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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

DATE: September 28, 2023 COURT FILE No: 21-0837 O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HIS MAJESTY THE KING

-AND-

A.R.-P.

Before: Justice M. G. March

Heard on: March 29, 30, April 18, May 15, 16 & 30, 2023 Reasons for Judgment released on: September 28, 2023

Counsel: Teresa James, Counsel for the Provincial Crown Kate Irwin, Counsel for A.R.-P.

March, M.G., J. :

Introduction

[1] A.R.-P. stands charged with four counts of sexual assault upon his stepdaughter, E.E., three counts of touching her for a sexual purpose, one count of exposing his genitals to her and one count of inviting her to sexually touch him. The allegations span a timeframe of June 1, 2014, to January 31, 2018. They are somewhat historical in nature.

[2] As with many criminal trials, the key issues for determination involve the assessment of the credibility and reliability of the evidence given by the witnesses called to testify at A.R.-P.’s trial.

The Relevant Evidence

E.E.

[3] E.E.’s evidence can be broken down into three, perhaps four, specific events. Firstly, she recalled an occasion where she was getting ready for bed. She was sitting and facing A.R.-P. on the bottom bunk of her bed in their home in Borden. A.R.-P. was wearing a shirt, but he had no pants on. He asked her if she had ever seen a “boy’s part.” She told him she had not. He asked if she would like to see one. She said she would.

[4] As she put it, it was a long time ago. She could not fully explain, but he wanted her to touch it and she did touch his penis, using her hands. She was “curious.” She estimated her age to be two and a half to four years at the time.

[5] She added she could not say exactly how she touched it, nor saying anything to him, nor him saying anything to her. Her memory began to fade thereafter.

[6] She could not remember him touching her. She believed her mom was away doing something work related. It was nighttime. Her younger sister, T., had not yet been born. She could not recall whether she told her mother, B.E., about it.

[7] The second occasion of sexual touching happened when her mother and T. were away at the store. The family was then living in Petawawa, Ontario. She got on A.R.-P.’s and her mother’s bed. He told her to lie down. He put a blindfold on her.

[8] He then got a “massager” and put it on her “part.” She could not remember exactly what he said. Her memory of the incident was foggy throughout. She thought, however, that she took off her own pants. They were off when he touched her vagina with the massager, while she was still wearing the blindfold. He told her to keep it on. Do not take it off. She had asked to, but he would not allow her to do so. She could not remember if he was wearing clothes.

[9] The massager itself felt wet because he put his saliva on it. She could hear him do that. He did not leave the room to put water on it. It happened twice, but as E.E. put it, “The memory gets blurry”, after he touched her with it.

[10] She could not recall when her mother came home. She thinks it was about 15 to 30 minutes later.

[11] She did not recall the massager touching anywhere else on her body. She thought he was wearing clothes. She did not remember touching him anywhere. It was not until the massager was put away that the blindfold was taken off.

[12] The third occasion, she believed, occurred a month or two later. Her memory of this third incident is blurred. It “repeats”, because the second and third incidents were so similar. The third happened in the same place as the second. The sun appeared lower in the sky.

[13] She was blindfolded again. The massager, she believed, came from the drawer of the nightstand again. Only when the massager was put away did the blindfold come off. She remembered it vibrating. The event ended, she thought, when she said she did not want to do it anymore, or he grew afraid that her mother was arriving home.

[14] The massager, she added, was dry at first; she thought she flinched, and it was then wet the next time he put it on her.

[15] She could not recall the massager going inside her vagina on either occasion when the massager was used. Her pants were off. She could not remember how they came off, or if A.R.-P. was clothed or not.

[16] She believed that she was in either Grade 2 or 3 when the massager was used upon her. She had the same teacher for both grades.

[17] She ventured that there may have been one or two more times that the massager was used upon her as well, but she could not remember.

[18] The fourth incident was the most recent one involving a towel. She believed it happened a week before she spoke to the police.

[19] E.E. was at A.R.-P.’s home for a weekend visit. He told her to get ready for the day. She got in the shower. He brought a towel for her and placed it on the toilet. When she got out of the shower and went into the hall, he was in his room. Her memory, she testified, then went a little bit blurry.

[20] They were poking each other on the arms playfully while she was wearing the towel. She told him she had to get dressed. She was losing her grip on the towel. She had to keep “shuffling” it up.

[21] He told her to come back to his room after she was dressed to play a “game”. When she returned, he put the same blindfold on her as before. She remembered the two straps it had.

[22] He explained to her that he would spin her around. They were going to play a game to see if they could get out of the bedroom while blindfolded. She bumped into a wall. When she took her blindfold off, he took his turn. He bumped into the bedframe.

[23] E.E. was clear that she was not sexually touched on this ‘towel’ occasion by A.R.-P. They were both clothed the whole time the game was played.

[24] She believed that she was in Grade 6 when the spinning game occurred. She was receiving “sex ed” in school. She realized how bad the previous incidents were when A.R.-P. exposed his penis to her and touched her vagina with the massager on earlier occasions.

[25] E.E. was 14 years old when she testified on March 29 and 30, 2023. She was born on […], 2009.

[26] She explained that she did not have a father in her life. She was only 5 when her mother, B.E., and A.R.-P. married. E.E. was the flower girl. She never knew anyone else but him to be her dad.

[27] The first person she told about the spinning game was her mother, B.E. It was the previous Saturday morning the game was played while she was on an access visit with A.R.-P. along with her younger sister, T. T. was not present for the game. A.R.-P. and B.E. had separated many years before. A.R.-P. still lived in Petawawa, while E.E. resided in Kingston with her mother and sister. The next day, the Sunday, E.E. told B.E. about the spinning game.

[28] In disclosing the towel incident to her mother, E.E. went on to relate to her mother the three earlier incidents, once being invited to touch A.R.-P.’s penis in Borden, and twice being touched with the massager in Petawawa.

[29] E.E. went on to explain that the first time she ever told her mom about the sexual touching with the massager, they were still living as a family in Petawawa. Her sister, T., was down for a nap. A.R.-P. was present. B.E. and A.R.-P. were both facing her at the top of the stairs. She was at the bottom.

[30] When E.E. brought up the times she was asked to touch A.R.-P.’s penis and touched with a massager, her mother was frowning. E.E. felt that her mother thought she was telling her a lie. As E.E. spoke to her mom, A.R.-P. was looking at B.E. and then back to E.E. E.E.’s memory of the disclosure fades thereafter.

[31] E.E. recalled that at the time the first three incidents occurred, A.R.-P. would tell her afterwards, “Don’t tell mom. Let’s keep this between us.” A.R.-P. was a father figure to E.E. and she trusted him.

[32] After reporting the historical incidents to the police shortly after the towel indecent, E.E. testified that her mother and she talked a little bit here and there about how B.E. was sorry she did not believe E.E. before. E.E. also remembered B.E. speaking to her about where T. would live after A.R.-P. and B.E. went to court.

[33] Under cross-examination, E.E. clarified that she was two and a half when A.R.-P. came into her life. Aside from a nearby park and her first day of school, E.E. had few memories of her life in Borden prior to age 5 other than the ‘touching of the penis’, namely, the first incident. She estimated that she lived there between 2011 and 2014 when she would have been between approximately two to five years of age.

[34] She offered that she could not remember her bedtime routine until she was living in Petawawa. At around age seven, she was going to bed regularly at 8:00 p.m. As she grew older, she stayed up later. It was not a normal situation that she would be staying up till 9:00, 10:00 or 11:00 p.m. at night. However, she agreed that she told police on more than one occasion that it was around 11:00 p.m. or midnight when she touched his penis. She agreed that was different from the evidence she gave in court.

[35] E.E. confirmed that she gave her statement to police on one day in two segments with a lunch break in between. Her mother, B.E., was with her in the room when she told the police about being invited to and touching A.R.-P.’s penis. E.E. had not done so prior to her mother being in the police interview room with her. She agreed she listened to her recorded statement to police the day before giving her evidence in court. She stated she did not remember most of what she had said during the interview, just snippets.

[36] She did not remember if she told police that A.R.-P. was laying on her bed, or if she sat on his legs. She agreed police asked her to provide as much detail as possible.

[37] She denied that the first time she told of A.R.-P. laying on her bed and showing her his penis was during the police interview. She believed she did so when B.E. and he were at the top of the stairs, and she disclosed the incident to her mother for the first time ever, but she could not remember for certain. The family was then living on F. Street in Petawawa and no longer in Borden.

[38] E.E. did not remember if she told her mother she was sitting on his legs when he exposed his penis to her.

[39] E.E. allowed for the possibility that she was shown A.R.-P.’s penis after he walked from the bathroom while she was a young child, and she had asked what the bump was underneath the towel while pointing at it. She highly doubted any such incident occurred. However, she did not remember if it had. She agreed nevertheless that it could have, and she was a curious child.

[40] Regarding the cat videos she was shown while A.R.-P. exposed his penis to her on her bed and she touched it, E.E. could not remember what kind of screen she saw them on. She did not know if it was a Leap Frog tablet. As a general proposition, she agreed that one’s memory does not get better as time goes on, but she remembered the cat videos for years.

[41] She acknowledged that regarding the cat videos, she told police, “I don’t know for sure. It might just be my memory being wrong.” Yet she testified that she was certain she saw cat videos on the screen. She went on to explain, “I wasn’t certain of what was on the video. My memory thinks it was a cat. It may have been trying to recognize it as some familiar shape, and a cat is what I saw”. Again, she agreed that her evidence was different from what she told police.

[42] On the issue of her mother being present while she gave her statement to police, she explained that her mother, B.E., wanted to make sure the police were getting what E.E. said correctly.

[43] Regarding the two times she wore the blindfold and was touched with the massager, E.E. thought there was a gap of one to two months in between. She estimated those incidents occurred three to five years before she was interviewed by the police. She repeated that she thought she was in Grade 2 or 3. However, she confirmed she had told police she did not know her age or grade when these two incidents transpired. She also told police she believed they occurred two to three years before the interview was conducted in June of 2021.

[44] Her best recollection nonetheless was that the two massager incidents occurred when she was in Grades 2 or 3.

[45] She recalled certain features of the blindfold. It had two straps. It did not cover one’s mouth, nostrils or cheeks. It was black in colour, but perhaps it had a black interior, and a blue exterior. She stated that the same blindfold was used on both occasions. She could not remember while testifying where it came from.

[46] When an actual blindfold was produced by defence counsel and shown to E.E., she believed it was the blindfold that was used on her on both occasions she was sexually touched with the massager. When told by defence counsel that the mask came into A.R.-P.’s possession after his deployment to Latvia in February 2018, E.E. ventured that it might not be that exact mask used on her, but that it was quite similar, if not an exact replica.

[47] E.E. explained that the massager was used on her for 15 to 30 minutes both times, but that was an estimate. She agreed she had previously told police 5 to 15 minutes, which was different than her testimony. She confirmed that her memory is not great. She told police that she has a terrible one at least a couple of times. As E.E. put it, “it flunks out.”

[48] She acknowledged that she did not tell police she flinched when she gave her statement about the use of the massager. She did use the word “flinch” while giving her evidence.

[49] She explained that shortly before going to the police, she started doing “sex ed” in school. It was just a month before. She then realized how wrong it was what A.R.-P. did to her. By contrast, she told police she had not learned about it, meaning sexual education, for the last two years. She had only been taught it in Grade 1.

[50] She confirmed that she gave her statement to police when she was in Grade 6.

[51] E.E. went on to point out that she does not like to have her eyes covered. It reminded her of the massager. She did not ever wish to wear a blindfold. The spinning game was played by A.R.-P. and her a week before she went to see the police.

[52] She did not remember telling her mother that she was blindfolded while only wearing a towel.

[53] She added that the poking back and forth between A.R.-P. and her was just playfighting. She was uncomfortable, but she did not express that to him. She had her towel wrapped around her under her arms. It started to slip so she had to change into clothes. She had the blindfold on later in his room. She spun herself after he spun her to deliberately cause herself to lose her orientation. She had her arms out in front of her trying to feel her way.

[54] When it was his turn, she spun him touching his waist, and he continued to spin himself after she stopped. He bumped into the bed.

[55] E.E. stated that there was no talk of the game being played while she was naked, but it still freaked her out. She denied she ever looked around in A.R.-P.’s room or fished through his drawers or anything like that. The blindfold was on A.R.-P.’s bed when she entered his room. She was then referred to the transcript of her statement to police where she explained, “Then he got the blindfold from the inside (indiscernible) where I’m pretty sure he keeps some candy because he likes to eat it.” She testified that she did not even remember what candy she was talking about.

[56] E.E. also told police that A.R.-P. bought the blindfold a few years ago when her mother and he were still together and the family lived in Borden. Later, E.E. stated that that assertion was simply an assumption she made. A.R.-P. may have obtained the blindfold while on training in the military. He may have retained it as a keepsake.

[57] She maintained that it was true that blindfolds make her uncomfortable, especially when A.R.-P. is around. She developed a dislike for them after the spinning game. Nevertheless, she did have sleep masks of her own.

[58] E.E. did not think she had ever been in A.R.-P.’s bedroom before. She had only glanced in there on one or two prior occasions.

[59] E.E. testified that her memory of the towel/spinning game incident was good. It was then drawn to her attention by defence counsel that she told police, in speaking of the incident, “And then it starts to get a little blurry from there because I have a terrible memory.” Further she told police, “I was probably thinking this is a bad idea. What if the massage happens again?” She agreed that the spinning game did not happen in her room or on her bed, and that the lead up to the game was not the same as with the massage incidents. With defence counsel’s assistance, E.E. confirmed that she gave her statement to police five days after she had been to A.R.-P.’s place for her last access visit.

[60] E.E. had some recollection of A.R.-P. disapproving of her TikTok use in the weeks leading up to the police being contacted, but she deleted it the same day he spoke to her about it.

[61] Regarding her expression of her sentiments, “I’m loyal to mom and T. is loyal to dad,” E.E. could not specifically recollect saying that to A.R.-P., but it was possible she did. Later, she testified that she did not feel that way until after the spinning game.

[62] E.E. confirmed that she disclosed the alleged sexual abuse to which she was subjected by A.R.-P. on two occasions. The first time was when she was at the bottom of the stairs and A.R.-P. and B.E. were looking down at her. She told her mother about the penis and massager incidents. E.E. testified that he made up an excuse, but she could not remember what it was. The second, of course, was after the spinning game.

[63] Concerning the sleep masks she kept in her bedroom at A.R.-P.’s place in Petawawa shortly before going to the police, E.E. said she would use them “once in a blue moon.” They were kept near where she slept.

[64] E.E. denied that A.R.-P.’s revelation of his penis to her by uncovering himself while wearing just a towel was an educational opportunity for her. She disagreed with defence counsel’s suggestion that she never touched his penis, and that she was never touched with a massager. Under re-examination, she reaffirmed that he did ask, and she did touch his penis.

[65] Further, E.E. clarified that the blindfold used during the spinning game had two straps on it and it was dark in colour. It did not have any writing on it, unlike her sleep masks.

[66] On the quality of her memory generally, E.E. commented that where events are repetitive, for example, things that would happen normally on a weekday, her ability to recollect is not good.

[67] Regarding the spinning game, E.E. remembered A.R.-P. saying words to the effect of, at its finish while sitting on the bed, “That was pretty funny, but you wearing a towel would have been funnier.” That comment by A.R.-P. “freaked” her out.

[68] On the subject of her TikTok use, E.E. remembers that she deleted the app after he put parental controls on it. Her mother, B.E., had no access to those parental controls, only A.R.-P. However, when she told her mother about it, B.E. got angry and E.E. reloaded it on her phone with her mother’s approval around Christmas time without parental controls.

[69] E.E.’s attention was also drawn to portions of her statement to police where she said the massager incidents were two months apart, but it could have been longer.

B.E.

[70] When E.E.’s mother, B.E. gave her evidence on April 18, 2023, B.E. was 36 years old and had been living in Kingston for the last three years with her two daughters, E.E. and T. She was employed with the Canadian Forces for the past 15 years, most recently as a Human Resource Manager.

[71] B.E. explained that A.R.-P. was her ex-husband. They met in Borden in 2011. They began living together in November 2012. They married in July 2014, when E.E. was 5 and before T. was born.

[72] They moved together as a family from Borden to Petawawa. A.R.-P. was a member of the military too.

[73] B.E. recalled that E.E. was 4 years old when she started J.K. in Angus, near Borden. She went late to school because of her January date of birth. She started Grade 2 in Petawawa. B.E. believed that A.R.-P. and she were separated by the time E.E. was in Grade 4, but B.E. could not be sure whether her daughter had already completed Grade 4 in Petawawa or not.

[74] B.E. and A.R.-P. divorced in 2017 having separated earlier. In 2018, she was living with both her daughters in Kingston.

[75] B.E. remembered that in Borden and Petawawa, while she was working, she left E.E. alone to be cared for by A.R.-P. B.E. was training to become a “QL 5” for the first time while still stationed in Borden. She would be away from home from roughly 7:00 a.m. until 9:00 p.m. – sometimes as late as 11:00 p.m. This would have been in and around 2011 to 2012. She was unsuccessful in her first attempt to become a QL 5 clerk.

[76] Later in 2013, she tried again and was successful. On the second occasion, she lived away from home for a four-week period in the “shacks” to better prepare and to study. Again, E.E. was left in A.R.-P.’s care on the latter occasion as well.

[77] B.E. observed that A.R.-P. and E.E. became more like father and daughter over time. Their bond grew stronger. He became stricter with her as well, and he was, “for all intents and purposes,” her father. Still, B.E. offered, it was rare for him to be left to care solely for E.E.

[78] There were occasions where E.E. would be left alone with A.R.-P. whenever B.E. took T. to run errands, for example, grocery shopping.

[79] B.E. confirmed that A.R.-P. and she owned sex toys, including vibrators, ropes, blindfolds and card games. The rope and blindfold were a Valentine’s gift from A.R.-P. after T. was conceived. They had a vibrator while they lived in Borden as well. They brought their collection with them to Petawawa. She described the blindfold as a “classic” one – essentially a mask. They kept these items in a box in the closet in Borden. Eventually, they “slowly worked their way to my nightstand.”

[80] The mask was black in colour. It had elastic straps that went behind your head to position it. When shown the mask that defence counsel produced to E.E. earlier during A.R.-P.’s trial, B.E. did not recognize it. It was not the same one, to her recollection, of what they had in Borden. Indeed, B.E. remembered taking the collection with her upon separation.

[81] B.E. knew that her daughter E.E. used sleep masks, but never routinely. E.E. took them off before going to sleep.

[82] After B.E. and A.R.-P. separated, both E.E. and T. would visit him every second weekend and for some of the holidays. E.E., B.E. confirmed, did not stop going until she disclosed the sexual allegations she made against A.R.-P. She felt uncomfortable. She wanted to talk to B.E. at her home. She told B.E. it was important. Mother and daughter talked for 45 minutes. B.E. then decided to call the Children’s Aid Society (“CAS”).

[83] B.E. described E.E.’s demeanor throughout their discussion as stressed, confused and red-faced.

[84] After CAS was contacted, the police called B.E. a short while later. B.E. arranged to bring E.E. to the police station on June 24, 2021. They arrived together, but originally, B.E. was not in the interview room with E.E. However, during the interview, E.E. kept breaking down. She put a blanket over her head. B.E. was brought in to assist. E.E. would then whisper the answers to his questions to her mother, B.E., who in turn, would say to him what E.E. had just said. Sergeant Charlesworth specified that he could hear E.E. whispering, but he could not make out what she was saying. He offered that B.E. made efforts not to interject and used only E.E.’s words. At times, B.E. asked E.E. for clarification to ensure she was understanding her daughter correctly.

[85] B.E. did not speak to A.R.-P. about the police interview, and what historically, he allegedly did to E.E. However, B.E. did ask him about the blindfold spinning game over text. B.E. reckoned that the game is what triggered E.E.’s memory of the historical incidents.

[86] E.E. refused to go on visits with A.R.-P. thereafter.

[87] Under cross-examination, B.E. confirmed that E.E. was only two and a half to three years old when A.R.-P. came into her life. He came to B.E.’s place for a one-night stand. Later it became a more permanent thing.

[88] E.E. was kept to a strict bedtime routine as a young child. Around 7:00 p.m. was bath time. 7:30 p.m. – she would be tucked in and have a book read to her. Sometimes A.R.-P. would read to her. That practice continued, story time that is, until T. was born. E.E. was then around eight years old and able to read herself. She was still expected to go to bed at 8:00 p.m. though, but for the occasional movie night when she could stay up till 10:00 p.m. B.E. commented that E.E. still falls asleep quickly. She is out the minute her head hits the pillow.

[89] B.E. described A.R.-P.’s role with E.E. when she was a child as a “dad” to her. They would play. They got along well. Only on very seldom occasions would they have their moments.

[90] B.E. recalled that when E.E. was roughly four years old in Borden, in approximately 2013, she told her “something” which B.E. asked A.R.-P. about, but he passed it off as a dream that E.E. must have had. B.E. remembered she had been on her bed with E.E. Her daughter revealed what A.R.-P. did to her. E.E. said, “Daddy asked – do you want to see my penis?”

[91] B.E. confronted A.R.-P. shortly thereafter while he was at the computer, she thought. He denied it. He said something to the effect of, “No. Never.”

[92] By that point, E.E. was at the top of the stairs, B.E. was with A.R.-P. at the bottom. B.E. reckoned that E.E. must have come to the stairs after she left the bedroom. As B.E. put it, “In a matter of seconds, he was able to convince us it was a dream.”

[93] B.E. acknowledged that her memory, and E.E.’s, of that first disclosure were different. E.E. told B.E what she remembered, and B.E. tried to tell E.E. what she remembered. B.E. told her daughter, “You remember what you remember. I’ll remember what I remember.” B.E. testified that she shared this with police.

[94] B.E. maintained that she would have called CAS if she thought E.E. had touched A.R.-P.’s penis, or if A.R.-P. had asked E.E. to touch it.

[95] B.E. denied that A.R.-P. explained to her what occurred as E.E. seeing something under a towel and asking him what it was. Nor did A.R.-P. claim to B.E. that the revelation of his penis was an accident. It was the dream explanation that ended everything. A.R.-P. and E.E. seemed nevertheless to interact normally thereafter.

[96] B.E. explained that E.E., after the spinning game in Petawawa, also told her about the use of the massager in their Petawawa home. B.E. and her younger daughter were never there, according to E.E., when those incidents occurred. B.E. and T. would be out shopping. When referred to her statement to police, B.E. recalled that E.E. told her it happened in Borden when she was 8. B.E. acknowledged that it must have occurred in Petawawa if E.E. was 8 at the time.

[97] Regarding her course to qualify as a QL 5 clerk, B.E. reaffirmed she had to repeat the program. She failed the first time. That is why she stayed in the shacks the second time to prepare for the course. The years she would have taken those courses spanned 2011 to 2014, B.E. estimated.

[98] Turning her mind to the chronology of E.E.’s disclosure before CAS was contacted, B.E. was able to zero in on Monday, June 21, 2021, as the date E.E. told her about the spinning game. E.E. asked to change into clothes, but E.E. did tell B.E. about one turn she took at the spinning game while she was still wearing the towel and blindfolded.

[99] B.E. also recalled a blindfold coming with A.R.-P. and her from Borden to Petawawa. She recalled that it was black on one side, and possibly silver on the other. She described it as a “50 Shades of Grey” type. She thought she kept everything after separation, but she could not say yay or nay.

[100] Earlier, when A.R.-P. and she began cohabiting, he brought some of his own toys. Everything got amalgamated in the box where the sex toys were kept. She confirmed she had never seen the one produced to her in court.

[101] By contrast, the ones her kids had were sleep masks they crafted for slumber parties.

[102] B.E. was aware that A.R.-P. was away in Latvia for a while, perhaps in February or the early spring of 2018.

[103] When asked about E.E.’s comment to A.R.-P. about how she is more loyal to her mom, whereas T. is more loyal to her dad, B.E. reckoned that E.E. lived with her her entire life. She lost her biological dad at a young age. B.E. has been the constant in E.E.’s life. Nevertheless, E.E. still has good things to say about A.R.-P. in spite of what had gone on.

[104] With respect to E.E.’s use of TikTok, B.E. recalled that A.R.-P. came across inappropriate content for E.E. to have on her phone. He then put restrictions on the app. E.E.’s reaction as a 12-year-old was that she was not happy, but she got over it.

[105] B.E.’s recollection that around age 6, E.E. got her first tablet, a Samsung. It had internet capabilities. B.E. believed that A.R.-P. got the tablet free through a Rogers promotion during his first Christmas with them. E.E. also had a Leap Frog tablet in or around that time.

[106] Regarding how old E.E. was when she first told B.E. about having seen A.R.-P.’s penis, B.E. thought E.E. was four. B.E. agreed she was not away on her QL 5 course when the first disclosure was made.

[107] Under re-examination, B.E. acknowledged that her Member’s Personnel Record (“MPR”) would contain a record of the exact dates she obtained a certain qualification. The MPR was like a resume.

[108] With respect to why B.E. did not contact CAS following E.E.’s first disclosure, B.E. explained that she believed A.R.-P.’s theory that E.E. must have dreamt about seeing his penis.

Sergeant Charlesworth

[109] When Sergeant Charlesworth testified on May 15, 2023, he indicated that he had been a member of the National Investigative Service (“NIS”) of the Canadian Forces since 2016. He conducted an interview regarding the allegations made by E.E. against A.R.-P. He added that a CAS worker was brought in to assist as well.

[110] He found E.E. to be a bright young woman, but in need of support to be able to respond to his questions. He halted the interview, and after a lunch break, allowed her mother, B.E., to accompany her inside the interview room in the afternoon.

[111] Sergeant Charlesworth elaborated that E.E. was having difficulty communicating with him due to the subject matter of the interview. She had a blanket she was clutching. Later, she put it over her head. She would then whisper the answers to his questions to her mother, B.E., who in turn, would say to him what E.E. had just said. Sergeant Charlesworth specified that he could hear E.E. whispering, but he could not make out what she was saying. He offered that B.E. made efforts not to interject and used only E.E.’s words. At times, B.E. asked E.E. for clarification to ensure she was understanding her daughter correctly.

[112] Sergeant Charlesworth could not recall if he specifically asked about the physical positioning of E.E. on the bed when the massager and blindfold were used on her by A.R.-P.

[113] Under cross-examination, Sergeant Charlesworth explained that at the outset of the interview, he was clear with E.E. that if she did not understand his questions, she was to let him know.

[114] Sergeant Charlesworth offered assistance to the defence in interpreting a “Claims Ex” record of expenses incurred by A.R.-P. as a member of the military. Upon being referred by defence counsel to page 2, entry number 3 of the record, Sergeant Charlesworth was able to observe that A.R.-P. submitted a claim on February 28, 2018 while deployed to Riga, Latvia. The claim was settled on April 4, 2018. Sergeant Charlesworth could not say whether A.R.-P. submitted the claim himself, or if someone else did, on his behalf.

[115] Upon consent, an MPR was tendered into evidence, as Exhibit 6. It established that B.E. received her accreditation as a QL 3 Clerk on June 27, 2008, and as a QL 5 on October 23, 2013. She was associated with CFB Borden from July 12, 2010 to July 13, 2016.

A.R.-P.

[116] When A.R.-P. testified on May 15, 2023, he was 34 years old. He had been a member of the Canadian Forces for a month shy of 17 years. He further explained that he was in a Transition Centre and was on reduced duties. He was struggling with some mental health difficulties – namely Anxiety and Depression Disorder (“ADD”) as well as Attention Deficit and Hyperactivity Disorder (“ADHD”). Stress triggers both conditions for A.R.-P. He is unable to think clearly. He shakes. He trips over his words.

[117] A.R.-P. recounted that he was once married to B.E. They were both members of the military.

[118] He recalled her first attempt to pass the QL 5 course. She was unsuccessful. He attributed part of the reason for her failure to himself. He needed frequent contact with her at that time. He lacked confidence parenting alone her daughter, E.E. She needed to speak with him frequently over the phone or simply needed to come home to take care of the child and to calm her. B.E. was thus unable to dedicate herself to her studies as she ought to have.

[119] While B.E. was trying to study away from home, A.R.-P. tried to assume all childcare duties. He would pick E.E. up from daycare, do her homework with her and get supper ready, but B.E. would usually end up joining them later in the evening.

[120] A.R.-P. would read books to E.E. in the evenings, but B.E. wanted to be involved in E.E.’s care. B.E. would bring her study materials home to be there for her daughter.

[121] A.R.-P. candidly admitted his trouble understanding the child’s needs when thrust early into a caregiving role. He lacked confidence. B.E. had no choice but to be there for E.E. A.R.-P. wanted B.E. around too.

[122] For the second QL 5 course B.E. attended however, she applied to be in the barracks to be able to devote herself more to her studies. By that point, A.R.-P. had more experience handling his parenting role.

[123] During B.E.’s first and second attempts at gaining accreditation as a QL 5, E.E.’s bedtime routine, to A.R.-P.’s recollection, did not change. Normally, bath time was 7:30 p.m. E.E. would be in bed by 8:00 p.m. for story time. Lights out rarely went past 8:15 p.m.

[124] During her first attempt at qualifying as a QL 5, B.E. would read to E.E. at bedtime. During the second, A.R.-P. was primarily responsible.

[125] Any suggestion that E.E. would be up until 11:00 p.m. or midnight, according to A.R.-P., was simply not true.

[126] A.R.-P. told the court he would do other things with E.E. He would go outside and play with her. They would play videogames and Lego. It was random. When E.E. was younger again, she would play with dolls - Barbie and the like.

[127] T. was A.R.-P.’s and B.E.’s biological child. She had not been born yet when B.E. did her QL 5 course the second time.

[128] After living together in Borden, A.R.-P. and B.E. were posted to Petawawa. While there, they separated. The children stayed with B.E. at 15 F. Street. A.R.-P. moved into barracks where it was difficult for him to spend time with the children. He would do what he could, taking them on nature walks and for ice creams. He would return them to B.E. when they grew tired.

[129] Eventually, a formal custody and access agreement was reached, but when B.E. was posted to Kingston, transportation for exchanges of the children became more difficult. B.E. and A.R.-P. would generally meet in Carleton Place. Covid, work schedules and weather could all create issues for them.

[130] Regarding E.E.’s allegation that A.R.-P. showed his penis to her, A.R.-P. stated that the only thing that ever came close to that was on one occasion when he came out of the shower in Borden. As he passed by E.E. wearing only a towel, she asked him what the bulge underneath it was. First, he told her it was a towel. She pointed then to his private area using her right index finger. He told her it was his penis. She asked to see it. He opened his towel and showed it to her. As A.R.-P. put it, she was “grossed out” by it. He was very embarrassed and went to his bedroom. He closed his door and dressed himself. He explained that when she asked to see it, she was in her bedroom directly across from the master bedroom B.E. and he shared.

[131] A.R.-P. elaborated that it was an “educating moment” for E.E. He wanted to teach her about anatomy. It was not intended in any way to be sexual in nature. The towel was only opened for two to three seconds. She did not touch his penis. Nor did she ask. There was no discussion about it.

[132] Regarding cat videos which E.E. testified about earlier during his trial, A.R.-P. explained that none were shown to E.E. at the time he briefly exposed himself to her. He did recall that E.E. had a device he described as a “Leap Pad.” It had access to the internet to download games, but no access to the world wide web. The tablet he obtained from Rogers did not come along until E.E. was roughly six years of age.

[133] A.R.-P. testified that he discussed with B.E. what he did in exposing himself to E.E. later in the evening of the day upon which it occurred. He shut the door to their bedroom. B.E. had raised with him that E.E. had approached her and complained about seeing his penis, and being asking by him to touch it. A.R.-P. told her he guessed E.E. must have had a dream about it. B.E. agreed with his hypothesis. A.R.-P. was clear that this conversation he had with B.E. occurred in their bedroom, not on the stairs.

[134] A.R.-P. added that, to his knowledge, the brief exposure of his penis to E.E., while he was wearing the towel, was the sole occasion upon which she would have seen his penis.

[135] Regarding E.E.’s allegations that he touched her with a massager, A.R.-P. recalled that there was a blindfold which B.E. kept in her nightstand in the home they shared in Petawawa. Other items such as that were kept in there as well, but to his knowledge, E.E. never found them. He denied he ever used a vibrator/massager on E.E. He never touched her with one. The incidents about which E.E. testified involving a massager never happened.

[136] With respect to the spinning game, A.R.-P. remembered that the last visit he received from the girls, E.E. and T., E.E. was getting ready for a shower. She was upstairs and needed a towel. He got one from downstairs for her, left it on the toilet and closed the door to the bathroom at his home in Petawawa.

[137] When she finished her shower, E.E. called him back upstairs. She was wearing only a towel and kept it cinched around her torso. She started bumping into him, elbowing him, and tilting her head to the side to make contact with his chest to initiate play. In response, A.R.-P. gave her some light pushes contacting her upper arms and shoulders. They were both laughing. He thought they were playfighting and having fun.

[138] He then proposed a spinning game involving a blindfold. E.E. went and changed into clothes. She returned to his bedroom. The door to it was left open.

[139] The object of the game was to spin around three times and to try to find your way out while blindfolded. On E.E.’s first attempt, A.R.-P. recalled, she spun herself around and counted her three rotations. She held her hands in front of her. However, she could not find her way out.

[140] A.R.-P. explained to her that the key is to make a mental map. Again, he was treating this as a teaching moment for her. If, for example, there was a house fire with thick smoke, you would want to know how to find your way out.

[141] When it was A.R.-P.’s turn, he blindfolded himself and spun around three times. He succeeded in finding his way to the door. E.E. appeared to be happy with his explanation of what he was attempting to teach her. They then went downstairs and played videogames.

[142] A.R.-P. recounted that he acquired the blindfold while he was in Latvia, or on his way back on one of the flights. He kept it in his nightstand. He described it as a sleep mask. He identified it as the one earlier presented to E.E. during his trial.

[143] He explained that the blindfold he supposedly used on E.E. when applying the massager to her was not this one. He did not even have it then. He had never used one while engaging with E.E. at any point in time before.

[144] When handed the “Claims Ex” document, he was able to approximate February 28, 2018 as the date on or about which he acquired that blindfold. It would never have been in his house before then.

[145] He added, other than helping E.E. to put the blindfold on, there was no other physical contact he had with her during the spinning game, nor her with him. She seemed fine with putting the blindfold on. It looked to him to be a learning experience for her. At the conclusion of the game, E.E. and he had no further discussion about it.

[146] However, A.R.-P. did converse with B.E. about the game in the days following. B.E. was inquiring as to why he engaged E.E. in it. He told his ex-wife that it was simply random, senseless horseplay, although he did not provide her with every detail of what transpired.

[147] A.R.-P. went on to point out that E.E. likes to sleep with her curtains open. She thus uses sleep masks/blindfolds on occasion. She will wear them to prevent the light from waking her up. He referred to photographs he had taken of them, and which she had left in his house in Petawawa. The photos were taken after he was charged. One had “Magical” written on it. Another had been left hanging on her bedpost.

[148] In the lead-up to A.R.-P.’s arrest on the charges for which he was on trial, he offered that he was still getting the girls every other weekend.

[149] The TikTok issue arose when he witnessed E.E. watching a video on how to kill yourself. He looked in her phone thereafter and saw that she was speaking to others on the subject. Consequently, he used “parental controls” to restrict her access to the app.

[150] Later, he approached E.E. and told her he went through her phone. She responded, “I know.” She gave him the cold shoulder. Her demeanor exhibited an attitude of “I don’t care”. She would not make eye contact with him. She did not want to talk to him about it.

[151] A.R.-P. followed up by texting B.E. on the subject and speaking to her during the next exchange of the kids in Carleton Place. B.E. promised she would discuss it with E.E. By the following exchange weekend, it was A.R.-P.’s impression that B.E. had still not spoken to E.E. on the subject.

[152] It was A.R.-P.’s view that E.E. was not impressed that he had placed parental controls on her access to TikTok. He felt she stonewalled him thereafter. She demonstrated no initiative in talking to him about it.

[153] The TikTok incident occurred approximately one month prior to A.R.-P.’s arrest. It happened also in and about the time E.E. commented to A.R.-P. that she is more loyal to her mother, whereas T. is more loyal to him. A.R.-P. discussed that statement with B.E., who put her palms up in the air shortly after the comment was made. A.R.-P. believed that B.E. reacted that way after hearing what E.E. said.

[154] Two weeks after E.E. first made the statement to him, she repeated it again in B.E.’s presence. According to A.R.-P., B.E.’s reaction was the same.

[155] Under cross-examination, A.R.-P. confirmed that he first met E.E. in the 2011 to 2012 timeframe. She was approximately two and a half years old. Only six months or so before, she had lost her father to suicide. Less than 24 hours after meeting B.E., A.R.-P. met her daughter E.E. too.

[156] In April 2012, A.R.-P. began living with them both as a family. B.E. and he had been seeing one another for less than a year. He moved in with them at their home in Borden. On July 3, 2014, B.E. and A.R.-P. married, after two years of co-habiting. E.E. was then 4 or 5 years old.

[157] B.E. and A.R.-P. discussed the role he would play in E.E.’s life. B.E. would handle all matters of discipline with E.E. He would not interfere. A.R.-P. could not recall any further conversations he had with B.E. on the topic.

[158] To A.R.-P.’s recollection, B.E. had qualified as a QL 5 clerk when they married after failing on her first attempt but succeeding on the second. He still felt guilty about the distraction he caused to B.E., requiring her assistance as often as he did during his first try in caring for E.E. alone.

[159] By 2014 when B.E. and he wed, he agreed he was playing a more significant role in E.E.’s life. He shared frankly that he never, to that point in his life, lived with a woman, who had a young child. He did some research. He knew to put the child ahead of his partner and him. He was not overly concerned about taking on the role.

[160] When B.E. went off to do her QL 5 on the first occasion, she told him to supervise while E.E. bathed, and to tell E.E. where she should wash herself. He conceded that he lacked confidence in parenting generally. That, of course, improved over time with experience. He became more familiar with E.E. He got to know her. He learned her likes and dislikes. He began the process of adopting E.E. as well. She was excited. She began to call him dad.

[161] A.R.-P. recalled that the three of them stayed together as a family in Borden until they moved to Petawawa in 2016. By this point, E.E. was perhaps 8 years old.

[162] A.R.-P. indicated that B.E. and he separated on March 28, 2018 - not long after his deployment to Latvia. E.E. was then roughly 10.

[163] In describing E.E. as a child, A.R.-P. agreed that she was immature in how she interacted and played; however, she was mature intellectually. She did well in school.

[164] A.R.-P. acknowledged seeing E.E. give her videotaped statement to police. He was aware of her use of a “blanky.” However, he did not regard this need for a “comfort object” as indicative of her immaturity, nor when she would rub it around her face at times.

[165] He agreed nevertheless that the manner in which she placed the blanket over her head while answering the officer’s questions was “strange.”

[166] A.R.-P. confided that as a child, E.E. needed redirection when she wore dresses or skirts, so as not to expose her private area. She would engage in that type of behaviour in public on occasion.

[167] When reading to E.E. at bedtime, she would typically descend from her top bunk to the lower one. The beds were a gift from A.R.-P.’s parents. A.R.-P. testified he was not uncomfortable laying on the bed with E.E., although he tended to sit beside it due to the weight limit for the bunks.

[168] With respect to his focus on what E.E. said about her loyalty to B.E. as opposed to him, A.R.-P. explained that E.E. would not open up to him. It “hurt” him that she shared more with her mother. E.E. showed B.E. more love. He never told E.E. about the hurt, of course, but he did discuss it with B.E.

[169] Later, when E.E. said to him what she did about loyalty, A.R.-P. reckoned that she was being taught or groomed by B.E. to alienate him. He did concede that B.E. was the only person who E.E. had constantly in her life. Equally, he acknowledged that he was no longer always there for her post-separation as he had been before.

[170] He explained nonetheless that he came from a failed marriage himself. His parents fought. He blamed himself. He still treated both his parents with love and respect.

[171] He complained that B.E. repeatedly stated that he abandoned the children and her, but he countered that he paid child support. He never completely severed ties with his children. He saw them after work and whenever else informally.

[172] Once they signed their separation agreement, he secured reasonable and generous access to the kids. He consented to B.E.’s relocation with them to Kingston. As he put it, he did not want to interfere with B.E.’s career advancement. There was no bad blood between B.E. and him, he thought.

[173] When challenged regarding E.E.’s first allegation that he exposed his penis to E.E. while she was watching cat videos, he vehemently disagreed that he had. He denied ever allowing her to see and touch his “boy part.”

[174] With respect to opening his towel and showing his penis to E.E. as a 4 year old, A.R.-P. explained that B.E. and he discussed the use of proper terms for parts of the body in educating E.E. Indeed, he recalled that the schools were in the process also of changing their policies on how sex education was taught.

[175] However, he readily agreed that prior to exposing himself to E.E., B.E. and he did not discuss that they would show their bodies to E.E. to educate her. He confirmed as well that neither B.E. nor he walked around their home naked. They might in their bedroom with the door closed. Occasionally, B.E. and E.E. would bathe together, or B.E. would use the bathroom while E.E. was present. He, of course, would do neither.

[176] As A.R.-P. put it squarely, “It was not my intention to have an education moment” in describing the incident when he chose to expose his penis to E.E. She asked to see it. He agreed nevertheless that he did so without any prior discussion with B.E. on the wisdom, or lack thereof, in doing so. He agreed E.E. was only 4 at the time. His answer to her was yes when she asked to see it. He treated it as “a teaching moment.”

[177] B.E. and he had been living together for a year or more by that point. He was not sure if B.E. had completed her QL 5 by then. He acknowledged that by showing his penis to E.E., he must have been confident in how to parent her, and confident in his own body. He only lost that confidence when he saw her reaction.

[178] The incident boiled down to him showing his penis to his girlfriend’s kid. He did not say no. He did not suggest that they speak first about E.E.’s request to seek B.E.’s approval. He was not aware of B.E. showing her body to E.E. upon similar requests made of her by the child.

[179] He further confirmed that he did not offer any comment on what he was showing to her, what one’s penis is for, what testicles are for, etc. Nor did he address with E.E. why she should not be grossed out by what she had seen.

[180] He did not immediately seek out B.E., who he believed to be in the home at the time, to inform his partner of what he had done, and how they now ought to address the situation with E.E. He agreed he did not have, by this point, much in the way of parenting experience. He maintained nevertheless that this was a random, teaching moment.

[181] In explaining the reason why he did not seek B.E. out right away, A.R.-P. stated that he was “brutally embarrassed.” It was nevertheless brought up later by B.E., probably the next day, after it was clear to him that E.E. must have spoken to her mother. B.E. approached him about the incident. He recounted for her what had happened – the towel – E.E.’s questions about the bump underneath. A.R.-P.’s conversation with B.E. was a short one behind a closed door in their bedroom.

[182] To A.R.-P.’s recollection, B.E. did not ask him if E.E. touched his penis. B.E. only questioned him about E.E. seeing it. He offered no explanation to B.E. as to why he was embarrassed by what occurred.

[183] In reflecting on B.E.’s confrontation of him, A.R.-P. agreed that B.E. must have said, “E.E. says she saw your penis.” A.R.-P. confirmed that B.E. did ask him something to that effect. A.R.-P. thought B.E. perhaps suggested E.E. must have dreamt seeing it. A.R.-P. agreed with B.E. He did not know why he would have done so. He offered that perhaps there were additional comments B.E. and he exchanged to explain why the theory of a dream was raised.

[184] A.R.-P. clarified that E.E. did not touch his penis, but he conceded that E.E. could have said she touched it. He denied that she did in fact. Later, he testified that he was “fairly confident” that this discussion B.E. and he had was behind closed doors and out of E.E.’s earshot. He did not recall ever discussing the incident in the child’s presence.

[185] In speaking of his ADD and ADHD, A.R.-P. stated that the medications he takes for those conditions do not affect his memory. Before separation with B.E., he had been diagnosed with ADD. She was aware of his depression. He was taking medication for it from the time they met. The anxiety, he clarified, came later. It affected his immediate recall and ability to think things through, especially in moments of high anxiety. However, his ability to remember, he emphasized, was good when the anxiety subsided.

[186] A.R.-P. recalled that he was extremely stressed when he spoke to the NIS of the Canadian Forces. He confirmed that he told the military police officer on June 25, 2021, when he was interviewed, “I have a crappy memory in general.”

[187] He added in giving his evidence in Court that, around that time, he was smoking marijuana “mainly every day” in the evenings. The following February, he abstained from its use and his memory improved. Since marijuana’s decriminalization date, he offered, he was introduced to the drug. He did not realize how much it affected his memory until after he quit. He estimated that six to eight months prior to his arrest, he started smoking marijuana daily.

[188] He recalled that he would smoke after the girls were in bed. It helped him to sleep. He vehemently denied that he was impaired by cannabis during the spinning game, or when she said she touched his penis.

[189] Regarding B.E.’s and his use of a massager/vibrator, A.R.-P. recalled an instance where E.E. came down the stairs as a child holding a phallic object. B.E. “freaked.” He chuckled. E.E. was asking what it was. He denied adamantly that he ever used such an object on E.E. The only time he used a blindfold on her was during the spinning game.

[190] When asked about B.E.’s testimony that she had a ‘50 Shades of Grey’ mask, black on the outside, and silver inside, A.R.-P. confirmed that she kept one in the drawer of her nightstand. At the moment of giving his evidence in Court, he added, he had three sleep masks in his bedroom. There were still two in E.E.’s room. He had his three before he went to Latvia. He used them with his sexual partners.

[191] He denied that he had one during the time E.E. says he used one on her of the style and colour she described. The one B.E. and he had in that era was purple in colour and had only one strap. He gave a silver one to B.E. as a Valentine’s gift in 2014 prior to T.’s birth with ‘50 Shades of Grey’ written on it.

[192] In addressing the spinning game, A.R.-P. re-emphasized that it was the last weekend E.E. had been over to his place. He was sensitive to and aware of the fact that she was becoming a young woman. He insisted however that she initiated the horseplay when she came out of the shower dressed only in a towel. She shouldered him as she passed by.

[193] It was A.R.-P.’s idea to play the spinning game. It was E.E.’s idea to get dressed beforehand. He conceded that he thought it would be “more amusing” if she had stayed in her towel.

[194] He agreed as well that not using your hands is part of the spinning game. When challenged about whether he thought of dressing himself in only a towel for the game, he answered, “It wouldn’t have been appropriate.”

[195] A.R.-P. maintained nevertheless that the spinning game was a random suggestion on his part. He had no ill intent. Although, he ventured, he would probably not win an award for “Father of the Year.”

[196] When presented with the text exchange that he had with B.E. on June 21, 2021, shortly after he played the spinning game with E.E., A.R.-P. testified that he was “confused.” He conceded that his earlier evidence about E.E. having initiated the horseplay was wrong. He agreed he was using marijuana regularly at that point, and it may have affected his memory.

[197] A.R.-P. denied vehemently that he wanted E.E.’s towel to come off when they played the spinning game. More forcefully again, he denied that he wanted any sort of a sexual relationship with his stepdaughter.

[198] He maintained that the whole event with E.E. was “unplanned, unscripted horseplay.” He conceded that, although his suggestion that it would have been “more amusing” if she had a towel wrapped around her, so she would not be able to hold her hands out in front of her to feel around may seem “inappropriate,” he was not seeking to make E.E. feel uncomfortable. The way she would be holding her towel, he ventured, would not have allowed it to fall off. He did not believe there was anything “ per se ” inappropriate about the spinning game. He also denied that he would have preferred if E.E. had kept quiet and had not told her mother about the game.

[199] With respect to his decision to place parental controls on E.E.’s use of TikTok, A.R.-P. confirmed that he did not text to ask her how she was doing after he discovered what she was talking about with others, namely suicide. He knew she was being picked on at school. He thought he did speak to B.E. during one of the exchanges about whether she had spoken to E.E. about what he had found on her phone.

[200] A.R.-P. agreed that he did not ever ask E.E. about her comment that she is more loyal to mom whereas T. is more loyal to him. He denied that E.E. may have felt that way because he had her touch his penis, he had touched her with a vibrator, and he had made her play the spinning game.

[201] By way of admission, Crown and defence counsel agreed that the date for marijuana de-criminalization in Canada was October 17, 2018.

The Position of Crown and Defence Counsel

[202] Both counsel concur that, quite simply, this is a W.(D.)[^1] case.

[203] If I believe A.R.-P., upon consideration of the evidence called at his trial as a whole, I must acquit him.

[204] If I do not believe him, but his evidence raises a reasonable doubt, I must acquit him.

[205] Even if his evidence is neither believable nor raises a reasonable doubt in my mind as the trier of fact, I must still be convinced beyond reasonable doubt in the evidence which I do accept before I could ever find him guilty.

[206] Of course, both Crown and defence counsel urge me to assess the inconsistencies in the witnesses’ testimony, any explanations they offer for them, and the conflicts in their evidence. Indeed, the central issues raised in A.R.-P.’s trial will turn on the findings I make on the credibility and reliability of the evidence of the witnesses called at trial.

The Law

Assessing the Credibility of a Child Witness:

[207] As I approach my analysis of the evidence of E.E., I must remind myself as well of the dicta of Lamer C.J.C., as he then was, at paragraph 47 in R. v. L.(D.O.) [1993] 4 S.C.R. 419

“In the case at hand, in the determination of what is fair, one must bear in mind the rights and the capabilities of children. As McLachlin J. recognized in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133: "... it may be wrong to apply adult tests for credibility to the evidence of children". Wilson J. expressed a similar view in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, in reference to the appeal judge's treatment of the child witness' evidence:

. . . it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.”

[208] Further, as observed by Juriansz, J.A. in R. v. J.J.B. [2013] ONCA 268 at para. 70:

“[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B. (G.) , [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

[209] Similar to the assessment of credibility, I must disabuse myself of any notion of the inherent unreliability of a child witness’ evidence. As McLachlin J. stated, as she then was, at para. 23 in R. v. W(R) [1992] 2 S.C.R. 122:

“23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

[210] Further, I will adhere to the general direction offered by way of an endorsement of the Court of Appeal for Ontario in R. v. A.M. 2014 ONCA 769 as follows:

[8] Several basic principles inform our decision regarding the trial judge's reasons for judgment.

[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, [1992] S.C.J. No. 56, at p. 134 S.C.R.

[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 S.C.R.

[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 S.C.R. See, also, R. v. Kendall , [1962] S.C.R. 469, [1962] S.C.J. No. 27.

[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.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., 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 C.C.C.

[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] 3 S.C.R. 3, 2008 SCC 51, [2008] S.C.J. No. 52, 2008 SCC 51 , 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 C.C.C.; R. v. Dinardo , [2008] 1 S.C.R. 788, 2008 SCC 24, [2008] S.C.J. No, 24, 2008 SCC 24 , at para. 31 .

[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling , [2008] 1 S.C.R. 272, 2008 SCC 10, [2008] S.C.J. No. 10, 2008 SCC 10 , 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, [2008] O.J. No. 889, 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.), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C.

The Meaning of Proof Beyond a Reasonable Doubt:

[211] In a very recent case I decided, R. v. McLaren 2023 ONCJ 92, I adverted, as I must, to the meaning of “reasonable doubt”. I had the following to say:

181 . The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.

182 . Recently, my colleague, Brochu J., in R. v. Hawryluk (unreported), offered these helpful commentaries on the meaning of reasonable doubt:

[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.

[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus , [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
• On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[42] Three years later, in R. v. Avetysan , [2000] 2 S.C.R. 745, 2000 SCC 56, the Supreme Court of Canada clarified at para. 13 that:

In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.

The Issues

Do I believe the evidence of A.R.-P.?

[212] For the reasons that follow, I do not. I must reject it.

[213] Firstly, I find that the testimony he gave about exposing his penis to E.E. is quite preposterous. If it truly was a teaching moment, A.R.-P. could not have handled the situation more poorly.

[214] If the incident happened as he contended it did, I find that he would have sought out B.E.’s approval before exposing himself. Lacking in confidence as he said he did as a new parent, he would not have taken it upon himself to expose his penis, as he testified he did, without consulting B.E.

[215] Even if he did act unwisely and impulsively on the spur of the moment, surely he would have immediately looked for B.E. to tell her what had just transpired. On his own evidence, he did not.

[216] His explanation that he was embarrassed and ashamed is not credible. To my mind, it is wholly unbelievable. E.E. needed to be comforted and reassured that what she asked of him, and how she reacted, were not wrong or blameworthy on her part. Yet he initiates no conversation with E.E. and B.E. about it. Instead, he has to be confronted by his former partner.

[217] I find that what actually happened was exactly what E.E. disclosed to B.E. as a 4 year old child. A.R.-P. exposed his penis to his stepdaughter while she was watching videos on her bottom bunk in her bedroom. B.E. all too willingly accepted A.P.-R.’s explanation that E.E. must have confused a dream with reality.

[218] A.R.-P. himself acknowledged that B.E. confronted him at or around the time E.E. first disclosed to B.E. If it was truly a “teaching moment,” then that was the time for A.R.-P. to come clean with his partner, B.E., and to tell her what he did to cause E.E. to have said what she said to her mother.

[219] A.R.-P. was prepared to chalk it up to a dream because he knew what he did was so wrong – exposing his penis to his stepdaughter while she watched what she believed were cat videos.

[220] Secondly, I find that A.R.-P.’s memory seemed to work conveniently to exculpate himself, but completely lacked accuracy in recounting certain other, more recent events. The spinning game was illustrative of this quality to A.R.-P.’s memory. He was certain over the course of the two days when he gave his evidence in-chief and at the commencement of his cross-examination that E.E. initiated the horseplay in the prelude to the spinning game. The text he composed on June 21, 2021, of course, told a different story.

[221] For whatever reason, A.R.-P. thought it was a good time to poke E.E., then a 12 year old girl, and to engage her in horseplay as she emerged from the shower. Further, he felt it would be “more amusing” for her to remain in the towel. This meant, of course, that she was at risk of losing her towel and being nude in front of her stepfather, should she extend her arms while blindfolded in attempting to find her way out of his bedroom, or should she fall and reveal her body if the towel came off. I find that his simple desire to have E.E. remain in the towel betrayed a sexualized desire on his part that she be made to feel vulnerable and exposed.

[222] Thirdly, I dismiss any tacit suggestion raised by the evidence of A.R.-P. that E.E. harboured an animus toward him, or a motive to fabricate, because he placed parental controls on her use of the TikTok app, shortly before she disclosed the spinning game and historical incidents of sexual touching to her mother, B.E. It must be remembered that E.E. was only in her stepfather’s care every second weekend and certain holidays. The vast majority of her time was spent with her mother. B.E.’s rules then applied. If E.E.’s mother gave her permission to access TikTok, E.E. had free reign over what she chose to view.

[223] Lastly, and more importantly, I reject A.R.-P.’s evidence because I accept fully the testimony of E.E. on what she says her stepfather did to her in respect of the material events. She did not claim to have a crystal clear recall of the events – far from it. However, she knew, and she was entirely believable in her account of how A.R.-P. asked her if she wanted to see his penis, asked her if she wanted to touch it, and she did, all while she was watching what she thought were cat videos on some sort of device.

[224] She was equally credible in relating to the Court how he blindfolded her on two subsequent occasions and used a massager on her vaginal area. She knew what happened to her. She knew who did it to her. She never forgot.

[225] Albeit, she may have been disinclined to speak about it after the first occasion she disclosed to her mother, who allowed it to be passed off as a dream. E.E. saw her mother confront A.R.-P. B.E. and A.R.-P. also recalled that the confrontation occurred, but unfortunately for E.E., nothing came of it.

[226] Believing firmly as I do in the testimony of E.E. that she was touched inappropriately and sexually by her stepfather, A.R.-P., is as much a reason for the rejection of his evidence as any other (see R. v. Jaura 2006 ONCJ 385 at paras. 12-21 , R. v. J.J.R.D. at para. 53 and R. v. C.L. , 2020 ONCA 258 at para. 30 ).

[227] To be clear, I am not preferring E.E.’s evidence over A.R.-P.’s. I deeply appreciate that the burden of proof beyond a reasonable doubt in demonstrating an accused’s guilt rests with the Crown, and never shifts to the defence. However, I have considered fully E.E.’s evidence against all the evidence called at A.R.-P.’s trial, and it leaves no room for me to entertain a reasonable doubt as to his guilt. (see R. v. A.I.B. , 2023 ONCA 597 at para. 17 )

Does the Evidence of A.R.-P. raise a Reasonable Doubt?

[228] It does not. Having rejected the testimony of A.R.-P. as I have for the reasons set out above, it is impossible for his evidence to raise a reasonable doubt in my mind.

The Evidence I Do Accept

[229] Simply put, I believe E.E. She came to Court without any animus against A.R.-P. Indeed, as B.E. stated, E.E. still had good things to say about A.R.-P.

[230] I find that E.E.’s memory of being sexually touched by A.R.-P. was likely triggered during her last weekend visit with him, and his use of the blindfold upon her during the spinning game. The past flooded back. My confidence in the reliability of her evidence, notwithstanding the passage of time, remains sound. E.E. retained the core aspects of the incidents of when her stepfather engaged her in lewd and despicable, sexual activity.

[231] I am not unsettled at all by E.E.’s concession that, “It might just be my memory being wrong”, when she spoke of seeing cat videos on the first occasion upon which she was invited to touch, and did touch A.R.-P.’s penis. I find that she nevertheless had an engrained recollection of what transpired. What she remembered clearly, and without any inaccuracy, is that A.R.-P. asked if she wanted to see his penis, then asked if she wanted to touch and she did.

[232] Whether this happened at 8:00 p.m., her regular bedtime, or as late as 11:00 p.m. or midnight, hardly matters. The most she can do is provide guesses as to when it occurred, given the passage of time, since she was then roughly a 4 year old child. Any inconsistency in her answers to police as to the time of day versus her testimony in response to questions put to her by counsel, is peripheral, maybe even trifling. She is almost being asked to do the impossible. That it occurred at some point while she was looking at videos on her bottom bunk with A.R.P. is the best she can be expected to do.

[233] Childhood memories are akin to vignettes. Certain images may fill in and colour the perimeter of the mental snapshot the brain captures of past events. Those peripheral details may be less reliable, such as whether it was in fact cat videos playing on the nearby device, as the events unfolded.

[234] However, the physical acts of greatest significance, being asked to touch and touching the penis of an adult, while still a child, for example, can be retained for a lifetime by the individual who lived through them and experienced them. The ‘who did it’ and ‘what happened’ are its core aspects. If a witness is believed on that, it matters little what the surrounding circumstances of the event may have been. Something profoundly significant occurred for that child.

[235] As a child, I find that E.E. was asked to touch A.R.-P.’s penis and she did. A.R-P. also touched her with a massager and a vibrator on at least two occasions. E.E retained those memories as well. She never forgot.

[236] The clothes he wore, or she wore, how or if his or her clothes came off, and in what sequence, are not nearly as important as her recollection of the event itself which constituted the crime.

[237] I believe E.E.’s recollection of what A.R.-P. asked her to do, what she did in response to his request and what he did to her. Her testimony was both credible and reliable. It happened. She told the truth to the Court. A.R.-P. did not. Further, her recall of it is sufficiently reliable such that I cannot entertain a reasonable doubt about its accuracy. Her evidence was powerful and compelling.

[238] When E.E. says her memory is “blurry,” her credibility is enhanced, in my view, not reduced. She offers what she can remember about the surrounding circumstances. It is not as reliable as the sexual acts themselves that she was enticed into performing by A.R.-P., her stepfather. Again, what is important is that she remembers credibly and reliably the happening itself. She was blindfolded. She was touched in her vaginal area with a massager. There was no insertion. It happened on at least one other occasion. It may have happened more, but her certainty lies in what A.R.-P. did to her at least twice, and how he did it.

[239] Any conflict in the evidence between E.E. and her mother, B.E., I would resolve in favour of E.E. regarding whether she told her mother as a young child that she touched A.R.-P.’s penis at his invitation to do so.

[240] To my mind, B.E. was inclined to believe, either at A.R.-P.’s suggestion, or of her own volition, that E.E. must have dreamt up the event, but not lived it. For B.E., to countenance the incident as being real would likely mean the end of her relationship with A.R.-P. I find she was unwilling to even consider the prospect. Indeed, B.E. expressed her guilt to her daughter for not acting when E.E. first disclosed to her what her stepfather had done.

[241] B.E., in retrospect, knows she should have taken fuller and better steps to get to the root of what occurred at the time E.E. first disclosed the incident to her. Unfortunately for E.E., she did not. As a consequence, E.E. was forced to suffer more abuse at the hands of A.R.-P when he turned to the use of the vibrator on her.

[242] E.E.’s best estimate of her age at the time she was touched with the vibrator was that she was in Grade 2 or 3. That is all it need be – a best estimate. Having found her evidence regarding the vibrator’s use upon her on at least two occasions as the critical component – exactly how old she was takes on a lesser significance.

[243] I find, based on logic, common sense and human experience that by Grade 2 or 3, E.E. was certainly capable of forming and retaining memories. Whether the acts of using the vibrator spanned a period of time between 5 to 30 minutes is immaterial. The exact duration, or differences in her estimates of how long it went on for on both occasions is, again, not nearly as important as the fact it did occur. What is crucial, and what I have found as a fact, is that her recall of its use upon her is what happened.

[244] The same can be said for whether E.E. received sexual education in Grade 1 or 6 or both, or whether the blindfold was laying on the bed, or A.R.-P. took it out from the drawer of his nightstand. What is relevant is that the spinning game triggered E.E.’s memories. The sexual education she received, irrespective of when, reinforced for her how morally wrongful her stepfather’s conduct was. Where the blindfold came from upon her return to A.R.-P.’s bedroom is totally peripheral.

[245] As far as any conflict in E.E.’s evidence that she did not tell her mother she was wearing only a towel while playing the spinning game, and B.E.’s recollection that she had, I tend to prefer E.E.’s testimony. I suspect B.E. was so horrified that A.R.-P. would engage her in any such game, even horseplay, while wearing only a towel, made her less accurate in her recollection of the details. Again, nothing really turns on this minor point.

[246] Additionally, although it was not argued by counsel, I find that E.E. and B.E. may have shared their experiences with one another on occasion. However, I do not conclude by any means that they colluded, or their discussions between them tainted or warped the accuracy of what they remembered. They came to Court attempting as best they could to relate what they could individually remember about the material events.

[247] Whenever E.E. responded to questions put to her by defence counsel with “…I don’t remember so I’m going to say yes”, that answer, in my view, was an an expression of her exasperation. She was being cross-examined closely by skilled counsel. E.E. understood the pattern. She was being asked if she remembered telling the police about a particular detail of the incident. She knew counsel would not later put to her what she did not specifically say to police on a prior occasion.

[248] In other words, E.E. was aware defence counsel would not make something up. Accordingly, whenever she did not remember a particular detail she gave to police during her interview as a 12 year old, and some 21 months before she testified, she knew defence counsel would be in a position to remind her exactly of what she said in the past to police. Defence counsel had a transcript.

[249] E.E. could see, plainly, where defence counsel was going. That is all E.E. meant by, “I don’t remember, so I’m going to say yes.” It did not betray, by any means, a willingness on E.E.’s part to be careless with the truth, or not to be as precise and detailed as she could be in the evidence she gave to the Court.

Conclusion:

[250] In sum, I am convinced beyond a reasonable doubt in A.R.-P.’s guilt after a complete review of the evidence called at his trial.

[251] For the above reasons, I must convict him for exposing his penis to E.E., inviting E.E. to sexually touch him, sexually touching her, and sexually assaulting her.

[252] I will hear further submissions from Crown and defence counsel on which specific counts in the Information for which there should be findings of guilt registered, which should be stayed on the application of the Kienapple rule, and which should be dismissed as a result of the all too common practice in this jurisdiction of police overcharging.

DATED: September 28, 2023

March, M.G., J.

Endnotes:

[^1]: R. v. W.(D.), [1991] 1 S.C.R. 742 A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.