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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

Date: October 24, 2019

Court File No: 18-0072

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

J.M.

Before: Justice Michael G. March

Heard on: March 13 & 14, May 1 & 2, and September 13, 2019

Reasons for Judgment released on: October 24, 2019

Counsel:

Samir Adam — Counsel for the Crown

Marni Munsterman — Counsel for the Accused

Introduction

1. The accused, J.M., stands charged that between June 1, 2017 and December 30, 2017, he did:

   a) for a sexual purpose, touch B.V., a person under the age of 16 with his hand contrary to section 151 of the Criminal Code ("the Code"),

   b) being in a position of trust or authority towards B.V., a young person, touch for sexual purpose directly the body of B.V. with his hand contrary to section 153(1)(a) of the Code, and

   c) commit a sexual assault on B.V. contrary to section 271 of the Code.

The Crown elected to proceed summarily on all charges.

2. J.M.'s trial proceeded before me over the course of five days. It is a classic W.D. case.

3. The complainant, B.V., was J.M.'s stepdaughter. B.V.'s mother, S.V. and J.M. had been in a common law relationship for some seven years or more.

4. In December 2017, B.V. disclosed to her biological father, C.V., that J.M. had touched her inappropriately.

5. Within weeks thereafter, J.M. was charged with the aforementioned offences.

Relevant Evidence: B.V.

6. At the time of testifying on March 13, 2019, B.V. was 14 years of age. She was attending high school in grade 9. She was living with her mother, S.V., at the residence they both once shared with J.M.

7. B.V. liked her school and horseback riding.

8. She understood clearly why she was in court to testify. She acknowledged that she gave a statement to police in New Brunswick in 2017. In fact, the statement was given on January 3, 2018.

9. The statement was audio and video recorded. It was played on consent of the defence in court, and thus formed part of the evidentiary record upon its adoption by B.V. under section 715.1 of the Code.

10. In the statement, B.V. explained that she was in New Brunswick to visit with her father, C.V., over the Christmas holidays. At the time, C.V. was in the military and was based in New Brunswick.

11. Normally, B.V. lived in Pembroke, Ontario with her mother, S.V., and her mother's boyfriend, J.M.

12. C.V. and S.V. were separated and had been for some time.

13. B.V. related that J.M. is a videogame player. He did not have a job.

14. J.M. would want B.V. to play video games with him. B.V. agreed to do so.

15. She would sit on the arm of J.M.'s chair. When she did so, he would go up her shirt.

16. B.V. would try to prevent him from doing so.

17. Even though B.V. did not like being touched in this way by J.M., he was still able to persuade her to come to play video games with him again and again.

18. When he would persist in touching her inappropriately, she would tell him to stop "pretty loud."

19. B.V. testified that J.M. would go up her bra while grabbing her. He used just his hand. It did not go any further than that.

20. B.V. stated that it happened a lot. There was a reprieve when she fell and broke her collarbone. For a while thereafter, she stayed at her grandmother's.

21. However, it resumed when B.V. returned home in August 2017.

22. In providing particulars, B.V. testified that J.M.'s hand would come up her shirt to rub her back. He would then go around to grab her stomach. It was just her chest that he touched with his hand.

23. J.M. would laugh thinking it was a joke. He would say, "I'm just bugging you."

24. B.V. would respond with "no", "stop" and "get your hand out of my shirt."

25. She explained that it was hard to leave when he was holding onto her.

26. B.V. felt really upset and uncomfortable when J.M. would do this to her. She did not tell anyone about it.

27. She went on to clarify that she would be downstairs for hours playing video games with J.M. The inappropriate touching would not be happening the whole time. When he did go up her shirt, she would try to leave, but he would try to convince her to stay.

28. She estimated that the last time J.M. touched her in this manner would have been four or five days prior to Christmas 2017. She arrived in New Brunswick to visit with her father on December 21, 2017.

29. B.V. testified that the lazy boy chair in which J.M. sat to game was pretty big. She would just sit on the arm of it. If he touched her in an untoward manner, she would get loud, scream, say "stop" or squirm out of his way. J.M. would then stop.

30. B.V. stated that he would hold her shirt down. He was strong. He would then go up the front of her shirt.

31. B.V. related that her mother was a blogger. She did not come downstairs. She has not really talked to her mom about these incidents.

32. J.M. and her mother have been together a long time, B.V. pointed out.

33. B.V. recollected that these incidents began occurring when she was 12. J.M. would always try to pass it off as just bugging her, and he would laugh.

34. On other occasions, B.V. recounted instances where J.M. would come into her bedroom late at night and throw her onto the bed just as a game. His hands would again go up under her shirt when he picked her up. He would be holding B.V. by her rib cage. He would nevertheless be touching her chest and her breasts.

35. From time to time, he would sit at the end of her bed to talk about new videogames. The instances however when he came into her room were uncommon. B.V. estimated that this happened only two or three times when she would be getting ready for bed.

36. B.V. stated that he would not be touching his own body when he was touching hers. If she tried to get up to leave, he would grab her stomach or hold her hand to pull her back.

37. On one occasion, J.M. flipped B.V. and put her across both of his knees.

38. B.V. reacted by pushing hard with her hand on his jaw and shoulder. J.M. was angered by this. He closed his eyes. He was breathing hard. It appeared as though he was really hurt as a result.

39. B.V. explained that she disclosed these incidents to her father while they were just talking at the dining room table. He was asking if she was okay. She told him she was not really okay.

40. B.V. was scared because she did not want to go back home to Pembroke. She did not know if J.M. would be there or not.

41. Following her disclosure to her father, his new partner went upstairs to call the police. B.V. believed it was the next day that she went to the police station to give her first statement of January 3, 2018.

42. B.V. further clarified that initially when she was inappropriately touched by J.M., she was not sure what was going on. Later, she came to realize it was not right. It was no joke. He should not be doing that.

43. B.V. recalled that she would eat by herself in her room often. Her mother would eat on the couch. J.M. would take his meals downstairs in his space.

44. Following dinner, B.V. would either stay in her room or go play video games in the basement.

45. B.V. explained that there were two compartments to the basement. On the one side, B.V. had her Xbox and the cats were also kept in that space. On the other side was a laundry room and J.M.'s gaming room. The two areas were separated by a wall and a door.

46. B.V. would go over to J.M.'s side of the basement to try a new video game or to attempt to beat his high score. At times, J.M. would invite B.V. in.

47. B.V. thought the videogaming activity together was fun.

48. Further describing the layout, B.V. stated that the residence she shared with J.M. and her mother, S.V., was a bungalow. There was a door at the top of the first floor with stairs leading down to the basement. It was always closed to keep the cats downstairs where they lived.

49. The door on J.M.'s side of the basement was usually closed. He did not wish for the cats to enter his gaming room. B.V. later testified that the door was closed 100 percent of the time, as was the one at the top of the basement stairs leading to the main level of their house.

50. B.V. was clear that if you yelled loud enough, you could hear what was happening from J.M.'s gaming room.

51. She testified that when you were playing video games, there was nowhere to sit except on the arm of J.M.'s lazy boy chair, or on his knee.

52. Whenever she wished for J.M. to stop touching her inappropriately, she would shout pretty loudly, but her mother never came downstairs. Nor did she talk to her mom much at that time.

53. B.V. related that her mother was often blogging or cooking in the kitchen.

54. Her mother, S.V., would post to her blog while typing on her computer in the living room. When her mother was there, she would be above J.M.'s gaming room.

55. B.V. stated that her mother was usually working. She was most often home. However, B.V. and S.V. were not really close.

56. It was late at night, usually around nine o'clock, that B.V. would go down to the gaming room. Her mother would oftentimes be sleeping by then. B.V. would not typically stay past ten o'clock with J.M. in the gaming room.

57. In B.V.'s January 16, 2018 statement to police, she explained that she was not very smart when the inappropriate touching first began. She was younger. As she got older, she got "better sense". She realized he should not be doing that.

58. In describing her relationship with J.M., B.V. stated that they had a bond. They would do yard work together. J.M. was like a relative to her. They were close, but not close like a father would be to her.

59. B.V. estimated that J.M. would have been around her and in a relationship with her mother for more than five years. She thought that she was approximately nine years of age when she moved to Pembroke away from her biological father, C.V.

60. She stated that she listened to anyone who was older than she is. She would follow J.M.'s direction if he told her to do certain things such as pick up her trash, or do her homework.

61. When B.V. became aware of J.M.'s attempts at touching her in an untoward manner, she started to wear housecoats or onesies. He would not try to go up those, but he would go over top of them to touch her.

62. She explained that she did not tell her mother, because she did not think S.V. would believe her. S.V. liked J.M. He was her boyfriend.

63. B.V. found the prospect of telling her mother what J.M. was doing scary, especially if they did not believe her.

64. B.V. further clarified that her mother would only be downstairs to do the laundry.

65. B.V. recalled instances where J.M. would whisper in her ear when playing video games. That made her feel uncomfortable because he was so close to her. However, he did not do that often. When he did so, she would either be on the arm of his chair or on his knee.

66. She went to the police station in Pembroke on January 16, 2018 because her mother drove her there. She understood that something would happen to J.M. as a result.

67. B.V. maintained that no one told her what to say to the police. She was attempting to be both truthful and accurate in both statements she gave to police on January 3 and 16, 2018.

68. Under cross-examination, B.V. acknowledged that with J.M.'s medicinal marijuana and tobacco use, every hour or so he would go for a cigarette throughout the day.

69. At times, she confirmed that J.M. would be out for a cigarette and back again during the time that she would be in the basement with him.

70. On occasion as well, she would play video games by herself. J.M. would put it on for her, or she would simply watch him play while sitting on the side of his chair. Often, they would take turns.

71. B.V. confirmed that J.M. was like an uncle to her.

72. She denied that there were ever times that J.M. would drive her away. Nor could she remember occasions where he took her swimming.

73. Seldom were there occasions that J.M., S.V. and B.V. did things together as a family. S.V. was always working. J.M. was always playing video games.

74. B.V. conceded readily that there were many occasions over the September to December 2017 timeframe where she would be away at the barn.

75. Prior to the summer of 2017, B.V. estimated that she lived with her mother, S.V., and J.M. for approximately five years. Previously however, she had lived with her father, C.V., in Nova Scotia.

76. Pembroke was where B.V. liked to live. She liked being at the barn with the horses. She had been doing that since she was 11. She estimated that she had been at the barn every day for the summer of 2018.

77. B.V. did not spend entirely two weeks with her grandmother following the fracture of her collarbone in July of 2017. She did confirm that all of August 2017 was spent with her father, C.V. She stayed until almost Labour Day. Then she went back to school.

78. B.V. testified that she was with her grandmother during her period of convalescence because her grandmother cared for her a lot.

79. She recalled that J.M.'s inappropriate touching started after she returned home from the recovery of her collarbone fracture and before her departure to spend the month of August with her father, C.V.

80. It ended around Christmas 2017.

81. B.V. maintained that she did start to wear housecoats and onesies to deter J.M.

82. She understood the reason why J.M. kept the door to his gaming room closed. He did not want to allow for any havoc caused by the cats.

83. B.V. recalled that her mother would come down to the laundry room once per day or perhaps every other day. However, she did not come into the gaming room unless J.M. called her in.

84. At times, B.V. remembered J.M. would call up to S.V. if he wanted her to bring him some food. B.V. surmised that her mother would either be in the kitchen or in the living room whenever he did so. Both J.M.'s gaming room door and the door from the basement to the main level of the residence would be closed.

85. When J.M. made such demands, S.V. would either bring the food to him, or tell him to get it himself.

86. B.V. seemed to recollect that if she was on her computer, S.V. would bring dinner to her there, but usually her mother would call her upstairs to eat.

87. The only game J.M. and B.V. could play together, she recalled, was Minecraft where she could be seated at her computer and J.M. at his. There were several others they could not play remotely.

88. B.V. disagreed that there were differences between the statements she gave to police on January 3 and January 16, 2018. She insisted that they were pretty much the same.

89. She agreed that she did not tell police during the latter statement about J.M. putting her over his knee. However, B.V. explained that the interviewer for the earlier statement had asked her specifically about the last time a touching incident had occurred.

90. She did concede that she just did not think to tell police during her latter statement about the incident where J.M. put her over his knee.

91. B.V. maintained that she told the interviewer during the first statement she gave about all occasions when J.M. put his hands upon her in an untoward manner. She explained that she was answering the interviewer's questions.

92. She agreed nevertheless that she did not tell the interviewer during the first statement about changing the clothes that she wore, for example, housecoats and onesies. She just did not remember to do so.

93. B.V. confirmed that it would have been important to tell the interviewer during her January 3, 2018 statement about touching J.M. did over her clothing. She did not know why she did not.

94. She also conceded that it would have been important to tell the interviewer during her January 3, 2018 statement about J.M. inviting her to lie on the couch with him.

95. B.V. stated as well that she did not tell the interviewer during the January 3, 2018 statement that J.M. laid on the family room couch with her. She only mentioned J.M. flipping her over. However, B.V. explained that the interviewer did not ask for specifics. Nor did B.V. think of it at the time.

96. She maintained that J.M. did touch her inappropriately once or twice on the family room couch. They were watching a program on the DVD player, Doctor Who.

97. When challenged that the flipping over incident did not occur, B.V. was adamant that it did, as did the occasions where J.M. invited her onto the family room couch.

98. As B.V. put it, she wanted to game. She did not want to be touched in an untoward manner.

99. She confirmed that she did push J.M.'s face to get him to stop touching her inappropriately on one occasion. She was aware of the injuries that he suffered during his service in the military.

100. Within the gaming room, she confirmed that there were two TV's and a big lazy boy chair, but she did not remember for sure if there was an ottoman. The office chair, B.V. stated, was outside in her part of the basement (i.e. the family room). She could not recall any other chairs in the gaming room.

101. She agreed that there were several gaming options for her in the family room.

102. In testifying about J.M.'s marijuana use, B.V. stated she did not know why she simply did not ask J.M. or her mother, S.V. about it.

103. B.V. recalled that an incident involving a child protection agency, Family and Children's Services ("F.C.S.") occurred a long time ago. She believed that she was in Grade 6 or 7 at the time. She maintained, however, in raising the issue, she was not trying to get J.M. in trouble. Ultimately, J.M. explained to her that it was a medical prescription he had for marijuana use.

104. B.V. agreed that she could have told her grandmother about the inappropriate touching she was experiencing at the hands of J.M. She did not know why she could not tell her grandmother.

105. When B.V. was touched by J.M., she yelled every time. She said either "Stop" or "Get your hand out of there."

106. She maintained that she did change her clothing after being touched on a few occasions inappropriately by J.M.

107. B.V. was adamant that the office chair was always in the family room section of the residence. It was too big to be brought into J.M.'s gaming room.

108. She denied as well that there was ever an ottoman in J.M.'s gaming room.

109. B.V. agreed that there were more rules imposed upon her at her biological father's residence. J.M. imposed rules too. She spent a lot of time at her grandmother's place to avoid the rules.

110. She confirmed that she stayed up as late as 2:00 a.m. on occasion. She could not sleep. Her mother, S.V., and J.M. would just tell her to go to sleep.

111. B.V. explained that she has a good relationship with her grandparents. It would not be out of the ordinary for her to spend two to three nights with them in the run of the week.

112. B.V. testified that she told her father, C.V., and his partner, S., about the alleged sexual touching at the hands of J.M. the night before she was to return to Pembroke. B.V. did not know if she did want to go back.

113. In Pembroke, she liked the horses. However, in New Brunswick, there were stepsiblings that were closer in age to her.

114. B.V. estimated that the incidents of sexual touching occurred more than 10 times. She insisted that she changed her clothing as a result.

115. She had no explanation for why she told no one prior to December 2017. She agreed that she was with her father and his new partner in August 2017. Equally, she was often at her grandparents' place.

116. She nevertheless insisted that the inappropriate touching she experienced at the hands of J.M. occurred even before August 2017.

117. As B.V. put it, she was not comfortable telling anyone.

118. With respect to the incident where J.M. allegedly flipped B.V. onto her stomach across his knees, she explained that she had her arms outstretched. She thought that J.M. had one hand up her back. She believed that he also put one of his hands underneath the front of her shirt.

119. She maintained that if she were lying on her stomach, she would still be able to lean back and reach J.M.'s face. She agreed that in order to accomplish this, she would have to reach behind herself.

120. B.V. was aware of the injuries that J.M. had suffered to his face. Sometimes, he would grimace because of the pain he was experiencing in his facial area.

121. On the occasions where B.V. said that J.M. restrained her, she explained that he was holding one hand at her waist around her. J.M. was able to accomplish this, she pointed out, because she was sitting on the arm of his chair and pushing her back against it.

122. Regarding her January 16, 2018 statement, B.V. confirmed that she understood it was a criminal offence to lie to the police. She understood this to be true prior to giving the statement as well.

123. B.V. reiterated that she did not remember the very first time she was touched inappropriately by J.M. She simply recalled that his hand went up the back of her shirt. She nudged it off. She did so by leaning around. She then pushed his hand down.

124. She would also use her elbows by putting them behind her back to prevent being touched.

125. Alternatively, she would put the game controller down and push J.M.'s hands away.

126. B.V. agreed that there were instances where she had not told police about occasions of inappropriate touching. However, she explained that she was simply answering the questions asked of her.

127. She maintained that she felt close to J.M. He would give her hugs.

128. She ultimately agreed that her January 3 and 16, 2018 statements were not exactly the same.

129. B.V. did not know what J.M. whispered in her ear on the occasions that he did. She simply did not want him to be near her face.

130. B.V., at the time of testifying, confirmed that she has not talked to her father, C.V., since she made her disclosure to him in December 2017. Her father did not want her to go back to Pembroke. He wanted her to stay with him and his new partner, S.. However, at this point, B.V. did not think her father really wanted her to go back to live with him.

131. B.V. confirmed that on each and every occasion where she was inappropriately touched by J.M., she yelled either "stop" or "don't."

132. She only remembered her mother leaving the home occasionally to get groceries.

133. In speaking of the incidents where J.M. allegedly grabbed her by the rib cage and threw her on the bed, B.V. stated she was not touched in any other way.

134. B.V. explained that she did not think to tell anyone about being touched by J.M. in an untoward manner. Her father was the first person she told.

135. She agreed that she was affectionate toward J.M. She would give him hugs. She would further offer to make him breakfast. She would as well help him with the gardening, the building of the gaming room and attending to the fish tank.

136. She recalled going to the beach with J.M. without her mother. She could not remember which beach they visited. They spent perhaps an hour there. It was warm enough to swim. However, she did not remember more than one single visit to the beach with J.M.

137. B.V. recounted that she would go down to the gaming room if J.M. asked her. There were times as well when she would go hang out in the gaming room with him. It was her decision to do so. She would also hang out with him if he was outside.

138. She disagreed that she went into the gaming room of her own accord on most occasions.

139. She could not recall any conversation she had with her mother and grandmother where she asked about consequences for J.M. Nor did she remember telling her mother, S.V. or her grandmother that she had lied about what she told the authorities J.M. had done to her.

140. B.V. allowed for the possibility that she may have spoken to her mother and grandmother about the incidents involving J.M.; however, she could not remember them.

141. B.V. understood that she could get in trouble if she had lied about what J.M. did to her, but she maintained that what she said he did to her did happen.

142. She could not recall any conversation she had with her father, C.V., or his partner, S., about losing her room at her father's home if she did not live with them. B.V. denied that her father helped her make things up about J.M.

143. Under re-examination, B.V. confirmed that at times when she was in J.M.'s gaming room, she could hear her mother, S.V., moving about upstairs in either the kitchen or the living room. At other times, she could hear S.V. typing.

S.V.

144. The complainant's mother, S.V., met J.M. in 2009 at a friend's party. They entered into a domestic relationship in April 2009. Both were then living in the Chalk River/Petawawa area.

145. S.V. explained that she is a blogger. She creates mostly food recipes. She has a website. The goal is to attract people to it. She started this project in 2008.

146. S.V. has two daughters. O.V. is the older one. The complainant, B.V., is the younger born […], 2004.

147. S.V. and J.M. moved back to Pembroke, Ontario in 2014 after spending several years in Nova Scotia. She testified that the reason for them doing so was because her daughters were not happy living with their biological father, C.V.

148. S.V. described her home in Pembroke as a bungalow. It consisted of a main floor and a finished basement area. She explained that if you entered the side door of the house, the door to the right led to the basement. The side door offered access to the kitchen and the garage as well.

149. S.V. described the basement layout as consisting of a family room, a laundry room and a furnace room. In the family room, there was a TV and DVD player, a desk, a couch and some bookshelves.

150. Typically, B.V. would use the desktop computer located on the desk.

151. Separate from the family room in the furnace room, J.M. had a lazy boy chair, two TV's, collectibles, some shelving, an office chair and a wooden chair. There was also a loveseat and, of course, the furnace and an oil tank.

152. The furnace room was enclosed. You could not see into it from the family room.

153. J.M. always sat in the lazy boy chair. According to S.V., he spent most of his time down there including having his meals in the basement.

154. The door to the furnace room would always be closed to keep the cats out. The cat litter was located in the laundry room area.

155. Similarly, the door at the top of the stairs leading to the main floor from the basement was always closed as well. The cats were not permitted to be on the main floor either.

156. During the summer of 2017, S.V. recalled that B.V. did a lot of horseback riding. As a result, B.V. spent much of her time at S.V.'s parents' place.

157. However, when B.V. was with S.V. and J.M., B.V. and J.M. would play video games together.

158. S.V. testified that that she would not go down to the furnace/gaming room. She would be working most of the day. It was common for her to work from the time she got up at 6:00 or 7:00 a.m. until 6:00 or 7:00 p.m.

159. She explained that she would take breaks to run errands or to have a cigarette once every hour or so for approximately 15 minutes. During pauses from her work, she would tend to the housework, do laundry or have a shower. Like J.M., she too would take her meals at the computer. They did not often eat together.

160. S.V. stated that the house cleaning chores were not equally shared. She did them all. She would go to the bank, pick up groceries, put gas in the car and deposit checks at the bank once every week or two weeks. Sometimes J.M. would accompany her to the grocery store.

161. S.V. explained that J.M. and she did not have much of a social life. She worked in the living room upstairs. He tended to spend his time in the basement.

162. The basement door, S.V. estimated, was some 40 feet from where she would be seated doing her work. Usually, she could not hear what was going on in the family room unless someone yelled, she supposed.

163. To be heard, S.V. testified, you would have to yell "really loud". The furnace made considerable noise.

164. On occasion, S.V. would go downstairs to check on J.M.

165. She could not remember specific times when B.V. played video games with J.M. on his side of the basement. However, S.V. stated that when B.V. was down there, she was mostly with J.M.

166. S.V. estimated that her daughter, B.V., was at horse lessons usually once or twice a week. Correspondingly on those occasions, she would visit with her grandmother. In accounting for B.V.'s time otherwise, S.V. testified that her daughter was either playing video games with J.M. or was in her room with her iPad.

167. S.V. recalled that B.V. broke her collarbone at the end of June or beginning of July 2017. Medically, little could be done to repair the fracture. Following her accidental fall from the horse, B.V. spent considerable time at her grandparents convalescing.

168. S.V. remembered also that B.V. went to visit her biological father, C.V., in Kingston in August 2017.

169. S.V. recalled that it was on December 27, 2017 around 9:30 p.m. that she received a telephone call from her own father with the troubling news that B.V. had told her father, C.V., that she had been sexually touched by J.M.

170. S.V.'s reaction was one of shock. She started to cry. She could not believe what was happening.

171. In response to the situation, J.M. called his mother and asked her to come to Pembroke in order to bring him to New Brunswick. To S.V.'s recollection, J.M. left December 31, 2017. He never returned to the home they once shared.

172. S.V. testified that B.V. never told her anything about what was happening to her at the hands of J.M. S.V. added that B.V. and she did not have a close relationship.

173. S.V. reckoned that the custody battle waged between B.V.'s father and her strained the relationship she had with her younger daughter.

174. S.V. explained that she was closer to B.V. when she was younger.

175. S.V. reminisced that B.V., when she was in the custody of her father, would visit her every other weekend. They would sleep in the same bed together, watch movies and do recipes together.

176. With news of the alleged sexual touching, S.V. called her lawyer. She travelled to New Brunswick where C.V. was living in January 2018 to enforce the Final Order of the Family Court which she had in hand stipulating that their children's primary residence was to be with her. Accordingly, B.V.'s father, C.V., was forced to return their younger daughter to S.V.

177. Upon her return to Pembroke, B.V. gave a second statement to police about the sexual touching incidents. The authorities actually phoned S.V. and asked to have B.V. brought into the police station. S.V. obliged.

178. S.V. told her daughter, B.V., to just tell the truth.

179. When questioned again about the ability to hear from upstairs what was occurring in J.M.'s man cave below, S.V. reconfirmed that she did not think you could hear. She surmised that if he yelled really loudly, maybe she would be able to hear him.

180. S.V. conceded that she has no relationship with her former partner, C.V. However, she thought that B.V. might still text him.

181. Initially, S.V. thought that C.V. had come up with a ploy to keep B.V. with him in New Brunswick, and that he was making her stay with him.

182. Upon her return to Pembroke, B.V. seemed to be fine to S.V.'s mind. B.V. was going to school. She was hanging out with their friends. It was not until a month before the commencement of this trial that S.V. noted that B.V. was stressed.

183. S.V. made clear that she did ask her daughter, B.V. about the incidents, but B.V. would not talk to her mother about them.

184. S.V. acknowledged that in the furnace room/gaming room, there was a big brown lazy boy chair to the left of the door in which J.M. always sat. There was also a leather chair all scratched up by the cats beside J.M.'s which she had since thrown out. Additionally, there was a wooden chair, which stayed by the furnace.

185. S.V. was not sure whether she saw B.V. playing video games in the furnace room/gaming room with J.M. only one time or more. However, when she did, B.V. was sitting in her own chair either watching him play video games or playing herself.

186. S.V. confirmed that she still talked to J.M. up until November 2018. They were not long conversations. She still cared for him at that point. She could not wrap her brain around what had occurred. She did not know what to think.

187. S.V. felt guilty. She did not believe B.V. right away. S.V. thought that perhaps her ex partner, C.V., was behind all of this.

188. Under cross-examination, S.V. confirmed that B.V. was only about five years old when S.V. and her former partner, C.V., separated in April 2009, S.V. believed. B.V. stayed in Chalk River mostly with her father. She would come to J.M.'s place in Petawawa with S.V. and him to visit and to sleep over sometimes.

189. Occasionally, S.V. would visit her daughters in Chalk River as well.

190. In July 2009, J.M. moved to Middleton, Nova Scotia. S.V. went with him.

191. At that time, S.V. thought that her daughters would be better off with their biological father, C.V. Like J.M., S.V. suffers from a chronic pain condition as well.

192. Later in 2009, C.V. sold the house he owned in Chalk River. As a military member, he went on tour overseas for a period of six months. Thereafter, S.V.'s daughters stayed at their grandparents' place. They remained there for two years.

193. C.V. later moved to Nova Scotia, the next town over from Middleton where J.M. and S.V. were living.

194. S.V. explained that once C.V. was in Nova Scotia, their daughters moved there with him.

195. Thereafter, B.V. would come to visit J.M. and S.V. every other weekend. The older daughter, O.V. did not come to visit very often.

196. S.V. estimated that for two years both families, C.V.'s and hers, lived close by in Nova Scotia. However, it was at their father's where the children were primarily resident.

197. When J.M. and S.V. moved to Pembroke, it was not long after, perhaps within a few weeks, that the children wanted to move back to Ontario as well. In June 2014, they came to live with J.M. and S.V.

198. In 2015, S.V. recalled that C.V. and she were in Family Court. Prior thereto, there were no court orders in place regarding custody of the children.

199. Eventually, S.V. obtained a Final Order granting joint custody to both C.V. and her, but the primary residence for the children was to be with S.V.

200. With respect to drug use in the home, S.V. remembered that a child protection worker came and spoke to J.M. and her some years back. The agency had a picture of a bong, but S.V. did not see it.

201. S.V. described the office chair in J.M.'s man cave as having wheels on it. It was easy to move. It was not always in the gaming room/man cave/furnace room. There were occasions when it was situated in the family room. S.V. could not recall when it was moved out there from the gaming room.

202. S.V. conceded that there may as well have been an ottoman in the gaming room. As S.V. put it, she was not in the gaming room a lot.

203. To S.V.'s recollection, her daughter, B.V., spent roughly 5 days per week at her grandmother's place during the summer of 2017. It was not out of the ordinary for B.V. to have spent that much time at her grandmother's over that period and over the course of previous summers as well.

204. During the school year, B.V., of course, spent less time at her grandmother's.

205. Following her horseback riding accident, B.V. spent approximately one week at her grandmother's in S.V.'s estimation.

206. Additionally, B.V. spent about a month (i.e. August 2017) away with her father. She did return to Pembroke before the end of August however.

207. During the school year, S.V. estimated that B.V. would spend roughly a day or two on average per week with her grandparents. There was never any regular schedule followed in that respect.

208. S.V. reemphasized that she did not have a positive relationship with her former partner, C.V. She described it as an abusive relationship emotionally, not physically.

209. Her common law relationship with J.M. lasted for nine years. It began when he still lived in his home in Chalk River. She started staying over with J.M. near the end of her relationship with C.V. Later, she moved in with J.M.

210. At that point in time, S.V. left her children in the care of C.V. He was then posted as a military member to Nova Scotia. The children went with him. S.V. and J.M. lived close by. S.V. enjoyed contact with the children regularly as a result.

211. Subsequently, C.V. was posted to Kingston, Ontario. S.V. continued to have communication with the children. S.V. did not believe that the children were happy in Kingston. Soon after moving there, they joined S.V. and J.M. to live with them again in Pembroke, Ontario.

212. As S.V. explained, B.V. still considers Pembroke, and her mother's residence, as her home base. The Pembroke area was also where her grandparents live.

213. J.M. and S.V., upon their return to Ontario from Nova Scotia, have always lived at the residence S.V. acquired in Pembroke. J.M. had retired from the military. He was assisted by the military with his final move to Pembroke.

214. As S.V. candidly put it, "[J.M.] moved here for my daughters and me."

215. S.V. recounted that J.M. liked to isolate himself in his man cave in the basement of their Pembroke home. He spent most of his time there. The pain he was experiencing in his face motivated his retirement and the need to seclude himself.

216. On the issue of places to sit in the gaming room, S.V. recalled that there was:

a) a big lazy boy chair,

b) an office chair, and

c) a wooden, kitchen table chair.

217. She vaguely recalled a black ottoman being in the man cave/furnace room/gaming room as well.

218. She confirmed that the furniture always stayed in this room. Typically, J.M. would be in his lazy boy chair. B.V. would be in the office chair.

219. S.V. estimated the dimensions of the room to be 12 feet in width by 15 to 20 feet in length.

220. She would check periodically on B.V. and J.M. when they were down there. S.V. would go into the laundry room. She did the laundry virtually every day. Sometimes, she would go down to let them know that supper was ready. Very rarely, however, did they have their meals together.

221. S.V. did not check on them every time she went downstairs.

222. Most of the time, she ate separately from them while blogging. J.M. would be in the gaming room. B.V. would either be in her room or the family room.

223. S.V. maintained that she always knew B.V. was in the house, but not necessarily where exactly.

224. S.V. could not ever recall a single occasion when J.M. would be watching TV in the family room with B.V.

225. S.V. reconfirmed that B.V. never disclosed any of the allegations to her prior to S.V. receiving the fateful news on December 27, 2017 that something untoward may have happened.

226. When the news came in, B.V. was in New Brunswick. Her father, C.V. had arranged for her to return to the Pembroke area on a military flight on December 28, 2017.

227. S.V. explained that she had reservations sending B.V. out east to visit her father. S.V. was apprehensive because B.V. did not have a flight back on a commercial airline.

228. As S.V. put it, it was always in the back of her head that B.V. would not be returned.

229. For three to four years, S.V. had her Final Order from the Family Court in place. S.V. and her children were to be primarily resident with S.V., while C.V. had specific visitation rights spelled out.

230. J.M. left for New Brunswick to live with his parents on December 31, 2017. His family came to pick him up.

231. Thereafter, it was S.V.'s intention to go back to Family Court to have her Final Order enforced.

232. In S.V.'s mind, it was J.M.'s intention never to return to Pembroke irrespective of the outcome of any potential criminal charges being laid against him, whether he was found guilty or not guilty.

233. At the point in time when the disclosure was made by B.V., S.V. did not have any conversation with C.V.

234. When S.V. went back to Family Court to have her Final Order enforced, she let it be known that J.M. had left their residence. The Court then ordered that B.V. be returned to S.V.

235. From S.V.'s perspective, B.V. came back to Pembroke a different person. B.V. was very quiet. She did not talk much. This concerned S.V. Consequently, S.V. took B.V. to counselling.

236. S.V. added that B.V. did stay at her grandparents' house for a significant period over the summer of 2017. B.V. was there at least once per week.

237. Around the end of June or beginning of July, after B.V. broke her collarbone, she spent a whole week at her grandparents' place.

238. During the school year, by contrast, B.V. would spend at most 1 to 2 nights per week at her grandparents' residence.

239. Over the time frame of June to December 2017, S.V. reconfirmed that she spent seven days per week working from early morning until late in the evening.

240. When S.V. took breaks from her work, she would cook and clean. Occasionally, she could hear J.M. calling upstairs for something to eat. The furnace was loud but she could hear his muffled voice. Even in the summertime, the furnace would be running, as it was equipped with a central air conditioning system.

241. She could not ever recall a single occasion where B.V. called up like J.M. for food.

242. S.V. conceded that B.V. was in the gaming room with J.M. a lot. S.V. did not really pay much attention to the whereabouts of B.V. Her daughter was not her focus to that degree.

243. S.V. was not sure whether she checked in on J.M. or B.V. daily.

244. S.V. could not ever recall an occasion when J.M. asked B.V. to join him in the gaming room.

245. S.V. did remember one occasion or more when she called J.M. upstairs to help her in dealing with B.V. It would have been after 9:30 PM. She summoned J.M. to help her because B.V. seemed to listen to him.

246. S.V. would not have labelled J.M. a disciplinarian. It was simply that B.V. knew that her mother was soft-hearted.

247. Most of the time J.M. was better than her at having the rules followed by B.V. However, S.V. clarified that it was only in adhering to an appropriate bedtime where B.V. presented a behavioural challenge to her.

248. Reflecting back, S.V. was able to determine that B.V. was only 12 years of age during the summer of 2017.

249. Through the summer and fall of 2017, S.V. did not notice anything different about B.V.'s dress. Nothing stood out for S.V. as a mother.

250. At the same time, S.V. testified that she could not say, of course, what B.V. was wearing around the house two years ago. B.V. did have onesies, but S.V. could not confirm that she was wearing them more often. As S.V. put it, she was not paying attention to that.

251. However, S.V. made it clear that if B.V. started dressing provocatively, S.V. would have noticed that.

252. S.V. reiterated that she found it hard to hear what was going on downstairs with the noise of the old furnace. She agreed that she had probably hollered down to J.M. on occasion, "Get your own food."

253. B.V. has not gone back to New Brunswick, S.V. clarified, since she made her disclosure to her father about the alleged sexual touching. Nor has B.V. said anything about wanting to go back to New Brunswick.

254. S.V. explained that B.V.'s school and friends are in Pembroke. She enjoys and is busy with her activities.

255. S.V. conceded that this was so even though B.V. and she are not particularly close.

256. Following S.V.'s return to Pembroke in January 2018, S.V. was able to cut back on her work hours. She did not spend the entire day on the computer. She was working instead 30 to 40 hour per week.

257. In the past, S.V. was trying to build up her website. She brought it to a point now where it did not require as much of her time to maintain.

258. When questioned about whether S.V. ever saw B.V. on J.M.'s lap, S.V. could not recall that she ever had.

259. S.V. agreed as well that J.M. had his lazy boy chair positioned up against a wall.

260. She conceded that she did not keep tabs on B.V. and J.M.

261. S.V. did not keep track of how many hours B.V. spent playing video games with J.M.

262. S.V. remarked that B.V. never seemed to get back to herself upon her return to Pembroke in January 2018. She would throw big temper tantrums on occasion. S.V. did not know what happened to cause this.

263. Again, S.V. reiterated that B.V. never gave her any details about the alleged assault upon her.

264. S.V. recalled that there were times when J.M. would not come up to bed at all at night. He found it hard to sleep with his nerve pain according to S.V. Consequently, S.V. just left him be.

265. With respect to J.M.'s marijuana use, S.V. reckoned he had had his medical prescription for the drug for approximately three years before the matter was reported to F.C.S. In S.V.'s view, her daughters were never really aware of his use of marijuana.

266. S.V. could not recall J.M. ever smoking marijuana outside the home. She testified that he did so in the basement.

267. Following the visit from F.C.S., S.V. sat B.V. down to explain the reason for J.M.'s marijuana use. B.V. understood that J.M. experienced considerable pain. It was visible the grimaces he would make with his face. S.V. confirmed that J.M. did have sensitivity to being touched in the facial area.

268. On one occasion, S.V. recalled an instance where she telephoned J.M. to tell him that she was not sure whether B.V. would go through with testifying against him in court. B.V. was nervous about being a witness. Police scared her as well.

269. She explained that she still cared for J.M. at the time that telephone call was made.

270. She also confirmed that she had a cleaning lady, who would have started working in S.V.'s home a few months before J.M. left for New Brunswick. The cleaning lady would be present in her home for four hours of the day once per week.

271. To S.V.'s recollection, her former partner, C.V., was also approximately $10,000 in arrears of his child support payments in the summer of 2017.

272. She conceded that she did not remember seeing B.V. and J.M. in the family room on the computer together or watching TV together. Nor did S.V. ever notice them laying on the couch together. She thought she would remember that if she had.

273. Indeed, S.V. thought that B.V. and J.M. got along together quite well.

274. At the same time, S.V. could not remember J.M. ever complaining to her about B.V. being too affectionate toward him. She allowed for the possibility that he did, and that she may have forgotten he had.

275. She did remember occasions where B.V. and J.M. went to the beach, but that was not very often. What they did most often together was play video games. B.V. liked playing with J.M. in S.V.'s estimation.

276. She could not ever recall hearing B.V. shout from J.M.'s gaming room, "Stop" or "Get your hands out of my shirt."

277. S.V. recalled that B.V. did have a housecoat, but S.V. could not recall any change in the pattern of B.V. wearing it.

278. Under re-examination, S.V. testified that J.M. dictated what was kept in his man cave/gaming room. He could do what he wanted with the stuff in there.

279. S.V. clarified that J.M. called his mother on December 28, 2017, the day after S.V. learned of the allegations against him made by B.V. That is when J.M. told S.V. he was leaving.

280. He packed his computer, his TV and some clothes. He left behind the majority of his belongings. However, he told S.V. he was not coming back.

281. S.V. stated that B.V. was not a problematic child. Most children have problems with bedtime. B.V. was not difficult to discipline.

282. S.V. clarified that she could not remember J.M. complaining to her about B.V. being too affectionate. S.V. did not think it was a concern.

J.M.

283. At the time of testifying on May 2, 2019, J.M. was 43 years of age. He now lives in Sackville, New Brunswick with his mother. He has been there since he was granted bail in January 2018.

284. Previously, J.M. had lived in a single-family dwelling in Pembroke, Ontario with S.V. and B.V.

285. J.M. is currently retired. He had been medically discharged from the military after a 12 year career.

286. J.M. suffers from a plethora of physical ailments. He has been diagnosed with a condition called trigeminal neuralgia.

287. The condition caused J.M. such pain that he was unable to sleep at night. This interfered with his ability to work during the day in his trade as a carpenter in the military.

288. J.M. described the pain he suffers as the worst known to man. He copes with it daily.

289. In attempting to describe the severity of his discomfort, J.M. likened his condition to a toothache or an earache multiplied by ten.

290. To manage his pain, J.M.'s secludes himself. This keeps him calm and away from stressors. He uses medicinal marijuana as well. He does not use any other drug to offer him relief.

291. In addition to trigeminal neuralgia, J.M. has a pinched sciatic nerve in his back, a bad left knee and what he believes is arthritis in his left shoulder.

292. In terms of mental health, J.M. has been diagnosed with posttraumatic stress disorder, major depression and anxiety.

293. On occasion, J.M. has problems with his memory. He will read something, but cannot remember what he had just read. He also has a hard time recalling events in chronological order.

294. His difficulties with recollection cause him frustration. In turn, his anxiety level rises.

295. J.M. testified that he lived in Nova Scotia for a period of four years in the recent past. He moved back to the Pembroke/Petawawa area for S.V.'s sake.

296. All of J.M.'s children, a daughter aged 20, and two sons aged 17 and 15, live with their biological mother, J.M.'s former partner, in Nova Scotia.

297. J.M. had been posted to Garrison Petawawa in past years. Not long after S.V.'s and his return to the Pembroke/Petawawa area, S.V.'s children came to live with them.

298. From the time that S.V. and J.M. became a common law couple, they never lived apart until the aforementioned criminal charges were laid against him.

299. Upon moving into their home in Pembroke, J.M. built a wall in his basement to create a gaming room/laundry room.

300. In his gaming room, J.M. usually sat in a lazy boy chair. It helped him with his back pain.

301. He pointed out that there were other places to sit. There was a number of chairs from a maple dining set given to him by his mother. There was also an ottoman and a computer chair on rolling casters.

302. J.M. explained that both the computer chair and ottoman were situated within the gaming room so that they could be used. He also had a TV on a dresser for watching movies and gaming. There was a second TV on a nightstand beside the dresser where he would watch Netflix.

303. On a direct line of sight from the lazy boy, the ottoman or the office chair, the viewer could see both TVs.

304. J.M. recalled that he spent many of his days in his gaming room. He either played his videogames or watched movies. He did not want to disturb S.V., his partner, while she was working.

305. However, he would go upstairs all day long. He was a smoker. Whenever he would engage in this habit, he went outside. As a rule, smoking was not permitted in his home.

306. Once a week, or every other week, J.M. estimated, B.V. would come down to game with him over the course of the summer of 2017. She came more often previously, but during that summer, she was not often home.

307. B.V. had lots of activities. She was very much involved in horseback riding.

308. When she engaged in this pastime, she often stayed at her grandparents' home.

309. J.M. added as well that B.V.'s grandmother would often come to his place unannounced in order to clean B.V.'s room as well as her sister's, O.V.

310. Furthermore, B.V. often overnighted at her grandparents' residence, J.M. recalled, during that timeframe. To J.M.'s recollection, this occurred three nights per week.

311. Around the end of June or early July 2017, J.M. related that B.V. fell and broke her collar bone. Following this event, B.V. stayed more often at her grandparents' residence. J.M. recalled seeing B.V.'s arm in a sling on a couple of occasions thereafter. As he put it, it seemed as though B.V. did not live at home anymore after she broke her collar bone.

312. In September 2017, the household routine returned to normal. B.V. was back in school. She would still be at her grandparents' residence on occasion, but not with the same frequency.

313. B.V. would come down to play videogames with J.M. To his recollection however, they did not watch movies together. Nor would he spend time with her in the adjacent family room. He denied he ever laid on the couch with her.

314. J.M. explained that he did engage in occasional horseplay with B.V. on the couch in the family room some two years before 2017. Those would be brief, 5 to 10 minute sessions. B.V. liked to jump on him; however, the couch was soft. It was too painful for J.M. to remain there for very long.

315. J.M. testified that when B.V. wanted to game with him, she would simply open the door and walk in. He never specifically invited her.

316. J.M. did nevertheless show B.V. how to play videogames interactively with him from her location at her computer in the family room.

317. On the occasions when J.M. and B.V. played video games in his gaming room, he would be in his lazy boy chair. B.V. would either sit in the computer chair or more often on the ottoman. Occasionally, she would sit on throw pillows placed on the floor.

318. The rare time, J.M. remembered, B.V. would sit on the arm of his lazy boy chair. While there, she would play videogames with him, but her usual position was on the ottoman.

319. J.M.'s partner, S.V., would check in daily with him to ask what he was doing or whether he would like something to eat. Sometimes, of course, S.V. would see B.V. in the gaming room with him.

320. J.M. did recall that on at least one occasion, B.V. sat on his knee or in his lap area in the June to December 2017 timeframe. He did not invite her to do so. Indeed, he dissuaded it.

321. J.M. asked B.V. to just sit in her chair because she was crowding him.

322. Those times when B.V. was seated on the arm of his lazy boy chair or in his lap area, he would ask her to get off. It would hurt his leg, which would start to ache. However, B.V. would tell him she was busy at the moment. She would lean back. He would place his hand upon her back to prevent her from contacting his shoulder.

323. Subsequently, he would use his left hand to push her away from him and forward while saying, "Time to get off."

324. J.M. explained that his leg would be hurting. He added that he felt "awkward" because of her age.

325. J.M. denied that he ever pulled B.V. off the arm of his lazy boy chair into his lap. Nor could he recall an occasion where he had B.V. laid across his lap.

326. In terms of the gaming room's configuration, J.M. stated that his lazy boy chair had its right side pressed against the wall or within an inch of it. If B.V. sat on his chair, it was always on the left side.

327. J.M. vehemently denied that he ever put his hand up either the front or back of B.V.'s shirt. He never touched her inappropriately. Nor did he ever restrain her from getting up off of his lap when she was seated there.

328. Further, he was adamant that on no occasion had he ever held her with one hand, while using his other to place it underneath her shirt. He never placed his hand in her chest or her breast area. He never held one of her breasts.

329. He described his relationship with B.V. as a normal one. He described it as one of father and daughter. That is how he regarded her.

330. J.M. recalled that B.V. was affectionate toward him. She would hug him every day.

331. He explained he did so even though he has a hard time showing affection towards his own children. He does hug them, but he feels awkward when he does because they were sexually assaulted. They were the victims of abuse committed by his co-worker's son.

332. J.M. reflected that he did not know how to act around his own children anymore. He did not know why he felt uncomfortable being in their presence and hugging them.

333. In clarifying how he was able to hug B.V. on a daily basis, he related that at the start of his relationship with her, he felt awkward, but with them doing it repeatedly, it became normal.

334. Overall, J.M. described his relationship with B.V. as a good one. Once or twice he brought her to the beach. She would invite him to go swim at her grandparents' pool; however, by that point, J.M. sensed that her grandmother (i.e. his quasi mother-in-law) did not like him. He told B.V. he could not partake in this activity with her due to his disabilities.

335. Once or twice a week, J.M. would sit on B.V.'s bed to ask if she had done her homework. He would knock on her door before entering. Those interactions he estimated took only one to two minutes. He denied he ever picked her up around her rib cage and put her on her bed.

336. J.M. was adamant that he never touched B.V. inappropriately in her bedroom.

337. He learned of the allegations made by B.V. against him regarding sexual touching in late December, 2017. His partner, S.V., told him about them. B.V.'s biological father had spoken to S.V.'s mother. Word then trickled back to S.V.

338. J.M. did not know why, but he thought it was rape that B.V. was alleging.

339. Right after finding out, J.M. called his parents in New Brunswick. He told them about the allegations. Speaking to S.V. about the situation, he knew he needed to leave Pembroke. Otherwise, he was worried that S.V. would not get her child back if he remained in the household.

340. J.M. explained that it was the hardest decision he had to make leaving his spouse, but he did not think he did anything wrong. He left in order for B.V. to be able to return.

341. He added that he was going to visit his family in New Brunswick in any event. He was to leave on December 28, 2017 upon B.V.'s return to Pembroke, so his partner, S.V., would not be alone at Christmas time.

342. It was J.M.'s plan to drive his truck some 15 hours to be with his family in New Brunswick. However, with news of the allegation made by B.V., he knew he would not be able to drive himself. The shock and the anxiety would cause flareups to his trigeminal neuralgia.

343. Consequently, J.M.'s mother and uncle came to Pembroke to collect him.

344. When J.M. left for New Brunswick, he did not take much with him. He brought a TV, his computer, a suitcase full of clothes and some toiletries. He was only planning to stay a week out east.

345. This plan changed when he learned more about the allegations made by B.V.

346. At that point, he knew he was not going to go back to his home he shared with S.V. in Pembroke if B.V. was there. His only option was to stay with his parents. He did not want to see B.V. anymore. He could not believe she would say the stuff she did.

347. J.M. told S.V. where he was going. She had his phone number. He told her to tell the police where he was.

348. To J.M.'s mind, he had no family, no friends and no reason to stay in Pembroke.

349. He speculated that C.V., B.V.'s biological father, was playing the game of trying to get his daughters back.

350. After he was in New Brunswick a short while, J.M. sought counsel from a lawyer. Then he went to the Sackville RCMP detachment to see if there was a warrant for his arrest. He estimated that this would have happened in the first week of January 2018.

351. There was no warrant at that point in time. J.M. left his new address and telephone number with police, should there be one.

352. Eventually, J.M. received a call from the police. He turned himself in. He was arrested. He was brought before a judge in Moncton, and thereafter to Pembroke, where he obtained cash bail and was released on conditions. He returned by bus to New Brunswick to live with his parents.

353. It was not until October 2018 that J.M. came back to Pembroke to collect his property.

354. In terms of J.M.'s location while gaming within the house he shared with S.V., he explained that she would be at her computer working right above him.

355. From downstairs in his gaming room, he would sometimes yell to her to ask her to bring some food to him. She was able to hear him and vice versa.

356. J.M. adamantly denied that at any point in time did B.V. yell at him to "stop", or "no", or "get your hands out from under my shirt", or "get your hands off me".

357. Equally, he denied ever saying to B.V. words to the effect of "I'm just bugging you", as an attempt to excuse any inappropriate touching.

358. J.M. stated he never grabbed B.V.'s stomach to enable himself to put his hand up her shirt or under her bra.

359. He reiterated that he never flipped her so that her stomach was on his knees. He stated that there was no occasion where she ever reached back and pushed on his face to get away from him.

360. In his gaming room, J.M. testified that the office chair was there for at least a year and a half before he moved out. The ottoman was in there as well.

361. J.M. was clear that he never asked B.V. to come into his gaming room to play video games with him.

362. He explained that he had a difficult time with B.V. getting her to go to bed at a reasonable hour. She would stay up until all hours of the night. He could not take her iPad away from her. If he did, he explained, her grandmother would intervene.

363. J.M. recalled times when he would reach into B.V.'s room to turn off the light at approximately 2:00 a.m. on occasion. She would not be happy when he did so.

364. He stated that he never used marijuana in front of S.V.'s daughters. He usually smoked it in the garage. In winter, he would blow the smoke into the furnace duct system, so that the house would not reek of pot.

365. When the child protection agency, F.C.S. investigated J.M.'s marijuana use, he spoke to his partner, S.V.'s older daughter, O.V. He stated that she claimed she was unaware that he was even smoking it.

366. To deter B.V. from spending time with him in his gaming room, J.M. would play Star Trek episodes on his TV. This would bore B.V. and she would soon after leave.

367. J.M. explained that he did not want B.V. around him after F.C.S. investigated his marijuana use.

368. He added as well that he made and enforced rules at the house he shared with his partner S.V. She did not have any.

369. Under cross-examination, J.M. confirmed that he disagreed with B.V.'s version of events.

370. Essentially, the only thing he accepted from B.V.'s evidence was that she was born in 2004.

371. He agreed that he took on the role of a stepfather. If he told B.V. to do something, he expected her to do it. He wanted to impose discipline and structure.

372. J.M. conceded, of course, that he was physically stronger than B.V.

373. He spent most of his time in his man cave/gaming room. Typically, he would keep the door to this room closed. He did not want their pet cats in the gaming room.

374. Due to his PTSD, J.M. tended to play military and warfare type video games. As he put it, they were "hyper real". He saw this as a means to desensitize himself.

375. J.M. agreed that whenever B.V. and he played video games together, the door would be shut.

376. Initially, he explained, they got along. They had a bond.

377. J.M. would take B.V. to the beach. There were no issues between them.

378. No real problem existed between them until December 27, 2017.

379. He agreed that he was a father figure to her. They had a good relationship. However, he denied that he ever invited her into his gaming room to play video games.

380. J.M. explained that he felt as though B.V. was imposing herself on him when she came into his gaming room.

381. He conceded that marijuana has intoxicating qualities.

382. He agreed as well that he did engage in horseplay with B.V. He would pick her up, but that was when she was younger and smaller. His injuries post 2014 prevented him from doing so any more.

383. He stated nevertheless that B.V. remains a slight, slender girl. He was cognizant of that fact. However, he was adamant that he never touched her inappropriately. Nor did he ever go up her shirt.

384. He testified that putting his hand up the shirt of a young girl such as B.V. would not be funny regardless of whether it was above or below her clothing. He denied that this ever occurred incidentally or accidentally.

385. J.M. acknowledged that he did intend to drive himself in his truck some 15 hours from Pembroke, Ontario to Sackville, New Brunswick. He could get out, he explained, to stand and stretch in order to offer relief for his back. He knew he was capable of making such a lengthy journey by car.

386. He agreed that he could sit on the couch in the adjacent family room to his gaming room. However, he just did not go on that couch. He reconfirmed that he never invited B.V. to come from the family room into his gaming room.

387. J.M. offered that there were a few times that B.V. sat on the arm of his lazy boy chair. She sat on his knee once. On these occasions, no one else was in the gaming room with them.

388. He explained that when she did sit on the arm of his chair or on his knee, it was against his wish. He protested and wanted her away from him. She initiated the physical contact.

389. J.M. proclaimed that he was concerned about that type of contact. He felt it was inappropriate. As he put it, there was a "... physical relationship starting there."

390. This made him feel uncomfortable. To J.M.'s mind, she was a little too old to sit on his knee. He raised his concerns with S.V., he maintained.

391. J.M. was clear that the video gaming that he did with B.V. was always at her initiation. Any close physical contact between them was at her instance as well.

392. He explained that B.V. was 11 or 12 years of age by that point in time. He was the disciplinarian and rule setter. Yet she initiated. It was not him.

393. Whenever B.V. engaged in such conduct, J.M. would push her off. B.V. would become upset. She would say words to the effect of "... hey, I just want to sit on your knee and play the game."

394. J.M. agreed that he did build a wall in order to create a space to do his gaming.

395. Following B.V.'s disclosure of the alleged inappropriate touching to her biological father, C.V., J.M. maintained that he did not really expect the police to become involved.

396. Yet he did leave contact information for his partner, S.V., in case police did call. He wanted the police to be told where he was.

397. J.M. was not sure when he became aware exactly as to when a warrant for his arrest issued. He only went back to Ontario when he knew there was a Canada wide warrant for his arrest.

398. J.M. confirmed that he spent more time with B.V. than his partner, S.V. did. Most of the time that J.M. and B.V. shared together was video gaming.

399. When B.V. broke her collarbone, J.M. confirmed that she spent a while at her grandparents before returning home. She then went to see her father during the month of August away from Pembroke. After that, she began her school year.

400. Whenever B.V. was at home, she spent most of her time in her room, outside or playing video games. Whenever J.M. and B.V. played video games together, it was in the man cave/gaming room. The door was shut. S.V. was upstairs. However, there was always someone in the house.

401. J.M. reiterated he never held B.V. down, although he agreed he was physically capable of doing so. Any roughhousing, hugging or sitting on his knee, he maintained, was all was at her initiation.

402. J.M. testified that he would tell her to stop, to give him his space, not to do what she was doing, but he did not ever tell her he did not want her near him.

403. J.M. was clear that he raised his concerns with B.V.'s mother, S.V.

404. Under re-examination, J.M. clarified that his videogame was not set at a particularly loud volume. He was still able to communicate with S.V. when she was upstairs.

405. The only videogame which J.M. and B.V. could play through linking separate computers was Minecraft.

Issues

406. The evidence adduced at trial raises the following issues:

a) Do I believe the evidence of J.M.?

b) Am I left in reasonable doubt by the evidence of J.M.?

c) Even if I am not left in doubt by J.M.'s evidence, am I convinced, on the basis of the evidence which I do accept, beyond a reasonable doubt by that evidence in J.M.'s guilt?

The Law

407. As previously mentioned, and as the issues articulated above clearly suggest, this is indeed a classic W.D. case. The credibility of the witnesses called at J.M.'s trial are key to the outcome of the case.

408. However, as trier of fact, I must not lose sight of the nature of the Crown's case against J.M. It rises or falls on the assessment I give to the credibility and reliability of the evidence of a child witness, B.V., who at the time of testifying was 14 years of age, but who at the time the material events did or did not occur was either 12 or 13 years of age.

409. I must, of course, weigh the evidence of all witnesses a whole before making any determination as to the credibility of each of them.

410. In R. v. A.M. (2014) ONCA 769, the Court of Appeal for Ontario offered the following principles for consideration to guide trial judges:

"[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134.

[10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.

[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, [1962] S.C.R. 469.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[14] Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay (1994), 93 C.C.C. (3d) 456 (B.C.C.A.), at p. 471."

411. I shall, of course, adhere to these principles in weighing the fullness of the evidence adduced at J.M.'s trial, as I resolve the issues raised.

Analysis

Do I believe J.M.'s evidence?

412. I do not believe J.M.'s evidence for several reasons.

413. Firstly, J.M. testified that when B.V. sat on his lap, on the one clear occasion he could recall, it made him feel "awkward". While I appreciate that J.M. may be sensitive to physical contact with a child given the experience of his own biological children as sexual abuse victims, he remained in control of where B.V. ought to sit.

414. J.M. stated himself, and S.V. confirmed, that he controlled what furniture was in his gaming room. If, as J.M. maintained, the office chair and ottoman were always in his gaming room, it defies logic why he, as a disciplinarian for B.V., could not have established a simple rule that she, when gaming with him, would have to sit somewhere else other than the arm of his chair or his lap.

415. B.V.'s feelings would not be hurt if he explained this rule was necessary for him to avoid pain or discomfort as a result of his physical disabilities. He used this very excuse to avoid going to B.V.'s grandmother's place.

416. On my assessment of the whole of the evidence, I find that B.V. sat in J.M.'s lap or on the arm of his lazy boy chair far more often than a solitary or rare occasion.

417. Secondly, J.M. gave his evidence in absolutes. He emphasized that he never invited B.V. into his gaming room to play video games. Yet at the same time, J.M. described his relationship with B.V. as a good one. He was a father figure to her. He knew that his partner, S.V.'s focus over the summer, fall, and early winter of 2017 was on the development of her website and on her blogging.

418. J.M. went so far as to suggest that he would not even watch television in the family room with B.V.

419. Most tellingly, he insisted that he never initiated physical contact with B.V.

420. Yet, he acknowledged that, over time, his initial reluctance to even offer a hug to B.V. abated. It makes no sense that J.M. would be unprepared in any way to initiate any physical contact with B.V. in his role as a stepfather and caregiver to a 12 or 13-year-old girl.

421. Thirdly, J.M. stated that his awkwardness at physical contact initiated by B.V. was a subject which he raised with her mother and his partner, S.V. However, S.V. had no recollection whatsoever of any such conversation taking place between J.M. and her. If this conversation had occurred, surely S.V. would have remembered it.

422. Fourthly, I accept B.V.'s evidence that J.M. would initiate instances where B.V. would be invited into the gaming room to attempt to beat his high score. Video gaming was an activity J.M. certainly enjoyed. It was a pastime as well of B.V.'s. Why he, in a parental role, would not have encouraged the sharing of this common interest with B.V. defies any rational explanation.

423. Lastly, J.M.'s conduct was quite definitive in his course of action upon learning of B.V.'s report to her biological father, C.V., that J.M. had inappropriately touched her. While he may have understood the necessity for vacating the home he shared with S.V. and B.V. over the short term, if S.V. was to regain custody of B.V., he made his mind up at an early stage that he would never return to Pembroke. I accept the evidence of S.V. that J.M. gave her the impression he would never return to Pembroke irrespective of the outcome of his criminal charges. He ended abruptly a nine year relationship with S.V., even though both S.V and he speculated the child, B.V., then barely 13, may have been put up to telling a story to please her father. To my mind, J.M.'s after-the-fact conduct was far more suggestive of a person conscious of his own guilt.

424. For these reasons, I reject J.M.'s evidence that he never touched his stepdaughter, B.V., in a sexual manner.

Am I left in reasonable doubt by J.M.'s evidence?

425. Having rejected J.M.'s evidence, I can certainly not be left in reasonable doubt by it.

Am I convinced beyond a reasonable doubt in J.M.'s guilt?

426. I am.

427. The defence urges me to examine carefully what are labelled "significant discrepancies" in the evidence of B.V. I shall do so.

428. In her January 3, 2018 initial statement to the authorities in New Brunswick, B.V. made no mention of J.M. flipping her off the arm of his chair and over his knee, and then proceeding to put his hands up her shirt. Nor did B.V. mention to the authorities in New Brunswick on January 3, 2018 the incident where J.M. asked her to come closer to him when he was lying on the family room couch.

429. While it is true that B.V. did neglect to mention those incidents to the authorities in New Brunswick, I accept what B.V. said herself about the oversights. As she aptly put it, she was answering the questions that were asked, or it was simply an oversight on her part. B.V. was not the type of witness who offered details in an unsolicited manner. Nor was she going to exaggerate in any fashion about what J.M. did to her.

430. I firmly reject any submission made by the defence that B.V. fabricated her complaint about being sexually touched by J.M. to gain attention. S.V. was hardly a doting mother. B.V. nevertheless had the love and attention of her grandparents. As J.M. himself pointed out, the grandmother would essentially intervene to assist S.V.'s daughters wherever and whenever.

431. Furthermore, I accept S.V.'s evidence that B.V.'s school, friends and activities such as horseback riding, which she clearly enjoyed immensely, were all in Pembroke. B.V. would have known that this all would have ended if she acted upon any coaching from her father, C.V., to concoct a story to allow her to remain in New Brunswick with him.

432. I find that B.V.'s own evidence about her motivation not to come forward with her complaint immediately is truthful. B.V., as she put it, would be uncomfortable telling anyone about the incidents when J.M. sexually touched her.

433. As B.V. explained, she felt close to J.M. This is not surprising given their long history together prior to any sexual touching having occurred. J.M. was a presence in B.V.'s life since she was roughly 5 years of age.

434. J.M. himself agreed in his evidence that B.V. and he shared a bond. He did things with her that she enjoyed such as video gaming, a trip or trips to the beach, gardening, building the man cave/gaming room and attending to J.M.'s aquarium.

435. If anything, J.M. spent time with B.V., which her mother, S.V. did not seem to have.

436. B.V. exhibited no animus toward J.M. whatsoever. The report to F.C.S. about J.M.'s marijuana use was not designed by her to make trouble for him. B.V. mentioned the incident to her friend. The friend reported it to her mother. The mother then reported it to the child protection agency.

437. In listening carefully to B.V.'s evidence, I found that she was quite "matter-of-fact" in how she testified. She did not overstate what she said happened to her. I believe her when she said she yelled "stop" or "get your hand out of there" on the roughly 10 or so occasions she said inappropriate touching occurred.

438. I am not shaken in my confidence to make such a finding by the inability of S.V. to hear any complaint yelled by her daughter, B.V. J.M. would have known full well if S.V. was home at the time he sexually touched B.V. The doors to the gaming room and to the upstairs level of the house were always closed. The furnace was loud. When S.V. heard noises from the gaming room while she was upstairs, the sounds were muffled. The touching, in every instance testified to by B.V., appears to have been relatively brief in nature. Once B.V. protested, J.M. stopped.

439. Overall, I found B.V.'s evidence to be clear, concise and credible. When asked for more details by interviewers or in Court, she provided them. There were no significant, inherent inconsistencies in her evidence. I believe what she says were her oversights. I take her to mean that, when she testified, why she could not remember the first time it happened, this was because she was too young to realize the sexual nature of the touching. As she got older, she got wiser.

440. I must pause to note that I make no great accommodation for B.V.'s evidence. Her youth does not diminish in any way the burden of proof beyond a reasonable doubt placed on the Crown, but I must account for the fact that she was a 12 or 13 year old girl over the course of time when the sexual touching occurred. She was 13 at the time she was twice interviewed by the authorities. She was 14 at the time she gave her evidence.

441. I place no weight on B.V.'s proclamations that she was telling the truth. Rather, I accept her testimony as a young, yet accurate and reliable historian to the inappropriate, sexual touching to which she was subjected by her stepfather, J.M.

442. What must be remembered is that B.V. focused in giving her evidence on the occasions where she was inappropriately touched. When she says that it happened every time, I take her to mean that hands were placed under her shirt, or over top her onesie or her housecoat, whenever J.M. did sexually touch her.

443. I accept B.V.'s evidence that she would nudge J.M. away, put her elbows behind her and physically resist to the best of her ability to put an end to the unwanted physical contact she was experiencing at J.M.'s hands.

444. While S.V. testified that she only ever saw B.V. sitting in the office chair while gaming with J.M., that certainly does not rule out any inappropriate sexual touching from having ever occurred. Nor does it undermine fatally B.V.'s credibility as to what furniture was kept in the gaming room. S.V could well have seen B.V. in that office chair before any inappropriate touching by J.M. had commenced. Alternatively, J.M. could have moved the office chair, ottoman or any other furniture upon which to sit out of the gaming room before sexually touching B.V., when she seated herself in his lap or on the arm of his chair. More likely still, B.V. may simply not have noticed what other furniture was around, when J.M. invited her to come game with him.

445. Critical to my findings with respect to credibility is that I believe B.V. when she says J.M. touched her sexually. She was trying to be honest and accurate. Not once did I sense she was attempting to mislead the Court.

446. Further, I wholly reject J.M.'s evidence when he says he dissuaded physical contact with B.V. I find that he did encourage it on occasion. I accept B.V.'s evidence on that point. Additionally, he himself testified that he never incidentally or accidentally came into contact with B.V.'s breasts or chest area. Accordingly, I can only conclude that the sexual touching of B.V. by J.M., which I find factually did occur on approximately ten occasions, was intentional on his part.

Conclusion

447. Upon a review of the totality of the evidence, I must firmly conclude that J.M. intentionally touched for a sexual purpose his stepdaughter, B.V. At the time he did so, he occupied a position of trust or authority over her. Given the nature and circumstances of the relationship they shared, he exercised a degree of influence and control over her. She was young. She was lonely. She was vulnerable. J.M. knew all of this, and he used the lack of vigilance and connection S.V. had with B.V. to his advantage.

448. Of course, by touching her in the manner he did, fleetingly though it may have been, he violated her sexual integrity.

449. Having been convinced beyond a reasonable doubt in J.M.'s guilt for having sexually touched B.V. on her chest and breast area, I must turn my mind to whether which, if any, of the offences are now caught by the rule against multiple convictions in R. v. Kienapple, 1975 1 S.C.R. 729.

450. I shall hear from counsel further on this issue.

Dated: October 24, 2019

M.G. March, J.