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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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: 2019-12-17

Court File No.: Hamilton 18-357

Between:

Her Majesty the Queen

— and —

E.L.

Before: Justice P.H.M. Agro

Heard on: January 22, February 19, July 10, July 11, July 23, July 25, September 12, September 24, September 26, 2019

Reasons for Judgment released on: December 17, 2019

Counsel:

• Mr. J. Levy — counsel for the Crown
• Mr. J. Abrams — counsel for the accused E.L.

Reasons for Judgment

Justice Agro:

[1] The Charges

E.L. is charged with sexual assault and sexual interference. The complainant is A.L., daughter of his now former common law spouse and business partner, S.M.

[2] Family Composition

S.M. is the mother of three children: A.L. and her younger brother J., both from a previous relationship, and youngest daughter A., the child of the accused.

[3] Timeframe of Alleged Events

The alleged events are stipulated in the information as having occurred on or between the 1st of September 2017 and the 10th of January 2018, when A.L. was six years of age.

THE ALLEGATION

[4] Child's Testimony

The only testimony of the particulars of the allegations comes from the child A.L., who was seven years of age when she testified. Her testimony was introduced and adopted pursuant to section 715.2 of the Criminal Code by way of video-taped statement given to Detective Robert Lejeune on 16 January 2018.

[5] Initial Disclosure to Mother

A.L. first disclosed an incident to her mother, S.M. That disclosure was prompted by a "good touch/bad touch" discussion initiated by S.M. It was not until the second day of this continuing discussion that A.L. made any accusation against the accused to whom she referred as "Daddy".

[6] Report to Police and Medical Examination

S.M. did not reveal anything to E.L. but reported what A.L. said to Hamilton police. She was directed to take A.L. to McMaster Children's Hospital for a physical examination and was accompanied by a Hamilton Children's Aid Society worker.

[7] Physical Examination Findings

There is no evidence that the child suffered any physical injury or required any treatment.

[8] Body Part Identification

During the interview with Detective Lejeune, A.L. was shown a gender specific drawing of a naked female child. She was able to properly identify body parts, in a child specific manner, referring to the vaginal area as "front privates". That drawing is exhibit 2A.

[9] Child's Drawings of Alleged Incident

She also drew, as part of exhibit 2B, a picture of "Daddy's front private in the [sic] shower" and "Daddy's front private when Daddy put his private in A.L.'s private". That illustration included her depiction of an erect circumcised penis and a vagina.

[10] First Allegation — After School Incident

A.L.'s allegation was that on one day after school, when her mother and the baby A. had gone out shopping, "Daddy", had "stuffed his front private into my front private". It was her recollection this happened when she was in grade one and that it was "cold outside".

[11] Second Allegation — Bedroom Incident

Another of her drawings, exhibit 1B, was of the bedroom in which she alleges the assault took place and a depiction of her lying on the bed with the accused standing at the foot of the bed. She described how she was called into mommy and daddy's bedroom and instructed to lie on the bed and remove her pants and underpants. She said E.L. removed his pants, crawled on the bed and "stuck his front private in my front private."

[12] Context — Time Out Before Incident

A.L. described in the interview that just before this happened, E.L. gave her a time out in her room. She had been pretending with J. that they were going camping and J. had taken all his clothes off, but it was she who got in trouble for it.

[13] Departure from Home

On the advice of Hamilton Police, S.M. and the children did not return home after she reported the allegation to Hamilton police on 11 January 2018. She did not inform E.L. of her whereabouts. She and the children remained at her brother's home in Coburg until their formal statements were given to police on 16 January 2018. Thereafter they moved to Gatineau, Quebec.

CONTEXT OF THE RELATIONSHIP BETWEEN E.L. AND S.M.

[14] Relationship Context

There was a considerable amount of testimony about the parties' relationship that bears upon my analysis of the evidence and the reliability of A.L.'s testimony.

[15] Scope of Relationship Evidence

While I will make no findings with respect to the particulars of the allegations and cross allegations between E.L. and S.M., I will outline that testimony to provide the context for the sexual assault allegations and the atmosphere to which A.L. was subjected in the months preceding her disclosure and up to and during the trial.

[16] Meeting and Cohabitation

S.M. and E.L. met sometime in 2014 and began cohabiting along with the children A.L. and J. A. was born in March of 2017. From time to time, the accused's older children from a previous marriage, C. and S., would reside with them.

[17] Contact with Biological Father

A.L. and J. had no contact with their biological father for about a year prior to A.L. making any allegation against the accused and that contact, when it occurred, was sporadic.

[18] S.M.'s Description of E.L.

S.M. described E.L. as a good father to her children and a good provider for the family.

[19] Alone Time with Children

S.M. seldom left E.L. alone with the children. She estimated that when she did it was for brief periods, totalling 1 to 3 hours a month while she went grocery shopping or to medical appointments.

[20] Bathing Practices

According to S.M., E.L. seldom bathed the children and when he did, it was "military style", that is, in and out.

[21] S.M.'s Insecurity and Suspicions

S.M. was open about her insecurity in her relationship with E.L. and felt that he might have been cheating on her, though she had no evidence of it. Many of their arguments were centred on what she perceived to be his infidelity.

[22] Pattern of Separations

Oftentimes, after these arguments, S.M. would pack up the children and leave E.L. for a few days at a time and then return. On those occasions E.L. would usually go to his mother's home until S.M. and the children returned as they usually did, but for this one occasion.

[23] Specific Suspicions and Accusations

Some instances of S.M.'s suspicions and the arguments that followed were put to her in cross examination. She acknowledged those, including suspicions and accusations that E.L. had had a sexual encounter with his brother's girlfriend and clients of their mobile glass installation business, admitting that she would often accompany E.L. when he was installing glass for various clients.

[24] S.M.'s Personal Issues

She also acknowledged an alcohol abuse issue, mental health issues and marijuana use.

[25] Late Allegation of Physical Abuse

Six days before the commencement of trial, S.M. sent a broad allegation of physical abuse by E.L. to a Victim Services worker asking that the information be passed on to the Crown with carriage of this trial. She declined the invitation to provide a statement to police.

[26] Mysterious Emails — Initial Disclosure

During her testimony S.M., quite unexpectedly disclosed a series of emails she alleges were from E.L. after these charges were laid and which had not been disclosed to police or the Crown.

[27] Email Addresses

The emails were to S.M.'s hotmail account but did not appear to be from any known email address of E.L.

[28] Investigation of Emails

The series of email exchanges were turned over to Detective Constable Kirkpatrick of the Hamilton Police Cyber Crimes Unit for investigation and disclosed to the defence.

[29] Remailer Service

Kirkpatrick testified that the four sender addresses were in fact general email addresses belonging to an internet service called "Remailing".

[30] How Remailer Works

Kirkpatrick explained that a sender selects an anonymous remailer, composes an email to the recipient and on clicking "send" the email goes from one server to another, randomly selected in the remailer's loop, ending up at its final destination, the recipient's email account. The purpose of the service is to ensure that the sender of the email would remain anonymous.

[31] Inability to Trace Sender

Without production orders and highly technical investigation available only through The Mutual Legal Assistance Treaty and the National Security Agency in the United States, it is not possible from the metadata available to Hamilton Police, to determine the sender of the emails.[1]

[32] Email Content Analysis

Suffice it to say they these emails were sent by someone familiar with the availability of remailing services. It is clear from their content that the sender knows S.M. and E.L., the nature of their relationship over the years, the tenor of their personal discussions and the language they used in those discussions, and the jeopardy faced by E.L. as a result of A.L.'s allegation.

[33] Possible Sources of Emails

It may be that the emails were sent by E.L. to S.M., or more likely by S.M. to herself for the purpose of creating mischief as her computer skills were advanced. Both denied sending the emails.

[34] Weight Given to Emails

On the evidence before me I will be unable to make any finding about the source of the emails and give them no weight in my assessment of the credibility of E.L. or S.M. other than to say they form another piece of the backdrop of this relationship which continued after charges were laid.

[35] Confirmation of Relationship Toxicity

Much if not all of S.M.'s admissions regarding the volatility of relationship were confirmed by E.L. who provided more details of S.M.'s paranoia regarding his fidelity and the arguments that ensued.

[36] Incident with Butane Fuel

E.L. also detailed an incident during which S.M. covered him in butane fuel while in bed and threatened to light him on fire. S.M. did not recall the incident but did not deny it.

[37] Other Assaults by S.M.

E.L. also testified about other assaults by S.M., one in the presence of his oldest daughter C. S.M. acknowledged that incident but claimed E.L. was the aggressor.

[38] A.L.'s Observations of Household Violence

In general terms, A.L. confirmed in her recorded statement that her mother hits when she gets mad. She knows that her Mom and Daddy fight because she hears a lot of yelling and swearing but she doesn't see hitting. She cited these as things she doesn't like at home. She said that she has only seen Daddy hit in "pretend fight" with J.

[39] Relationship Deterioration

E.L. testified that the relationship was particularly rocky around Christmas time just before this incident was alleged to have taken place. Their business was doing poorly and in the months before the allegation was made, S.M. was leaving home as frequently as twice a month. Couples counselling had been unsuccessful.

[40] Communication Breakdown

Over Christmas and the days before the allegation surfaced, E.L. testified that he and S.M. weren't communicating very much.

[41] Toxic Domestic Atmosphere

On the accounts of both E.L. and S.M., I find their relationship to have been toxic, replete with verbal and physical altercations, mistrust and multiple separations. This was the domestic atmosphere and influences to which A.L. and her siblings were exposed.

OTHER TESTIMONY

S.M.

[42] S.M.'s Testimony on Disclosure

S.M. testified about the unfolding of A.L.'s disclosure.

[43] Dream Preceding Disclosure

Some days before her discussion with A.L., S.M. testified that she had a dream about E.L. being with his ex-wife who had a young daughter. She acknowledged that it was possible she was concerned that E.L. had assaulted his other daughter, or A.L., and this may have prompted her questioning of A.L.

[44] Initiation of "Good Touch/Bad Touch" Discussion

On 9 January 2018, it was S.M. who initiated the discussion of "good touch, bad touch", by asking A.L. if she knew the difference between the two. The child answered "no" but S.M. said A.L.'s face reddened and she felt as if her daughter was shutting her out of the conversation.

[45] S.M.'s Explanation of Good Touch/Bad Touch

The following day when S.M. picked A.L. up from school, she pursued the conversation and testified:

Q. And tell us about that conversation?

A. So actually I just explained to her what a good touch, bad touch was.

Q. Okay can I ask what your explanation was?

A. Okay. So, the night before I Googled trying to figure out how to open up a conversation with a young child about it. So, I just kind of explained that it's something normal that happens to other people. I explained it happened to me and just tried to normalize it for her so she'd feel comfortable opening up.

[46] A.L.'s First Disclosure — Classmate Incident

At this juncture A.L. started to cry, made "barking noises" as S.M. characterized it, and then disclosed a bad touch from a female classmate.

[47] S.M. Pressing for Adult Perpetrators

S.M. then pressed A.L. saying:

A. After she told me about [sic] the child, it was a sense of relief to me because children can be children, right, but then I wanted to know if there's any adults, teachers, parents and anyone else that's touched her, so I kept prying about adults.

Q. Okay. And so after she told, she identified that daddy had done a bad touch, what did you do?

A. I wanted to find out when or what and she didn't open up anymore other than to say not often and it ended pretty much at that.

[48] Report to Police

Some days later S.M. reported the matter to police.

[49] S.M.'s Knowledge of Particulars

S.M. did not learn of any particulars of the allegation either from police or A.L. She testified that when she moved to Gatineau she asked A.L. what had happened and the child made some disclosure to her but did not detail what that disclosure was.

[50] S.M.'s Denial of Influence

S.M. denied putting A.L. up to making these allegations or influencing what she told police, beyond telling A.L. to tell the truth.

[51] Resumption of Cohabitation

In March of 2018, S.M. and E.L. resumed cohabitation.[2] She explained she did so that she could let out a lot of anger at E.L. rather than venting through text messages and email as she had been since she left Hamilton.

[52] S.M. Reviews Police Interview Transcript

During that time S.M. saw a copy of the transcript of A.L.'s recorded interview with police and read it. She confronted E.L. regarding the specifics of the allegation and he denied them.

TESTIMONY AND INTERVIEW WITH DETECTIVE ROBERT LEJEUNE

[53] Detective Lejeune's Background

Lejeune joined the child abuse unit of Hamilton Police Service in January 2017.

[54] Child Interview Training

His child interview training consisted of a few days of mock interviews.

[55] Approach to Questioning

He said he was careful not to ask leading questions acknowledging that children are impressionable. He testified that he did not ask A.L. if anyone had put her up to making the allegation.

[56] Interview Protocol

In the first few minutes of the interview he was careful to ensure that A.L. understood the rules, including telling the truth, answering verbally, and not guessing at answers.

[57] Initial Questions About Home

After a series of questions about A.L.'s activities at school and home, Lejeune asked:

Detective Lejeune: Yeah, okay. So is there anything that you, that happens at home that you don't like?

A.L.: Hitting.

Detective Lejeune: Hitting?

A.L.: (nods yes)

Detective Lejeune: Okay tell me about hitting.

[58] A.L.'s Description of Household Hitting

A.L. then describes when and who hits whom in the household, as earlier referred to in these reasons.

[59] Transition to Body Parts Discussion

Lejeune moves on from that topic with this exchange with A.L.:

Detective Lejeune: Okay. Okay, so is there anything else that happens in the house that you like or don't like?

A.L.: I don't know.

Detective Lejeune: You don't know, okay. So A.L., have you been learning about the parts of the body?

[60] Body Part Identification

Thereafter the interview turns to A.L. describing various parts of the body referencing the exhibit, 1A.

[61] Good Touch/Bad Touch Discussion

The interview turns to Lejeune asking A.L. what her mother told her about parts of her body that could have good or bad touches. A.L. at first said she didn't know but then when given an example of a good touch, listed the areas that would be a bad touch, including her "front private". When asked if she had ever been touched in a bad touch area, A.L. spoke about the incident at school with her classmate referred to in S.M.'s testimony.

[62] Lejeune Directs to Conversation with Mother About E.L.

Lejeune then directs A.L. to her conversation with her mother about E.L.:

Detective Lejeune: No, okay. Is there - you had talked to your mommy and you had - she had asked you about Daddy. Did anything happen with Daddy?

A.L.: Yes.

Detective Lejeune: Well, tell me about that. What happened? It's okay.

A.L.: With his front private.

Detective Lejeune: Oh, okay.

A.L.: Mm-Hmm.

Detective Lejeune: So tell me what happened with Daddy's front private. It's okay, A.L. It's important that I know what happened.

A.L.: He stuffed his front private into my front private.

Detective Lejeune: Okay.

A.L.: Mm-hmm. And that's it.

Detective Lejeune: Okay. So tell, well, tell me more about when he stuck his front private in your front private. So, A.L., sometimes it helps if - you know when you're trying to think of something and you close your eyes and you think back and you think about how it made you feel, think about what you smelled, what you saw, what, how you felt. And, then, sometimes that helps you remember what happened. so if you can think back to the time when Daddy put his front private in your front private, think about how you felt and what you smelled, what you saw, what you were doing.

A.L.: I was mad. Like…

Detective Lejeune: You…

A.L.: …when he did it.

[63] Location and Circumstances of Alleged Incident

A.L. describes the incident as taking place in mommy and Daddy's bedroom while J. was playing in his room and her mother and A. out shopping.

[64] Attempt to Determine Date

The next area of questioning related to Lejeune attempting to determine the date when this happened.

[65] Follow-Up Questions on Incident

Further on in the interview, Lejeune redirected the questioning to the incident and asked A.L.:

Detective Lejeune: No Okay, And so, after daddy was done putting his front private in your front private, then what happened?

A.L.: I went to my room (indiscernible).

Detective Lejeune: Okay, Do you remember feeling anything else?

A.L.: I don't think so. (Shakes head no)

[66] Clarification of "Stuck In"

At video timestamp 14:36:37 of the interview, Lejeune asks A.L. to explain what she meant by "stuck in":

Detective Lejeune: And what do you mean by stuck it in? And then my hand is your front private. What did Daddy do with his front private? Can you show me with the pencil? The pencil is your dad. Pretend this is Daddy's front private. What did Daddy do?

[67] A.L.'s Demonstration with Pencil

The video recording then depicts A.L. taking the pencil and placing it fully in the palm of Lejeune's hand.

TESTIMONY OF E.L.

[68] E.L.'s Categorical Denial

E.L. categorically denied any inappropriate interactions with A.L.

[69] E.L.'s Practices Regarding Nudity

He testified that he never allowed the children to see him naked and did not like the children coming into the bedroom he shared with S.M. due to marijuana, pipes, a bong and lighter being in the room. He acknowledged though that S.M. sometimes had the children in there with her.

[70] Alone Time with Children

He claimed that the longest he was left alone with the children was about an hour as S.M. had anxiety issues and did not like to be out of the house for longer periods unless he was along.

[71] Consistency with S.M.'s Account

His testimony about the amount of alone time he had with the children and his interaction with them accorded with that of S.M., including the "military style" shower.

[72] Circumcision Status and Shower Picture

E.L. was unaware until trial that S.M. still had a naked picture of him taken in the shower on her cell phone and that A.L. had seen that picture. Significantly, E.L. testified that he is uncircumcised.

[73] Pornographic Material in Basement

He testified that the only other time the children would have seen naked images was when they got into a storage box in the basement. Buried in the bottom of that box were video cassettes of adult pornographic material. Although the children were not able to play the cassettes, the front covers of the cassettes had pictures of adults in various states of undress and the back covers had selected still shots of scenes from the videos. It was S.M. that charged E.L. with the responsibility of speaking to the children about that. This was an incident acknowledged by S.M. in her testimony.

[74] Possible Observation of Sexual Activity

According to E.L. the only time the children may have observed sexual activity between him and S.M. was when the family was camping and they were all in the same tent. He believed the children were sleeping but it was possible they saw or heard something.

[75] Attempts to Contact S.M. After She Left

After S.M. and the children left home on 11 January, E.L. tried to reach S.M. by text message asking where she was and inquiring about matters relating to their jointly operated business that needed to be tended to that day.

[76] S.M.'s Limited Response

S.M. did not respond to E.L. other than to say she had taken care of the business issues. She did not let him know where she was.

[77] Continued Attempts to Contact S.M.

E.L. continued to try to reach S.M. over the next few days. His telephone calls were unanswered and the text messages vague. At one point E.L. received a text from S.M. that something had happened with J. at school and she couldn't come home.

[78] E.L.'s Departure to Honduras

Not knowing where S.M. and the children were, or that A.L. had made an allegation against him, E.L. went to stay with his mother. After some discussion with her about the relationship, left for Honduras on the 14th of January to visit his aunt and grandfather, thinking that he'd give S.M. some space. His mother was to join him there later.

[79] E.L.'s Interpretation of S.M.'s Departure

E.L. thought this was another instance of S.M. disappearing because she was angry with him. She had done so about two weeks before.

[80] Learning of Allegation in Honduras

While in Honduras E.L. first learned through a family member that S.M. had called in a drunken state alleging he had inappropriately touched A.L. but offered no details.

[81] Detective Lejeune's Contact

Shortly thereafter, Detective Lejeune contacted E.L. by email informing him he needed to speak with him in person regarding a matter he was investigating.

[82] Learning of Warrant

From Honduras, E.L. contacted legal counsel in Hamilton to find out further details about Lejeune's need to see him. Through counsel he learned there was a warrant for his arrest. His recollection was the allegation was something sexual to do with A.L. but he had no further details about the specifics of the allegation.

[83] Voluntary Return to Canada

E.L. voluntarily returned to Canada on February 14th 2019 and on arrival at Pearson airport told Canada Border Services officers of the warrant.

[84] Arrest and Rights

After three and a half hours of detention, custody of E.L. was transferred from CBS officers to PC Rochner of Hamilton Police who formally arrested E.L. on the warrant, told him of the two charges and provided him with rights to counsel and caution.

[85] Police Interview

On arrival in Hamilton E.L. had a formal videotaped interview with Detective Kitchen.

[86] Details of Charges Explained

It was during the interview that Detective Kitchen explained in layman's terms what the two charges meant and specifically that A.L. had alleged that while in the master bedroom, E.L. had removed her clothing as well as his own, got on top of her and inserted his penis in her vagina.

[87] Edgar Application

At trial E.L. brought an Edgar[3] application to permit the introduction into evidence his video taped statement made to police on 14 February 2018 to demonstrate his reaction to the accusation, not for the truth of it, but for the purpose of assisting in the assessment of his credibility.

[88] Voir Dire and Admission of Evidence

A voir dire was conducted for that purpose. The defence application was allowed[4] and the entirety of that police interview was played for the court.

[89] E.L.'s Emotional Reaction

Once the details were put to him, E.L.'s response was immediate. He was visibly upset and crying, placing his head in his hands. He was dismayed at the allegations, lamented the loss of his family and denied any misconduct toward A.L.

A.L.'s CROSS-EXAMINATION

[90] A.L.'s Demeanor

A.L. was calm throughout her testimony in chief as well as her cross-examination.

[91] Internal Inconsistencies

There were a number of some internal inconsistencies in her testimony.

[92] Timing of Time Out Incident

One was about getting the time out for play camping with J. when he had all his clothing off. On one occasion she said this happened before the incident with E.L. and on another she thought it was after.

[93] Inconsistency Regarding First Disclosure

There was also some inconsistency about the timing and place of her first disclosure. In her adopted interview with Lejeune, A.L. said she first told her mother what E.L. had done while they were in the car, just after telling her about the incident with her classmate. In re-examination she said she had told her about it a long time ago while at the house and then later (she estimated a year) told her while in the car.[5]

[94] Details of First Disclosure

She also testified in re-examination that at the house she had only told her mother that E.L. had "done a bad touch" but in the car she gave her mother the details.[6] This testimony is also inconsistent with that of S.M.

[95] Uncertainty About Seeing E.L.'s Penis

A.L. also had some uncertainty in both her videotaped interview and cross examination about whether she had actually seen E.L.'s penis other than in the shower picture found on her mother's phone. This bears on the reliability of her drawing, exhibit 2B of a circumcised penis and her oral testimony.

[96] Cross-Examination on Visibility of Penis

Her testimony in cross examination bears repeating:

Q. Okay. So am I right that you didn't reply get a good look at his front private…

A. No, I didn't really get a good look.

and:

Q. All right. And, so, is that picture the only time you really sort of had a good l look at Daddy's front private?

A. I got, like a good - I didn't get, like a really good look when it happened to me. But I got a good look when it was in the picture.

[97] Re-Examination on Drawing Source

In her re-examination, A.L. gave similar answers, stating that the first picture in exhibit 2B was drawn from her memory of the shower picture and the second was copied from the first.[7]

[98] Description of Shower Picture

Curiously, when asked by the court to describe the shower picture, A.L. said she didn't see E.L.'s head in the picture, it was taken from the neck down, but she knew it was him and not her mother because her mother has long hair to her shoulders.[8]

[99] Pornographic Material in Basement

Regarding the pornographic movies in the basement A.L. did not acknowledge ever getting into trouble for touching them but did say:

A. We, We can, like look at - we can't like touch them.

[100] Absence of Pain or Crying in Initial Accounts

In A.L.'s disclosure to her mother, her interview with Detective Lejeune and her examination in chief, she at no time said that the incident she described hurt her or that she cried afterward. Lejeune was careful in his questioning in trying to elicit that information without leading the child to those answers, but she made no such assertion.

[101] New Details in Cross-Examination

Yet in cross examination A.L. testified that E.L. had put his penis inside of her, not just touching her; that it hurt while he was doing it, and that she cried.

[102] Susceptibility to Leading Questions

The questions put to her in cross examination, which were leading, and the answers she gave, suggest that A.L. is susceptible to leading questions and that causes concern for her reliability.

[103] Inconsistency About Reason for Being Mad

There was also some inconsistency in A.L.'s testimony about why she was mad at E.L. In her adopted video, when she was asked how she felt after the incident she described, she told him she was mad. In re-examination she was asked these questions and gave these answers:

Q. You told Mr. Abrams a few minutes ago that, that after this happened, you were mad.

A. Yes.

Q. But, I wasn't clear, were you mad because of what Eddy did that you've told us about, or were you mad because he sent you to bed after?

A. I was mad because I, I got sent to bed after.

ANALYSIS OF THE EVIDENCE

[104] Crown's Burden of Proof

In approaching the evidence, am mindful of the onus on the Crown to prove each of these allegations beyond a reasonable doubt.

[105] Lack of Corroborating Evidence

Given the nature of the allegation against E.L., here is no independent evidence corroborative of his denial. That is not to say that E.L. is not therefore, a credible witness.

[106] Support for E.L.'s Testimony

There is some support in the testimony of collateral facts to which he testified, such as the toxic state of his relationship with S.M., and his role in parenting the two eldest children, A.L. and J.

[107] E.L.'s Credibility During Cross-Examination

Despite a lengthy cross-examination, E.L.'s testimony was not impeached. During his cross examination on a myriad of collateral facts, he readily conceded to the Crown's version of facts, including his apparent breach of bail conditions by engaging in direct and indirect contact with S.M. after he was charged. He accepted the Crown's version of other facts when his memory failed him, for example the details of his telephone call with Detective Lejeune while in Honduras.

[108] Plausibility of E.L.'s Explanations

His denial of the allegations, in light of his plausible explanations that A.L. may have drawn a penis from her memory of a picture S.M. had on her cell phone, or from a memory of seeing the jacket covers of adult pornography cassettes, and her having some knowledge of sexual activity either from a family camping trip or those pornography images, may reasonably be true.

[109] E.L.'s Emotional Reaction to Charges

I find that when first confronted by a person in authority with the particulars of the allegations and the extent of his jeopardy, E.L. reacted in a spontaneous and overtly emotional way, both in the presence and absence of Detective Constable Kitchen.

[110] Consistency of E.L.'s Reaction

He was incredulous that such an allegation was made, denying ever having inappropriately touching A.L., which is consistent with his testimony at trial. That reaction is an additional piece of circumstantial evidence that weighs in his favour.

[111] Assessment Cannot Be in Vacuum

However, in determining whether the Crown has met its onus of proof, I am mindful that I cannot assess the accused's testimony in a vacuum.

[112] S.M.'s Credibility Concerns

The testimony of both S.M. and E.L. satisfies me that their relationship was a toxic one and that S.M. in particular was in a constant state of jealousy and paranoia about E.L. and his fidelity. Her admission that she quizzed A.L. about good and bad touches because of suspicions that arose out of a dream was astonishing.

[113] S.M.'s Questioning of A.L.

After A.L. told her about her classmate, S.M. "quizzed" the child about the adults in her life, naming specific individuals. A.L. testified that she thought her Mom was giving her a test about the truth.

[114] S.M.'s Substance Abuse Issues

That she acknowledged on going issues with alcohol and marijuana use while living with E.L. and caring for the children add to my concerns about her overall credibility and the reliability of her evidence on the disclosure issue.

[115] Concerns About Disclosure Circumstances

I find the circumstances around the disclosure, given the state of the relationship between S.M. and E.L. and her alcohol abuse, to be worrisome.

[116] Children's Susceptibility to Suggestion

Children are susceptible to suggestion. S.M.'s quizzing of A.L. and the atmosphere in the home may have influenced A.L. to believe some things are true.

[117] Internal and External Inconsistencies

The internal and external inconsistencies in A.L.'s testimony are also concerning.

[118] Inconsistencies in Disclosure Account

Her testimony in re-examination at trial about when and what she disclosed to her mother was totally inconsistent with her other testimony and with S.M.'s evidence.

[119] Source of Penis Drawing

The drawing of E.L.'s penis was not from a memory of what she saw during the alleged incident, but rather from her memory of a picture taken from the neck down of a person in the shower, whom believed to be of E.L.

[120] Evasiveness About Pornography

She was evasive about having found the pornographic material in the basement an incident that was confirmed by both E.L. and S.M.

[121] Additional Details Not Previously Disclosed

Additional details about the alleged incident, earlier outlined in these reasons, and not disclosed to either her mother or Detective Lejeune during his careful questioning, also give rise to concerns about A.L.'s credibility and reliability.

[122] Susceptibility to Leading Questions

That A.L. is susceptible to suggestion was borne out in her cross-examination when, in answer to leading questions, she described being hurt during the incident and crying.

[123] Crown's Failure to Meet Burden

In all I find the cumulative consequence of all of the evidence to be such that I find the Crown has failed in its burden of proof beyond a reasonable doubt.

[124] Verdict

For these reasons, a verdict of not guilty will be entered.

Released: December 17, 2019

Signed: Justice P.H.M. Agro

Footnotes

[1] exhibits 16 & 17: Email Screen Shot Captures and General Notes: Det/Cst Kirkpatrick

[2] the parties remained living to together until 17 November 2018 when police in Renfrew county, while investigating a single car accident involving the accused, S.M. and the three children, determined that E.L. was in breach of his bail provision for no contact with S.M. and her children.: transcript, 10 July 2019, p. 30 l. 8 and following

[3] R v Edgar 2010 ONCA 529

[4] R v E.L., 24 September 2019.

[5] transcript, p. 76, l. 15-29

[6] transcript, p. 84, l. 1-20

[7] transcript, 9 May 2019, p 74 , l. 17 to 29

[8] transcript, 9 May 2019, p 77, l. 21- 31 and p 78, l. 1-9.