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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2023-01-19 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

L.M.

Before: Justice J. Bliss Heard on: January 9, 10 and 16, 2023 Ruling on Aggravating Fact released on: January 19, 2023

Counsel: J. Stanton, counsel for the Crown A. Newman, counsel for the accused L.M.

BLISS J.:

[1] After L.M. pled guilty to possessing, accessing, and distributing child pornography contrary to ss. 163.1(4), 163.1(4.1), and 163.1(3) of the Criminal Code and breaching his probation order, the Crown brought an application for an assessment, pursuant to s.752.1 of the Criminal Code, to determine whether L.M. might be found to be a dangerous offender under s.753 or a long-term offender under s.753.1. On August 17, 2022, I ruled that an assessment would be ordered pursuant to s.752.1 to determine whether L.M. might be found to be a long-term offender. (R. v. L.M. 2022 ONCJ 389)

[2] Following the ruling, but prior to the formal assessment order being made, the Crown began the process of obtaining records pursuant to production orders. After the assessment order was formally made, but prior to its expiration, the Crown alerted defence counsel and the Court that there was an unproven allegation that the Crown wished to prove as it would, if proven, affect the assessor’s ultimate opinion. The defence takes issue with this new, albeit historical, allegation involving M.L., the daughter of L.M.’s then “partner”, N.L., when M.L. was 12 years old. A hearing was scheduled and M.L. and N.L. testified. No evidence was called by the defence. All agree that the burden of proof lies with the Crown to prove any contested fact beyond a reason doubt (R. v Gardiner 1982 30 (SCC), [1982] SCJ No 71).

[3] In 1997, L.M., became involved in a relationship with N.L. N.L. had a 1 year old daughter at the time, M.L. By 1998, they were all living together and in April 2001, L.M. and N.L. had a daughter, L. By 2008, they were living in St. John, New Brunswick, but by then N.L. and L.M.’s relationship had seemingly run its course. While L.M. remained living in the home, he did not eat dinner with the family and slept in the basement. N.L. either slept in the master bedroom or with one of the children. M.L. did not have a good relationship with L.M. She felt that he treated his biological daughter differently than her and she found herself constantly being picked on by L.M. In April, 2008, when M.L. was 12 years old, she alleged that the defendant had groped her breast or breasts. She told L.M.’s mother what happened and later her own mother. Police were contacted and she provided a videotaped statement to police. There was no evidence that any criminal prosecution was initiated as a result.

[4] When M.L. testified at this hearing, she was 26 years old and recounting events that took place 14 years earlier when she was 12 years old. She had given a videotaped statement to police on April 28, 2008 and had reviewed it prior to testifying and was also able to refresh her memory on different points. It was clear that how she remembered the events now was different in some respects from what she recounted then, but did not waver that M.L. groped her breast or breasts.

The Legal Framework

[5] When assessing the evidence of an adult testifying to events that took place when they were a child, the Supreme Court has held that “[i]t is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. (R. v. W.(R.) [1992] 2 S.C.R. 12 at para 26.)

[6] More recently, in R. v. D.D. 2022 ONCA 786, the Court of Appeal reaffirmed those same principles:

[4] In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on a common sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v. W. (R.) to accurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since a child may not attend to such details: R. v. W. (R.), at para. 30.

[5] Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence. Therefore, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying” (emphasis added): R. v. W. (R.), at para. 27.

[6] However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness”: R. v. W. (R.), at para. 27.

[7] It cannot be said, as was submitted by the Crown, that M.L.’s evidence about having been molested by L.M. was unchallenged. Her evidence was challenged. She was questioned about inconsistencies between her evidence in 2023 and her videotaped statement to police in 2008. The inconsistencies provided the defence with the basis to challenge the reliability of M.L.’s evidence and claim that significant details omitted from her 2008 statement undermined the credibility or reliability of her accusation. It would be an error, however, to ignore the reality that M.L. was a child in 2008. While her evidence now must be assessed as that of an adult witness recounting events that took place when she was 12 years old, the burden of proof remains the same beyond a reasonable doubt. Common sense, and judicial direction, tells us “not to impose the same exacting standard on [children] as on adults. This does not mean that the standard of proof is lowered but that “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…The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. (R. v. B.(G.) 1990 7308 (SCC), [1990] 2 S.C.R. 30 at para 48)

[8] In R. v. A.M. 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.), the Court of Appeal provided a useful framework for assessing witness evidence in cases such as this:

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 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

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

11 Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 7 (SCC), [1962] S.C.R. 469.

12 Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

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

The Evidence

[9] M.L. testified that in 2008, her mother and sister were living in St. John, New Brunswick with her mother’s partner, L.M. M.L. said that L.M. was very tall and that as a 12 year old she reached his abdomen, just under his chest. When N.L. gave her evidence, she said that L.M. was actually 5’7” or 5’8” tall. M.L. testified that she remembered L.M. having tattoos. N.L. did not remember him having any tattoos.

[10] M.L. testified that L.M. worked, but there were times he would have to ask her grandparents for a loaf of bread. While N.L. said that they were not wealthy, she testified that they always got by financially and were never so short of money that they needed to ask her parents for bread.

[11] By 2008, M.L. and L.M. did not have much of a relationship. M.L. did not describe L.M. as a stepfather but more of someone who had been in a relationship with her mother. By then he would mostly keep to himself in the basement of their house where he slept and kept his collectibles. His relationship with M.L. was not good. She testified that she could not think of a day that L.M. was nice to her. Everything she did seemed to set him off. L, his biological daughter, on the other hand could seemingly do no wrong. M.L. was very open that she hated L.M., hated the way he treated her, hated living at the house because of him, and described him as cruel. She wanted him out of the house but, as a child, had no way of getting him out.

[12] M.L. was in grade 6 in 2008. She testified that one day just after the Easter break, she came home from school to find L.M. at home. She could not be exact about the time, but thought that school finished around 3:00 p.m. or 3:30 p.m. but it could have been 4 p.m. She based that on getting out of school between 2:30 p.m. and 3:00 p.m. and taking about 30 mins for the school bus to drop her home. Her evidence was that when she got home from school she would usually call her grandmother. In her 2008 statement to police, she agreed that she told them that she did call her grandmother, but could not recall now if she did so or not. In her videotaped statement, she also told police that L.M. told her to hang up the phone, but that was not something she remembered when she testified.

[13] M.L.’s routine when she got home was to change her clothes and put on her pyjamas and do her chores. She would wait for her mother to cook supper then have a bath or shower in the evening before bed. Her mother was usually always at home when she got home from school but would occasionally be with L.M.’s mother and not get home until 5 p.m..

[14] Seeing L.M. when she got home was unusual. No-one else was home. She testified that she was in her room when L.M. came into her bedroom. In her statement to police, she recounted coming home and turning on the television, but did not remember that even when that portion of her statement was played for her.

[15] M. L. testified that L.M. told her that she had done this weird thing the night before where she was sleepwalking and came down to the basement where he was and asked him in her sleep what sex felt like. She testified that her first thought was that didn’t happen. Firstly, because she had never been told that she sleepwalked, and secondly, because she had no interest in sex. M.L. told him to go away. He repeated that she was sleepwalking and said he could show her what sex was. She told him again to get out of her room but he carried on again so she screamed at him to get out. She testified that she rolled up a magazine and hit him in his arm or chest. Her statement was put to her in which she said she was going to hit him not that she did. She testified that to her knowledge, to this day, she remembered hitting him to defend herself and to get him to leave her alone.

[16] In her statement to police, M.L. recalled telling the officer was that she told L.M. that she could find out on her own in “sex ed”, but testified that she did not know if she had taken “sex ed” yet and only remembered taking it in grade 8. She also testified that she tried to call her grandmother but the telephone was dead like the receiver was unplugged and believed that L.M. had done that. She could not remember telling the police about the phone or that she told L.M. that she was calling her grandmother and to leave her alone. She testified that she did tell him to “leave me the fuck alone”.

[17] L.M. told M.L. that she needed to have a shower. In her statement to police, L.M. said that L.M. told her to make supper before her mother came home. That did not make sense as she testified that she would have only been able to make soup or toast or cereal. When she gave her evidence, she did not remember that, but only that L.M. told her to have a shower to get cleaned up. M.L. said that she would normally shower closer to her bedtime, but that L.M. was adamant that she have a shower. She asked him if she had a shower would he leave her alone. She remembered hoping that her mother would be home soon. She then got into the shower and locked the bathroom door. The upstairs bathroom had two doors; one to enter from the hallway and the other from main or master bedroom. She recalled remembering that she hadn’t locked both doors and getting out of the shower to lock the other door. She testified that L.M. threatened to break the door down. When she got out of the shower, she went to her bedroom and put her pyjamas on. She remembered that they were black and silky with full leg pants and a tanktop with a v-neck.

[18] She testified that L.M. came back upstairs and carried on the conversation about wanting to show her what sex was like. L.M. asked her if she would let him have one “feel”. L.M. testified that she was getting irritated and told him to go away. L.M. kept asking and she kept saying no until he went down to the basement. L.M. then came back upstairs and continued asking her to let him feel her breasts. M.L. testified that she got irritated that she told him that if she let him have one feel would he go away. He said that if she let him. he would then leave her alone. They were in the hallway. She remembered standing in the hallway and he slipped his hand in her shirt and felt her breast.

[19] M.L’s evidence was that she could not remember if he touched one or both breasts. Once he put his hand under her shirt he was making a squeezing motion and playing with her nipple. She told him his time was up. He kept asking to continue for a bit longer. She asked him to stop. He asked for a couple more minutes. He then told her that if she told anyone that he would go to jail and she would “go to juvey” and poked her in the head. When she told him that she wouldn’t tell anyone, he stopped. In her statement to police in 2008, M.L. told them that L.M.’s threat that she would “go to juvey” was after he had stopped touching her, but her evidence at the hearing was that she thought he said that while the touching was going on. She testified that as soon as he took his hand out, he was then more focussed on her not telling anyone. She did not remember her statement to police that he had put his hand in, stopped, then put his hand in again.

[20] Much was made of the discrepancies in M.L.’s account to police and her evidence about how she was touched. Her evidence was that she only remembered L.M. touching her with one hand and to one breast, but she could not say for certain that he only touched one breast, or if he used one hand and touched one breast then the other. In her videotaped statement to police, the motion she made to demonstrate how L.M. touched her used both hands to both breasts. She also did not say anything to police about him playing with her nipple. She did remember telling the police that she told him that he basically sexually assaulted her, but she wasn’t sure if she knew the meaning of the word.

[21] In a matter of minutes, it seemed like her mother was coming in the door. She explained that when it was happening it seemed so slow but was also so fast. N.L. had been out with L.M.’s mother, D.M. M.L. testified that she ran out the door and got into D.M.’s vehicle and asked if she could take her to her home. It was not unusual for M.L. to stay at D.M.’s home even during the school week. M.L. was upset but told D.M. that she was upset because she had broken up with her boyfriend. She told her mother the same thing. She thought that she spent a couple of days at D.M’s house but wasn’t sure how long she was there.

[22] M.L. testified that L.M. began calling her once or twice a day each day. She testified that it seemed like every 5 minutes. He had never called her before. In her head she thought that she had let him do something wrong and would get in trouble herself and so testified that she believed him when he told her she would get in trouble. She got so tired of him calling her that she told him that if he didn’t stop she would tell. L.M. ultimately told her that if she kept silent he would buy her DS games. She said okay because she liked playing those games. N.L. confirmed that they had a DS console in the house.

[23] The same day M.L. had left her house, she told D.M. what L.M. had done. She testified that D.M. had her write everything down so she could mail it to L.M.’s father who lived in Toronto, but nothing happened. After leaving D.M.’s house, M.L. testified that she returned to live with her mother and L.M. She said that she told her mother not to leave her alone when she gets home from school but testified that she did not tell her what happened until a couple of months later. She explained that she didn’t think her mother would believe her because she was dating him.

[24] M.L. testified that she was in the bathroom taking a bath while her mother was getting her younger sister ready for bed and a field trip. M.L. was eavesdropping and heard her mother giving the “stranger talk” to L. about what could happen if a stranger approached her. Her evidence was that she asked her mother “what if it wasn’t a stranger?”. Her mother had her get out of the bathtub so they could talk. It was then that she told her mother what happened. M.L.’s evidence was that nothing changed after telling her. They still stayed in the home with L.M. and, she testified, there were times her mother left her alone with L.M. although not often and maybe for only a couple of minutes. It was only after they had gone to her mother’s family for a meal and the rest of her family learnt what had happened and the police were contacted. She was at her grandparents when the police were called. She spoke with the police the same day and then provided the videotaped statement the next day.

[25] M.L. denied the suggestion that any family member motivated her to make up this allegation nor that she had made this up to get L.M. in trouble or get him out of the house. N.L. testified that her family didn’t hate L.M. but had the impression that M.L. did not like L.M. as he would pick on her. M.L. denied having learned what to say from watching the television or news and becoming confused. N.L.’s evidence was that while M.L. had a television in her room with cable that could access the news, she would prohibit her from watching certain channels and programs and that she mostly watched cartoons or vhs tapes.

[26] M.L. conceded that it was possible that parts of what she remembered was faulty and that her recollection would be better closer to the time of the events. She testified that the first time she saw her videotaped statement was December 19 or 20, 2022. She claimed that she had never spoken to anyone, which would include N.L., about what her evidence would be and no-one had discussed their evidence with her. When N.L. was initially asked by the Crown about whether she had ever discussed this incident with anyone, she confidently said that she did not, but then conceded in cross-examination that she may have talked about what happened with M.L. but not often. When asked why she had answered that she never spoke with anyone, she claimed that she must have been confused. In my view, there was nothing in the question that was confusing nor anything in her straightforward answer that would suggest any confusion over what she was being asked. While I believe N.L.’s admission that she and her daughter have talked about the incident, contrary to what they both testified, the question is to what degree any post-disclosure discussion between them impacts the reliability of the allegation, and to what extent do their denials of having done so have on their credibility.

[27] N.L. confirmed that by 2008, her relationship with L.M. was basically at an end. When she and L.M. were first in a relationship, L.M. had a good relationship with M.L., but as time went on, he would nitpick rather than parent. No-one else lived in the house other than her, L.M., their daughter, L., and M.L. L.M. spent most of his time in the basement which is where he slept. The master bedroom and two bedrooms were upstairs. There was also a bathroom with a bathtub and shower that could be accessed from the hallway or the master bedroom with doors that could be locked.

[28] It was not N.L.’s practice to leave either of the girls with L.M. L.M. worked at Sobey’s while N.L.’s only work was for D.M. L.M. did not have a driver’s licence and so relied on D.M. to drive her anywhere. N.L. had a very good relationship with D.M., and D.M. had a very good relationship with M.L.

[29] N.L. testified that she recalled the day when she and D.M. had been out and had driven back to her house. N.L. always made it a plan to be home when M.L. got off the school bus, but that day she was running late. She guessed that M.L. usually got home between 2:30 p.m. and 3:30 p.m. and so she would typically be home around 3:30 p.m. She recalled that when they pulled into the driveway, M.L. came flying out of the house and got into D.M’s van. She looked upset as if she had been crying. Her demeanour was out of the ordinary. M.L. stayed at D.M.’s house for at least the night, but may have stayed longer than that. That was not unusual as she often stayed the night there. When N.L. went into the house she remembered L.M. being there but did not have a conversation with him.

[30] N.L. was cross-examined about whether she cooked supper on the day of the incident and whether M.L. was there. Her evidence was that she was sure she was going to cook on the day of the incident and M.L. was there for supper. N.L. testified that L. was at the dinner table too. Counsel specifically referred to the “day of the incident” as the day of the allegation of the touching. That was inconsistent with M.L.’s evidence. In re-examination, N.L. clarified that she meant that she had cooked supper on the night M.L. told her about the incident which was a separate day from the day when M.L. had run out of house and when the incident had happened.

[31] As part of the narrative, N.L. was asked about how the allegations came to her attention. She testified that she was getting both children ready for bed. There was a field trip coming up so she was giving L. the talk reminding her not to speak to strangers. She then heard M.L’s voice from the bathroom asking what happens if someone in the family does something to you. N.L. went to the bathroom and had a conversation with M.L. about what she meant and M.L. told her what she claimed happened between her and L.M. N.L. testified that she panicked and did not know what to do and what L.M. might do if she reported it to police. She testified that while he was physically abusive towards her, it was more emotional or verbal abuse. She did not think that she left M.L. alone with L.M. after M.L.’s disclosure. She was not sure when, but the first person she told was D.M. and then her own family learned what was being alleged a short time later. N.L.’s father then called them to his house and M.L. told them what happened and then the police got called the same day.

[32] No evidence was called by the defence.

Prosecution and Defence Submissions

[33] The Crown submitted that the sexual assault was a significant event in 12 year old M.L.’s life and that whatever frailties there were in her memory now 14 years later were in relation to peripheral matters that did not undermine her credibility or reliability. While M.L. is now an adult and her evidence assessed as such, the context in which the event took place when she was a child must also be considered. Whether L.M. touched one breast or both or used one hand or two, M.L. remained steadfast that L.M. touched her sexually and it is understandable there will be differences in how she recollects the event from 2008 to the present, but that those differences do not detract from her evidence as a whole.

[34] The Crown argues that N.L. corroborated much of M.L.’s evidence and pointed to the description of the house they lived in when the incident was alleged to have happened notwithstanding the evidence that the family moved around a lot. Both described the house with the upstairs bathroom with the two entry points from the master bedroom and hallway with both doors able to be locked, how L.M. primarily stayed and slept in the basement, how M.L. ran out of the house and into D.M.’s vehicle after the incident had taken place, that M.L. then stayed with D.M. for at least a night, that M.L. had a “DS” game console” which gave credence to M.L.’s testimony that L.M. offered to buy her DS games if she kept quiet. In all, the Crown submitted that the evidence was unchallenged, more aptly described as uncontradicted, and that it established the aggravating fact that L.M. touched M.L. sexually beyond a reasonable doubt.

[35] The defence countered that M.L. had an established reason to lie. She hated L.M. and hated him living in the home. Even though by 2008 he was something of an outcast, he continued to live in the home and keep to himself in the basement and when he did emerge would nitpick. Even M.L.’s mother noticed this but L.M. continued to live in the family home. M.L. acknowledged that she had very little power or say as a child and, the defence argues, by claiming that he sexually assaulted her, this was her way of having him removed. That she remains steadfast in her conviction that L.M. sexually assaulted her does not make the allegations true because with time, the defence argues, she could honestly but mistakenly believe that they occurred.

[36] The defence also points to inconsistencies between M.L. and N.L.’s evidence that undermine the ability to rely on M.L.’s evidence as proof that the incident occurred beyond a reasonable doubt. For example, M.L. claimed L.M. was at times so short of money they needed to borrow bread from her grandparents. N.L. says that was never the case. M.L. said L.M. was tall and had tattoos while N.L. said he was 5’6” or 5’7” tall and did not recall him having any tattoos. The defence also highlighted inconsistencies in M.L’s videotaped statement to police in 2008 with her evidence at this hearing: In 2008, M.L. said she rolled up a magazine like she was going to hit him. In 2023, she testified that she did hit him. In 2008, M.L. told police she was on the phone with her grandmother when L.M. told her to hang up the phone. In 2023, her evidence was that she could not use the phone because it was not working as if a receiver was off the hook. In 2008, M.L. told police that L.M. threatened her that she would go to “juvey” if she said anything and poked her in the head after the touching had stopped. In 2023, she testified that the threat was while the touching was going on. In 2008, she told police that she told L.M. that he “practically just sexually assaulted” her. When M.L. gave her evidence, she did not recall saying or knowing or using those words then. At the hearing, M.L. was very specific about the kind of pyjamas she was wearing when L.M. touched her. In her statement to police she only mentioned “clothing”. During her testimony, M.L. did not remember watching television on the day of the incident while in 2008 she told police that she was watching television.

[37] On the last point, the defence submits that M.L. could have learned the word “sexual assault” from television and gained other details from television to make the allegation against L.M. and that she had access to cable television and nothing to stop her from watching news and other programs. The Crown took particular issue to this as entirely speculative. In my view, this claim is speculative and the evidence does not support what the defence suggests. N.L. denied that M.L. would watch news or crime programs and suggested she mostly watched cartoons, and M.L. also denied that she learned to make the allegations from watching television.

[38] The defence also argues that M.L’s testimony that she was crying when she came out of the house on the day of the incident and got into D.M.’s car was inconsistent with N.L.’s evidence that she looked like she had been crying and looked upset. In my view, any difference in their description of her emotional state is not significant.

[39] There are two areas that the defence submits are significant and establish why the prosecution’s evidence cannot be relied upon to find the allegation made out beyond a reasonable doubt. The first is the claim from both M.L. and N.L. that they never discussed their evidence or the incident with anyone since 2008. M.L. denied speaking with anyone and N.L. initially denied having spoken with anyone but then admitted that she likely had spoken with M.L. or her father. I accept that M.L. and N.L. have spoken about what took place contrary to their evidence. It is not clear to what degree they did speak or that any discussion tainted M.L.’s evidence. M.L.’s evidence was that she disclosed to D.M. what L.M. had done on the same day it happened. That was not challenged. There was also no evidence of what, if any, discussions there were between M.L. and N.L. after M.L. disclosed to her mother what had occurred, and similarly no evidence of any discussion prior to M.L. disclosing the incident to her grandfather which precipitated the call to police and statements being taken. I am not, in the circumstances, satisfied that any discussion between the two tainted or influenced M.L.’s evidence.

[40] The second inconsistency is more complicated. After L.M. had touched her, and her mother and D.M. had arrived home, M.L. testified that she ran to D.M.’s car and went to stay at her house. M.L. was not present, on her evidence, for supper on the day of the incident. When N.L. was asked about the “day of the incident”, it was identified to her as the day of the allegation of the touching. She was asked whether she cooked supper and if M.L was present for supper that day. Her evidence was that M.L. was present for supper. She was re-examined on this and then clarified that she was referring to the day that M.L. disclosed she had been touched not the day that it occurred. Obviously, both could not be correct about where they were on the “day of the incident”. In my view, N.L. was wrong when she testified that her daughter was still at the house for supper on the day she alleged she had been touched by L.M. I say that because I accept that M.L. ran out of the house upset and into D.M.’s vehicle wanting to stay with D.M. for the night. That wasn’t challenged. I also accept that M.L. explained why she was upset by telling them she had broken up with her boyfriend, and did not say anything about L.M. at the time. There was no suggestion that M.L. then got out of D.M.’s vehicle and went back into her own home to have supper before travelling to D.M.’s house to spend the night. I accept N.L.’s explanation for her answer to defence counsel’s question about “the day of the allegation of touching” that she was referring to the day that M.L. disclosed the allegation of touching to her. In my view, the term “day of the allegation of the touching” is capable, as it was, of being interpreted to mean the day when the allegation of touching was made and so N.L.’s explanation that she believed the question was about the day M.L. disclosed the allegation of the touching to her was understandable and her answer makes sense in light of the rest of the evidence of M.L.’s response to the touching.

Conclusion

[41] While there were inconsistencies in M.L.’s recounting of the incident with L.M. and what took place before and after, they were explained by the passage of time and by the recounting of a 26 year old of something that happened when she was 12 years old. While M.L. clearly disliked, even hated, L.M., I do not find that her animus towards him drove her to make a false allegation of sexual assault. She appreciated, as a 12 year old, what occurred, believed, reasonably, albeit erroneously, that she could get in trouble for allowing L.M. to touch him and end up “in juvey”, and remained consistent in her core claim that L.M. asked to touch her breasts and that she allowed him to do so. That she was steadfast in her evidence that L.M. had touched her breasts was not because she honestly, but falsely, believed he had done so, but because he actually had. That she gave a differing accounts of whether he touched one or both breasts, or how he touched them, or if he used both or one hand, is understandable given the almost 14 years since the incident occurred and her 12 year old capacity to recount what had taken place to police. Her evidence, even given some peripheral differences between her and her mother’s evidence, was reasonable and believable and not contradicted.

[42] M.L. was an honest, credible, and reliable witness whose evidence was not undermined by discrepancies between her evidence now, and her statement in 2008. Nor do I find that any inconsistencies between her and her mother’s evidence undermined M.L.’s allegation of sexual assault by L.M. I find, on the evidence, and beyond a reasonable doubt, that L.M. approached M.L. when they were alone in the home, that he created a fictitious story about her sleepwalking and asking about sex as a pretext to ask her if she wanted to learn about sex or for him to show her, and that he persisted in asking to feel her breasts, and that she relented and allowed him to touch her so that he would stop asking. I find further that L.M. did touch her breast under her pyjama top, and in a manner that he did play with her nipple and breast area. It was not momentary but was long enough that she was uncomfortable and had to ask him to stop. I also accept, beyond a reasonable doubt, that after L.M. stopped touching M.L. that he cautioned her that she would get in trouble if she told and offered her DS games if she kept silent.

Released: January 19, 2023 Justice J. Bliss