WARNING

The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.

Court Information

Ontario Court of Justice

Date: 2017-05-31

Court File No.: Newmarket 16-09182K

Between:

Her Majesty the Queen

— and —

L.G.

Before: Justice David S. Rose

Heard: May 1 – 8, 2017

Reasons for Judgment released: May 31, 2017

Counsel:

• Ms. Halajian, counsel for the Crown
• Mr. Mark, counsel for the accused L.G.

Reasons for Judgment

ROSE J.:

Charges

[1] L.G. is charged with the following offences:

i. Sexual Assault on M.J. between 1 December, 2010 and 15 December 2011;

ii. Sexual Touching on M.J. between 1 December 2010 and 15 December 2011;

iii. Invitation M.J. to Sexual Touching between 1 December 2010 and 15 December 2011;

iv. Sexual Assault on M.J. between 15 December 2010 and 31 December 2011;

v. Sexual Touching on M.J. between 15 December 2010 and 31 December 2011;

vi. Sexual Assault on M.J. between 1 March 2011 and 31 May 2013;

vii. Sexual Touching on M.J. between 1 March 2011 and 31 May 2013;

viii. Sexual Assault on M.J. between 1 June 2011 and 31 August 2013;

ix. Sexual Touching on M.J. between 1 June 2011 and 31 August 2013;

x. Sexual Assault on M.J. between 1 June 2015 and 1 September 2015;

xi. Sexual Touching on M.J. between 1 June 2015 and 1 September 2015;

[2] At the outset of submissions, Ms. Halajian invited me to dismiss Counts 1 and 2, which is a fair concession. These reasons are therefore confined to the remaining 9 counts.

Crown's Case

[3] The Crown called three witnesses and played a lengthy video-taped statement made by L.G. at the time of his arrest to one of the investigating officers – Det. Goetz. L.G. did not call a defence.

[4] The complainant M.J. testified by closed circuit video from outside the Courtroom, and with the aid of a support person and support canine, who sat on her lap during the first day of her evidence. M.J. was 18 when she testified, but had given a videotaped statement to Detective Weick when she was 16 years old. She had contacted the police on October 7, 2015 and gave a statement the next day. The statement was admitted into evidence under s. 715.1 of the Criminal Code.

[5] M.J. testified that up until the time she contacted the police her relationship with her father L.G. was pleasant but they weren't particularly close. She said that they got along well and she saw him at varied times throughout the years. M.J.'s mother G.J. and father L.G. had been separated for some time, and the evidence disclosed that M.J. and her sister C.J. lived between their mother's and father's houses from time to time.

[6] M.J.'s statement to Det. Weick on October 8, 2015 was the second that she had given that year. Earlier, on January 16 she had given a shorter statement to Det. Weick. It was only in the October 8 statement that she inculpated her father in any way. Because of its importance in the trial, I would summarize the following points of M.J.'s October 8 statement:

i) When she was 12 or 13 years old she was wrapping Christmas presents and her father talked to her about a TV show that he had watched, Jerry Springer. In that show an incestuous father and daughter had appeared and discussed their relationship. M.J. said L.G. had asked if it was okay if she would have sex with him. L.G. said "You know it's only wrong because society says it's wrong, but if I trust you and you trust me and we love each other, then why shouldn't we have sex". He said that his other daughter C.J. had let him do that, and she climaxed. She told him at the time "No, like what do you mean? That's completely disgusting. Obviously, I'm a 12 year old, I don't even know, like, what that is." M.J. said that she was old enough to say no to that. She didn't feel threatened. She didn't really understand what he was asking for. L.G. told her that he hoped that this wouldn't ruin their relationship. That occurred when they were living at his house in Newmarket.

ii) A few nights later L.G. was lying on the TV room floor and asked "Oh, will you give me a back rub". She agreed. She started massaging his shoulder blades, which is where she usually starts massaging people. While she was rubbing his back he asked her to go lower, and then took her hand, wrapped it around his stomach and she gave him a hand job. He rolled over and asked her to perform fellatio. He tried to bring her head down. She resisted. That lasted probably 30 minutes, but she didn't know how to stop it. She jumped up on the couch after it ended and watched TV like normal. At this time M.J.'s sister C.J. was living at the house, but her sister wasn't home at the time.

iii) Three weeks after that, she was lying on the same floor and L.G. said that he would give her a back rub. M.J. was wearing loose pyjama bottoms. L.G. straddled her while she was on her stomach and started rubbing her back. His hands then progressed lower until he wrapped his arms around her stomach and moved her pants half way down her thigh. He started grinding up against her. She knew this wasn't a massage, but didn't say anything because she didn't feel like she could. L.G. took off his pants and was rubbing up against her. He also reached up to grab her breasts. She was scared he was going to have sex with her and said "Dad, can you put on a condom, please?". He said, "No, like I'm not going to come in you, its fine". She insisted that he put a condom on he ran upstairs, got a condom and put it on. She was in her menstrual cycle and had a pad in her underwear. For that reason M.J. believes that L.G. did not have sex with her. The incident ended with M.J. saying the she was going to bed. L.G. said "Okay, like have a have a good night sweetie, I love you". She then changed her pyjama pants because they were wet.

iv) Around the time of the second incident M.J.'s sister C.J. was living with their father L.G. M.J. and L.G. were having dinner at the restaurant where C.J. worked. C.J. had a private conversation with M.J. and C.J. asked her if she was scared of their father. She said "no" because she was too embarrassed to tell her sister. C.J. kept asking M.J. if their father had ever discussed Jerry Springer with her. M.J. told C.J. that he hadn't.

v) While M.J. was living with her father in Newmarket she awoke one night to find that her father was standing over her bed with him masturbating. She said "oh, hi dad." And he said "hi". He closed her bedroom window and then said "okay, good night".

vi) One night L.G was driving M.J. home from L.G.'s acreage near Fenelon Falls. This was a few months after the incidents in the TV room. Their dog Skeet was in the back seat of the Jeep. L.G. was in the front seat with her knees on the dashboard asleep. L.G. grabbed her knee and slid his hand down her thigh pulled her pants down and started fingering her. He was driving with his knee and was able to pry her legs apart. She moaned to show him that she was awake, but L.G. interpreted that to mean that M.J. liked it. In order to end it M.J. climbed over the middle console and moved to the back seat. She was 14 years old. She then told her father that "I'm going to the back seat with my dog who's not gonna molest me". When they got home LG told her not to tell anyone about this because he would go to jail and she wouldn't see him anymore. M.J. was not sure what time of year that incident happened. M.J. said that "…he's a snow plow driver he's very capable of driving with a knee". That incident happened somewhere around the town of Virginia. She had climbed into the back seat by time they reached a Foodland store which is about 15 minutes away from Kennedy Road in Newmarket.

vii) A few months after that M.J. and her father were up at the Fenelon Falls property driving around on L.G.'s ATV. L.G asked her if she wanted to go hunting partridge. She agreed. M.J. was driving the ATV with L.G. behind her. She stood up on the ATV at one point in the ride and when she sat down he had moved forward so that when she sat down it was on his lap. This happened again, and the second time when she sat down his penis was completely out. When they went over a bump L.G.'s penis would rub against her lower back. LG said to her "Oh, you know, an ATV'd be really good place to have sex because the bumps do all the work for you". That incident occurred when they were about 30 minutes from camp. She turned the ATV around and went back. When they got back LG pulled his pants up again.

viii) Since she was about 12 whenever they drove down the street he looked at other girls from age 30 to 12 and commented on their bodies. He said, "…comments on how easy it would be to just pull them into a bush one day and rape them."

ix) Two or three months prior to October 8, 2015 she was giving LG a back rub and fell asleep in his bed. She described herself as a heavy sleeper. She woke up to find that her pants were around her knees and he was touching the inside of her thighs. She pulled up her pants and said "Goodnight, dad" and stormed out of his room.

x) She told her sister C.J. recently about this. C.J. denied that she had been sexually violated by their father. C.J. told her that L.G. repeatedly brought up the Jerry Springer show – at least once per week.

xi) M.J. believes that L.G. is dangerous. He has a dinosaur of a phone, so they don't text very much anymore.

xii) L.G. grows "copious amounts of dope". He makes it in his basement. He has a little indoor grow op going. He smoked marijuana with two of M.J.'s friends. That lead to L.G. saying that M.J.'s friend was attractive. M.J. told him he was not going to have sex with her.

xiii) L.G. had recently come into M.J.'s work place with his friends. M.J. said to him, "can we talk about the Jerry Springer thing?" L.G. got excited and said "yeh sure if you want to talk that's great". M.J. said "no, Dad, not in the way you want to talk about it". With that M.J. saw that L.G. was "incredibly anxious about it".

xiv) M.J. went to live with L.G. in April of 2015 and stayed until mid-June of 2015 because she wanted to have pet rats. She went back to live with her mom "because she had woken up to him touching her thighs and everything" about a month before. Her boyfriend asked her to move back. She disclosed to him about a month previously. She disclosed to her boyfriend because he is someone that she really trusted. M.J. said that she would not disclose to either her sister or mother because if her mother found out, "she's gonna go and murder my father". All she told her mother was that her father had sexually assaulted her but didn't tell her when it happened other than to say since she was 12 until a few weeks ago.

xv) M.J. talked to her sister C.J. a few weeks ago and told her about all the incidents. According to M.J. C.J. denied that her father had touched her. That caused M.J. to say that L.G. was lying when he told M.J. that he had masturbated C.J. and she liked it.

xvi) L.G. has a quick temper and threw things at the walls and punched holes in the walls, but he has gotten a lot better.

xvii) M.J. described her father's house as being "…a mansion for a single man", with her dog, and his roommate.

xviii) L.G. has two children with someone other than MJ's mother – an 8 year old daughter, and a 6 year old son.

xix) The last time they spoke was on the previous Saturday at M.J.'s work.

xx) M.J. had spoken to the police about her father in January 2015, and was asked why she had then said that nothing happened, when she was now disclosing historic abuse. She said she was concerned about her younger siblings, his house, his business, her dog. "The real reason her boyfriend had asked her to see a therapist because of intimacy problems".

[7] After M.J.'s videotaped statement from October 8, 2015 was admitted into evidence she continued her evidence viva voce. She described her relationship up to October 2015 with her father as being pleasant, not particularly close but not uncomfortable. They got along well and she saw him on weekends. She said that the first time LG spoke to her about having sex she was either 12 or 13 and that the abuse started a few nights later. The second incident was before Christmas. She couldn't tell how old she was when the third incident occurred because, as she said, "my guesses for the timeline are no more than guesses". She believed that the ATV incident was the same year as the driving incident, and the last incident was before she went to Europe with her sister. That happened after May 19th, because that is the day she started dating her then boyfriend. She also described another incident when she was living in Newmarket with her father when she was sitting on a couch watching TV, and he sat down in the middle cushion and put her legs overtop his lap. His penis was hard under his pants. That may have been before or after the ATV incident.

[8] The most recent incident occurred when she fell asleep in L.G.'s bed. She had ended up there because he had called her in to give him a massage and she was on her way to her bed, when she stopped in his room. She sat on the edge of his bed, gave him a massage and just ended up falling asleep. She testified that she never slept in his bed.

Text Messages

[9] MJ was asked about the text messages between herself and LG from October 2013 to November 2014 which were filed in evidence. Those text messages contain sexual content about L.G'.s partners. There are several which are explicit. Representative of this group is one on September 7, 2014 where in M.J. says that she will help LG find a partner, LG tells her that he doesn't want to bring her down, and that he has a shit life. MJ says – the idea of finding LG a partner - "It shouldn't be to hard at least my dad is attractive lol". LG says "I love sex… LMAO…No shit…That would be wrong" to this MJ says "LMAO don't we all". LG replies "Holy shit…So what do you mean???? You know what I mean". MJ replies " Im confused no lol :)" LG replies "So am I…H-ha./ha" MJ replies to this"…What I mean is that I'll b with u all the way (helping u find a girl). LG texts Lmao…I almost thought that there was someone else…Lmao". MJ says "What was??" LG says "never mind…I now what you meant". To this MJ says "Oh, ok crazy pants :)". I understand from the evidence that the text Lol means laugh out loud, and LMAO is a short form for the phrase "laugh my ass off". There are other text conversations in which LG tells MJ about his sexual interest in his partners. In none does he proposition MJ, or describe past sexual conduct with MJ. In text message he jokes with MJ about getting a dungeon, a classy one. MJ replies that he should get a knife. That was in context of another discussion about LG's difficulties with sexual relations.

[10] In her evidence MJ said that she and LG joked about sexual relations as if there was nothing sexual happening between them, but "we were both aware that there was".

[11] MJ testified that she disclosed to the police in October 2015 because she had reached a level of maturity when she understood how wrong her father's behaviour was, that she had the capability to stop it, and that she had a responsibility to her little sister. She was not comfortable with disclosing, but, as she put it she pushed herself to do it anyways.

[12] Another example of a text message was on September 28, 2014:

LG: What would you message

MJ: Hey sexy hey u r sexy that's what crazy pants

LG: Oh yah

MJ: That's what I message all them guys, Lets get I in till the early morn!

LG: Lol, I took pants off

MJ: They all to bahahhahahahahahahah

LG: Lmao…horny are we

MJ: It only takes about 5 words b 4 a guy is ready to jump into bed!

LG: Ys fuck me now ok…5

MJ: Oh yes sooo frickn horny all this math hw gets me hard!...bahahah

LG: Bahahah…yes no shit…and wet

MJ: I saw this social experiment today it was vr girls

LG: Scary

MJ: Hey gues had to ask 20 girls to have sex with them and the girls had to ask 20 guys to have sex with them…Only one girl said she would…An almost all the guys said they would bahahah…U guys have it hard ;(…but girls literly can walk up to anyone and b all like hey Im horny lets bang my house is right led there and boom we get laid:p

LG: Yup…Omg so true..Yup. So damn true…I wish I was a woman. Lol. Only when I am horny though. Ha-Ha…Get laid when ever. You want….Holy the life

MJ: I think next time I'm horny (and don't have hw lol) I'm gonna go test this experiment lol….ask 20 guys and see how many say yes!...I bet I bed at least 10.

LJ. They all will…Ha ha..Unless they are gay

MJ: Bahaha ya but I don't want aids or children so ewww no thx lol.

LG: Bahahah

[13] The text messages between MJ and LG discuss other things, like LG's work, MJ's pet rat, LG's younger children, meals, MJ's horse, MJ's part time job, and the other things that fathers habitually talk to their teenage children about.

[14] When asked about the text messages. MJ said that the sexualized conversation with LG was common, and phased in gradually. She couldn't recall the specific age when her father started to speak that way. She said that she had that type of conversation before LG asked her about the Jerry Springer show. She didn't speak to her mother or sister that way. When LG discussed his sexuality she testified that it didn't make her the most comfortable, but also didn't make her feel uncomfortable. It was normal conversation. In her evidence there was no sexual boundary between herself and her father, be it physical or verbal. She testified that her father was "…grooming me from a young age". When MJ was asked by the Crown, "Did you joke with any other adult this way? In this sexual way?" her answer was "No".

[15] MJ testified that she could not remember anything happening between herself and LG in the fall of 2015 that caused her to disclose to the police. Nothing happened which caused her to be angry with him.

[16] After she gave her statement in October of 2015 she met LG at her workplace. LG's mother had just died. He came in to see her and told her that he wasn't allowed to see his younger daughter. He knew he was being investigated for something, but he wasn't sure what it was. He was going through a bunch of scenarios. According to MJ, he asked her if she had gone to the police and she denied it. According to MJ, when she said that she didn't go to the police LG said he wasn't sure why he was not allowed to see his kids. According to MJ, when LG initially asked her if she went to the police he never asked for what. Later in the conversation MJ said that she did tell him that she had gone to the police. She didn't remember exactly what she told him, but it was about the sexual abuse. To that LG cried and apologized for touching her.

Cross-Examination of M.J.

[17] MJ was cross-examined at length. She testified that she had given a statement to the same police Detective in January 2015 as interviewed her in October of 2015. The January 2015 interview was requested by the police because, in a separate investigation the police had obtained MJ's text messages – the same ones that were filed in the case at Bar. Not surprisingly, the police had concerns about the messages and wanted to speak to MJ about them. That interview was not brief, and Det. Weick was clear and up front that she had concerns about whether there was inappropriate contact between MJ and her father. Det. Weick asked her:

DC Weick: "And the concern I had in viewing these messages was that the there was a lot of sexually explicit talk, talk about sex. It was hard in the beginning to understand the context of it, so can you just explain to me in your own – in your words what the context of the conversation with your dad are"

MJ: We both have a very sexual sense of humor. That's pretty much it. There's nothing sexual between us. We just talk very inappropriately.

[18] In cross-examination she admitted that she and her father do have a sexual sense of humour, and that her friendship with LG is more of a friendship than parent/child. They were more buddy/buddy. She testified that she lied to the police in her January 2015 statement in a deliberate way. When testifying about the effect of her statement to Det. Weick in January 2015 that there was nothing inappropriate between her and her father she testified, "I don't believe that she believed me, but through denying it there was nothing else she could do about it". In that regard, MJ agreed that her January 2015 statement was "A very successful lie".

[19] MJ was also questioned in cross-examination about her assertion in evidence in-chief that she only spoke to her father in a sexualized manner. The exchange was this:

Q. So what you're really telling us is that when you told us in court that your dad is the only one that you speak to in that manner or text within that – that's not true?

A. Speak to – that is true. Have spoken to – that's not true.

Q. Text?

A. Yes.

Q. So there are – you do communicate with other adults than your father in a sexualized manner, right?

A. At that time, yes.

Q. And that's clearly different from what you said in court?

A. That's correct.

Q. And they can't be reconciled, can they?

A. What does that mean?

Q. It means you lied here in court. You said you don't speak to anyone other than your dad in that sexualized manner, and I'm talking about speaking, texting, talking to, conversing, communicating.

A. That's true.

Q. You were under oath – well you're under a solemn promise to tell the truth in court.

A. That's correct.

Q. And you chose to lie.

A. That was not a conscious decision.

[20] In re-examination The Crown asked MJ about the other adults that she spoke with in a sexual manner. She was asked if she considered them adults. She said that they were friends, but not adults, because adults are authority figures, like family members and teachers. MJ was asked about her boyfriend D. She testified that he was the one who encouraged her to go to the police. He had a drug problem, which resulted him getting kicked out of his parents' home in the summertime, just before MJ and her sister went to Europe. She was 16 when she began seeing D. When this happened she wanted D to live with her. MJ did not remember any time where LG refused to have MJ and D. live with them at his house. According to her, D was not comfortable with MJ's proposal that he move in with her at her father's house. D ended up staying at MJ's mother's house, but MJ denied knowing how that ended, which I took to mean knowing how D ended his stay at MJ's mother's house. She admitted that D had had words with MJ's sister while they were in Europe on holiday because D was interfering with MJ's European holiday. MJ also testified that D was not specifically forbidden from driving her jeep, but admitted that he was in a very bad accident while driving it. In her evidence D was not a bad driver. "I judged D's driving as perfectly okay". She knew only that nobody could drive her Jeep.

[21] MJ testified that LG had bought her a Jeep when she was 16 years old. She admitted that when she was that age she wanted to continue her high school education at a private school, which required tuition payments. She wanted to sell the Jeep to pay for tuition, but her father did not.

[22] MJ testified in cross-examination about her father growing marijuana. This was of interest to her. She wanted the police to investigate his grow op, but they weren't too interested.

[23] MJ was cross-examined about her statement to the police in October of 2015 that, when her father asked her about having sex, she did in fact know what sex was. In cross-examination she agreed that this wasn't true. She wasn't lying to the police, but she "…was trying to make myself look less knowledgeable at the age 12 because its embarrassing that I knew what that was".

[24] MJ was questioned about her living arrangements. She said that at the time of the ATV incident she was living with her mother. MJ's interest in pet rats caused problems because her mother wouldn't permit MJ to keep rats in the house. MJ admitted that when her mother said that, she decided to move in with her father. That lasted about a month or a month and a half.

[25] MJ was cross-examined about the incidents. She was mostly consistent in her evidence about what happened. But not always. She admitted that when she told the police about the back massaging incident she mis-described it. She had initially said that her father unbuttoned his pants while he was on his back, but actually he did that while he was on his stomach. She had told the police that he had his boxers still on, but admitted in evidence that her father doesn't wear boxers. She testified that by boxers she meant any male underwear.

[26] MJ was cross-examined about the Jeep incident, and how her father could have driven that distance while molesting her from the driver seat with the car in motion on a highway. In Court she said that it was her feet on the dash during the incident. In order to pry her legs apart with both arms his hands would have been off the steering wheel for as long. MJ wasn't sure how he managed that.

Evidence of C.J.

[27] MJ's sister CJ testified. She testified that she did massage her father, but there was no genital touching. She testified to an incident where LG asked her about the Jerry Springer show and asked her if she would have sex with him. She declined. She said the incident did not make her feel threatened, and she has never felt threatened by her father. She said that she had brought up the idea of LG speaking to her about the Jerry Springer show. She said that MJ's reaction to CJ was "what's that?". She said that LG had never raised it with her before.

[28] CJ said that her relationship with her sister MJ was close. MJ disclosed the abuse to her. She said that when MJ disclosed to her she didn't challenge her, but accepted what she said was the truth. CJ was candid that MJ doesn't always tell the truth. She said that MJ is not a liar, but does tell lies. She could not think of a time when MJ did not admit to the truth pretty quickly. She was asked about MJ's sense of humor, and said that it wasn't overly sexualized at present, and wasn't sure if she was thinking about sex 4 years ago.

[29] CJ testified about MJ's relationship with her father. She said that MJ's pet rats made him angry, particularly when one escaped its cage. He was also angry about MJ driving the Jeep without a license. CJ said that LG had made it clear that MJ could drive the Jeep to and from school if she had no license but that she had to enroll in driver's education to get her license. LG was upset that MJ was driving the Jeep at all hours with her boyfriend, and ultimately said that she couldn't drive around anymore. MJ's boyfriend D became an issue according to CJ because LG said that D couldn't drive the Jeep but MJ let him drive it anyway. After the two sisters got back from Europe LG confiscated the Jeep. This made MJ upset.

Evidence of G.J.

[30] GJ, MJ's mother testified. GJ testified about MJ disclosing to her. She described MJ's desire to have pet rats as collusion with her father LG. At the time MJ wanted her pet rats but GJ wouldn't permit them in her house. GJ described MJ setting up a dating profile for her father on a dating web-site. MJ would send him leads. GJ described MJ's schooling. At one point MJ had to drop out of private school, because it was not on a semester system, and MJ had lost so much schooling that she was in danger of losing her whole year. For that reason she dropped out of private school and entered the public school system. The next year, which was 2015 she wanted to re-enter private school, and GJ was by then responsible for the tuition. She was considering selling the jeep so that MJ could have a more fuel efficient car and put the balance towards tuition. By then GJ described LG as being in arrears for child support. GJ said that the Jeep which had been confiscated from MJ by LG was taken back between the time that MJ had disclosed to the police in October 2015 and the time that LG was charged. MJ had apparently made arrangements for that.

[31] GJ described MJ as manipulative in the sense that she colluded with her father to get MJ to live at GJ's house with the rats which GJ did not want. According to GJ MJ thought that GJ would change her mind about the rats, and wanted to manipulate her, but she was having none of it. She also testified that MJ and LG manipulated things so that MJ's dog Skeet could live with her. GJ didn't like the dog in the beginning and didn't want it in the house. Skeet moved in with GJ and MJ after MJ disclosed, because the dog was important to MJ and MJ disclosed the abuse. He also colluded with MJ to get MJ out of school to go skiing. She went on to describe another incident where a burn barrel had been ignited in the yard contrary to GJ's wishes.

[32] GJ confirmed that when she went to pick up MJ from D's house, D was there with a back pack and no place to go. He was going to spend the night at a donut shop. GJ said to him to get in the car, and from then D lived at GJ's house.

Police Interview with L.G.

[33] The Crown played a lengthy interview between Det. Goetz and LG. LG enters the interview room at 8:18 am and leaves at 2:02pm. There are several breaks in the interview, although many of those are for a minute or two. The bulk of the 5 and half hours is taken up with questioning between the two men. Mr. Mark conceded voluntariness of the statement and a video tape of it was entered into evidence. It took more than a day to play in Court.

[34] The interview contains many instances of LG denying the allegations. He denied telling MJ to tell the police anything. He was asked what he knew about the allegations against him from his pre-arrest discussion with MJ. His answer was:

No, MJ said that she said some things to the police that I've said some things to her sexually and that, you know, I was growing dope and – here's what she said you want to hear it. And that, you know, I would tie women up and hurt them. And I said to her, "MJ, why the hell would you go to the police and say those things, like the fucking police is serious. They're gonna take that shit serious…I would never hurt, tie up women. I would what – what was the other things that she said, oh, that I have thousands of dollars worth of fucking dope. If I had thousands of dollars of dope, Bill, check my business. Why do I work from sun up to sun down every fucking day of my life for 25 years if I'm some big ass dope grower."

And later.

And – and – and the sexual stuff, she said to me she said some shit that she said to the cops about us talking about Jerry Springer and that shit. Not that I gave her a fucking hand job and whatever else you got written there…Because we're getting way the fuck off course now. Like way off course I want to talk to my daughter…Like that's not the shit that happened.

[35] He did admit talking to CJ, and said he told her that "…we'll just have to wait and see and get to the bottom of it". He was asked by Det. Goetz about whether there was anything wrong with sexual relations between fathers and daughters. He said it shouldn't happen. When asked if it could happen he said "Well, I've watched enough TV to see it happen, so yeah". He admitted to talking with CJ jokingly about the Jerry Springer show and about sex and stuff but "Maybe she misunderstood what I was saying, okay…".

[36] LG was asked by Det. Goetz about the text messages between himself and M.J. He agreed that there were sexual overtones to them, but said that it was their sense of humor and that nothing inappropriate was going on between him and his daughter.

[37] The last incident in the Information, which stems from MJ's evidence about the incident in Bradford in LG's bedroom was not discussed. I was advised by Ms. Halajian in argument that LG was not charged with it when he was interviewed by Det. Goetz.

Findings

Legal Issues

[38] There are three narrow legal issues which require findings before making findings on the ultimate issues.

[39] First, both MJ and CJ gave evidence that LG, their father, discussed the Jerry Springer show with them separately. Both witnesses had a similar version of that discussion, namely that he told them about what the show was generally about, and went on to discuss a specific show where a father and daughter appeared. They were in an incestuous relationship. Both MJ and CJ testified that the show was the starting point in a discussion which lead to each of them being propositioned sexually by LG. There is no charge on the Information which has CJ as a complainant. In the case of MJ I have no difficulty considering her evidence on this point as part of the narrative. Her evidence about this discussion leads to her evidence of being abused by LG a short time later.

[40] As regards CJ's evidence about her discussion with LG about the Jerry Springer show the admissibility analysis is different. Taken on its own, evidence of LG propositioning his daughter is evidence of extremely bad character. It is axiomatic that the Crown may not put the accused's evidence of bad character into evidence as part of its case. This is because the probative value of such evidence is generally outweighed by its prejudicial effect. As Watt J.A. put it, "it is not generally open to P to prove D's guilt by introducing evidence of Ds bad character and arguing that, on account of that character, D is likely to have committed the offence charged" see Watt's Manual of Criminal Evidence, 2014 edition par. 31.01.

[41] I have no difficulty in finding that CJ's evidence that LG propositioned her sexually by reference to the Jerry Springer show on that topic is highly prejudicial bad character evidence. Ms. Halajian conceded that there was no application to introduce it as evidence of similar acts. As evidence that might lead me to conclude that it is more likely that LG had the same conversation with CJ and MJ about incest it is of dubious and minimal probative value. I asked Ms. Halajian about this in argument and she asked me to consider its admissibility as stemming from the fact that LG discussed it in his statement to Det. Goetz. I would reject this argument. LG may have discussed the Jerry Springer show and his conversations with CJ about it, but it was at the request of Det. Goetz in a police interview which the Crown lead as part of its case-in-chief. To permit the Crown to lead bad character evidence simply because it comes out in a statement given by the accused to a police detective would still permit the Crown to lead bad character evidence – just not from the witness box. Put another way, it matters not which way the Crown wishes to lead bad character evidence, it remains bad character evidence. For these reasons, I would not consider CJ's evidence about the Jerry Springer show for the truth of its contents.

[42] That does not end the matter, because I have evidence that CJ discussed the Jerry Springer show with MJ and asked her if LG had propositioned her. This attracts a different legal analysis. One explanation for MJ's understanding of the Jerry Springer show and LG propositioning her is that LG told her just that. But another potential explanation on the evidence is that MJ knew this from her discussion with CJ. CJ's evidence about the Jerry Springer show and her discussion with MJ is therefore admissible not for the truth of its contents, but merely because CJ did tell it to MJ.

[43] The second issue is the use that can be made of LG's statement to Det. Goetz. LG makes exculpatory statements and, the Crown argues, inculpatory admissions too. As a matter of law, when there are both exculpatory and inculpatory portions of an accused's statement, there is no different weighting to be applied to each side of it, see R. v. Illes, 2008 SCC 57 per Charron J. at par. 57. Furthermore, if the exculpatory portion of the accused's statement is believed by the trier of fact, then the accused is entitled to an acquittal, unless it is rejected as being untrue. See R. v. Bucik, 2011 ONCA 546.

[44] Lastly, the Crown has asked me to consider MJ as a child witness, recognizing the inherent problems of young persons testifying. MJ appeared at this trial by way of closed circuit television. On the first day of MJ's testimony she appeared with a support dog which I ordered. On the second day the support dog was not available. Throughout her testimony MJ was articulate and composed. She appeared to me to be comfortable as a witness. She is quite articulate as a person of any age. At no time did I observe her to be susceptible to unusual suggestions in cross-examination, indeed she appeared to be quite able to defend her positions when asked. Her evidence touched on allegations said to occur when she was 12 years old. This is case where I am mindful of the Supreme Court's ruling in R. v. W.(R.), [1992] 2 S.C.R. 122 at par. 27. On this point McLachlin J., as she then was, said that:

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 anew 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. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[45] I therefore charge myself that MJ's evidence is to be assessed according to the criteria applicable to an adult witness. As regards her testimony about things that happened to her in childhood, more peripheral matters such as time and location will be considered in that context.

Assessment of Crown Evidence

[46] Turning now the Crown evidence. Clearly MJ's evidence is pivotal.

[47] Having heard MJ over the course of two days her evidence has frailties, which I would list as being:

1. In testimony before me MJ described separate incidents of inappropriate sexual conduct at the hands of her father LG. The first 9 counts go up to 2013, and the last two in the period between June and September 2015. In January of 2015 MJ gave a statement to the police wherein she was asked about the text messages between herself and LG. She was asked if there was anything going on sexually between her and her father. She was adamant to Det. Weick that nothing inappropriate was happening between her and LG. The whole purpose of that interview was to explore just that. Her contradiction in Court of that statement is an external inconsistency. The fact that the inconstancy strikes at a pivotal issue, namely whether she was abused by her father or not, elevates the weight that I would assign to it. I have considered MJ's explanations for that prior inconsistent statement and that she wasn't ready to disclose. But I also have to consider that Det. Weick was very gentle in repeatedly probing whether anything was going on between herself and her father. I also considered her evidence before me that her lie to Det. Weick was successful because she didn't want the police to do anything, and knew that there was nothing that they could do once she denied the abuse. One explanation for this inconsistency is that MJ was telling the truth in January 2015. Another explanation for it is that she wasn't but was prepared to engage in a level of manipulation as between herself and a police Detective from which would amount to a level of mature duplicity. Considered as a whole this is an inconsistency which I afford considerable weight to.

2. MJ testified before me in-chief that the sexualized content of the text messages as between herself and LG was specific to LG, and that in her view it was grooming. After direct questioning I was given to understand that texting about sex was only something that she did with her father. Cross-examination, however, revealed that she had this type of discussion with other adults, apparently outside the family. She admitted in cross-examination that portions of her evidence amounted to a lie, but not a conscious one, because she did not consider the others adults. In re-examination she went on to explain that, even if the other persons she spoke to sexually were much older than her, they were friends, not adults and her father was an authority figure. Her explanation for the inconsistency is itself inconsistent with the text messages themselves which belie a close, informal personal friendship. Even GJ testified that MJ was setting up LG on a dating web site and sending him romantic leads. The inconsistency about whether MJ communicated with others in the same way that she communicated with LG is not pivotal, but rather central to the Crown case insofar as MJ would have me believe that this was unusual, and the way in which he normalized sexual contact between the two. I would assign this frailty real weight.

3. In her testimony in-chief MJ was asked how she would describe her relationship with LG She said that "…it was pleasant, we weren't particularly close, but there was – it wasn't uncomfortable between us. We got along very well and I saw him on a weekends". This stands in contrast to the evidence that MJ was operating a dating web site on behalf of LG to get him romantic encounters with adult women. It also contrasted starkly with the text message content which speaks of a father daughter relationship with is quite close. This external inconsistency gives me concern that MJ deliberately mis-described the nature of her relationship with LG in her evidence.

4. MJ described a conversation with LG about the Jerry Springer show and one in particular which covered the topic of incest. MJ testified that that was the thing that caused her father to proposition her. While it is possible that LG raised this on his own with MJ for the first time, I cannot reject the possibility on the evidence that it was CJ who raised it with MJ for the first time, and explained to her what it meant.

5. In her evidence MJ said to the police that her reaction to her father's sexual proposition was that she was disgusted because she didn't even know what sex was. In evidence she said that this was not true because she was embarrassed to tell the police the she knew what sex was at age 12. While that may be true, it could also be true, as the evidence shows, that MJ had a sexualized sence of humour from an early age. There is certainly an inconstancy in her evidence on this point.

6. MJ's relationship with her boyfriend D was part of the narrative for a number of reasons. According to MJ it was D who encouraged her to disclose. It was also D who had his own personal demons and apparently needed a place to stay. I find from the evidence that MJ had a growing allegiance to D in 2015 before she went to Europe and after. MJ was a 16 year old driver who did not have a full licence. Despite that, and D crashing the Jeep her father had given her, she told me that D was not a bad driver. That put her at odds with both her mother and father, and at times her sister. The evidence strongly suggests that D was a young man out of control. LG did not want D living with him or driving the jeep he had given to MJ, but MJ thought otherwise. Insofar as D wanted what LG would not give him, namely an ability to live with his daughter and use of her car, D was at cross-purposes to LG. Given that D was apparently a drug addict and crashed her car into a McDonalds LG's concern could not be rejected as unreasonable. I give this frailty weight at the minimal end of the scale but not negligible.

7. MJ seemed to have an interest in pinning a drug charge on LG. I would find that it had nothing to do with the incest allegations before me. Yet I find that MJ seemed to have an animus which extended beyond the logic of her complaint of incest. It is one thing for her to say that she was abused by her father. It is another thing to say that and to say that he also needs to be investigated and arrested for growing marijuana. I would not weigh this heavily, but nor can I ignore it.

8. In her October 2015 statement MJ described the back massaging incident inconsistently than her evidence. In evidence she said LG unbuttoned his jeans while he was on his stomach, although she had told the police that he did that while he was on his back. She also told the police that her father was wearing boxer shorts, but in evidence denied that this was true, saying only that by boxer shorts, she meant men's underwear. This is an inconsistency which would be minimal if there was confirmatory evidence of the incident, but there isn't.

9. In describing the molestation in the Jeep she said in Court that her feet were on the dash, but in her initial statement to the police said it was her knees on the dash. That is an external inconsistency to which I would not have assigned much weight if there was confirmatory evidence, but in this case there isn't. I also identify as a frailty the description of the incident in the jeep. MJ described an incident where LG was driving with his knee while molesting MJ with both of his hands. While that is not impossible, it seems highly improbable that the driver of a car could drive down a roadway at about any speed, without holding the steering wheel while reaching over with both arms, prying open the legs of the passenger and digitally penetrating her without losing control of the car.

10. GJ described her daughter in terms of manipulation. To some extent this was confirmed by CJ's description of her sister as having a history of lying, albeit not for long periods. Applying common sence, I'm not sure whether this evidence of duplicity is more than the norm for a teenager. Regardless, it is evidence that MJ has engaged in duplicitous behaviour in her dealings with her family in the time period in question. In isolation it does not significantly undermine her credibility, though it gives me pause for concern. While GJ had a demonstrable animus towards LG, this would not undermine her evidence about MJ.

Assessment of Defence Evidence

[48] Having reviewed LG's statement to the police, I do not agree that there are any significant contradictions in LG's denials of the allegations. On the contrary, LG comes across as a man with limited academic sophistication, but still a genuine willingness to speak to Det. Goetz. None of the contradictions identified by the Crown rise to the level of being inculpatory. Simply put, LG maintains his innocence throughout a 5 hour interview with a police detective who is continually, repeatedly, probing him about the allegations, each time a slightly different way. He may not have been cross-examined in the interview in the traditional sense, but it was an adversarial situation. He did not deny exchanging text messages with MJ which had sexual overtones, but said that it was their sense of humour. In this sense his description of the text messages fits with MJ's first statement to the police in January of 2015 that the text messages were a form of sexual humour between father and daughter. For these reasons, and the external evidence that MJ was assisting LG in finding a romantic partner on the internet, I find that the text messages were a form of sexual humour between father and daughter. If this statement were given in Court under oath I would find that he was not touched in questioning and be duty bound to acquit on those charges covered by the statement.

Conclusion

[49] I find on the whole of the evidence that there are a number of frailties in MJ's evidence. Some are significant. There is no confirmatory evidence of the allegations and, while that is not necessary in law, it makes MJ's evidence all the more pivotal. I cannot find her to be a credible witness on any of the counts. LG's statement cannot be rejected for its exculpatory value. I have a reasonable doubt about each count and LG is entitled to the benefit of that doubt.

[50] A criminal case is not a credibility contest. It is a trial to determine whether the Crown has proven the charges to the high standard of proof beyond a reasonable doubt. In this case the evidence as a whole, or proof, does not meet that level.

[51] LG is acquitted of all charges.

Released: May 31, 2017

Signed: Justice David Rose