda shivered, and then he quickly pulled out". J. testified that she just got up and went to use the washroom. She testified that when she came out of the washroom her father was gone.

46J. testified that she did not tell her mother about the incident. When asked why, she stated, "I have no idea". J. testified that that type of incident never happened again. J. was again referred to her statement at page 12 concerning the number of times it had happened. She refreshed her memory and testified, "I believe a hundred was an over exaggeration of the number, it really wasn't a hundred, about ten times maybe, four, between four and ten times, no that's not true, between six and four."

47Asked how many times this happened, J. stated, "Between six and four times." She testified that it would have been in her bedroom and the same thing would happen. It was all in Ottawa. J. clarified that it was intercourse that happened 4 to 6 times. Asked whether he would ejaculate when he was inside her she stated, "Never inside me, in his hand or on my leg or on my stomach". Asked if her father said anything to her she stated, "He said that other guys would – you shouldn't do it – that doing it with – by him doing it, it will stop me from doing it with other guys and getting me in trouble, which it will get me in trouble…meaning getting her unwantedly pregnant."

48When referred to page 11 of the transcript where she stated it had started in London, Ontario, J. testified that she was referring to the talks.

49J. testified that condoms were not used. J. testified that when she said in her statement that her father was congratulating her, "I personally think that was in my head – it's more like I felt like that was happening or the whole gist of the scenario that happened I felt like he was saying like congratulations you did it, but really he never said that".

50Asked if there were ever any other positions used, J. stated, "Once on my stomach" but that it was included in the 4 to 6 times. J. testified that no one suggested that she lie on her stomach, but that she was just lying on her stomach. Asked what her father did, she stated, "The same thing…inserting his penis". She stated that he did ejaculate but "never inside her". She could not recall what she was wearing at the time. Asked if anyone else was in the house, she stated, "No, I know that it says in my transcript that I had said that some people were there, but no, no one was ever home, it was usually when no one was home". J. agreed that when she said "insert in me" she was referring to her vagina. When asked if her father used a term to name the position, she stated that she did not recall. Asked to refer to the transcript to refresh her memory as to a word she used to describe the position, she stated, "I see it, but I was just giving an example of what I meant like of like the positions". Asked what word she used, she stated, "I said the doggy – going on top of – the term is cowgirl I think but those were just examples of positions, I didn't actually do any of them." Asked "Doggy and Cowgirl" she stated, "Yes, that's when you're on top of him – on top of someone. Yeah, but those were just examples of the positions, I didn't actually act on any of them." She denied that her father suggested the terms to her. Asked again to refresh her memory from the transcript, she stated, "I know I did, but really I don't recall him ever doing it. I'm sure I said he did and he probably did, but I don't remember right at this moment that he did…I said I don't recall that he did. It says in the transcript that he did, but I don't remember…that he did suggest. I don't remember, that's what I'm saying." J. agreed that everything would have been fresh in her mind when she gave her statement but testified, "Not at this moment, no" when asked whether reading it helped her to remember the positions her father would have suggested to her. She denied hearing her father use the terms "Doggy and Cowgirl" stating that she learned or heard them in school.

51Asked whether she recalled her father saying how she made him feel physically, she stated, "It says in my transcript that I said that – that I made him – that I was good and I taste sweet, but really I don't – that was just a simulation of what a guy might say to me so…." Asked what she meant by a simulation of what a guy might say to her J. testified, "He says that sometimes a guy would like to describe or tell you how he's feeling during the sexual act, so he was describe – he was telling me some of the words or terms that they would use." Asked what those words were, J. testified, "That you're so tight and you taste sweet, along those lines". J. testified that her father would use those terms before inserting his penis inside her. J. testified that the actual act would happen in her bedroom, the talks were at random places in the house or the apartment.

52J. testified that throughout the incidents Mr. L. would usually drop his pants to his ankles and his underwear as well. She testified that he only removed all of his clothing once but kept his undershirt on. He took off the long sleeved shirt and his pants and underwear but left the undershirt on.

53J. testified, as to what her father explained to her as to why he was doing this to her, "He said it's just to make us get closer, again our relationship was really – actually it was horrible, our relationship, we fought every time, every conversation we ever really had so yeah, so it was that and also to lead me off the boys in the neighbourhood, which the boys in the neighbourhood weren't really the greatest, so I guess he was doing this to protect me."

54Asked if her father was ever physically aggressive with her, J. asked to refer to her transcript and stated, "Thank you. Found it. Okay, I'm going to refer to page 24 at the top of the page or the line where it's – I don't – kind of it follows through from 23 okay. So I stated that he hit me, kicked me, and slapped me, and pulled out my hair twice". Asked if that was true, she stated, "Not the kicking part. The kick was really by accident it was more like a top (sic) really. The hitting one, I don't remember that one, but the slap and the hair was true where I remember. J. could not recall why he slapped her and pulled her hair, stating, "I don't really remember, we were arguing and then the next thing you know my braids were on the floor…My braids. I had braids at the time and I believe the slap was because he didn't like what I said. We were having another argument and yeah. He told me to be quiet and I wasn't so…" Asked to describe what she meant about her braids being on the floor, she stated, "Yes. Yes, like my hair attached to the braids were on the floor". She confirmed that it was her hair, braids that were pulled out of her head on the floor. Asked if she was injured, she stated, "No, I was just really sad because my mom did really such a good job on my hair at the time". She testified that she did not really feel anything when the braids were pulled out.

55Asked if her dad ever gave her money, she testified, "Yes, I would periodically sometimes get money. I said in my transcript there were during the times of the said acts but really I think that was an exaggeration on my part 'cause he hardly gives me money so I'm just saying there has to be a reason, so I'm just tying it to that, but really that could be just how I thought it was perceived." Asked how much money he would give her she stated, "Sometimes five dollars, sometimes ten, sometimes 20. It never went higher than 20." He started to give her money "during the age of 15". J. testified that she said in her transcript that it was a bribe, like hush money, but again it was a complete exaggeration, that's just what I thought. That could most likely be giving me money…but that could be just how I thought it was perceived. She testified that he started giving her money when she was in grade 6, when they came to Ottawa. Her assumption was that it was "usually just bribe really". J. testified, "At the time I didn't think anything of it, it's only now recently during this process of this trial that I came to realize that it's probably most likely hush money".

56J. testified that she and her mother and family, except Mr. L., were living in a shelter when she went to the police to give her statement. J. was 15 at the time but turning 16 in a couple of days. J. testified that prior to going to the shelter, she told her mother what her dad had been doing to her and they left the apartment immediately and went to the shelter. J. could not remember the last time her father would have had intercourse with her prior to going to police. J. testified that she told her mother what her father was doing to her on the same day that they left the apartment. After referring to her transcript, J. testified that the time could have been in June, July, August or March but she did not really know.

57J. testified that she did not say anything to her father during or after the incidents. Asked whether that had anything to do with her mother, she stated, "My mom really wants us to have a really close knit family. The family she grew up in wasn't really all that close, so she kinda always suggests the importance of family oneness, which is something I also like to have too. So I'm guessing, this is what I think, I think the reason why I didn't say anything is because of that reason." Asked how it would have made her mom feel if she had said anything, she stated, "I think she would be angered, distressed, concerned, a whole bunch of fluctuations of emotions, most definitely anger." Asked whether J. had any concerns as to how her mother was feeling or thinking over the last two days of the trial, J. stated, "I think she's feeling a whole bunch of emotions. I don't – I don't ask her how she's feeling because our emotions are different from each person. I'm sure she's feeling a whole bunch of things." Asked if she was concerned about how her mother might be thinking or feeling about J. giving her evidence and telling the court about her dad, J. stated, "I think my mom wants me to do what's right. She'd want me to tell the truth and nothing but the truth. So yeah, that's pretty much it. My mom just wants me to – she just wants to know what happened really. She's not taking any sides. I mean she believes me, but that's – yeah."

58Asked if there was a point where she thought she should tell her mother, J. stated, "Yes. There was a point where I thought that maybe I should tell my mom, but at the – like my father convinced me otherwise…My father suggested or implied that my mom wouldn't understand what we are doing and then there was a age cap for the lesson or talks that we were currently doing…I say in my transcript that my mother will – that he said my mother would hate me for the rest of my life and would never forgive me. I don't remember him saying nothing about hate me, but I do remember him saying that she might not forgive me…I also stated that he said that she'll give me up and I'll never see her again. I don't really recall him ever saying that. I think that was just an exaggeration on my part, so yeah."

59Asked what she meant by exaggeration, she stated, "I'm just saying that when he generally says that I shouldn't tell my mother what is going on because she wouldn't understand and I just add in some fillers to explain why he said that…the fillers I'm stating is the part where it says that my mother will have me for the rest of my life and she'll give me up and never want to see me again. Those are the fillers." J. explained that the fillers are something that she herself thought, not something she invented. Asked what part her father actually said to her, J. stated, "That she wouldn't understand and that she might not forgive me." J. also testified, "…What I do remember is that he said she would not understand and it will cause a huge ripple in the family and you'll make everyone cry and things along those lines."

60J. testified that she did not tell her mother stating, "Yes I was afraid that my mother would hate me or more like disgusted with me, but yes".

61J. testified that watching an episode of Criminal Minds prompted her to tell her mother. In the program the character was "like the same case that I'm going through right now, so I kinda felt like okay, if she could do it, and there was just like a screen that said I could do it too and her mother didn't really support her, but our mothers are like a contradiction, my mom supports me almost everything I do and she loves me dearly so I should be able or have the confidence to tell her, since I tell her everything."

62Asked whether there was ever a time when she had to intervene in an act of violence between her father and her brother, J. stated, "I know it says in my transcript there was the time where he looks like he was about to strike my brother. I believe they were just having a heated argument and it looked that way from my perspective. I don't think he would actually – he was actually going to." Asked whether she intervened, J. stated, "Yes, I was in between them and said, 'Don't hit my brother', but he never really did at that point, I just felt like he would – he was going to."

63Asked if the incidents of violence caused her to fear her father, J. testified, "Yes. I don't really fear my father. My feelings for my father is complicated, but I do not fear him…I don't see him the same way as I see my mother. Like I care deeply for my mother, like I'll do anything for her whereas for my father, it's not the same".

64Asked if she had any injury to her vagina or any soreness as a result of the incidents, J. testified, "I wobbled, kinda like a stiffness or does that make sense to walk…I think it was just like the pelvis area." Asked what caused her pelvis area to be sore, she stated, "I'm guessing after the acts, I don't really remember or recall." Asked if she felt it after the acts of sexual intercourse, she stated, "Sometimes, but not all the time".

Voir Dire on Section 715.1 Admissibility

65The Crown ended her questioning on the voir dire concerning the admissibility under section 715 at that point, but stated that the Crown was proposing to make a section 9(2) application to cross-examine J. on the inconsistencies between the original video statement, the corrected transcript of that statement and the evidence given in Court.

66The Crown referred to page 8 of the transcript where it indicates "He would, you know, lick my private part downstairs" which the Crown maintained was contradictory to what J. testified to. Also J. had referred to "touch my boobs" in the plural, and what he meant by all of this and in the statement it said, "You're ready for taking it to the final step of womanhood. You finally know what to do". Also that J., in her statement referred to him actually removing her underwear and that "he would just take it out", that "he put it in his hand or in a tissue", that intercourse started happening prior to 2011 and that it actually started happening when she was in London, Ontario. Also at page 12, that he stated to her, "You taste so sweet, you're so tight, and you feel good".

67There were several other inconsistencies referred to.

68Mr. Hall had no submissions on the application to cross-examine on the inconsistencies.

69Mr. Hall admitted that J.'s statement to police, the video statement, was voluntary.

Day 3 Hostility and Adjournment

70J. was immediately hostile and adverse on Day 3 of the trial. When Ms. Eastwood indicated that she had a few more questions to ask her and asked whether Det. West told her that it was important to be truthful in her police interview, J. stated, "I have nothing to say to you…I refuse to answer to this woman right now." Asked why, J. stated, "You insulted my mother yesterday with allegations that was completely not – uncalled for". Asked whether her mother told her not to answer any further questions, J. stated, "No. By insulting my mother, you insulted me." When the Crown suggested that it was not a reason not to answer questions, J. stated, "Yes it is. I don't even understand why you have to say something that was totally uncalled for. She was only wondering."

71The witness was directed to answer the questions no matter how she felt about the Crown personally. Asked whether Det. West told her it was important to tell the truth, J. replied, "Yes". J. agreed that she knew it was important to be truthful in such matters. She agreed that he told her that the interview was being video-taped and the consequences of lying. J. disagreed that she was not tired during the interview but agreed that she did not ask to make any corrections to her statement. J. could not really remember whether Det. West asked her to make sure she corrected anything he stated wrong, but was sure he did. J. agreed that she had the opportunity to view her video before trial and that she did not advise Det. West or the Crown of anything that was incorrect or exaggerated in the videotape. J. testified that she did not take drugs or alcohol.

72J. confirmed that her father eventually had sexual intercourse with her on 4 to 6 occasions.

73J. could not recall and said that when she had said in her interview "So um one day he came into my room and he told me that I would need to learn how to have intercourse" was an exaggeration and she did not recall him ever saying that.

74Asked if she understood that exaggeration was adding something on that is bigger than it was, J. testified, "I shouldn't have used the word exaggeration. I don't remember or don't recall him ever saying that". Asked if her memory would have been better when she gave her statement to Det. West, J. stated, "No" and disagreed with the suggestion that her father would have said that to her. J. agreed that she would not have lied to Det. West when she gave her statement. J. agreed that what she was saying is that it was not an exaggeration but that she just did not remember her father saying that.

75It was put to J. that the day before she had testified that her father had suckled the upper part of her breast over her shirt but had said in her video statement that "he would be sucking on them". The Crown suggested that "them" meant both breasts and not just the one over the heart. J. testified, "I don't remember that". Confronted that she told Det. West that, she stated, "That could be wrong. I mean that is wrong". It was put to J. that she would not exaggerate that, and asked whether she was forgetting that, J. stated, "No, I'm saying that's an exaggeration…he did it once. I was just implying both."

76J. was directed to the words, "You said, 'And he would, you know, lick my private part downstairs', and it was suggested that when they were on the couch, her father told her to lie down, but that she just slouched on the couch. She testified, "No." J. agreed that she had said that her father was on his knees and kissed her thigh. She disagreed with the suggestion that he was licking her private parts.

77The Court intervened due to the obvious anger and hostile attitude from the witness on Day 3 and asked what was going on today as her demeanour was so completely different from the day before. J. stated, "I'm tired, I'm missing school and it's almost Christmas break". Asked what that had to do with how she was acting that morning, J. stated, "I never said that I wanted to be in trial, they are forcing me to be here. So I don't understand why I have to do this". Asked who was forcing her to be there, J. stated, "The Crown, everyone. I never said that I wanted to do this".

78Asked why she did not want to do this, J. stated, "Because I don't want to be in trial". Asked why not, J. stated, "Because he's my father". Asked if she was worried about her dad, she stated, "Yes". Asked what she was worried about, she stated, "Everything. He's my father. I'm not going to on trial against my father. I never said I wanted to follow through and you guys said I had to…I said I never wanted to go to trial and they said I had to."

79Asked whether the issue was that she was not saying what she had told Det. West was not true, but that she just didn't want to be in trial, J. said that was not the issue. J. testified when asked what the issue was, "I just don't want to go to trial. I don't want a trial. I don't want to accuse my father of this. I don't want to put him through jail. I don't want to do any of this, this whole…"

80Asked why she went to the police, J. stated, "Because they said I had to". Asked who told her she had to, she stated, "The people at the shelter". When it was suggested that she was at the police station voluntarily, that no one dragged her to the police station to speak to Det. West, J. stated, "They said I had to". Asked if she wanted to look at the video again to see herself, J. stated, "Yes, I saw myself in it and I remember I watched it like four times. They said at the place where I was that I had to do this and I did it."

81When it was suggested that she could have gone to the police station and not told anyone anything and no one at the shelter would have known the difference, J. stated, "They told me not to lie". When it was suggested by the Court, "Okay. So that's the question. You haven't lied, but you don't want to be here now." J. stated, "No". And the Court stated, "And you don't want anything to happen to your father", J. stated, "No, I lied."

82Asked in what areas she lied, J. stated, "That I wanted to through – I never said I wanted to go through this. I don't want to be here. I don't want to do this".

83When it was suggested that she didn't want to do it, but it was just because she was afraid and worried about that her dad is going to go to jail, she stated, "I'm not afraid…I'm not afraid and I'm not worried, I just don't want this – I never got a choice to say if I wanted to go through – do this. No one came to me and said, 'Do you want to press charges?' No one asked me that. I should have a right to say if I wanted to or not."

84Asked if she remembered Det. West discussing that with her, telling her what the options were, and he asked her about speaking to her mother about it and J. saying, yes go ahead and speak to her mom, J. did remember that. She agreed that Det. West talked to her about getting some counselling and she told him that her mother had suggested that she get some counselling. She also agreed that at no time at the end of the interview that she was lying about anything. J. agreed that she had not, up until this point in the trial told anyone that she had lied. Asked whether her mother had told her to come to court and not say anything or was it her own decision, J. testified "This is my decision".

85The matter was discussed in the absence of the witness. The Court gave instruction, due to J.'s anger with the Crown about something that happened with her mother, that there should be a full investigation into what had happened to cause the obvious hostility before continuing.

86The matter was adjourned from December 2013 to September 2014 to continue. Ms. Tansey replaced Ms. Eastwood as Crown counsel and the 9(2) cross-examination continued on the next day.

87There was no mention as to the reason for the change in prosecutors or the results of the police investigation referred to above.

Exhibits and Section 9(2) Application

88The original videotaped statement transcript was filed on the voir dire originally as Exhibit A, but the original was not logged in the Exhibits. As a result, on consent a copy of the original transcript was filed as Exhibit C and the edited transcript copy was filed as Exhibit A. The videotaped statement was filed as Exhibit B.

89Ms. Tansey applied to have the witness, J. S-L. declared adverse and to cross-examine her at large on the statements under section 9(1) of the Canada Evidence Act. Mr. Hall made no submissions on the application.

90J. was reminded that she had made both a promise to tell the truth and taken an oath on the Bible to tell the truth.

September 2014 Testimony

91J. was asked how she felt about being in Court. J. stated, "I'd rather not be here". Asked why, she stated, "'Cuz as much as this is a cool experience I'd rather, this is kind of awkward for everyone. It's like emotionally wearing on the soul". Asked to explain that statement, J. testified, "Well, I'm a daughter prosecuting my father. That's pretty physically, emotionally, mentally weary on the very fabric of myself". Asked whether she was worried about her mom at all, J. stated, "Of course. I'm always worried about my mom". She replied "I guess so" to the question of whether she was worried about her mom and specifically about what's going to happen here with your dad. She agreed that she had thought about that. Asked in what ways she had thought about it, J. stated, "Like what's next for our six-figured family, soon to be five, or maybe six again, we don't know". J. testified that she was the oldest of 4 children and that it was a lot of responsibility. She agreed that she felt some responsibility for her younger brothers and sisters. Asked what she thought might happen to her dad, J. testified, "Um, well, if this goes – like if it goes he might like get – go to jail and it probably won't go well for him in jail." Asked why she thought it would not go well for her dad in jail, she stated, "'Cuz his family keeps him grounded". She agreed that that was something that was weighing on her.

92J. remembered being in Court on the previous days and described that she was feeling miserable. J. agreed that she was miserable, angry and did not want to answer any questions on the last day. When asked if she remembered not even wanting to admit that she was angry the last day, J. stated, "I wasn't, well, I remember being kind of like passive aggressive". Asked why she was feeling like that that day, J. stated, "Well for one thing the trial was getting me frustrated, and then the prosecutor wasn't being very friendly. Well, she was friendly but sort of…She just insulted my mother and that I didn't really enjoy – appreciate that". J. agreed that something had happened outside of court and that she was very protective of her mother and likewise her mother was protective of her. J. described her mother as her best friend.

93Asked to tell the Court how she was feeling the last day, J. stated, "Well this is like a novelty, so it was kind of like cool 'cuz I was just like watch Law and Order and things like that, but at the same time it was like, oh, this is actually real." Asked what was happening for real, J. stated, "Um, actually in court, answering questions. I have a lawyer on one side and a lawyer on the other side, and the judge in front of me, and we're all trying to figure out what happened." J. agreed that it was stressful and that she was concerned for her dad and what might happen to him. J. testified, "Yeah, it started to kick in…the aftermath of this whole trial…not just for him but for like everyone." J. agreed that everyone meant her whole family. She agreed that she was concerned that her father might go to jail and what he would do in jail without his family. She stated, "Yes, and how we will do without – well, how K. and A. would do without him. And maybe M. too."

94J. agreed that M. is the second oldest and that she was a little less concerned but still concerned about him. She agreed that she was concerned for her mom. Asked about herself, J. stated, "Well, I'm eighteen now so it's kind of like I'm all right, kind of like a lost cause, but…" Asked if she was a lost cause, J. stated, "Kind of. Well, um, this is kind of – I'm already eighteen so I'm like an adult, so I don't know if this is something I could do again. If that makes any sense." When asked what she was referring to being unable to do again, J. explained, "I don't know, like, just being in the same room, like all six of us being in the same room again and to talk, 'cuz this is pretty stressful." Asked if she was saying that she didn't know if she could be in the same family again, J. stated, "Yes". J. agreed that those were the things she started to think when she was testifying and that it was a roller coaster of emotions for her and testified "I don't do well with that".

95J. was asked if she knew what minimizing was, she stated, "I do…Making something smaller than it really is, or making something larger and gradually making it become smaller."

96J. recalled going through her statement and taking a pen to it, crossing things out and making changes to it.

97J. agreed that she had changed how long some of the sex acts with her dad took, going from 10 minutes and changing it to 7 minutes. J. testified that she changed the number because she was not sure of the amount (of time).

98On Exhibit B, page 8, it is suggested that J. crossed out, "Yeah, well yeah, eventually we had sex but like you know". The Crown suggested that this was an example of something J. was trying to minimize that happened. J. testified, "You don't have 'plead the 5 th ' here, do you?"

99It was suggested that that is one example of minimizing something because she didn't want it to look as bad for her dad. J. testified, "Somewhat". When asked if she could explain what she meant by somewhat, she stated, "No, I can't."

100J. agreed that she told the court on the second day that her father did have intercourse with her. She agreed that it was also in her video statement a couple of times and that she only crossed out one of the occasions in the transcript. The Crown then suggested that the reason she wanted to cross it out in some spots and not others was so it didn't look as bad for her dad. Asked if that was a fair statement, J. stated, "It is. What you said made sense." Asked if that was why she crossed it out, J. testified, "Yes".

101Asked if that was a difficult thing for her to agree with, J. said "Yes" but did not know how to put the reason it was difficult into words. J. agreed that she had drawn a picture before testifying on this day. J. described the picture as two grey wobbly things with a little purple person standing kind of in the middle. The dialogue bubble coming from the little person said "Help". J. said the Help could be being said by the person or the two blobby things. J. testified that the two grey blobs could be rocks, "a rock and a hard place". Asked if that is how she was feeling, J. stated, I…Could be. I don't know."

102J. was referred to page 7 of Exhibit A (the edited transcript of the video statement), to the line "Uh, let's see. When I was little so I'm guessing around nine. Yeah, I think it was around, okay, around nine, that's when I started maturing as a female". You crossed out the word nine and wrote ten on top of it and then crossed it out and wrote nine again. J. agreed that she took the time to really think about something and made a decision that in fact she was right the first time when she said nine. J. agreed. J. agreed that she started maturing and started puberty at nine and that the talks with her dad started at that time.

103The next area: page 12, Det. West says to you: "Okay. Did…How many times did this happen? And you say, What do you mean like, a day or…and Detective West says: Rough. Like, are we talking one or two, fifteen, twenty, a hundred? And you cross out "probably a hundred" and write, "twice". J. responds, "No, it's once." The Crown says, "I'm looking at what you cross out, just on top of "probably" there is a word, it says "twice", and that is crossed out, right?" J. agrees. J. agrees that it looks like two words that she crosses out and that she leaves the word "once". The Crown suggests to J. that this is a minimization. J. stated, "I do not know". J. agrees that she crossed out 100 and put in twice and then crossed that out and decides to go with once. J. agrees she does that because she wants to be truthful about what happened with her dad. J. agrees with the Crown's statement, "And be honest that there were times when he – and this is in the context of him getting on top of you and penetrating you – but you are worried about how bad it is going to sound if it happened more than one time." J. also agrees with the Crown's statement, "Because we know it happened more than one time, right, because you tell us it does in this very same statement. Right?"

104Ultimately J. agrees that she told the court that intercourse had happened between four and six times and that she was being honest. She agreed that intercourse happened more than once. She agreed that this crossing out was an example of minimization.

105When asked about a time when her mom and M. walked in when something was happening with her dad, J. testified, "So I've been told…I was sleeping". J. testified that she knew they walked in because "they told her that they did".

106J. testified that she was asleep and has no recollection of her dad being naked from the waist down on top of her with her nightgown hiked up.

107J. agreed that the time that her mother and brother walked in, it was shortly after being told about that happening that she told her mom about all the other things that had been going on with her dad. J. agreed that it was a hard thing for her to do. J. agreed that she had not been surprised when her mom had told her what she had seen because things like that with her dad had happened in the past. J. answered, "Sure" and was asked if "sure" meant that is true. J. testified, "Yes".

108J. agreed that it was hard keeping secrets from her mother and that she did it partly because she feels protective of her mother and knew that telling her would have really hard consequences for her and for the family. J. denied that M. talked to her about what he had seen because they don't talk about that even though they have serious talks about other things.

Cross-Examination by Defence

109In cross-examination, Mr. Hall asked J., what instructions she was given when she took her original statement of September 7, 2012 and edited it. J. testified, "Take out things that don't matter or are irrelevant, or… Q. Or not part of your evidence? A. Yes".

110J. agrees that she had promised to tell the truth when giving the original statement. J. agrees that there were no problems with the first six pages or up to the place where she changed "nine" to "ten" and back.

111J. agreed that the blacked out portion on page 8 was because she did not want that to be part of her evidence.

112J. agreed that she changed the part where she said her father would touch her breasts to that he would talk about touching her breasts. She agreed that her father talked about touching her breasts but did not touch her breasts. She also agreed that further down on page 8, she changed the word or the context of the sentence from "he would do certain things" to "he talked about doing certain things".

113At page 12 J. agreed that originally she wrote, "Well, he would make me try different positions" to "suggest to try different positions". J. agreed that her father never made her try positions but that he suggested different positions during the talks.

114J. agreed that her father never got on top of her and did anything, ever. When Mr. Hall continued, "from the time she was nine to the time when you are sixteen or seventeen", J. asked him to explain more. Mr. Hall asked, "Did he ever get on top of you?" J. stated, "It says later that I said he did". Mr. Hall then stated that they would get to that later, but for page 12, she agreed that she changed the whole context of the sentence from doing something to suggesting or talking about it and J. agreed.

115J. agrees that two sentences down, she took out the whole sentence. J. agrees that her intention in taking it out was that it was not true.

116J. agrees with the suggestion, "So it wasn't true when you said it in your evidence, and you took it out completely because it was not true. He did not do the doggie on top of you."

117J. agrees that she changed one hundred to twice and then once.

118J. agrees that when referring to "once or twice" she means talks.

119J. agrees that mid-way on page 13 she takes out a whole sentence because it was not true to begin with.

120J. agrees that on page 14, she removed a whole sentence because it was not true, that her dad did not say that.

121J. agrees that on page 16, she takes out "He told me about choke my sister, my little sister, and she pushed mom, my mom" because that was not said or done. J. qualified her answer by saying, "No. Not that I'm aware of anyways, no".

122J. agrees that she took out, where it talks about smashing the coffee table, that "he like lifted it up overhead and like tried to hit my mom" because it was not true.

123J. agrees that on page 17, she took out, "When he's mad he would hit my brother a lot, but then I had to intervene" because it was not true. When it was suggested that "it never happened", J. testified, "Well, I don't know. I mean, I'm never there for that so…"

124Asked why she took out "Because he would just get so mad, and then I'd be like, don't hit my brother. I don't care what he did, don't hit him", she stated, "Well, I wasn't there for that. I was just like half-way through the whole argument so I don't really know what really happened." J. agreed that she never saw him hit her brother.

125J. agreed that when she put things into her statement to Det. West and then took them out it was because they are not true. Asked if they are exaggerations in the first place, J. stated, "Some of them could be exaggerations". Asked if some of them could be lies, J. states, "No. They could be exaggerations but I don't lie."

126When confronted that the last day she was in Court she told the Court that she lied, J. stated, "Oh, I was just frustrated with the prosecutor. I just was kind of fed up, so, yeah. It wasn't, it wasn't.."

127When asked whether the things Mr. Hall had pointed out so far are not true, J. stated, "Right. Exaggerations".

128Mr. Hall referred J. to page 20, to "It happened once. It would be like in my room where I would be…like by myself. He would just spring out of nowhere and he'd like, let's talk." J. agreed that the talks could be any kind of talk in general.

129J. agreed that she had changed that her father had touched her "chest" to "arm". She agreed that her father never touched her chest.

130At page 21, J. agreed that she had scratched out "package" in the sentence, "Tell me where to touch him so his (package)". J. testified that "package" means genitals. She agreed that she scratched it out because it was not true. She agreed that she put in "his thigh". When asked that the word "package" was not true, J. stated, "Right. It would be, it was an exaggeration, not true. It's exaggeration."

131J. agreed that she had scratched "his manhood".

132At page 21, she agreed that she had written under "This this is how a guy would lick you downstairs (inaudible) right" "never actually happened". J. testified that she had scratched out the "licking stuff". She agreed that her father never licked her. When it was suggested that he never even said that, J. stated, "I do not remember that. But…"

133Again on page 21, J. agreed that she had scratched out, "So it would be like, he would be like, lay on your back and now spread your legs, and he'd do that, yeah". When asked why she had scratched that out, J. stated, "'Cuz, I don't remember that". Asked "because it is not true?" J. testified, "I wouldn't say that, but I don't remember it."

134Mr. Hall suggested to J. that a lot of the things that she said to Det. West she had recanted or she is withdrawing from because in fact they were not true. J. stated, "Exaggerations, yes." When it was put to J. that she had agreed a couple of times that she took out was not true, J. stated, "I was under the impression that you mean like exaggerations not true as in exaggerations."

135J. testified that from page 8 to page 23 were mostly exaggerations and not truths. Asked to explain what the difference between an exaggeration and what is not true, J. testified, "Uh, the – well, let's go, let me go find an example. Okay. The suggestion was not true. I mean it was an exaggeration because it was never actually happened, it was a suggestion. That was an exaggeration. And the lying on my back was a not true. If I got that right."

136J. refers to page 13, the "they wouldn't be able to". That sentence was not true. J. was referring to the statement that her "father said they wouldn't be able to satisfy her and that she wouldn't know what to do". Asked if that was not true, J. stated, "Yes". Asked, he never said that, J. stated, "No. To my recalling no. No."

137It was explained to J. that she was saying that it was not true and when asked to confirm that, she would say not that I recall. J. was confused and testified, "You know what, I don't even know, Your Honour. I'm really…Most of it's…I remember some of this and then I don't remember some of this, so, sorry".

138J. then went back to page 7 and worked through the edited transcript again.

139J. testified, "Okay, so page 7 is true. That one is an exaggeration, that's page 8."

140Asked what that meant, and to explain page 8, "Like one day, like to touch my boobs, and then he'd be like this is how they would do it." J. testified, "I never – right, that was an exaggeration. That, it was just a talk, not really an actual full hands-on touch." J. agreed that her father would talk to her about that.

141Asked if he would talk to her about licking her private parts, J. testified, "That I don't remember him saying, so it could be true, could not be true. I don't even know at this point. Yeah. I'm being so unhelpful right now I know, but, yeah."

142She continued, "Okay, page 12 is not true, like completely. The dog part, not true. So, if that helps…Those are the example."

143Mr. Hall referred J. back to page 8 "Like, one day he would like touch my boobs and then he'd be like this is how they would do it" and you now describe the act as "talked about how one would grab their boobs". Mr. Hall also referred to "He would, you know, lick my private parts downstairs" and that both were changed from doing the act to talking about the act. J. agreed.

144J. agreed that she had said earlier that when she said her father would do this or that was not true. She agreed that it was not an exaggeration.

145Mr. Hall referred J. to page 24, "And then I, uh, he sometimes hits me, kicks me, slap me. He pulled out my hair like twice" and put to her that she had taken that whole sentence out. When asked was that because it was not true, J. stated, "Well, the pulling on my hair part was by accident, so that was by accident."

146She agreed that her father did not hit her, did not kick her, did not slap her, and by accident, not once but twice pulled out her hair.

147J. agreed that the once was not true because it was twice.

148At page 25, Mr. Hall referred to "And this would be…I'm guessing this is probably like bribe money to keep my mouth shut" that J. had taken out. J. agreed that there was no bribe money, but that her father had given his daughter some money.

149At page 27, Mr. Hall referred to "Oh, there is only one time when he actually fully took off all his clothes" but left in but most of the times he just takes, drops his pants." Asked why J. took most of the sentence out, J. testified, "Because I was minimizing it".

150J. testified that she never told any of her brothers or sisters about the events. She testified that they would ask her about what was going on but it was more as to why they fought so much.

Re-Examination

151In re-examination, J. agreed that the parts that she had not scratched out in her edited statement were true.

152J. confirmed that when she spoke to Det. West she knew that she had to tell the truth and she knew that he in court she had to tell the truth. She confirmed that on both occasions, she knew what the words she was saying meant and that she was talking about her father. J. was asked what had changed between the time that she spoke to Det. West and now that she was providing somewhat different versions from the first one she told Det. West and what she had just told the Crown and Mr. Hall that were exaggerations or not true. J. stated, "I don't know, I guess it kind of hit me". Asked what hit her, she stated, "The reality of the situation". Asked what the reality of the situation was for her, she stated, "That I'm pressing – well, I'm in court against my father". J. was asked, "why does that make what you said in the beginning different from what you are saying now in court?" She stated, "I don't know. I really don't know…Q. Well you have to know because you are saying two different things? A. I don't know, Your Honour. I guess I'm conflicted." Asked what she was conflicted about, J. stated, "Uh, family. Family, I guess." J. was asked, "And how is it that you are conflicted with your family? Who specifically are you conflicted about?" J. stated, "Just family in general". Asked, "And why does that make you tell another version in court from what you told Det. West?", J. stated, "'Cuz, I don't know. I don't know. I don't know how to put it. I don't know. I really don't know how to put this in words. I really don't." Asked, "Well you know what you're doing?, J. states, "I do". Asked, "So just tell me what you're doing and why?", J. states, "I just want everyone to be happy at the end of this. That's all. I just want everyone to be happy." Asked, "And are you telling me that's the reason you are changing your statement?", J. states, "Yeah, I just want everyone to be happy. I just…I want…I like knowing that I have a complete family, but at the same time I did enjoy having separate parents. If that makes sense."

153The Court states, "No it doesn't make sense" and J. states, "I know. I don't know how to explain it." The Court asks, "What do you mean, separate parents?" J. states, "I mean I enjoy the, um, the whole family thing, everyone's together, one whole family, but at the same time it was a different experience when it was just my mother, with just my mom. It was…I was…It was an okay experience, like I didn't mind it so much as I thought I would.

154J. confirmed that she was talking about since July.

Evidence of Ms. A. S. (Mother)

155Ms. A. S., the mother of J., M., 16, K., 11, and A., 10 has been married to J. L. for 16 years. He is the father of the 4 children. Ms. S. testified that J. and M. were born in Montreal. Ms. S. and Mr. L. moved from Montreal, leaving J. and M. with Ms. S.'s mother, to Limberlost Street, in London, Ontario. Ms. S. testified that she and J. first moved from Montreal to Scarborough, Ontario and then to London, Ontario. She believed that they lived in London, Ontario from 2002 to 2007.

156Ms. S. testified that currently she and Mr. L. are separated. They separated in August 2012. Ms. S. testified that there were a lot of things that caused the breakdown of their relationship in August 2012, one being that a family of 6 had moved from a house to an apartment and the apartment was not big enough.

157Ms. S. confirmed that they had lived in a house on Limberlost Street in London, Ontario and moved to the apartment on Donald Street in Ottawa. Ms. S. testified that they also had issues with the kids, with the neighbourhood and the apartment. Ms. S. also referred to the loss other things along the way before they got to Ottawa, i.e. that when they left Montreal there were 4 in the family and they had left J. and M. in Montreal with her mother but had to bring them to Scarborough after a time and later in London, K. and A. were born. Ms. S. testified that they never recovered the living standard they had in Montreal.

158Ms. S. worked at Tim Horton's after coming to Ottawa. Mr. L. did not work between 2007 and 2012. The family was supported by Ms. S.'s job and social assistance.

159Asked what the issues were with the kids in August 2012, Ms. S. stated, "Well, there was problems with school. There was billing issues within the neighbourhood. Yeah."

160When asked if there were problems between Mr. L. and J. in August 2012, Ms. S. stated, "I don't know. I don't know, I mean…I don't know".

161Ms. S. confirmed that she did not want to be in court and did not respond when asked why. Ms. S. was directed to answer the questions. Ms. S. then testified, "I'm expected to discuss something that may or may not have happened".

162When asked what she was referring to, Ms. S. stated, "Well, we all know why we're here". When asked what she was referring to, there was no response.

163Ms. S. was informed by the Court that the Court did not know anything about the case other than what is heard in court. Ms. S. then responded, "Okay. Well my daughter is – has made statements that her father, which is my husband, of, um, assault."

164Asked whether her daughter made the statements (accusing her father of assault) to her, Ms. S. stated, "correct". When asked when that happened, Ms. S. testified, "I don't remember". Asked if it was around the time that her relationship with Mr. L. broke down, she stated, "I don't remember". Ms. S. denied ever seeing anything of a sexual nature between Mr. L. and J.

165Ms. S. was asked if she wished to refresh her memory with her September 7, 2012 statement to Det. West. Ms. S. remembered going to the Ottawa Police on September 7, 2012 and speaking to Det. West. She confirmed that J. and M. went to the police station with her and that all three were interviewed by Det. West. Ms. S. agreed that she had reviewed her statement. When asked whether looking at page 3 of the transcript helped refresh her memory about an incident of a sexual nature between her daughter and her husband, Ms. S. did not respond. The term refreshing her memory was explained. Ms. S. then testified, "Well, I don't know if it…a sexual nature. It's not like I saw anything."

166When asked to tell the Court what she was referring to, Ms. S. stated, "Well, my statement, what I'm reading."

167Ms. S. was asked to tell what she saw. She stated, "Well I saw…Like I said, I didn't like see anything. I just, I mean, I closed the door, I didn't see anything, so I don't know what I saw…"

168Asked what door she was talking about, Ms. S. stated, "The bedroom door" and then "J.'s" when asked whose bedroom door.

169Ms. S. testified that only J. and her father were in the bedroom. There was an inaudible response when she was asked where was J. She then replied, "She was – she was on her bed. It was…Yeah."

170Ms. S. was then asked by the Court to speak up.

171Asked how J. was on the bed, Ms. S. testified, "She was lying down". She could not remember which way. She stated, "I don't…I can't remember. She was just lying down. Because it was in the morning, so I don't…"

172Ms. S. was directed to page 3 of the transcript to refresh her memory about J.'s position lying on the bed. Ms. S. stated, "I can't remember now. But she was lying down, I know that. She was lying down."

173Ms. S. was asked whether reading her statement didn't help her memory as she was saying "I don't remember". She stated, "At this point I need to…This, this whole thing, we try to…" Ms. S. was asked if she had problems with her memory and she stated, "Well, I think so. I don't know. 'Cuz I'm not too sure now". Asked what she was not sure of, she stated, "What I remember and what I don't remember. I'm not too sure."

174Ms. S. was again referred to page 3 of her statement and asked if that helped her, she stated, "No. I guess some of it, I guess. Some of it." The Court stated, "The question is what position was J. in when she was lying down on the bed?" Ms. S. replied, "I don't know. I just know she was lying down."

175Asked where Mr. L. was, she stated, "I don't know". Referred to pages 3 and 4 of her statement, Ms. S. was asked again. She replied, "He was kind of on top". Asked on top of what, Ms. S. testified, "Of J. ". Asked in what position Mr. L. was on top of J., there was no response but later she stated, "Well, his head was on her back and she was on her tummy".

176Ms. S. testified that J. was wearing her nightgown and Mr. L. was wearing a shirt and track pants. Ms. S. was asked if Mr. L.'s track pants were on him and she stated, "Yes". Asked if she could see any parts of Mr. L.'s body exposed, she stated, "A little, but the track pants was big…and they didn't have, you know the ropes".

177The question was repeated, "were any parts of his body exposed", and Ms. S. stated, "his buttocks".

178Asked whether his buttocks were completely exposed, Ms. S. stated, "Not really". Asked how low his track pants were, Ms. S. stated, "It was low, but…Low."

179Asked what Mr. L. was doing on top of J., Ms. S. stated, "Nothing".

180Asked if she said anything when she opened the door and saw her husband on top of her daughter with his bum exposed, she stated, "I don't remember". Asked where M. was, she stated, "He was with me". Asked if she went into the room, Ms. S. stated, "No" and neither did M.. Asked if she said anything to M. when she saw her husband in that position, she stated, "I don't remember". Asked what Mr. L. did when she opened the door and he was in that position, she stated, "I don't remember". Asked if she talked to Mr. L. about what had happened and what she had seen, she stated, "I don't remember". Ms. S. was referred to page 8 of her statement and was asked whether that helped her to remember whether she had any conversations with Mr. L. about the incident, she stated, "I may have. I don't remember it now. I can't remember now."

181Asked whether that would be something she would have talked to her husband about, Ms. S. stated, "Only if you felt that something was going on". Asked what someone would think is going on when they saw that, she stated, "I – I don't know. I mean…I don't know."

182Asked by the Court what she thought was going on, Ms. S. stated, "I don't even know, because M. woke me up, because we always cook together, the three of us, so that's why I went in her room, because it was the three of us, we cook all the time…So it was late in the day because the night before I had an allergy attack, so I had to take an allergy pill and that makes me drowsy, you know…So that's all I was thinking of, oh my god, you know, I have to do this, I have to do this, and it's like in the afternoon. And that's not what I wanted to do that day. So all I was thinking was things I had to do. So I don't even remember if I said anything or how I felt, I was just – still the effect of my allergy." The Court asked again, what did she think was going on when she opened the door and saw what she saw, Ms. S. stated, "I don't…I didin't think anything. 'Cuz I – M. just woke me up, that's what I'm saying, and I still had the effect of my allergy pill, which I took the night before. My time, Michale woke me up it was like in the middle of the day and I didn't get anything done…I don't even – that's what I'm saying, I don't even remember thinking anything. Like I was just, I don't know. I don't even know I had that in my head because I closed the door, I didn't…I don't know if that was in my head at any time…Well, what you're asking. What you're asking. Like, I didn't have any thought in my head, that's what I'm saying. Nothing crossed my mind, that's what I'm saying."

183Ms. S. was referred to page 6 of her statement. Ms. S. responded after reading, "Yes, that's what I'm saying, all things was a blur. I'm not even sure if I said anything, I'm not even sure of what I thought. It's like two years ago now."

184Ms. S. was asked how J.'s nightgown was positioned when she walked into the bedroom. Ms. S. stated, "It was down". Asked what she meant by down, Ms. S., stated, "Well, it was, you know, probably like when you put it on, that's how it was."

185Ms. S. testified that J. was not under the covers because "J. doesn't really use covers". Ms. S. was asked whether she talked to J. about what happened, she stated, "Yeah. Yeah, maybe. Maybe we talked, yeah. Yeah, I think so." Asked what she said to J., Ms. S. stated, "I don't remember how it started but we ended up talking about it." Asked what J. said about it, Ms. S. stated, "Well, she accused her father of a sexual assault".

186Asked what she did when J. said that to her, Ms. S. stated, "I think I questioned her but I can't remember what I asked her."

187Ms. S. was asked whether after talking with J. she talked to her husband, she stated, "I don't think I talked to him right away". She agreed that eventually she talked to Mr. L.. Asked to tell the Court about that conversation, Ms. S., stated, "I don't – I don't remember what I said but we did have that conversation." Asked what Mr. L. said, she stated, "Well, we both said a lot of things but I can't remember precisely what he said. But, yeah". Ms. S. was directed to page 8 of the transcript. Asked if that helped her remember, she stated, "To some degree, yes". Asked to tell what she remembered, she stated, "Yes, I remember sitting on the couch". Asked who else was sitting on the couch she stated, "I think I was by myself" and J. came eventually. Asked to tell about the part where he comes, Ms. S. states, "Well, I was on the edge of the couch". Asked what J. said to her, she stated, "Well he said a lot of things, and I said a lot of things at that point". Asked what he said specifically, Ms. S. stated, "He asked me to forgive him". Asked whether he said that more than once, she stated, "It's possible. I can't remember". Asked if he said what he wanted her to forgive him for, she stated, "No". Ms. S. was asked whether she asked Mr. L. what he was asking forgiveness for, she stated, "Yes". Asked what he said, she stated, "Like I say, we both said a lot of things, but I was already upset with him even before that day, so that's why I was asking him". Asked several times, what he said, Ms. S. continued, "That's what I'm saying, I don't know what – I can't remember what he said, but we both said a lot of things. And I was already upset with him already, so that's why I asked him what do you want me to forgive you for. Like, forgive you what, you, like what's going on right now, yesterday. I mean, if somebody says I'm asking for forgiveness you want to know what for. Like, I mean, you would ask that."

188Asked what she thought Mr. L. was asking her forgiveness for, she stated, "Well that's why I asked him. That's what I'm saying, Your Honour. Because he's saying: forgive me, forgive me and I'm saying: what do you want me to forgive you for?" Asked what he said, she stated, "That's what I'm saying, I can't remember. Because we were both talking. I was talking, he was talking. That's why I asked him that question. 'Cuz I was already upset with him the day before…And if somebody says forgive you, they're asking for forgiveness, you want to know what for. You can't just, you know, you have to know what for. It could be what you are not even thinking of or what you want, so you're going to ask." Ms. S. was referred to page 8 again a couple of times to refresh her memory. She then stated, "I mean, and then he said his pants – he said his pants fell down, and I'm saying that's impossible, you're lying, your pants, it's not going to fall down." Asked if she knew what he was referring to, she stated, "Yes…the track pants. The track pants that he likes."

189Ms. S. was asked how Mr. L.'s relationship was with the other children, she stated, "Well, the first is different from the last two we have…Well, for J. and M., J. and I didn't have much time, they were raised by my mother. With K. and A., we were on our own at that point. I was on my own. So we – we had more time for K. and A." Ms. S. said that they were both the disciplinarians.

190A voir dire was entered concerning the statements made by J. to her mother concerning Mr. L. for the purpose of corroborating the original videotaped statement J. made to Det. West. The Crown also asked to enter a voir dire concerning discreditable conduct by Mr. L. for the purpose of corroborating J.'s original videotaped statement to Det. West.

191Ms. S. testified that both parents were home about 50/50 when the children came home from school. Ms. S. Mr. L.'s temper as being a lot more patient than she was as he compromised more and talks more. She testified that he meets the kids half way and talks to them a lot.

192Asked whether either of them used corporal punishment, Ms. S. asked the Crown to define corporal punishment. She testified that she may have slapped the children. She denied that Mr. L. slapped the children. Asked about other kinds of hitting she denied that Mr. L. hit the kids but of herself stated, "Well I would be more the, like I said, my husband is more, he has more patience than I do". What about using objects to strike the children, she said no to both. Asked whether she had ever seen Mr. L. angry, she stated "Yes". Asked to give an example, Ms. S. stated, "My husband is a talker" and agreed that when he gets angry he talks. Referred to page 14 to refresh her memory, she stated that it helped a little and that she did remember that moment. Asked what moment she was referring to Ms. S. testified, "Um, well J. and I, we had a disagreement that day, but it had nothing to do with the children. It's adult stuff". Ms. S. kept repeating that they had an argument, she could not remember what about, but that it had nothing to do with the children. When she was reminded that the question was not what the argument was about but what Mr. L. did, she stated, "I can't remember what he did. I mean, I can't even remember that. I just remember that, you know, we had a disagreement between him and I, and the children were there. Because J. and I, we don't argue, and that's the thing. We don't really have a disagreement." Ms. S. was reminded to listen to the question and answer the question. The question was what happened physically during the argument when the children were there. She stated, "I can't remember anything physically happening. That's what I'm …okay, if that's what you're saying. I don't remember physically – that wasn't the – we don't physically fight, so.

193Ms. S. was reminded of the question and she stated, "I don't remember what happened. I just remember that we had a disagreement and the kids happened to be there. And, you know, that's when you know the kids said, you know, they get scared when we do argue, but we – because we don't. But in between I honestly can't remember".

194Ms. S. was referred to page 14 of her statement to refresh her memory as to what kinds of things Mr. L. did when he was upset. Ms. S. stated, "I wouldn't say this is the type of things he would do. This is an isolated incident to anything." Asked what happened during the isolated incident, Ms. S. states, "Well I don't remember, but I mean he's not – he's not a physical person. He's a talker. He'll talk, talk, talk, talk, talk. I mean, he'll just go on and on, and on and on. That's about it. It doesn't escalate more than that." Asked whether there was ever an incident where it did escalate more than that, and there was no response. Ms. S. was again referred to page 14 to refresh her memory, she states, "Well, the kids may have been scared because we were both yelling". Asked if that refreshed her memory she states, "Like I said, my…That was the day my kids said, you know, they were scared."

195Asked what J.'s demeanour was when she spoke to her after the incident on the bed, Ms. S. stated, "She was just standing there". Asked where J. was standing, Ms. S. stated, "In front of me". Asked where in front of you, she stated, "I was here and she was there". Asked what room they were in, she stated "either in the living room or in the dining room". Asked what J. tells her, she states, "Well, she said, um, she accused her father of assault". Asked what kind of assault, she stated, "sexual". Asked if that was the word she used, Ms. S. stated, "I'm not sure, but she said something like that there. I remember now." Asked how many times J. said it had happened, Ms. S. said, "I'm not sure". Asked whether she asked J. how many times, Ms. S. stated, "I don't think I said anything right away." Asked whether she said something after, Ms. S. testified, "I may have but I don't remember. Because everybody was home when we had this conversation. Referring to the – all the kids were home, in the apartment. It's hard to have a private conversation, the apartment wasn't big enough for all of us, all six of us." Asked whether she tried to take J. to a private area to have a conversation with her at a more appropriate time, Ms. S. testified, "I think I did. I'm not sure. But we had a conversation. I'm not sure." Ms. S. was referred to page 11 of her statement. Asked whether that helped her with the things she discussed with J., Ms. S. responded, "Yes…I may have asked her how long, or when it all started." Asked what she responded, Ms. S. states, "Well she told me". Asked she told you what?, she stated, "I think she told me when it all started". Asked and when was that, she stated, "Like I said, I think she told me, but…I don't remember". Ms. S. was referred to page 11 of her statement.

196The Court adjourned for lunch and Ms. S. was to watch her video statement over the lunch period.

197Ms. S. was observed watching the video with the earphones to her phone in her ears. Ms. S. testified that she was not listening to the video as she was expecting a call for surgery that she had scheduled for November. Ms. S. testified that she did not want to watch her video but did not know why just that she did not want to watch it.

198Ms. S. confirmed that J. started puberty at 9 years of age while they were living in London, Ontario. Ms. S. was asked whether watching the video had helped her to remember when J. said it all started. Ms. S. said "Yes" and "I think she said 9".

199Ms. S. was asked to describe J.'s relationship with her father when she was around 9 years old. She testified, "It's hard to say because that was a difficult year for her". Ms. S. testified, "Not exactly, no" when asked if she noticed a change in her behaviour with respect to her relationship with her father.

200Asked what "Not exactly, no" means, Ms. S. stated, "Like I said, there was a lot of – J. had a lot of issues even maybe a year before she turned 9, and lot of issues with school and her class, students at the school". Ms. S. was referred to page 10 of her transcript. Asked if that refreshed her memory about her behaviour was towards her father. Ms. S. testified, "Yeah. At nine." Asked what changed, she testified, "I don't know what changed, but, like I say, I don't know what changed, because at the same time I had a lot of issues with her at school. I remember going to the school a lot."

201The question was repeated, "And I am asking you how her behaviour was towards her father". Ms. S. testified, "I can't really describe – I can't say how it was, because I only remember it was when she was nine. There was…She didn't want to do a lot of things. She didn't want to go to school, she didn't like the school, she didn't like the teacher. She didn't like anything." The question was asked again, that the Crown was not asking about the school but how her behaviour changed towards her father. Ms. S., in a hostile manner responded, "You have to be a lot more clearer what you expect me, or what you want to hear, or what you want me to say, because…" The Court intervened and told Ms. S. not to speak to the Crown in that manner.

202The question was repeated, What did you notice, when you wrote your statement, that you noticed that there were changes in the relationship between J. and her father… She responded, "Yeah, she was…" Asked what she noticed, she stated, "Like I said, what I noticed was she didn't like anything. She didn't like anybody. She had – I mean she didn't like anybody. You know, she just wanted to stay home."

203The back and forth continued with Ms. S. being unresponsive. Ms. S. was directed to page 12 of her transcript. Ms. S. testified that J. had had her period for more than a year and that it did not stop. She testified that J. was more miserable when she had her period because her menstrual cycle was very severe.

204Ms. S. never answered the question of how J.'s behaviour towards her father changed when she was nine years old.

205Ms. S. was asked whether before coming to court had she talked to J. at all about the incident with her father. Ms. S. asked, "today?" Ms. S. was asked in the days leading up to court. She stated, "No". She denied discussing the case with J. the first time she came to court.

206Ms. S. was asked about the conversation that she had with her discussing the incident where you observed her father on top of her. Ms. S. stated, "I don't know what you're trying to say". Ms. S. was asked whether there were more conversations. Ms. S. stated, "A little at a time. Like I say, it was a continuous but not all at once". Ms. S. was asked what prompted her to go to the police. She stated, "she wanted to". Ms. S. was asked where J. got the idea, and whether Ms. S. talked to her about it. She stated, "No. She's aware. I mean, they learn that in school. Even A. and K., they are aware now." Asked whether J. brought it up with her about wanting to go to the police and she stated, "I think so". Asked what Ms. S. said to J., she stated, "I don't think I said anything". Ms. S. testified that when J. brought up about going to police, they were living on Donald Street. She stated, "it's not the first time she brought it up. Like I said, these conversations were continuous but not at the same time". Ms. S. did not stay in the Donald Street apartment when the relationship broke up in August 2012. She testified that she and the kids moved to Interval House, a shelter. Asked why she went to the shelter, she stated, "Like I said, there was a lot of things going on, and I didn't like how everything was going. Like my life, the kids' lives. We were stuck in that apartment." Ms. S. testified that she and the kids when to the shelter on august 14. She confirmed that she and J. and M. went to the police station on September 7, 2012.

207Ms. S. was asked whether she had conversations with J. about what had happened with her dad during that period. Ms. S. stated, "Yeah, a little bit". She testified, "I think I asked her are you sure, and at the time I wanted to know and I didn't want to know. And then we were all in one room at the shelter, that was kind of hard, and since they weren't in school yet, because of where we were, we were always together." Ms. S. was asked what she was referring to when she said "I wanted to know and I didn't want to know". Ms. S. testified, "Well, the conversations we did have. The chances that we did have the conversation." Asked what she didn't know, she stated, "I – well, all of it or any of it. But yet I did want to know because she's my child." Ms. S. testified that she went to the police on September 7, 2012 to support J.

208Asked whether after going to the police on September 7, 2012, whether she had any contact with Mr. L., she stated, "Not entirely. K. had football over there, and he already started on the team, and it's based on where you live, that's where you play. And I didn't know very much how the football works here, so I kept him on the team while we were at the shelter. So he would go for his practice, and then on weekends. They had games once a week and usually on weekends. The question was repeated, did you have contact with Mr. L. and Ms. S. stated, "I didn't really have contact, but he was aware of – 'cuz where our apartment is, the field they play hockey – football – is right there. So you have to pass through kind of like this pathway to get to the park, you know for his football. The field is right there."

209Ms. S. was asked whether when she received the subpoena for the first dates in December 2013, and leading up to going to the trial did she have any contact with Mr. L.. She stated, "No". She denied having any contact between December 2013 and September 2014 when the trial began again.

210Asked whether she talked to J. at all about how she was feeling about the trial, Ms. S. stated, "I was stressed out about the whole thing". The question was repeated, did she talk to J. about how she felt about the trial. Ms. S. stated, "Not really, no".

211Asked whether she talked to J. at all about what you wanted to see happen with your family. She stated, "Well, I – I know I told her that we've always been together, it's always been the six of us." Ms. S. was asked to explain the context in which she was telling J. that, she stated, "Well, this is the first time J. and I have been apart. It's the first time. Yeah, this is the first – not the first, I'm going to say, but this is the longest. For sure this is the longest we've ever been apart. Like I said, we've always been the six of us."

212The Crown repeated the question, I'm just wondering about the situations in which you're talking specifically to J. about that". She stated, "Well, J. and I are not living together. It's been close to two years. This has been the longest time we haven't…This is the longest time we've been apart".

213Asked whether she has told this to J., Ms. S. testified, "All the kids are aware of that". Asked again if she talked to J. about that, Ms. S. stated, "Well, yes, but she's aware of that. She did agree to that." Asked whether she told J. how it made her feel, Ms. S. stated, "I didn't put it in that context…of the realization that this is the first time that J. and I are not together, that I am now a single mother and I have to do everything. I'm both mother and father, and I'm, you know, I have to take all my children's feelings about the whole thing into consideration." Ms. S. was asked what she was referring to, feelings about what? She stated, "Well my relationship with my two younger ones are completely different than my first two".

214Ms. Tansey made an application pursuant to section 9(2) Canada Evidence Act to cross-examine Ms. S. on the inconsistencies in her statement to police and her testimony in court.

215Ms. S.'s videotaped statement transcript was admitted on the voir dire as Exhibit D.

216Ms. S. confirmed that she went to the police station with J. and M. and no one was forcing to go. Ms. S. understood that it was a serious matter to report something to the police. Ms. S. agreed that Det. West explained to her that it was a serious matter to come and report something to the police. Ms. S. was told and was aware that it can be an offence to lie to police. She was not under the influence of any drugs or alcohol when she gave her statement to Det. West. Ms. S. testified that Det. West did not do anything inappropriate while interviewing her and he did not make her feel pressured in any way to say anything. Ms. S. agreed that in the interview she promised to tell Det. West the truth. Ms. S. agreed that her memory was fresher when she gave her statement than now.

217Ms. S. agreed that one of the things she told the Court was that when she walked in on Mr. L. on top of J. that she did not see his bum completely exposed. Ms. S. was directed to page 6 of her statement. Ms. S. was directed to page 3 for the context of the discussion. Ms. S. agrees that she is indicating on her body how far down his pants were, i.e. "You know, like, you know, if your pants drop you will feel it". Ms. S. agreed that she said that to Det. West. She agreed that she stated, "But his was all here" and that she made a gesture with her hand in the video pointing to below the buttocks. Ms. S. indicated at the bottom of her buttocks about an inch above the top of the thigh at the back.

218Ms. S. agreed that Det. West and she were talking about his entire buttocks being exposed. She stated, "I did see his buttocks exposed. But then I just said it over there. But, yeah, I did see his buttocks exposed." Ms. S. agreed that that statement is true, i.e. "And was his – so was his naked bum exposed? A. He was, yes, the entire let's say, yeah, the entire buttocks. Q. The entire bum. Okay. A. Yeah, exactly. Q. Okay. A. Exactly. Exactly".

219Ms. S. confirmed that she had testified that Mr. L.'s head was touching J.'s back in her testimony. Ms. S. was directed to page 6 and 7:

A. Well, you know, she was on her stomach.

Q. Right?

A. And his front part was on top of her.

Q. But was it like, so he wasn't lying like, she wasn't like this and he was like this?

A. Yes, like that.

Q. Just like that?

A. Yes."

220And in the video you are both gesturing at this point right?

221Ms. S. states, "Correct". Ms. S. was asked to show the gesture that she made at that point to illustrate how they are lying. Ms. S. states, "Well she was on her stomach, and he was on her, well, he was on his stomach, and his head was on her back."

Q. So right flat on top of her?

A. Exactly.

222The Crown asks Ms. S., "So it's not just his head that is on her back. He is right flat on top of her right?" Ms. S. states, "Not right flat. His head was on her back…That was like half her body, not completely her body, but…he wasn't – he wasn't on top of her like head-to-head. Like, this is her stomach and he's like this, no. He was more like that. Ms. S. explained that Mr. L.'s head was on the lower part of J.'s back, just above the buttocks.

223Ms. Tansey suggested to Ms. S. that she was saying that now because that places his groin much lower than her vagina. Ms. S. stated, "Yeah, yeah I guess so. But he wasn't – he wasn't head-to-head. They weren't head-to-head."

224Ms. Tansey put to Ms. S. that that was different from what you told Detective West. Ms. S. responded, "That's not what I meant. They weren't head-to-head."

225Ms. Tansey continued, but Detective West says, "So right flat on top of her?" and you say, "Yes".

226Ms. S. testified, "Yeah, lying flat but not head-to-head. They were flat, yes, but they weren't head-to-head."

227Ms. S. demonstrated one hand on top of the other, back of hand to back of hand, one about half way back on top of the other.

228On the video Ms. S. demonstrated the lying flat with one hand directly on top of the other one hand one inch lower than the other.

229Ms. S. testified, "Correct. Because I could see her head, and so they weren't – and like I said, they were flat but not head-to-head."

230Ms. S. was confronted that one of the things she testified to earlier was that she didn't know what it was that she saw. Ms. S. stated, "Yes, because I didn't – I opened the door, I didn't stay long."

231Asked why she did not stay, Ms. S.d stated, "I ask myself that every day. I don't know. Because prior to that M. just woke me up, and then I looked at the time, and I was more thinking: oh my gosh, my day is starting over right now. And I was thinking of all the things I did, and then I said to M., 'let's get J. so we can start cooking'. And that's when I opened the door.

232Ms. S. is confronted that when she saw J. like that, in that position with her father on top of her, you don't get her?" Ms. S. states, "Well, I don't…I don't remember. I just remember closing the door. I don't…"

233Ms. S. agrees that that is the opposite of what she was going into the room to do. Ms. Tansey suggested that it was because what she saw was shocking. Ms. S. stated, "I don't even know if my mind went that way or that extreme at that moment. Because, like I said, I had just woke up, it was in the afternoon, or, yeah, something like that."

234Ms. Tansey then confronted Ms. S. that she had told the Court that she didn't know what it was that she saw. Ms. S. agreed. Ms. Tansey directed Ms. S. to page 6 of her statement:

Q. Okay.

A. And, we know, these things you just, I mean you think you would remember every detail and, but you just don't, you really don't, and I – 'cuz that's all I could remember, that image. Because to me there's nothing you could say to justify.

Q. Right.

A. That particular position."

235Ms. S. states, "Yeah, in hindsight that's how I felt after. But like I said, when I opened the door, I don't remember saying anything, and my mind didn't go there at that time."

236Ms. S. was asked whether her mind went there after. She stated, "Well after we were – I was already at Interval House, and little conversations I had with J., my mind I guess started thinking that way."

237Ms. Tansey suggested that that was not what Ms. S. told Det. West, as she tells Det. West that when she spoke to Mr. L. he said his pants fell down. Ms. S. states, "Yeah, because I asked him why do you continue wearing these pants, like."

238Ms. Tansey asks Ms. S., "And you did that because you were concerned he had been sexually assaulting your daughter, right?" Ms. S. states, "I can't say that's what was on my mind. I was more like, why do you always wear these pants that…I mean, it's his favourite, but it has no string, so…It's not a pants you need to keep."

239Ms. Tansey suggests to Ms. S. again that that is not what she told Det. West at page 8 where she tells Det. West: "No, but he did, I did ask him. I think I did ask him what did you do, I mean, and then he said his pants. His said his pants fell down. And I'm saying, that's impossible, you're lying, your pants is not going to fall down…like that. But I, you know, and then I don't think he even listened to what I was saying. And I remember him, I was sitting on the couch and he was – he was pose, and he was on his knees asking me to forgive him, and I – and he just kept going and, you know."

240Ms. Tansey suggested to Ms. S. that she is telling Det. West that her mind did go there. Ms. S. stated, "At one point, like I said, yes…But I don't remember initially that it did."

241Ms. Tansey suggested to Ms. S. that she thought of sexual assault after she had the conversation with Mr. L. and he offered the explanation of his pants falling down. Ms. S. testified, "Well like I said, I don't remember at that moment, but it was through conversations with J. after we left Donald."

242Ms. S. was directed to page 7 and 8 of the transcript where Det. West asked Ms. S., "So you couldn't tell if he had an erection or not?" Ms. S. testifies, "No, I didn't". She is referred to her answer in the transcript to Det. West: "No, but he did – I did ask him". Ms. S. testifies, "No, I didn't ask him about erection, no. I asked him about the pants. I didn't ask him for the erection because I didn't see any erection. I didn't see his genital areas. I didn't see all that, so I didn't ask anything like that."

243Ms. S. denied turning her mind when she opened the door to what was going on in the bedroom. Ms. S. stated, "No, this was after I – after I spoke to J. . I spoke to J. first and then I spoke to him after." Asked when she would have spoken to Mr. L. about this, Ms. S. stated, "Oh that was – after I spoke to J. ". Asked what that after when they were at Interval House and Ms. S. stated, "No. Like I said, he we had to – our conversation wasn't – wasn't continuous, but the first time I spoke to J. and then I spoke to J.". Ms. S. testified that she spoke to J. shortly after the incident and then to Mr. L., "The same time. After. Like I said, I'd say I spoke to her about two hours ago, or an hour ago, then I spoke to him after, the same day…Yeah. That's what I meant. I spoke to both of them separately on the same day."

244Ms. S. agreed that she had testified that J.'s nightgown was all the way down. Ms. S. was directed to page 6 where she says:

A. "So that's all I could remember.

Q. And what about J. , did you notice?

A. That's what she…

Q. Her clothing, what?

A. Well, she was wearing her nightgown, but he was half on her, you know what I mean. You know what I mean. She was lying down and he was like half on her. Well you know, she was on her stomach, right and his front part was on top of her.

Q. But it was like so he wasn't lying, like she wasn't like this and he was like this."

245Ms. Tansey suggested to Ms. S. that what she is telling Det. West there is that she can't actually see where her nightgown is. Ms. S. states, "No. No."

246Ms. Tansey suggests, he asks you what she's wearing, and you say, "Well, she was wearing her nightgown but he was half on her". Ms. S. states, "Well, it was a full, like, it's like above her knee, the nightgown she was wearing." Ms. S. remembered that it was peach coloured, she always wore it, it was sleeveless and just above her knee."

247Ms. S. agreed that she had testified that when Mr. L. gets mad is talk. Ms. S. was referred to page 14 of her statement:

Q. So what – what was your final, like what was the decision that made you decide to leave and go to the shelter?

248And your response this morning was that there were lots of reasons to which Ms. S. agreed. She was then directed to the transcript and her answer to Det. West's question:

A. Well, I didn't realize, or my kids never really told me how scared they are when he gets upset.

249Ms. S. stated, "That's true". Ms. S. was asked was that not different from what she told the court this morning. Ms. S. stated, "That you can say was isolated, because he only talks. Ms. S. was asked whether she was suggesting to Det. West that the kids are scared of talking. Ms. S. stated, "No, at the incident where he was really upset, based on what I said when I'm upset which led him to be more and more…about a little more angry because he didn't like what I said. It was based on what I said that made him more upset." Ultimately, Ms. S. agreed that she was talking about one incident and that otherwise she was telling Det. West that the children are scared because Mr. L. talks and talks when he is angry. She stated, "Yeah, because he's not – he's not a angry person. He's not malicious, he's not…he has more patience than I do, like I said."

250Ms. S. is confronted with Det. West's question:

Q. "Okay.

A. He's one of those that will destroy the room and, you know, and if you're standing in front of him you might get hit. Well most times you would get hit, you know."

251Ms. Tansey suggests that Ms. S. is talking about more than one incident. Ms. S. states, "No, I'm not talking about that. But he was really upset that day because, like I said, what I said. And if you're really upset, you wouldn't want to be around somebody that's really like, you'd have to give him time to calm down. Everybody's experienced that, where you're just, you're just, you know, oblivious to what's around you and you're just, you know, having a moment. Everybody has a moment."

252Ms. S. agrees that what she is saying now is not what she told Det. West. Ms. S.'s explanation is that her statement is being taken out of context. Ms. Tansey suggests that the context is Det. West's question, "Why did you leave and go to the shelter?" Ms. S. provides another long answer that she left for lots of reasons including the history of leaving Montreal and their lifestyle since which was completely contrary to how they lived in Montreal. Ms. S. testified that when she told Det. West "Well I didn't realize, or my kids never really told me how scared they are when he gets upset" it was not the only factor but that it was the "candle on the cake" but it wasn't the the motivation factor per se…but it could be one of the factors."

253Ms. S. denied that Mr. L. destroyed a room or any furniture in the room. When asked whether he threw any furniture in the room she stated, "he wanted to but he didn't". Asked what he wanted to throw, she stated, "A table that was – that needed to be thrown out anyways. But I kept it. But he didn't throw it." Ms. S. testified that Mr. L. was upset because of what she had said to him. Ms. S. clarified that it was a coffee table in the living room. Ms. S. testified that she didn't consider the living room a room because earlier she had said that the table was not in a room.

254Ms. S. is referred to page 11 of her statement and her words to Det. West concerning J.'s change in behaviour towards her father at the age of 9:

A. "So I thought it was you know she got puberty quickly so therefore I never even thought that way at all.

Q. Yeah, okay.

A. You see, and then he, you know, like this, you know, it became more militant, her.

Q. Right.

A. You know what I mean.

Q. Mm'hmm.

A. Like, don't touch me. I mean she became very physical and she wanted to fight him and, you know, and he…

Q. A lot of anger towards him.

A. Exactly. I mean, they could, I mean, they could not could not be in the same room.

Q. Right.

A. At all.

Q. Right.

A. And as she got older it got worse.

Q. Right. Okay.

255Ms. S. agreed that the statement was different from her testimony but then stated, "I wouldn't say different, but…I mean, sometimes they would be okay, and then sometimes they wouldn't be okay…But over time, you know, over time they spoke less to each other, you know, and I always blamed it as of, you know, she was always the tallest girl. That was an issue…etc." By the end of the answer, Ms. S. could not recall the question.

256Ms. S. was asked that she had earlier testified that the incident in the bedroom was the only incident of sexual touching that she observed between J. and Mr. L.. She stated, "Well I wouldn't say sexual touching because I didn't see him touch her per se, and I don't know if any parts were touching any parts because that's not what I saw. But that's the only time I – if that's what you're calling sexual touching, that's the only time I saw anything. I didn't see. I didn't see anything to suggest that my daughter would be saying what she's saying today. I didn't see anything."

257Ms. S. is directed to pages 11 and 12 of the transcript:

"And you know, she told, she did tell me when it started, and I remember, I do remember having that conversation with him, you know, in terms of, you know, her – I don't even know how to explain it, but I do remember, I mean, if it started then, I do remember that when he went in that, her room, and that, and had that conversation, because she was already developed."

258Ms. Tansey suggested that the conversation was about puberty and sexual development. Ms. S. stated, "Yeah. She was nine." When asked was that the conversation he had with her, Ms. S. was adamant that "they both had conversations about that with her". Ms. S. agrees that she did not include herself when she had her conversation with Det. West because she was the one dealing with school issues.

259When asked to confirm that the conversation she is telling Det. West Mr. L. had with J. is about sexual development and puberty, Ms. S. testifies, "I don't know what conversation they had, but that, like I said, we both had a conversation with her. I gave her the perspective of being a female obviously, and of course the father gave her the perspective of what boys see when you're developed. And she was already taking a class like that in school in elementary. She was already taking that class already."

260Ms. S. was found to be an adverse witness and the Crown was allowed to cross-examine pursuant to section 9(1) of the Canada Evidence Act.

261Ms. Tansey suggested to Ms. S. that when she opened the door to J.'s bedroom and saw Mr. L. and his naked bum exposed, on top of J., the first thing she thought of was that he was engaged in a sexual act. Ms. S., testified, "that was not in my head."

262When asked why it was not on her mind, Ms. S. stated, "I don't know, but…It just shows the trust I have in him. After all, I don't think anybody goes that way. I mean, you don't…I mean, that's extreme. I mean that's…"

263Ms. S. testified that she did not have that on her mind because of the trust she had in Mr. L.. She stated, "So if, if there was signs of that that's a different story. But there wasn't any. I don't remember having – having – even going that way…at any given time." Ms. S. agreed that if she had seen anyone else on top of J. in the same manner she would have thought it was a sexual assault.

264Asked if it was a situation that was highly sexual, she stated, "I can't say. Like I'm saying, I can't say in hind…Like, I can't say it was sexual. I don't…Because I didn't see any…It wasn't like he was engaged in an act. That's a different story. But he wasn't engaged in an act, and she wasn't engaged in an act, and I didn't see her or his genitals. I didn't see all that."

265It was suggested that she did not see Mr. L.'s genitals because they are face down on J.'s body. Ms. S. states, "I can't say that. I can't say that, because I…I didn't look like that. I didn't open the door and just…I didn't look like that so I can't say that."

266It was suggested to Ms. S. that she rejected her husband's explanation for what happened. She stated, "Well, yes, you're trying to get to the truth based on what my daughter said. So at that moment it doesn't matter what he said, I'm just going to say you're lying, or I don't believe you, at that moment…I don't think I would be satisfied with anything he said at that moment based on what my daughter just told me."

267It was suggested that that was because the only thing it looks like is that he is engaged in a sexual act and that was why the explanation wasn't satisfying. Ms. S. stated, "No. Because I didn't say anything when I opened the door. I was basing on what she said. She just said it, and I'm supposed to continue my day, and I'm supposed to do this and I'm supposed to do that, I'm supposed to deal with that at the same time, and the timing was not the greatest at that time."

268Asked if she was suggesting that the timing for her daughter accusing her husband of sexually assaulting her was not the greatest, Ms. S. stated, "No, everything. Everything since then…You don't wake up and say this is how your day was – this is what you want to hear."

269Ms. S. did not agree that it was absolutely shocking to hear, she stated, "I can't say that because everybody reacts differently". Asked if is would be something she wanted to get to the bottom immediately, Ms. S. stated, "I think I was more in shock than anything." Ms. S. then denied being shocked by what she saw, stating, "I don't know if I was shocked because of what I saw, but definitely what she said is more shocking than anything."

270It is suggested that Ms. S. rejects Mr. L.'s explanation that his pants fell down. There is no response. It is suggested that she tells him so and says to Mr. L., "You're lying". Ms. S. states, "He could have said anything and I would have said he was lying."

271It is suggested that Mr. L. didn't say anything other than his favourite track pants are too big and fell down. Ms. S. states, "He said a lot of things, and I don't remember everything he said. But he could have said anything and I still wouldn't have listened because our daughter is saying this. I mean, that's more talking."

272It is suggested that that is contradicting of what she just told the court about her implicit trust in Mr. L.. Ms. S. states, "Well I have trust, but it's shocking that – it's still shocking that your child is saying this. It doesn't matter, that doesn't matter the mere fact that my daughter, my firstborn, is saying this. That's shocking…Because that's not what I envision. That's not what I expected to hear. That's not what I expect to deal with. Nobody expected to deal with."

273When it is suggested that that is why she talks to Mr. L. and tries to get an explanation, she states, "Well, yeah, you have to get both sides."

274Ms. S. is adamant that Mr. L. could have said anything and she would have said that it didn't make sense. When asked now, having some time and distance did his explanation make sense and Ms. S. did not respond. Ms. S. responded, "I don't know, no, I don't know" when asked how Mr. L.'s explanation accounted for him being on top of J.

275It was suggested that she wanted her family of six back together. Ms. S. stated, I don't know if that's what I want. It was suggested that Ms. S. is scared that Mr. L. is going to go to jail. She stated, "I don't want him to go to jail". It was suggested that she is scared of what might happen to him and she stated, "I'm scared for all of us, because we are a family of six, so I'm scared for all of us. I don't want him to go to jail."

276It was suggested that that is the big reason why she is so reluctant to testify and there was no response. The question was put to Ms. S. again and she stated, "I'm scared what will happen to all of us. It's not something I want to relive again. I don't want to talk about it with anybody. I don't…Don't."

277It was suggested that Ms. S. wanted Mr. L. to continue being a father to her four children. She stated, "He is the father of my four children". It was suggested that she wanted him to resume his role as father present with in the lives of the children. She stated, "Of my younger two, yes". Concerning J. and M., Ms. S. states, "Well M. and J. are big. M. is sixteen, J. has just turned eighteen. At that age your role as a parent is completely different from an eleven year old and a ten year old."

278Ms. S. was asked whether she had told J. that she missed having her family together, all six. Ms. S. stated, "Well, if you're – if you're unsure of the journey you always go back to what you know, and what I know is the six of us." Asked if that is something she told J., Ms. S. stated, "I don't have to tell her. They all know that." Ms. S. then denied having conversations with J. about Mr. L. rejoining the family. She stated, when asked what the conversation was when she talked about the family getting back together, "Not in that context. Like I said, J. and M. don't need their father the same way as A. and K. because of the ages. M. is sixteen. I mean, there's not really much I can tell M. as a sixteen-year old. Whatever decision M., for example, M. would make, I'm just going to be playing a supportive role. He's sixteen. You can't compare my relationship with M. the way I would compare K. and A., who are eleven and ten." By the end of the answer, Ms. S. did not remember what the question was.

279Concerning the conversation about the family being together, Ms. S. stated, "…I simply said that we've always been together. This is the only time that my husband and I have been apart since we've been together. They all know that. J. and M., of course, they would know, know it more because for a long period of time it was just the four of us. But we've never been separated like this. That's what I said. It wasn't a conversation. She had said something, and then it dawned on me, this is the longest time J. and I have been apart in the history of our relationship. That's a fact. That's what I said."

280Ms. S. denied that Mr. L. was begging for forgiveness for having sex with J. She stated, "No, that's not what I said. That's not what was in my head. And he was only on his knees because when he tried to enter into the living room, since I was on the edge of the couch, I prevented him…that's how he ended up on his knees because I did not want him to go further into the living room".

281Mr. Hall had no questions for Ms. S..

Evidence of M. S.-L. (Brother)

282M. S.-L. testified. He was reluctant to step into the CCTV room without his mother being present. He did eventually step into the room to testify.

283M. displayed a hostile manner when he first began, saying that he did not want to come to Court. However, his attitude improved as he gave his evidence.

284Initially, M. testified that he knew why he was asked to come to testify but when asked if he remembered what happened he stated, "No". Asked to tell the court what he saw, he stated, "Um, my mom opened the room, the door. My dad was on the same bed with my sister". M. testified that he did not remember going to the police station to speak with police about the incident or providing a statement. However, M. knew Det. West as the detective for the case. He did not know how many times he had met with Detective West but testified that it was on more than one occasion. M. then recalled that he, his mother and his sister went to the police station together.

285M. was asked whether reviewing the transcript of his statement would refresh his memory. He stated, "No, it doesn't. It was like two years ago".

286M. remembered that he spoke to Det. West when he went to the police station but testified that he could not remember what he went to speak to Det. West about.

287M. testified that when his mother opened the door to his sister's room, he thought he was with his mother and then changed his evidence that he was in his room but his mother told him that his dad was on the same bed as his sister after she left the room and closed the door. M. testified that after his mother left his sister's room and closed the door, he asked her "where's dad" and his mother told him that he was in his sister's room. M. said he asked "what is he doing in there" and his mother told him, "he's laying down, he fell asleep beside J. ". M. testified that he was 5 or 6 feet from his mother when she closed J.'s bedroom door.

288Asked what he saw as his mother closed the door, he stated, "Well I didn't get a good picture but I saw my dad sleeping as she closed the door. Asked what his dad was wearing, M., stated, "Um, what you normally wear when you go to bed…Um, a shirt and like track pants."

289M. testified that his father does not usually sleep in J.'s bed. Asked whether he had seen his father sleeping in J.'s bed, M. stated, "Sometimes. Well only because if he's in there and he, 'cuz you know, he was – usually he's fix stuff in his – in J.'s room, 'cuz this stuff that are broken, and usually he falls asleep there." Asked whether he had seen his dad sleeping in the same bed as J. before, M. stated, "Well, the beds are together, so he could roll over to it"(referring to J. and A.'s beds). Asked again if he had seen his dad sleeping next to J. before, M. stated, "Well if he rolls over it happens." M. confirmed that he had seen his dad sleeping beside J. on lots of occasions as "he just rolls over".

290Asked where his dad's track pants were when he saw him in bed with J., M. stated, "Well usually the – those pants are loose, they're big, so they fall down". Asked whether the pants had fallen down this day, M. stated, "Uhh, I don't remember that one".

291M. described J.'s relationship with her father as "Like every daughter and father relationship…They have on and off moments".

292Asked how his dad's temper was, M. stated, "Um, he has patience". Asked how J. is towards her father, he stated, "She's good". An off day was described as "they say good morning and don't talk". M. has seen his dad angry but when asked how his dad is when he is angry he stated, "He doesn't say anything". Asked, "he doesn't talk", M. testified, "Nope. Quiet". M. was asked if his dad did physical things when he is angry and he stated, "No, not so much…He just sits there and is quiet or he'll give a speech about why he's mad". Asked if his dad has ever broken anything, M. stated, "By accident". M. testified that his dad had broken a plate. He testified that he had seen his dad angry with his mother but that his dad didn't say anything.

293M. could not remember what J. was doing as his mother closed the door. He could not remember what J. was wearing.

294Asked what he and his mother did after closing the bedroom door, M. testified, "We made pancakes". Asked whether they had talked later in the day about his dad being in bed with J., M. stated that he didn't and didn't know if others had because he was not at home for the rest of the day, as he went to play basketball for the whole day. M. testified that neither his mother or J. talked to him about what had happened.

295M. testified that it was evening or afternoon when he saw his dad in bed with J.

296Asked what he thought when he saw his dad sleeping in the same bed as J., M. stated, "Sleeping on the same bed with J. ".

297M.'s videotaped statement was played. After watching the video M. remembered going to the police station and talking to police. M. testified that this was the only time he had ever gone to speak with police. M. denied that watching the video helped him to remember. M. denied having memory problems.

Section 9(2) Cross-Examination of M.

298The Crown made an application to cross-examine M. on the inconsistencies in his statement and his testimony in court. The application was granted.

299M. agreed that he had testified that he did not remember what J. was wearing. He was directed to page 7 of the transcript of his video statement:

300Q. "Okay. Did – what was your sister wearing?

A. Uh, a pink dress…Uh, not a dress, a nightgown."

301It was put to M. that his sister was wearing a nightgown and he stated, "I still don't remember that".

302When asked whether he agreed that his memory would have been better at the time, he stated, initially, "I don't understand the question" but then agreed that his memory was better closer to the event.

303M. agreed that Det. West had spoken to him about the importance of telling the truth and about the offence of public mischief, a term he was familiar with. M. agreed that he knew that it was an important matter he was speaking to police about and agreed that he was being truthful when he spoke to Det. West.

304M. agreed that he was being truthful when he told Det. West that his sister was wearing a "pink nightgown".

305M. was referred to page 6 of the transcript:

Q. "Okay, and you say his pants were, you…

A. Underneath his butt.

Q. And what do you mean by that?

A. Like his pants was pulled down.

Q. Okay, and how far? Are we talking knees, just, just below the butt, down to the knees, down to his ankles?

A. Down to, down to his knees."

306At page 7:

Q. "Okay. What about underwear, did you see any underwear?

A. No.

Q. So you could see his naked butt?

A. Yeah"

307Asked whether that help him with his memory of what he saw that morning, M. stated, "No, it doesn't".

308Asked whether he was being truthful with Det. West when he said those things, M. testified, "You could assume so, I guess. I don't know".

309M. tried to avoid the question of whether he was being truthful when he told Det. West the above, by saying that "he didn't remember anything he said" but ultimately answered the direct question of whether he was telling the truth to Det. West stating, "Oh yes".

310M. was directed to page 7 of the transcript:

Q. So you could see his naked butt?

A. Yeah.

Q. Okay. What was – was there any action going on or conversation when the door opened?

A. My mom said get off my sister, like 'What, what were you doing?'

Q. Okay, and what did he say?

A. He said he was trying to get my sister up and his pants fell down."

311M. denied that reading this part of the transcript helped with his memory of what was said when his mother was closing the door. Asked if he was telling the truth to Det. West, M. stated, "Well I don't even think there was conversation after that actually". M. was asked, "So you weren't telling the truth to Det. West" and he stated, "I was, but I remember there was no conversation". M. agreed that his memory was better at the time he gave his statement. When asked, "So you just don't remember right now whether there was any conversation or not?, M. stated, "I remember there was no conversation after". Asked how what he said to Det. West on September 7, 2012 (above) could be true and his evidence that he now remembered that there was no conversation, M. stated, "After, after I opened the door, she said 'what are you doing?' and just closed it." M. testified that his mother closed the door. M. agreed that the only part that is different from his statement now are the words "he said he was trying to get my sister up and his pants fell down".

312Asked when his dad said that, M. testified, "After he left the room". M. was in the hallway when his dad said that as he left the room. M. agreed that when he next saw his dad in the hallway, he had pulled up his pants.

313M. was referred to page 4 of the transcript:

Q. "Mm'hmm.

A. And then we were cooking or whatever, and my mom opened the room and saw my dad was on top of my sister, and his pants was underneath his butt, and his excuse was that his pants fell down."

314M. testified that watching the video and reading the transcript did not help refresh his memory but that when he told Det. West that his dad was on top of his sister he was telling the truth.

315M. was referred to page 6:

Q. "Okay. And when she opened the door and you can see into the room, what do you see?

A. I see my mom, my dad on top of my, my sister, and my sister was like lying on her belly and her hands were underneath her head, and my dad was on top of her with his pants underneath his butt".

316Asked if that helped with his memory, M. testified, "Well, I didn't even…Well now that I think about it, the way my mom was standing in front of me when she opened the door, she blocked the vision. So I'm at the corner of the door, so I only really saw my sister's face…when she was lying down."

317M. agrees that is not what he told Det. West and that he told Det. West, twice, that what he saw was his dad on top of his sister. M. agrees that he gives specific details when he tells Det. West what he saw the second time, i.e. "…she's lying on her belly, her hand are underneath her head, and you say your dad was on top of her with his pants underneath his butt".

318M. was referred to page 7 of the transcript:

Q. Okay, and where was it?

M. agrees that Det. West is referring to J.'s nightgown.

A. Uh, pardon me?

Q. Where did it, did it cover her full body? How was it?

A. It was kind of lifted up.

Q. To what, up to what point though of her body?

A. Like her back I guess."

319M. agrees that he is telling Det. West that he is seeing a lot more than his sister's face and that he was being truthful.

320The Crown was directed to the next portion of the transcript to provide the full context.

Q. Okay.

A. 'Cuz I didn't really see all that, I just, it was from the back, like in the hallway, and I have poor, poor vision.

Q. Mm'hmm.

A. So that's about, that's like I saw.

Q. Okay. Do you normally wear glasses?

A. Yes, I do.

Q. And were you wearing them at the time?

B. I think so."

321M. was asked whether he was wearing glasses at the time. He stated, "Uh, I was, but at the time I needed to change them."

322M. agrees that Det. West repeats the story back to him and asks M. to confirm the details. He agrees that Det. West was giving him the opportunity to change any mistakes Det. West is making.

323M. is referred to page 8 which is right after he said "I think so" referring to Det. West's question of whether he was wearing his glasses:

Q. Okay, so you see from the hallway. I'm just going to paraphrase and if I get

something wrong don't be afraid to correct me. Okay?

A. Okay.

Q. You see from the hallway that your sister is lying on the bed face down, your

Father is lying on top and his is also face-down.

A. Yes.

Q. And his pants are down around his knees, and his naked bum is exposed, and your sister is wearing a nightgown.

A. Mm'hmm."

Q. And its pulled up.

324M. agrees that he said that and that he made no corrections.

325It is suggested that when Det. West says, "And it's pulled up" that he is talking about the nightgown and M. says "Yes". M. testifies, "Well I don't even know he was talking about the nightgown, but…" Ultimately M. agrees that he is agreeing to what Det. West is saying and that he made no corrections to it.

326The Crown continued with the transcript:

Q. "And your – you hear your mom say, 'What are you doing'?"

327M. agrees that is what he had testified his mom said.

328The Crown continues with the same portion of the transcript:

Q. "And your – you hear your mom say, 'What are you doing?' Okay.

A. And he replies that he was trying to get my sister up and his pants fell down.

Q. Okay, and was there any more discussion between your mom and your dad about this?

A. Uh, no."

329M. agrees that Det. West goes through the sequence of events and he makes no corrections to what Det. West has to say.

330It is suggested to M. that he had testified that there had been no further conversation between anyone as far as he was concerned about this and M. replies, "Well, not when I was there…I don't know of any conversation because I – most of the time I wasn't present in the house." M. denied being aware of conversations that had taken place.

331M. is referred to page 9 of the transcript:

Q. "Okay, and was there any more discussion between your mom and your dad

about this?

A. Uh, no.

Q. What, what happened after that?

A. Well, like days later my sister brought up the matter and she said that my

dad used to have sex with her.

Q. Okay, but immediately right after your mom walks into the room what do you –

what does the family do after that?

A. Um, well, that was his excuse, and that same day my sister told her."

332M. was asked what his sister told to whom and he stated, "I don't remember".

333He was directed to the rest of the passage on page 8 where M. says to Det. West:

A. "She said that my dad used to have sex with her".

334Asked how he is able to tell Det. West this, M. states, "That's what my sister told me…She said she told my mom. That's what she said…She told my mom that daddy used – my dad used to have sex with her." M. could not recall when his sister told him that. He could not recall whether J. told him that before or after the incident.

335M. was referred to page 9 of the transcript after confirming that he had testified that there had been no further discussions:

Q. "Okay. Okay. I'm – just want to go back to, she opens the door, she talks to

your mom, talks to your dad, and then where do you go after that? Like to

you head to your room, do you go to the kitchen, do you go to watch TV?

What do you do? What – what sort of give me like the breakdown of what

everyone does right after.

A. Well my dad was in the – my dad went to the living room to watch TV.

Q. Mm'hmm.

A. My mom wasn't there. And I think me and my mom were cooking. Oh no, I

was cooking, helping, checking what we had on the stove, and then my sister

came out and we were there in the living room.

Q. Okay, and there – was there any discussion about what had happened?

A. Um, we were talking about something, I can't remember now, but I remember

him bringing up the fact that his pants fell down.

Q. Okay.

A. He goes, yeah, like I was just trying to wake her up and my pants fell down.

You know, it happens.

Q. Okay, mm'hmm.

A. And that's what he said."

336M. agrees that that is the conversation he was present for in the living room and that it is a little different from what he testified too in court.

337Concerning his evidence that the incident happened either evening or afternoon, it is suggested that the event happened in the morning. M. states, "Everybody gets up late in my house. We all get up after 12:00, so…" He agrees that the event definitely did not happen in the evening.

338M. is referred to page 10 of the transcript concerning his evidence that his dad lectures, ignores people when he is mad:

Q. "Yeah. Do you guys fight a lot, of you get along a lot, or what? What

happens there?

A. Well, we argue a lot, but…

Q. Yeah?

A. We're good in general.

Q. Yeah? What's your dad like around the house?

A. Um, he's okay when he's not upset, but when he's upset he likes to break things.

Q. Okay.

A. And gets really upset. Like where we live, like the – my sister's door is broken.

Q. Okay.

A. Because he kicked it in, and when he kicked it in he broke it.

Q. Mm'hmm.

A. He broke our coffee table.

Q. Okay.

A. And he threatened to hit my mom with that and the mop pail.

Q. Okay.

A. He kicked it across the room and then it broke."

339M. agrees that those are things that his dad does when he gets mad. He agrees that what he told Det. West is true. M. agrees that when his dad gets made sometimes he breaks things.

340M. is referred to page 11 of the transcript:

Q. And how, how often is he, is he mad?

A. Uh, very often, because he doesn't like it when – my mom can't tell him anything, like when he leaves his slippers in the middle of the hallway my mom tells him that and he likes to get upset.

Q. Would you say he's mad on a daily basis?

A. Uh, yeah.

Q. Has he ever been physical with you?

A. Um, okay.

Q. Like if you get in trouble do you get yelled at?

A. Yelled at?

Q. Do you get spanked? Do you get…

A. Yelled at.

Q. That's it?

A. Yeah."

341M. testifies that the yelled at applies to everyone and agrees that the breaking stuff is just a general thing he does when he is angry except for the two examples he told Det. West about, i.e. the table and the mop. M. confirms that with the table his dad picked it up and was sort of threatening his mom with it, stating, "Because he was mad. He wanted to break it, though". M. confirmed that with the mop bucket, his dad did not hit his mom with but simply broke the pail.

342In cross-examination, M. confirmed that he saw his dad and his sister on the bed as opposed to in the bed under the covers.

Adoption of M.'s Statement

343Ms. Tansey, in submissions concerning the KGB application on M.'s statement took the position that M. had adopted his original statement during the 9(2) application. Ms. Tansey submitted that M. testified that he was being truthful when he spoke with Det. West and again testified that he was being truthful when taken through each of the different areas.

344M.'s statement was adopted as his evidence.

Admissibility of Hearsay Statements

345Concerning J. and Ms. S.'s statements, the Crown submits that the two original statements meet the threshold tests of necessity and reliability and should be admitted for the truth of their contents.

346Ms. Tansey submits that a significant portion of both, but especially J.'s statement, was dedicated to the importance of telling the truth, the consequences of lying and what it means to lie to the police.

347Ms. Tansey submits that both J. and Ms. S. promise to the tell the truth. Ms. Tansey submits that the statements were voluntary and that there was no coercion, i.e. no one compelling either to provide statements to police. Ms. Tansey submits that the statements are video and audio recorded which provides the court the opportunity to view the demeanour of each witness as they provide their statements to police.

348There is no issue concerning necessity.

349Ms. Tansey submits that there are striking similarities in all three statements that support the reliability of each.

350Mr. Hall took no issue concerning the admissibility of J. and Ms. S.'s statements as to threshold reliability.

351J. and Ms. S.'s statements were admitted for the truth of their contents.

Submissions and Analysis

352Mr. L. did not testify.

353The Crown submits that there can be no doubt that a sexual assault took place in the spring of 2012. The Crown submits that the only issue is the scope and extent of the sexual assault and sexual misconduct with J. that took place prior to that day.

354The Crown submits that J. and Ms. S.'s out of court statements to Det. West of the Ottawa Police Service should be accepted as the true and accurate representations of what occurred between Mr. L. and his daughter. The Crown submits that M.'s out of court statement was adopted as his evidence during the 9(2) cross-examination. Ms. Tansey submits that M.'s evidence was unchallenged in cross-examination and should be accepted in its entirety.

355Ms. Tansey submits that M.'s evidence is summarized as follows:

"While standing in the hallway outside of J.'s bedroom door, M. observes his father's naked buttocks. His father is positioned on top of J. facing her back. She is on her stomach on the bed. The pants are pulled down to his father's knees. J. is wearing a nightgown, which was lifted up to her back. M. indicated that this incident took place sometime in the early afternoon and that he and his mom had been cooking and that his mom had gone to get J. up and that he had followed her to J.'s room. M. also offered some examples of things his father does when he is angry. This included a description of an incident where he threatened to break a table and instances of yelling."

356Ms. Tansey submits that Ms. S.'s in court testimony should be rejected and her statement to Det. West should be the basis for any findings of fact concerning her evidence. Ms. Tansey summarizes Ms. S.'s evidence as follows:

On August 14, 2012 she and her four children leave Mr. L. and go to the safety of a shelter. Prior to that Ms. S. walked into J.'s bedroom and discovered her husband on top of her daughter. His entire naked buttocks was exposed. J. was face down on her bed. Her father was on top of her facing her neck. M. was also present. J.'s nightgown was half on her. The position she found her husband in was concerning to her. She confronted him about what she saw and he repeatedly begged for her forgiveness. J. disclosed other prior incidents of sexual abuse, which coincided with her hitting puberty and a marked change in her attitude towards her father. On at least one occasion Mr. L. had a conversation about sex with his not yet teenage daughter about sex. Mr. L. has a temper which frightens the children. He is one to destroy a room when mad.

357Ms. Tansey submits that Ms. S. was a hostile and uncooperative witness. Ms. Tansey points to several examples of this attitude and demeanour while she testified, including where the court had to direct Ms. S. "not to speak to the Crown that way". Ms. Tansey submits that Ms. S. was unresponsive to questions. Ms. Tansey submits that Ms. S. has a motive to lie, that being the reunification of her family unit. Ms. Tansey submits that Ms. S. does mention J.'s age of 9, as being the time when J.'s behaviour changed. The Crown submits that it is significant because it is the same age as to when the allegations of sexual abuse are said to have begun. Ms. Tansey submits that Ms. S. also admitted that during the time period following the first set of trial dates in December 2013 and the continuation in September 2014, she had on occasion spoken to J. about the trial and specifically what she would like to see happen. Ms. Tansey submits that Ms. S. expressed that this was the longest that she and Mr. L. had been apart and that she now bears the sole burden of parental responsibilities. Ms. Tansey submits that Ms. S. confirmed, during the 9(2) examination that she understood the seriousness of the matter and the importance of being truthful. Ms. Tansey submits that Ms. S. also confirmed that she did not feel pressured in any way to make a statement, promised to tell the truth and that her memory was fresher when she made the police statement than at the time of trial.

358Ms. Tansey submits that Ms. S.'s explanation, at trial as to why she confronted Mr. L. after discovering him on top of her daughter with his buttocks exposed is nonsensical as she denies thinking that anything inappropriate had taken place and instead offers that she was baffled by why he would continue to wear pants without a proper drawstring. Ms. Tansey submits that the explanation should be rejected. Ms. Tansey submits that the reason Ms. S. confronted her husband was because she was concerned that what she saw could only lead to one conclusion, that he was touching J. for his own sexual gratification as she had stated to Det. West in her statement: "And we, you know, these things you just…I mean you think you would remember every detail and…but you don't, you really don't. And I…'cause that's all I could remember, that image because to me there's nothing…there's no…there's nothing you could say to justify…that particular position." Ms. S. also confirms to Det. West, later in the interview that she fears that J. has had sexual intercourse with J.

359Ms. Tansey submits that Ms. S.'s statement to police is contrasted by an unwillingness to concede, at trial, that finding anyone in that position on top of her daughter is suggestive of something sexual. Ms. Tansey also submits that by the time of the trial, Ms. S. is unwilling to say anything negative about her husband, even on matter unrelated to the charges. Ms. Tansey points to her absurd answers to questions about Mr. L.'s temper, the children's fear of their father and why the family fled to live at a shelter.

360Ms. Tansey submits that Ms. S.'s in court testimony bears none of the hallmarks of a truthful witness and her account is clearly coloured by her desire to reunite the family.

361Ms. Tansey submits that Ms. S.'s out of court statement should be accepted as a truthful and accurate picture of what transpired. The account is what one would expect of a mother who walked into her daughter's room and found her husband mounted on her teenage daughter with his pants pulled down and her nightgown hiked up. Ms. Tansey submits that Ms. S. thought what anyone would in the circumstances and confronted Mr. L. demanding an explanation. His response was a desperate apology and a plea for mercy.

362Ms. Tansey submits that Ms. S.'s statement to police is strikingly similar to M.'s statement which enhances the reliability especially in the absence of any collusion.

363Ms. Tansey submits that J.'s out of court statement was admitted for the truth of its contents. However, Ms. Tansey submits that J.'s in court testimony is entirely reconcilable with her out of court statement when understood through the impossible situation she was placed in, the long delay between the incidents and her testimony and the gap in time in providing her evidence in court. Ms. Tansey submits, that J. was pressured by her mother, as well as by her own feelings of guilt over being the cause of the family being apart. Ms. Tansey submits that J.'s out of court account as supplemented by her in court testimony should be accepted. Ms. Tansey submits that J.'s minimizations are illogical and her attempts to protect her father and her mother are transparent and childlike.

364Ms. Tansey summarizes J.'s evidence as follows:

"From the time she hit puberty around age 9, her father took a keen interest in her development. At first this took place by him sitting her down for "talks". These talks took place at random places in the house. They began when the family was living in London, Ontario. These talks progressed to discussions of actual different sex acts some of which Mr. L. performed on his daughter so she would know what to do when the time came. The acts progressed to full vaginal intercourse on no less than 6 occasions."

365Ms. Tansey submits that J.'s evidence must be understood and assessed by reference to her age and development. Ms. Tansey refers to R. v. WR, [1992] SCJ No 56 (SCC) at para. 26:

"It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to 'adult' or 'child' standards – to do so would be to create a new, stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate."

366Ms. Tansey submits that J.'s evidence must be understood with the following context:

J. candidly admits that she does not want to testify as "this is kind of awkward for everyone and it's emotionally wearing on the soul". When asked to explain the statement, she states, "Well I'm a daughter prosecuting my father. That's pretty physically emotionally, mentally weary on the very fabric of myself".

Second J. expresses concern for her mother and concern for "what is next for her family of 6". Ms. Tansey submits that it is of note that Ms. S. uses the same phrase saying that it has always been a family of six of us and that J. used similar language when she testified in September 2014 when describing concerns for her family. Ms. Tansey submits that Ms. S. testified that these were the types of concerns she discussed with J. between the two trial dates. Ms. Tansey submits that it is of concern because it flags the potential for parental interference in the testimony of the child who is burdened of knowing her complaint has resulted in the breakdown of the family and that her mother's desire is to reunite the family unit.

367Ms. Tansey submits that J. also testified that it was stressful and that she was concerned for everyone and not just her father. Ms. Tansey refers to the picture J. drew of a small person with the word help which she described as a person between a rock and a hard place. Ms. Tansey also submits that J.'s age must be considered when assessing her evidence.

368Ms. Tansey submits that J. confirmed in the 9(2) examination that she minimized aspects of her evidence and that she did so in an effort to make things not look as bad for her father. Ms. Tansey points to the following as specific instances of minimization:

i. On one occasion crossing out that her father had intercourse with her; (Transcript of trial proceedings September 22, 2014 @ p. 36)

ii. The number of times penetration occurred; (Transcript of trial proceedings September 22, 2014 @ p.46-49)

iii. Corrections to the statement including shortening the number of minutes her father had intercourse with her from 10 to 7 minutes; (Transcript of trial proceedings September 22, 2014 @ p. 31)

iv. J. described repeated acts of vaginal intercourse including one incident where Mr. L. removed his pants and underwear completely while on other occasions he merely dropped his pants before the assault; (Transcript of trial proceedings December 18, 2013 @ p. 60-91)

v. Mr. L. would ejaculate but not inside his daughter. Mr. L. would make sexual comments about how she tasted and how she felt;

vi. Mr. L. told J. not to tell her mom what was happening; (Transcript of trial proceedings September 22, 2014 @ p. 91)

369Ms. Tansey submits that based solely on J.'s recanted or minimized version of events the offences before the court have been made out beyond a reasonable doubt.

370Ms. Tansey submits that J.'s versions of Mr. L.'s behaviour on other occasions when he assaulted her, i.e. it was only one time that he ever removed his pants completely, is corroborated by what Ms. S. and M. witness when the door is opened and they see Mr. L.'s buttocks exposed with his pants at his knees while he is on top of J.

371Mr. Hall submits that the Court cannot rely on the evidence of any of the witnesses due to a lack of credibility. He submits that there were several versions put before the Court and that in the end none of their evidence is reliable. He submits that Mr. L. must be acquitted on all counts.

Court's Decision

372I have reviewed all of the evidence and considered the submissions of counsel.

373I must first deal with the evidence heard on the voir dire concerning the discreditable conduct and J.'s statements to her mother, in terms of corroborating the reliability of the two KGB statements, i.e. J.'s and Ms. S.'s. I am admitting the evidence not for the truth of its contents but simply for the fact that the statements were made.

374It became very evident in this case that J. was under extreme pressure, both from herself and from her mother, when she came to court to testify. J.'s demeanour changed in the extreme on Day 3 of the trial where she basically refused to speak to the Crown. The circumstances of the change were investigated and the trial adjourned to continue some 9 months later. I have no knowledge of what caused the extreme change or the investigation. However, J.'s evidence in September 2014 was an attempt to further minimize what had taken place between herself and her father from the time she was 9 years old until July or August 2012, when she was 15 years old. In the end J. did not entirely recant her original statement to police on September 7, 2012 maintaining that her father had sexual intercourse, with full penetration, with her one occasion between 2008 and 2012. J.'s initial recantation follows her exact account in the original videotaped statement but is a minimization of the original account of the incidents, i.e. from 100 times to 4 to 6 times for sexual intercourse. In her cross-examination, J. agrees that much of what she said in the original interview, and on the first day of trial, were things that her father suggested males will or would say or like to do with her sexually, as opposed to acts her father engaged in. However, the sequence followed and the events described in the original videotaped statement never changed except that acts, for the most part, became talks or suggestions. J.'s explanation for the change in her evidence, from the original statement to her evidence in Court was that she felt reality set in, that she was a daughter prosecuting her father, concerned that her father would go to jail where he would not do well because his family kept him grounded and because J. and her mother wanted the family unit back together. It was obvious that J. was influenced by her perceptions of what her mother wanted for the family and what her mother had discussed with her about this being the first time she and Mr. L. had been apart and how hard it was for her and how much she wanted the family unit back together. I accept J.'s explanation and find that that pressure was the reason for the difference between J.'s original videotaped statement to police and her evidence in court as to what happened. I find that in the original videotaped statement to police J. is relaxed, not embellishing any of the acts and able to say when and what she does not remember, i.e. how long it had been since her father had last had intercourse with her before they moved to the shelter. It is often commented upon that child witnesses have difficulty with dates and time lines and I find it is no different here. What is cemented in J., and her mother's memory is J.'s early puberty, the father's increased interest and "sex talks" at the time, as well as the change in J.'s behaviour towards her father, i.e. angry, lashing out at him and sometimes not being able to be in the same room with him. J. remembered that the "sex talks" lasted approximately 4 months when it became more "hands on" which later progressed to full sexual intercourse. I reject absolutely J.'s explanation that what she had told Det. West about how her father had her stroke his penis in an up and down movement was really stroking a banana and that she did not put her mouth on the banana because she does not like bananas. It was a desperate and childlike attempt to minimize.

375J. agreed several times that she was aware when she was speaking to Det. West that it was a serious matter, that to lie to police could be an offence and that there were serious consequences for lying, whether to police, in court or anywhere else. J. would use words such as exaggeration and minimization, but did not agree in cross-examination that she lied, i.e. in cross-examination when Mr. Hall put to J. that she had taken out, on page 27 of the edited transcript of the videotaped statement, "Oh, there is only one time when he actually fully took off all his clothes" but left in but most of the times he just takes, drops his pants." When Mr. Hall asked why J. took most of the sentence out, J. testified, "Because I was minimizing it"; when asked whether the things Mr. Hall had pointed out so far are not true, J. stated, "Right. Exaggerations"; when asked why she had said on Day 3 of the trial that she told the Court that she lied, J. stated, "Oh, I was just frustrated with the prosecutor. I just was kind of fed up, so, yeah. It wasn't, it wasn't.."

376I reject Ms. S.'s evidence in Court for similar reasons. It was obvious that Ms. S. was overwhelmed on the day she opened her daughter's bedroom door and found her husband mounted on top of J. who was lying face down on the bed, followed by J.'s accusations of her father sexually assaulting her and being a sole parent to 4 children after she took them to live in the shelter. Ms. S.'s objective at trial was to minimize what she saw, what she understood to be going on, in order to put the family unit back together. Ms. S. could not deny what she saw when she opened the bedroom door or that Mr. L. had begged for forgiveness almost immediately after, but attempted not to understand and/or remember when it suited her. However, her evidence at trial followed the same sequence as her original statement as to events, places they lived, the difference in J.'s behaviour from the age of 9, puberty, and the event in J.'s bedroom that brought everything to a head. Ms. S. simply attempted to minimize or not remember or explain things to put Mr. L. in a better light, i.e. his temper and that when upset he would "talk and talk" which was not at all believable. Ms. S. testified that she was told and knew that going to the police with the allegations of sexual assault that it was serious and that she had to tell the truth. She knew that there could be criminal consequences for her if she lied to police and she promised to tell the truth. There was no collusion, no coercion, and no motive to lie because Ms. S.'s goal throughout has been to reunite not break up the family unit.

377M. S.-L., at first attempted to provide the same minimizations but ultimately adopted his original videotaped statement as the truth. It was obvious that he too had been influenced and began by saying he could not remember, and did not or could not see the details of his father on top of his sister. However, he adopted his statement as true and answered the questions truthfully as the examination in chief progressed.

378Ms. S.'s and M.'s statements are strikingly similar concerning the sexual assault in July or August 2012 when they opened J.'s bedroom door and found Mr. L. mounted on J.'s back with his pants down to his knees and his buttocks naked. As Ms. S. stated to Det. West, there is no explanation that an justify the position.

379Ms. S.'s original statement to Det. West, is strikingly similar to M.'s concerning the events following the discovery in the bedroom including the conversation in the living room with Mr. L., his explanation for his pants being at his knees while he was on top of J., and J.'s disclosure of the prior sexual activity between them. In addition, all three, talk about Mr. L.'s temper and how when angry, which is often, he yells, breaks furniture, kicks objects and threatens to strike or pulls hair, or hits sometimes accidentally, sometimes not.

380I have considered R. v. W.(R.) at 134:

"…these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a 'common sense' basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case."

381I find that the three statements corroborate one another where the events intersect. I have considered the explanations for the differences between the original statements and the evidence given at trial. I find that the original statements, one adopted by M., and the other two minimized as opposed to recanted, are reliable. Although there were one or two moments, one in the videotaped statement and one during the trial where J. seems to approach what she is about to do less seriously, i.e. when she states at the beginning of the video interview words to the effect that "this is cool" and a similar attitude at one point during the trial, J. is immediately corrected and the seriousness and importance of telling the truth is quickly drawn to her attention. J. was 15 years old when interviewed and speaking about events that started when she was 9 years old. She was 17 years old at trial. And the words of McLachlin J. and Wilson J. apply, i.e. that because of momentary less serious approach J.'s entire credibility and the reliability of her evidence is to be judged negatively when it is "common sense" that a child in those circumstances, i.e. being interviewed at a police station or testifying in court will not immediately understand the significance and seriousness of the circumstances.

382I find that J. L. entered into talks of a sexual nature with J. when she was 9 years old, that these "talks" progressed to hands on touching, i.e. J. L. touching J. in a sexual way with his hands, mouth and penis and J. L. counselling and instructing J. S-L. to touch his penis with her body, and ultimately to full sexual intercourse on between 4 and 6 times. I find that J. L. was observed in such a position, i.e. mounted on J.'s back sexually assaulting her with his nude body when Ms. S. and M. opened J.'s bedroom door and surprised him.

383Therefore relying on the original videotaped statements of J. and Ms. S. as well as the evidence of M., and supplemented by the trial evidence that I do accept from Ms. S. and J., I find Mr. L. guilty on the following counts: Count 1, the sexual assault between January 1, 2005 and August 31, 2012 contrary to s. 271; Count 2, between January 1, 2005 and April 30, 2008, did with a part of his body to wit his hands, his mouth, and his penis, for a sexual purpose touch the body of a person under the age of 14, namely J. S-L., contrary to s. 151; Count 3, between May 1, 2008 and August 31, 2012, touched the body of a person under the age of 16 with his mouth, hands and his penis for a sexual purpose contrary to s. 151; Count 4, between January 1, 2005 and April 30, 2008, did for a sexual purpose counsel a person under the age of 14, namely J. S-L. to directly touch with a part of her body to wit her hands the body of J. L., contrary to section 152; 5, between May 1, 2008 and August 31, 2012, did for a sexual purpose counsel a person under the age of 16, namely J. S-L. to directly touch with a part of her body to wit her hands, the body of J. L. contrary to s. 152; Count 6, between January 1, 2005 and August 31, 2012 did being a person in a position of trust or authority towards a young person with a part of his body to wit his hands, mouth, and penis for a sexual purpose directly touch the body of that young person, namely J. S-L., contrary to s. 153(1)(a); Count 7, between January 1, 2005 and August 31, 2012 did being a person in a position of trust or authority towards a young person for a sexual purpose counsel that young person, namely J. S-L. to directly touch with a part of his body the body of J. L. contrary to s. 153(1)(b); and Count 8, between January 1, 2005 and August 31, 2012 did knowing that another person, namely J. S-L. was by a blood relationship to her in a parent have sexual intercourse with that person, contrary to s. 155(2) of the Criminal Code of Canada.