Her Majesty the Queen v. Ryan Anthony Belbin

COURT FILE NO.: 0270/12

DATE: 2014/10/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RYAN ANTHONY BELBIN

Counsel:

S. Cressman & I. Sunderland, for the Crown

J. Penman & J. Shanmuganathan, for the Defendant

HEARD: November 25-29, December 2-4, 9-13, 2013, and May 5-9, 2014

publication restriction notice

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant may not be published, broadcasted or transmitted in any manner.

GARTON J.:

[1] The accused, Ryan Belbin, age 30, is charged with the following offences:

Count 1: Breaking and entering a dwelling house at D[…]1 and committing the offence of abducting a person under the age of fourteen, contrary to s. 348(1)(b) of the Criminal Code;

Count 2: Abducting E.L., a person under the age of fourteen, contrary to s. 281 of the Code;

Count 3: Sexual assault of E.L., contrary to s. 271 of the Code; and

Count 4: Touching for a sexual purpose E.L., a person under the age of fourteen, with a part of his body, to wit: his hands, contrary to s. 151 of the Code.

OVERVIEW

[2] The charges arose from an incident on December 26, 2011, sometime after 3:00 a.m., when the five-year-old complainant, E.L., was abducted from her grandparents’ home at D[…]1. E.L., her three-year-old sister T.L., and their parents, S.L. and Sh.L., had arrived in Toronto on December 22 to visit S.L.’s parents, H.L. and A.L. They intended to return to their home in Connecticut on December 26.

[3] At the time of the abduction, E.L. was asleep in an upstairs bedroom that she was sharing with T.L. Her assailant took her from her bed and carried her down the stairs, out the front door, and into the backyard of the house across the street, where he removed all her clothing.

[4] S.L. testified that he was awakened upon hearing the chimes from the security system when the front door was opened. Sh.L. woke up around the same time when she heard footsteps going down the stairs. S.L. checked the children’s bedroom and discovered that E.L. was missing. He woke up his parents and the family commenced a frantic search for the child. S.L. called 911, spoke briefly to the operator before passing the phone to his wife, and then went outside to look for E.L. S.L. testified that he checked his parents’ backyard and then headed towards the backyard of D[…]2 at the urging of his mother, who told him she had heard murmuring coming from that direction.

[5] S.L. testified that as he rounded the back corner of D[…]2, he saw a figure “hunkering” over his daughter. S.L. screamed and the suspect fled in an easterly direction across the backyard. S.L. then picked up his naked daughter and carried her back to his parents’ house. The police arrived shortly thereafter. They found E.L.’s pyjama top, pyjama bottom, and pull-up diaper, as well as S.L.’s yarmulke, in the area where S.L. says he encountered the suspect.

[6] Mr. Belbin lived in a basement apartment at D[…]3 at the time of the abduction. He had no connection to the L. family and had never been in their home. The police first spoke to Mr. Belbin on December 28, 2011, during a door-to-door canvassing of the neighbourhood. On January 13, 2012, Mr. Belbin provided a consent DNA sample. He was arrested on these charges on February 18, 2012, after his DNA was found to “match” the male DNA detected on the left and right sleeves of E.L.’s pyjama top. It could not be determined what particular body fluid was the source of the DNA on the pyjama top.

[7] R.G. lived in the basement apartment at 77 A. Street. The backyard of that house is adjacent to the backyard of D[…]2. R.G. testified that on the night of the abduction, he heard someone scream. He waited a minute or so and then went outside. He testified that he saw a male emerge from between two houses east of his house, jog past his house, and then disappear between 79 and 81 A. Street. The backyard of 81 A. Street backs onto the backyard of D[…]3, where Mr. Belbin lived.

[8] This is a circumstantial case. Identity is the only issue. The Crown relies on the DNA evidence, as well as the testimony of S.L. and R.G. with respect to the flight route of the perpetrator. The Crown submits that the male that R.G. observed was Mr. Belbin as he was making his way home after assaulting E.L. and fleeing the scene when discovered by S.L.

[9] The defence takes the position that S.L. is the perpetrator of these offences or, in the alternative, that R.G. committed them. If the Crown has failed to establish beyond a reasonable doubt that S.L. was not the perpetrator, then Mr. Belbin must be found not guilty. Mr. Belbin must also be acquitted if the Crown has failed to establish beyond a reasonable doubt that R.G. committed these offences.

[10] In support of the submission that S.L. abducted and sexually assaulted his daughter, the defence relies on statements made by E.L. to her mother, grandmother, and the police that her father was the person who took her outside. The defence also points out that since there were no signs of forced entry into the home, an intruder could only have entered through the front door if it had been left unlocked. It was submitted that this was unlikely, given A.L.’s usual vigilance in checking the door to ensure it was locked. If the door was locked, then the evidence points to someone inside the house – namely, S.L. – as the perpetrator.

[11] Other evidence upon which the defence relies in support of its position that S.L. committed these offences will be reviewed in more detail later on in these reasons. However, generally speaking, the position of the defence is that the testimony of S.L. and the other L. family members was not credible or reliable in a number of areas.

[12] The position of the defence is that R.G.’s evidence that he heard a scream while he was wearing headphones and watching a show on his computer is not credible. The defence submits that R.G. made up the story about seeing a male run past his house in order to deflect the attention of the police away from himself. The defence submits that R.G., as the perpetrator, attempted to inject himself into the investigation in order to keep tabs on its progress. The defence also asks the Court to infer from occurrences in the past, when R.G. was investigated by police after being found in parking lots late at night and in possession of pornography, that he had a sexual interest in children and therefore a motive to sexually assault the complainant.

[13] In the event that the Court is satisfied beyond a reasonable doubt that R.G. did not commit these offences, the defence submits that R.G.’s description of the man who jogged past his house exculpates Mr. Belbin since that description did not match Mr. Belbin’s appearance in a number of respects.

[14] The defence submits that the significance of the presence of Mr. Belbin’s DNA on the complainant’s pyjamas is substantially diminished by the expert testimony regarding the indirect transfer of DNA. The forensic biologist, Mr. Currie, testified that if Mr. Belbin’s DNA pre-existed on the ground as the result of his having spat or urinated there, and if E.L. was placed on the ground in the same area during the assault, it would be possible, given certain circumstances, for his DNA to have been transferred to her pyjama top. The defence also took issue with the probability estimates and their applicability to Mr. Belbin, who has a mixed racial background.

[15] Mr. Belbin did not testify and did not call any evidence. However, in his statements to police, he denied committing the offences. In light of his exculpatory statements and other evidence favourable to the defence, including E.L.’s statements that her father took her outside, the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, apply.

[16] For the reasons that follow, I am satisfied beyond a reasonable doubt that neither S.L. nor R.G. was the perpetrator. I am further satisfied that the Crown has established beyond a reasonable doubt that Mr. Belbin committed these offences.

EVIDENCE

Testimony of S.L.

[17] S.L., age 31, and Sh.L., age 29, have three children – E.L., born […], 2007, T.L., born […], 2005, and Z.L., born […], 2012. At the time of this incident, Sh.L. was eight months pregnant with Z.L.

[18] On Thursday, December 22, 2011, the family left Connecticut and drove to S.L.’s parents’ home in Toronto. They arrived around 11:00 p.m. A.L. and H.L. came out to greet them. The two girls had fallen asleep and were carried into the house.

[19] S.L. was familiar with D[…]1 as he had lived there for many years. The house was a split level design. A person entering the house through the front door would have a clear view up a set of stairs and into the bedroom where E.L. and T.L. slept, assuming that the bedroom door was open. The girls’ twin beds could not be seen from the entrance hall but a crib in the south east corner of the room would be visible.

[20] S.L. testified that the combination lock on the front door was new. He could not specifically recall being given the code by his parents but assumed that they had done so.

[21] S.L. described his father as being very vigilant or “neurotic” in terms of ensuring that the front door was locked. S.L. did not take responsibility for locking the door when visiting his parents. He left that task to his father, who was also responsible for the alarm system. The alarm would chime whenever a door or window was opened or closed.

[22] The L. family members testified as to their comings and goings over the days leading up to December 26. They were in and out of the house on numerous occasions. Neighbours or passersby would have been in a position to observe that there were children visiting or staying at the home.

[23] On Friday, December 23, S.L. attended the Synagogue between 7:00 and 9:00 a.m. Sh.L. left the house to go to a shopping plaza for a 9:30 a.m. manicure appointment. H.L. brought the two girls to the plaza later on. They all returned to the house around 11:00 a.m.

[24] That afternoon, S.L. and his mother took the children with them on various errands. They drove to the No Frills store at Wilson and Bathurst, where they bought groceries. They also went to a party store and a Shopper’s Drug Mart. The family had dinner at home. S.L. and his father attended the Synagogue in the evening while the rest of the family stayed home.

[25] On Saturday, December 24, S.L. and his father attended the Synagogue at 8:45 a.m. H.L., Sh.L. and the two girls met them there later on and they all went to an aunt and uncle’s house for lunch. S.L., his father, and his uncle returned to the Synagogue for afternoon prayers. They returned to the uncle’s place at 5:30 p.m. S.L.’s cousin drove S.L. and his family home. The children were put to bed. Their grandparents babysat them while S.L. and Sh.L. went to a restaurant.

[26] S.L. did not recall how he and Sh.L. got back into the house that night. He had no specific memory of using the combination on the key pad to unlock the front door, although it is possible that he used it. He did not specifically recall the door being unlocked that weekend. He added that it can sometimes be “tedious” to have to unlock the door, even when no key is required.

[27] On Sunday, December 25, S.L. attended the Synagogue in the morning and returned home at about 10:00 a.m. He and the entire family later drove to a pizza place for brunch with some aunts, uncles, and their extended families. S.L. and Sh.L. then ran some errands, visited a great uncle, and went shopping. At 4:30 p.m., Sh.L. dropped S.L. off at the Synagogue, where he met his father. They returned home around 5:00 p.m. Shortly after 6:00 p.m., the family went to a Hanukkah party at S.L.’s cousins’ house.

[28] S.L. could not recall if his father attended the party. Sh.L. testified that the entire family went, although her father-in-law may have gone in his own car. They left the party around 9:00 p.m., which was quite late for the children. S.L.’s cousins invited him and Sh.L. to return to play a board game after the children had been put to bed. H.L. agreed to babysit if S.L. and Sh.L. decided to accept the invitation.

[29] Sh.L. testified that she and S.L. were non-committal in terms of whether they would return to the party. They told S.L.’s cousins that they would see how they felt after the girls were asleep. Sh.L. thought she would be too tired to come back, but left it “open ended.”

[30] S.L. did not recall if his mother came home with him or if she returned in another vehicle. Sh.L. initially testified that the entire family travelled in one car but later on testified that she did not recall the car ride home.

[31] S.L. did not recall if the front door was unlocked when they got home or if he used the combination to open it.

[32] S.L. bathed the children and put them to bed around 9:30 p.m. They were wearing matching pyjamas. E.L. was wearing a nighttime pull-up diaper. S.L. lay down with T.L. in her bed, until she fell asleep. He then lay down with E.L. and they both fell asleep. Sh.L. came in and woke him up around 10:00 p.m.

[33] S.L. agreed that during his first police interview, which took place at 32 Division from 6:10 a.m. to 7:32 a.m. on December 26, he made no mention of Sh.L. having awakened him at 10:00 p.m. He did mention it during his second interview that day, which was conducted at his home from 9:31 p.m. to 10:46 p.m. He acknowledged that he had spoken to his wife between the two interviews and that she may have reminded him of the fact that she had woken him up.

[34] S.L. and Sh.L. decided that they were too tired to go back to the party. S.L. did not recall if he called his cousins to let them know they would not be returning. He did not recall if he told his mother that he and Sh.L. would be staying home and that she would therefore not be required to babysit.

[35] S.L. and Sh.L. went to bed around 10:45 p.m. S.L. did not recall where his mother was at that time. He did not see his father after they got home but believed he was in the basement study, where he spent the better part of most days researching and writing.

[36] S.L. was uncertain as to the lighting on the second floor when he and Sh.L. went to bed. He testified, however, that there was a “good chance” that the light at the top of the stairs and the light in the bathroom off the hallway were left on during the night. The light at the bottom of the stairs may also have been on.

[37] Sh.L. testified that there was usually some light shining into the upstairs hallway at night. The source of light may have been from the bathroom. There was also a lamp in the children’s bedroom, which was usually on but turned down very low.

[38] S.L. did not specifically recall the position of the bedroom doors when he went to bed on the night of December 25. He testified, however, that the children’s bedroom door would normally be kept open so that he and Sh.L. could hear them if they cried or woke up during the night. His parents’ bedroom door was closed. He and Sh.L. kept their bedroom door slightly ajar.

[39] Sh.L. confirmed in her testimony that their door was not completely closed and that the children’s door was left wide open on the night of December 25.

[40] S.L. testified that he was awakened in the middle of the night when he heard the door chime. He recalled that he and Sh.L. woke up “pretty much at the same time.” They both bolted or sat up in their respective beds as they realized “something may be happening.” His first thought was that something was wrong. He asked Sh.L., “Did you hear that?” She indicated that she had. He was still in bed or his feet were on the floor at the time. He told her he was going to check on the children.

[41] S.L. went immediately to the girls’ bedroom and discovered that E.L. was gone. When he told Sh.L., she bolted out of bed and began calling E.L.’s name in a loud voice. They both went into the children’s room.

[42] S.L. testified that although he recalls what happened thereafter, he was uncertain as to the exact sequence of events. He did not recall putting on his glasses when he first got out of bed, but assumed that he had put them on as he cannot see without them. The glasses were inside his yarmulke, which he would also have put on. He generally does not leave the bedroom without it. He testified that he does not wear clips to keep the yarmulke in place and does not usually have a problem with it falling off. He recalled that he lost the yarmulke later that night, and speculated when speaking to police that it had fallen off after he found his daughter and was carrying her back home. He was unaware that the yarmulke was located by police beside E.L.’s pyjamas and diaper in the backyard of D[…]2. He had not noticed her clothing on the ground when he picked her up.

[43] In cross-examination, S.L. was questioned about statements he made during his first police interview that indicate he woke up and was out of bed before he spoke to his wife. He told the officers:

I jumped out of bed, put on my glasses and yarmulke, you know, said something to my wife, maybe looked to the front of the house, went directly into my kids’ bedroom, which was right there, and then again, did I go downstairs first and open the door for a second time? I don’t remember.

[44] S.L. testified that he was not lying to the officers but he was “maybe not clear.”

[45] During the interview, S.L. also told the officers: “I was, again, I got out of bed, I think I said something to my wife. I looked in my kids’ room. I might’ve gone down the stairs once first.”

[46] At another point during the interview, when asked what he did immediately after hearing the chime, S.L. stated, “Think I got up with a startle. Think I said something to my wife. I think I came out of the room, maybe I looked to the left to see if there’s anything. First thing I did was run into my daughters’ room.” S.L. explained that he was inferring that he “woke up” as opposed to “got up” with a startle.

[47] S.L. testified that Sh.L. did not wake him up. He agreed that he told the police: “I think I woke up my wife and then I went to look at my kids’ bedroom.”

[48] S.L. maintained that his current recollection is that he said something to his wife before he got out of bed and that they woke up more or less at the same time.

[49] S.L. recalled waking up his parents, telling them, “E.G. is not here.” Both H.L. and A.L. jumped up. His mother looked under E.L.’s bed. T.L. was still asleep.

[50] At some point, S.L. put on a pair of pants. He recalled opening the front door, which was closed but unlocked, and called out E.L.’s name. He also dialled 911.

[51] During the 911 call, S.L. told the operator that he could not find his five-year-old daughter: “We saw her, we put her into bed. We heard possibly the alarm or something. I came to, went to look for her. I don’t know where she is.” He told the operator that he had heard the alarm about “two or three minutes ago.” When the operator asked him to spell E.L.’s name, S.L. handed the phone to Sh.L. and said he was going to look for his daughter. He put on his father’s shoes, which were on a mat by the door, and went outside. The first place he checked was the backyard. E.L. was not there.

[52] S.L. did not re-enter the house but joined his mother, who was standing at the foot of the driveway near the street. H.L. alerted him to a sound, which she described as murmuring. She was saying, “Shh. Shh. I hear something,” and was pointing across the street. S.L. did not hear anything other than what he thought might be a cat. He crossed the street in the direction that his mother was pointing. At some point – he could not say exactly when – he began to hear a faint sound. He did not call out his daughter’s name but remained silent, listening. By the time he determined that the sound was coming from the backyard of D[…]2, he was almost in the yard. He rounded the corner of the house and “they were there in front of my face.”

[53] S.L. saw someone leaning or “hunkering” over E.L. He could not see her but could hear her moaning. He started screaming, cursing and shrieking as soon as he turned the corner. Almost immediately, E.L. “sort of landed” by his feet. He heard “sort of a thud” as she hit the ground. He did not know if she had been pushed or thrown or if she had fallen.

[54] The person who had been on top of E.L. said nothing and immediately took off. He ran in an eastward direction and was gone in seconds. S.L. only saw him – he assumed it was a male – for five or six seconds. He never saw his face or hair. He only saw his back as he fled.

[55] S.L. was not in a position to observe the suspect’s skin colour. He thought he was a bit taller than S.L., who is 5 feet 6 ½ inches tall. He had a “pretty average” build and was not “too huge.” He was wearing a sweatshirt and sweatpants and maybe a hood over his head.

[56] S.L. recalled that as the male fled east across the backyard, he struggled with something, as though he were climbing over something, and then disappeared. S.L. had never been in that backyard before and was unaware of the deck that runs along the back of the house. He marked on a photograph [Exhibit 7B] where the man disappeared from his view.

[57] S.L. described the lighting at the time as “not pitch black.” There were some lights in the area.

[58] S.L. estimated that E.L. and her assailant were about 10 ½ feet from him when he first rounded the corner of the house. In cross-examination, it was suggested to S.L. that they were actually much closer. He agreed that he told the police during his first interview that E.L. was “only a few feet in front of me.” He drew a diagram [Exhibit 13] at the request of Det. Wookey, indicating his location and that of the suspect and his daughter. At one point, he told the officers that they were “just a couple of feet” from him. At another point, he stated that they were about an arm’s length away, maybe a little more. He was not 100 percent sure. He would not have been able to reach them if he had stretched out his arm but they were not that much further away. S.L. explained that it was a surreal experience finding his daughter and that there were a lot of things going on at once.

[59] S.L. testified that after the suspect was out of view, he picked up E.L., who was naked, cradled her in his arms, ran along the west side of the house, crossed the street and entered D[…]1. E.L. was whimpering and asked for her pyjamas. She said she was cold. She seemed “out of it” or half asleep. S.L. told her that he loved her. He described himself as hysterical and believed he was screaming and shrieking as he carried her home. Yelling and screaming can be heard in the background of the 911 tape. Sh.L. was still speaking to the operator when S.L. walked through the front door.

[60] The operator told Sh.L. not to cover or wash E.L. S.L. took the child upstairs to the bedroom where he and Sh.L. had been sleeping. He draped a blanket over her and cuddled her on his wife’s bed for two or three minutes. Sh.L. then took over while S.L. spoke to the 911 operator.

[61] In the 911 recording, S.L. is heard telling his father that the assailant was wearing a sweatshirt, sweatpants, and “maybe a hood over.” He then spoke directly to the operator. In response to her questions, S.L. stated that the suspect fled eastward from the backyard of the house across the street. The operator told him that an officer from the Canine Unit would be arriving and that everybody should “just stay out of that area where you found her.”

[62] S.L. testified that as he was returning to the house with E.L., he saw his mother standing at the end of the driveway. He did not recall seeing anyone else on the street.

[63] S.L. testified that when he first opened the front door that night while looking for E.L., he noticed a car heading towards the end of the street. He became concerned that his daughter might be in a car. The car was gone by the time he and his mother were standing on the driveway and his mother was indicating that she could hear something. When asked if his mother had “hearing issues”, S.L. stated, “She says that she does.” She does not, however, wear a hearing aid.

[64] S.L. testified that he never saw a cat from the time that he picked up E.L. to the time that he carried her into the house. He did not notice any injuries on her. There was dirt on her body but he could not recall exactly where.

[65] The police seized the pants and undershirt that S.L. was wearing that night and took photographs of them. [Exhibits 12 A-E] There is dirt on the front and back of his pants. There is also some dirt on his undershirt and a small amount of blood near the neck. S.L. did not know how the blood or dirt got on his clothing.

[66] S.L. testified that the officer from the Canine Unit arrived: “A man with a dog had brought me, not the way that I came when I went to the house, the other side … to point out the direction of where [the suspect] ran away from.” S.L. pointed out the area where he saw the male flee. The officer did not explain why he did not take him down the west side of the house, which was the path that S.L. had originally followed to reach the backyard.

[67] In cross-examination, S.L. denied telling Sh.L. that the suspect was wearing a white sweat shirt. He testified that his recollection is and always has been that the sweatshirt was dark in colour, although his wife told him that he had said the shirt was white when he returned to the house with E.L. S.L. testified that he would not have said the shirt was white because he was “always convinced that it was dark.” During his first police interview, S.L. took the same position:

Q. Could you tell the colour of the sweatshirt?

A. No. My wife says that I came into the house and said it was white. I don’t remember. The picture in my head is more dark but I don’t, I don’t know.

[68] At another point in the interview, S.L. told the officers:

Q. Could you say the hoodie or the sweatshirt was light in colour? Or darker in colour?

A. Again I, I would’ve thought dark. My wife says when I came to the house, it was light. I, I don’t remember.

Q. Okay.

A. And then she said afterwards she heard them on the radio, maybe I didn’t say that. I don’t, I don’t know, that’s

Q. Okay.

A. I’m not sure.

[69] Police Constables Monika Leonard and Sean Vandercamp arrived at D[…]1 at 3:28 a.m. They were the first officers on scene. S.L. met them in the hallway. P.C. Vandercamp described S.L. as distraught.

[70] According to P.C. Leonard, S.L. described the suspect as 5 feet 6 inches tall and wearing a white shirt. He provided no other descriptors. P.C. Vandercamp testified that S.L. described the suspect as 5 feet 5 inches to 5 feet 6 inches. He could not provide any details with respect to the suspect’s skin colour or weight. P.C. Vandercamp recalled that S.L. told him he was “possibly” wearing a white shirt or sweater with a hood.

[71] P.C. Vandercamp testified that S.L. told him that he had heard a whimpering sound from across the street. S.L. also described to him the path he followed into the backyard of D[…]2, which led to his discovery of the male on top of his daughter. He stated that the suspect ran eastbound on D[…]. A few minutes later, when P.C. Vandercamp told S.L. to describe to P.C. Thrush the route the suspect had taken, S.L. stated that he saw the male jumping a fence and going eastbound in the backyard of D[…]2. P. C. Vandercamp noted the two different versions given by S.L. of the route taken by the suspect.

[72] S.L. denied that he ever saw anyone running eastbound on D[…] that night. His testimony was consistent with what he told the 911 operator, that is, that the suspect fled eastward from the backyard of the house across the street.

[73] P.C. Leonard noted S.L. as stating that he and his mother ran outside, that he heard some whimpering coming from behind the house across the street, and that he ran into the backyard, where he discovered the male on top of his daughter. The male threw his daughter towards him and ran eastbound.

[74] S.L. testified that prior to his first police interview, he and his father discussed whether the front door had been locked that night. His father could not recall if he had locked the door. S.L. did not recall telling the police that the door had been locked. He explained that if he had made such a statement, he probably just assumed that it was locked. He agreed there were no signs of forced entry into the home.

[75] P.C. Vandercamp testified that both S.L. and A.L. stated that the front door had been locked before everyone went to bed.

[76] S.L. testified that at the time of the first police interview, he was aware that Sh.L. had asked E.L. what had happened but was unaware that she had indicated he was the one who took her outside. S.L. explained that the police kept him “pretty isolated” at the dining room table until he was taken to 32 Division. As a result of the police being “very aggressive” and treating him as a suspect, he asked his friend, Zev Zlotnick, who was a real estate lawyer, to accompany him to the police station. Mr. Zlotnick stayed with him during the police interview, during the course of which S.L. provided a DNA sample.

[77] By the time of the second interview, which was at his home later that evening, S.L. knew that E.L. was alleging that he had taken her outside.

[78] S.L. testified that he sometimes goes to bed wearing an undershirt and boxer shorts; sometimes he only wears boxer shorts. He did not remember whether he was wearing an undershirt when he went to bed on December 25 or whether he put on the undershirt sometime after he was awakened by the door chime. Sh.L. recalled during her testimony that S.L. was wearing boxer shorts and an undershirt when he went to bed.

[79] S.L., Sh.L. and A.L. testified that they do not know and had never seen Mr. Belbin.

[80] S.L. and Sh.L. testified that they did not bring E.L. from Connecticut to testify at this trial because her memories of that night are vague and they would prefer to keep it that way. Sh.L. testified that they were advised by a child trauma specialist that although E.L.’s belief that her father took her outside may cause her some confusion, it would be more traumatizing for her to be told that a stranger abducted her from her bed. Sh.L. has never confirmed or denied to E.L. that her father took her outside.

[81] S.L. and Sh.L. described E.L. as a verbal child who is smart for her age and attuned to things around her. H.L. described her as perceptive and mature.

Testimony of Sh.L.

[82] Sh.L. testified that after the family returned home from the Hanukkah party, she asked S.L. to bathe the children and put them to bed. She laid out their pyjamas. She was not involved in preparing them for bed or getting them to sleep that night.

[83] Sh.L. had washed the pyjamas before packing them for the trip to Toronto. The girls had not worn them prior to December 25. They wore a fresh pair of pyjamas each night while visiting their grandparents.

[84] Sh.L. recalled that after they returned from the party, H.L. was in the kitchen cleaning up and making phone calls. A.L. was either in bed or working in his basement office.

[85] While S.L. was attending to the children, Sh.L. checked work-related emails on her laptop in the bedroom. Around 10:00 p.m., she went into the girls’ bedroom, where she found her husband asleep. This was a fairly common occurrence when he put the children to bed. She could not recall if he was lying on one of the beds or on the floor between the beds. She woke him up. He was wearing a button-down shirt and dark-coloured pants – black, blue or grey – which is the type of clothing he wore every day.

[86] Sh.L. testified that they decided fairly quickly not to go back to the party as they were both tired. She had no specific recollection of telling her in-laws about this decision. She added that they would only have been told if she and S.L. had decided to go out, in which case they would have asked H.L. to babysit. The grandparents did not intend to leave the house that night in any event. Whatever she and S.L. decided to do in terms of returning to the party would not involve her in-laws having to change their plans.

[87] Sh.L. recalled that the cousins initially invited not only S.L. and herself to return to the party but also invited her in-laws. Her in-laws, however, declined the invitation when Sh.L. and S.L. indicated that they might come back. H.L. offered to babysit the children in the event that Sh.L. and S.L. returned to the party.

[88] Sh.L. testified that she and S.L. did not call their cousins to tell them they would not be returning:

Q. And at some point, I assume that a call would have been made to your cousins or whoever which relatives they were where you were supposed to be going back to …

A. No

Q. … just to let them know you weren’t coming.

A. We did not.

Q. You didn’t call anybody?

A. Not to my recollection.

Q. So you didn’t make a phone call?

A. We left the party with it up in the air. “Don’t count on us coming back, but, you know, we’ll try our best.”

[89] Sh.L. was not involved in securing the house or locking the front door while visiting her in-laws. The lock on the front door was new. During their December visit, she was never alone when entering the house and had no recollection of unlocking the door herself. She may or may not have been given the combination. She had no specific recollection of being told what it was. The door could be locked from the inside by simply turning a lever.

[90] Sh.L. agreed that A.L. was fairly vigilant about locking the doors to the house.

[91] Sh.L. and S.L. went to bed around 11:00 p.m. Sh.L. recalled hearing H.L. speaking in a loud voice on the telephone in the kitchen. At Sh.L.’s request, S.L. told his mother “to keep it down a bit.”

[92] Sh.L. testified she was sleeping lightly when she heard footsteps going down the stairs that are next to the bedroom. She initially thought her father-in-law may have gotten up to work in his study. However, the footsteps “weren’t the usual footsteps.” They were heavier and quicker than those of A.L., who had “more of a shuffle.” A couple of seconds later, Sh.L. heard the door chime. She understood that the door chimed when it was opened. She was unsure whether it chimed again when it was closed, although in cross-examination she stated that it did chime when closed.

[93] Sh.L. testified that she was fully awake by the time she heard the chime. She looked over to S.L. and saw him wake up. He asked her, “Was that the alarm?” Sh.L. replied, “I think so.” She told him that she also heard footsteps. S.L. got out of bed and said he was going to check on the girls. Sh.L. was sitting up in bed and listening. She then got out of bed and went to the doorway. S.L. came out of the girls’ bedroom and told her that “E.G. is not in her bed.”

[94] Sh.L. went into the room to check for herself. E.L.’s bed was empty. The covers were neatly folded back, making a triangle. This suggested to Sh.L. that E.L. had not gotten out of bed on her own: “It’s not the natural type of way for a child to … get out of bed.” T.L. was still asleep in her bed.

[95] Sh.L. ran back to her bedroom and put on a sweater. She and S.L. ran down the stairs, opened the front door and ran outside. It was probably S.L. who opened the door. He was zipping up his pants as he was running down the stairs. These were most likely the same pants he had worn the night before.

[96] Sh.L. began calling out her daughter’s name either from the porch or from the end of the driveway near the street. There was no response. She did not see anyone outside.

[97] Sh.L. went back inside the house and frantically searched the main floor. She told S.L. to wake up his parents as E.L. might be in their room. She could hear her mother-in-law’s voice and S.L. telling her that he was “calling the cops.”

[98] Sh.L. acknowledged that during her police interview on December 26, she stated that she had told S.L. to check his parents’ room right after she saw the neatly folded covers on E.L.’s bed and before she and S.L. ran outside. She testified that she made a mistake in her statement in terms of this sequence of events.

[99] Sh.L. could not recall if the vestibule door was open or closed when she and S.L. ran down the stairs. She thought that H.L. usually kept that door closed. H.L. and A.L. testified that the vestibule door is normally kept open.

[100] Sh.L. was searching the downstairs study when S.L. dialled 911. Shortly thereafter, he asked her to take the phone. The phone hung on the kitchen wall but had a very long cord, which enabled her to speak to the 911 operator while she was standing in the front hallway. S.L. ran outside. H.L. followed him. They went out the door “one after the other.” Sh.L. did not see where they went or if they were standing together outside. She had a view of the front yard but not of the driveway, which is offset from the front door. Sh.L. was not aware that S.L. went into the backyard. A.L. was pacing in the hallway. Sh.L. did not see him leave the house.

[101] Sh.L. estimated that only a couple of minutes elapsed from the time she heard the footsteps to the time when S.L. handed her the telephone. She told the 911 operator that she had heard footsteps “going quickly down the steps on the inside” and then “like a door or something, and we just shot up in bed.”

[102] In cross-examination, Sh.L. testified that after she heard the door chime, she was even more aware that the footsteps, which were heavier and faster than A.L.’s, were unusual. This made her nervous. She heard the door chime only a couple of seconds after hearing the footsteps.

[103] Sh.L. testified that the chime actually makes a couple of sounds as it consists of a set of bells. It goes off when the door is opened and when it is closed. She only heard them once.

[104] Sh.L. was certain that she told the first officers who arrived at the house that she had heard both the footsteps and the chimes. She recalled that a female uniformed officer attended in the bedroom as she was comforting E.L. but did not recall saying much to her. P.C. Leonard testified that while in the bedroom, Sh.L. told her that she had heard loud footsteps outside the bedroom door and that she never heard the chimes.

[105] Sh.L. did mention hearing the chimes to Det. Cst. Arruda during her police interview that day at the Sick Children’s Hospital. The interview commenced at 1:18 p.m. and was completed at 2:03 p.m.

[106] Sh.L. identified the screams that are heard on the 911 tape as those of her husband. She told the operator: “My husband’s all screaming outside the house.” Sh.L. testified that S.L. was hysterical. She could not make out what he was saying or if he was saying anything at all. She saw him as he was crossing the street with E.L. cradled in his arms.

[107] E.L. was naked. She had mud on her legs and a bit of dirt on her arm. She appeared groggy. She was not crying. Sh.L.’s comments to S.L. at that point were captured on the 911 tape. She told him:

Just hold her. Hug her in your bed. Just run and throw her, your bed and hug her. Sweetheart. Run to your bed and snuggle with her and hold her. Please, keep her warm and safe.

[108] After S.L. took E.L. upstairs, Sh.L. is heard on the 911 tape repeating to him the operator’s instructions not to cover or bathe the child. When the operator began asking her about what her husband had seen, Sh.L. handed the phone to A.L. and went upstairs to tend to E.L. S.L. then spoke directly to the operator himself. The police arrived shortly thereafter. S.L. did not return to the bedroom.

[109] Sh.L. described E.L. as “very sleepy, groggy.” She was not talking initially and was just lying in Sh.L.’s arms. Sh.L. had seen E.L. in this same state on other occasions when awakened from a deep sleep. Sh.L. testified that her younger daughter, T.L., reacts the same way when woken from a deep sleep.

[110] P.C. Vandercamp, who was in the bedroom briefly before leaving to speak to S.L., described E.L. as upset, standoffish, and “not saying anything.”

[111] Sh.L. testified that after a few minutes, E.L. told her, “Daddy took me outside.” Sh.L. did not know how to respond to this statement. She decided not to say anything until she knew what the correct response would be. When she asked her if she was hurt, E.L. replied, “No.” Later on, when they were in the ambulance, E.L. showed Sh.L. a little cut on one of her fingers and asked for a Band-Aid. The cut was “bloodied” but not bleeding. Sh.L. also observed some light scratches on E.L.’s back while they were at the hospital.

[112] Sh.L. testified that a couple of minutes after her first utterance about her father, E.L. stated: “Daddy took me outside. I was on the ground. He covered my mouth.” After demonstrating with her hand how he had covered her mouth, E.L. added, “And I couldn’t even breathe.” E.L. appeared to be very upset about the fact that she couldn’t breathe. She also stated:

A kitty cat came out and we ran away. We were scared of the kitty cat. We ran away, and then Daddy picked me up and said, “I love you. I love you. Why would Daddy hurt me if he loves me?”

[113] Sh.L. responded to E.L.’s statements by reassuring her that she was safe and that “we love her so much.” She did not try to convince E.L. that she was wrong about her father or to lead her in any way. Sh.L. was partly relieved that the child did not believe that a stranger had taken her from her bed. E.L. continued to make similar comments throughout the day. Her story did not change.

[114] At one point, while Sh.L. was comforting E.L., Det. Wookey entered the bedroom and told her that she had to take E.L. to the hospital. According to Sh.L., he was very aggressive and giving her orders. Sh.L. told him she was uncomfortable with him speaking to her in that tone of voice in front of her daughter. H.L. then stayed with E.L. while Sh.L. spoke to Det. Wookey in the children’s bedroom. Sh.L. wanted S.L. to accompany her to the hospital but Det. Wookey told her that her husband “isn’t going anywhere.” Sh.L. then had H.L. contact a family friend who could go with her to the hospital.

[115] Sh.L. testified that at some point that morning, either when she was at the house or at the hospital, it dawned on her that “it was a possibility” that the police were treating S.L. as a suspect.

[116] According to P.C. Leonard, who accompanied Sh.L. and E.L. to the hospital, they left at 5:19 a.m. and arrived at the Sick Children’s Hospital at 5:55 a.m. It was still dark outside.

[117] Sh.L. testified that she had very little contact with S.L. at the house after the police arrived. (As stated at para. 33 of these reasons, S.L. was taken to 32 Division and interviewed by police from 6:10 a.m. to 7:32 a.m.) Sh.L. recalled speaking to S.L. on the phone at some point while she was at the hospital and waiting for the nurse to examine E.L. That examination did not commence until around 10:00 a.m. During their conversation, Sh.L. told S.L. about E.L.’s allegation that he had taken her outside. S.L. was initially very upset. Sh.L. told him that it might be a blessing in disguise.

[118] Sh.L. and E.L. remained at the hospital until mid-afternoon on December 26. While there, E.L. rested but did not sleep. According to an agreed statement of facts, Nurse Heather Farina made the following observations of E.L.:

i) An abrasion to the right index finger;

ii) An area of five abrasions to the upper left side of the back;

iii) Dirt on the right wrist;

iv) A circular bruise, red/blue in colour, measuring 1 cm. in diameter on the right knee; and

v) Dirt covering both legs and both feet, front and back.

[119] Nurse Farina conducted an examination of the vaginal and anal areas of the complainant and found no signs of trauma.

[120] E.L. was later interviewed at the hospital by Det. Cst. Arruda in the presence of Sh.L. and a social worker from the Jewish Family and Child Services.

[121] Sh.L. testified that generally speaking, E.L. sleeps “pretty deeply.” She stopped taking naps when she was two-and-a-half or three years old. Two or three times a week, she will wake up during the night and come to Sh.L.’s bed.

[122] Sh.L. could not recall what time E.L. got up on December 25. She agreed that the children were not on a strict schedule over the holiday period. They were going to bed a little bit later and staying in bed a little bit longer.

[123] Sh.L. recalled that when S.L. came into the house with E.L., he asked his father to bring him a yarmulke. He thought that his own yarmulke had fallen off outside.

[124] Sh.L. initially testified that she did not hear S.L. tell any police officer that the suspect was wearing a white shirt or white sweatshirt. She recalled telling S.L. that she had told the police to look for a white-hooded sweatshirt and that S.L. had corrected her. He told her: “I don’t remember saying it being white. If anything, I thought it was dark.”

[125] Sh.L. testified that when a police officer was in her bedroom while she was tending to E.L., she heard someone on the officer’s radio say that the police had stopped a person with a white-hooded sweatshirt. Sh.L. then told the officer, “I think that’s what he saw.” She testified: “So my husband must have told me [that it was white] before I heard it on the radio.”

[126] In re-examination, Sh.L. testified that she probably asked S.L. what the suspect looked like when she took over tending to E.L. in the upstairs bedroom. She heard A.L. speaking to the 911 operator and also heard the description that S.L. provided at that time – that is, that the suspect was wearing a sweatshirt and sweatpants, and “maybe a hood over --.” S.L. was on the landing at the top of the stairs while giving this description, which was then relayed by A.L. to the operator.

Testimony of H.L.

[127] H.L. testified that she, S.L., Sh.L., and the two children drove in S.L.’s car to the party on December 25 at around 6:00 p.m. The party was at H.L.’s sister’s house, which was only a few blocks away. They left the party sometime between 8:00 and 8:30 p.m. because the children were tired. A.L. came in his own vehicle and may have left the party earlier.

[128] H.L. recalled that her nieces (S.L.’s cousins) invited S.L. and Sh.L. to return to the party to play some games after they had put the children to bed. H.L. offered to babysit.

[129] Once they were home, H.L. heard S.L. and Sh.L. discussing whether they would go back to the party. They were “back and forth” as to what they should do. They were both tired and planned on driving back to Connecticut the next morning. H.L. was under the impression that S.L. was going to call his cousin and decline the invitation. She also testified that she was standing next to him when he called his aunt (H.L.’s sister).

[130] In cross-examination, H.L. agreed that she told the police on December 26, that “they called and they said they were just too tired. They’re going to go to sleep. We’re having this big trip today.” She testified that either S.L. or Sh.L. came downstairs and made this call in her presence.

[131] H.L. testified that the children were in bed by 9:00 or 9:30 p.m. She was unaware of what S.L. and Sh.L. were doing. They did not come back downstairs except to call their cousins. H.L. cleaned the kitchen, did some preparation for school, as she is a teacher, and went to bed around 10:30 or 11:00 p.m. She did not see her husband before she went to bed. A.L. was working in his downstairs study. H.L. did not recall when she heard him come to bed later on that night.

[132] Initially, H.L. had no recollection of making phone calls that night but her memory was “jogged” when asked if she recalled S.L. telling her to keep her voice down. It was suggested to her that this was another indication that S.L. and Sh.L. were not going back to the party – they wanted her to keep things quiet because they were trying to go to sleep. H.L. disagreed, stating that their main concern would have been that the children not be awakened.

[133] H.L. testified that the bathroom light was always left on at night when S.L. and his family were visiting. The ceiling light in the upstairs hallway was also on when she went to bed on the night of December 25, but her husband may have turned it off at some point. The porch light was on and the house number “71” was lit up.

[134] H.L. testified that the children’s door was left open at night. She and her husband kept their bedroom door closed when they had company. S.L. and Sh.L.’s bedroom door was also closed.

[135] The alarm system, which chimes whenever a main floor window or door is opened or closed, was also on. There are two rings to each chime.

[136] H.L. testified that the combination lock on the front door was installed less than a week before S.L.’s visit. He and Sh.L. were given the combination or sequence of buttons to press in order to unlock the door. H.L. did not recall a specific occasion when S.L. and Sh.L. accessed the house on their own using the combination but thought that they likely had. She did not recall opening the door to let them in. She stated that it took her a couple of weeks to get accustomed to the new lock.

[137] The front door is locked from the inside by turning a lever. That lever must be turned back in order to unlock and open the door from the inside.

[138] H.L. testified that she was not “so vigilant” about locking the front door on the evening of December 25. She explained that even though it sounded as though S.L. and Sh.L. were not going back to the party, she thought they might change their minds. As a result, she went to bed without checking to see if the door was locked. When asked whether there would be any particular reason to keep the door unlocked even if S.L. and Sh.L. were going to go out, H.L. stated: “No. No, but I didn’t check it.”

[139] In cross-examination, H.L. testified that she did not check the lock because her husband is usually vigilant about checking it. She denied ever telling him not to lock the door because S.L. and Sh.L. had gone out or were planning on going out.

[140] H.L. did not hear the door chimes in the middle of the night as her bedroom door was closed. The first thing she recalls after her husband came to bed and they said “goodnight” was S.L. coming into the room and telling them “E.G. is missing.” H.L. put on a robe and she and A.L. ran into the children’s bedroom. H.L. looked under the bed and in the closet. S.L. and Sh.L. ran down stairs and checked the basement. H.L. also came down the stairs. S.L., who was frantic, called the police from the kitchen phone. He told the operator that he was going to look for E.L., handed the phone to Sh.L., and ran out the door. H.L. told her husband to drive around the streets looking for E.L., and then followed S.L. outside. The front door remained open. At some point, H.L. heard Sh.L. telling the operator that E.L. is a little anxious at times.

[141] S.L. ran into the backyard along the east side of the house. H.L. ran about three-quarters of the way down the driveway. She was standing there and trying to decide what to do when she heard a little whimpering sound. S.L. returned from the backyard. He was still frantic and saying: “I can’t find her. I can’t find her.” H.L. told him she had heard whimpering and pointed towards the Nussbaum’s house across the street, which was where she thought the sound was coming from. H.L. testified that she heard the whimpering sound twice. It was fairly quiet – “just a little bit of a whimper sound.” Had there been other noises or sounds in the vicinity, she probably would not have heard it.

[142] H.L. testified that prior to this incident, she had been concerned that her hearing might be “going a little” as she sometimes had to ask her students to repeat their answers. As a result, about three weeks before December 26, she was tested at Mount Sinai Hospital by a hearing specialist, who told her that she was “doing just fine” and was not in need of a hearing aid.

[143] S.L. told H.L. that he did not hear anything. H.L. repeated that she had heard something. S.L. then ran directly across the street and along the west side of D[…]2, where he disappeared from view.

[144] H.L. estimated that about two minutes later – she was unsure of the exact time because “everything seemed like forever” – she heard S.L. utter a “blood-curdling” scream. He was coming from the Nussbaum’s backyard. E.L., who was naked, was cradled in his arms. H.L. was still on the driveway. A.L. was on the porch.

[145] H.L. followed S.L. into the house. S.L. took E.L. upstairs. By the time H.L. went upstairs, Sh.L. was tending to the child, who was lying in bed under the covers. Sh.L. was lying next to her and calming her down. E.L. appeared dazed, frightened and shivery.

[146] H.L. spent 10 to 15 minutes in her own bedroom, trying to calm down T.L., who was hysterical. She then stayed with E.L. while Sh.L. spoke to the police. H.L. lay down in bed with E.L., who was trembling and quite still. Unprompted, E.L. then said “something about daddy bringing her back in the cold.”

[147] In cross-examination, H.L. agreed that during her interview on January 1, 2012, when asked if E.L. had said anything, she told the police:

No, she just, to me she said, “Why did Daddy …” Something about why did Daddy bring me back in the cold. Why did Daddy something to me. I don’t what she was … And I was nervous to question her because I didn’t know. I’m not going to have her remember something more or less, uh like I want to speak to a professional before I’d ask her questions. Why did Daddy take me out in the cold? Why did Daddy bring me back in the cold? I don’t know.

[148] H.L. agreed that she was upset that E.L. was implicating S.L. as the person who took her outside. E.L. did not say anything else to her. Sh.L. returned to the bedroom shortly thereafter.

[149] Although H.L. testified that she did not follow up E.L.’s allegation with any questions, P.C. Leonard noted that after E.L. told H.L., “My daddy took me outside.” H.L. responded: “Why do you say this? Your daddy didn’t.” E.L. then repeated, “My daddy took me outside.” H.L. made no response to this comment.

[150] Sh.L. and E.L. went to the hospital and S.L. went to the police station early that morning. H.L. attended at 32 Division and was interviewed by police from 9:15 a.m. to 9:47 a.m.

[151] H.L. testified that on February 18, 2012, which was the day that Mr. Belbin was arrested, Sarah Fischman, who lived at D[…]3, knocked on her door and told her that the person who rented their basement apartment was about to be arrested for abducting E.L.

[152] When H.L. was asked if she had ever met anyone who lived in the Fischman’s basement, she testified, “How do you define met?” Her examination-in-chief continued as follows:

Q. Well, let me just ask you more directly. Could you take a look at Mr. Belbin here in the box. And, as of December 2011, did you know Mr. Belbin?

A. Occasionally.

Q. What does that mean?

A. That means that I saw him occasionally standing across the street by the Nussbaum house by the tree and there’s a stone there, facing my house.

Q. Okay. And how do you know that you’re talking about the same person here?

A. It looks like the same person. I can’t tell you for sure, right?

Q. Okay.

A. I mean – I – I can’t tell you anything that – no. Forget it. No.

Q. And when did you first come to this realization?

A. I had, at one point, I had a discussion with Sarah Fischman and I think she sort of said that this is her tenant, but I never had any communication with the tenant at all.

[153] As far as H.L. was aware, this individual had never come into her home. She did not know his name.

[154] In cross-examination, H.L. agreed that she never told her husband, the Fischmans, or the police on February 18 that she had seen Mr. Belbin standing across the street from her home. Nor did she ever disclose this information to the police after February 18, even though Det. Cst. Arruda kept in regular contact with her regarding the status of the case. Even when H.L. met with the Crown Attorneys prior to trial, she made no mention of having seen Mr. Belbin outside her home. In fact, the first time H.L. made any mention of this matter was when she was on the witness stand at this trial.

[155] H.L.’s evidence that she had seen Mr. Belbin standing across the street on several occasions is problematic in a couple of respects. First, common sense dictates that if she had actually made these observations, she would have mentioned them to the police at some point prior to trial. Secondly, H.L. more or less retracted her evidence in this regard or, at the very least, appeared ambivalent about it, as soon as she gave it. After initially stating that she saw Mr. Belbin across the street, she fairly quickly clarified that “it looks like the same person” and “I can’t tell you for sure…” She then added: “I can’t tell you anything that – no. Forget it. No.” In these circumstances, I find H.L.’s evidence in this regard to be neither credible nor reliable and I place no weight on it whatsoever.

[156] H.L. testified that she knows the Gluckowski family that lives at 77 A. Street, which is the house directly behind D[…]2. She was not aware at the time of this incident that Mrs. Gluckowski had a tenant by the name of R.G. living in her basement apartment. H.L. had never met R.G.

Testimony of A.L.

[157] A.L., age 71, was a school principal for 35 years and has been retired for 12 years. He describes himself as a workaholic. He is a writer and spends many hours on the computer in his basement study, often working late into the night.

[158] A.L. testified that the digital lock on the front door was installed three weeks prior to S.L. and his family arriving on December 22. The new lock meant that family members did not have to carry a key. Only he and H.L. knew the combination, which one or other of them would have given to S.L. and Sh.L. upon their arrival.

[159] The door is unlocked from the outside by pressing a certain combination of five black buttons and then turning the knob just below the buttons to the right. There are no numbers or markings on the buttons. A.L. was unsure whether the lever on the older part of the door handle also had to be pressed down in order to open the door. He testified that if a person were to enter the house and close the door, the door would not automatically lock. A button or lever just above the door knob on the inside of the door must be turned in order to lock it.

[160] The only other access to the house is through a side door, which has a different kind of digital lock and is seldom used. A sliding door that leads to the back garden can only be locked from the inside.

[161] A.L. testified that the alarm system, when fully armed, makes a shrieking sound when a window or door is opened. When not fully armed, the system chimes or makes a little ding-a-ling sound whenever a door or window is opened or closed. He and H.L. never fully armed the system but relied on the chimes when they were sleeping.

[162] A.L. testified that the light in the upper hallway outside the three bedrooms is normally turned off when he and his wife go to bed. However, when they have guests, they leave it on. The light in the bathroom off the hallway is also left on.

[163] A.L. testified that when they have guests, he and H.L. keep their bedroom door closed at night. The children’s bedroom door was left wide open. The door to S.L. and Sh.L.’s bedroom was slightly ajar so that they could hear the children if they awoke during the night.

[164] A.L. testified that the vestibule door that leads into the house is normally left open. A person who entered through the front door would therefore have a clear view up the stairs and into the children’s bedroom.

[165] A.L.’s recollection regarding events on the evening of Sunday, December 25, 2011, was somewhat vague. He recalled going to the Hanukkah party that evening, which probably started sometime between 6:00 p.m. and 7:30 p.m. He initially could not recall if he, H.L., S.L., Sh.L., and the two children all went together or if he joined them later. He thought the latter scenario was more likely. He thought that he stayed for an hour or two and then came home on his own around 8:00 p.m. He went downstairs to his study. No one came downstairs while he was working. He did not know what time his wife or other members of the family arrived home. He did not see or hear them come in. He did not go back upstairs until he went to bed at around 1:00 a.m. He did not see any members the family up and awake at that time.

[166] A.L. testified that at some point while he was in his study, his wife called down from the kitchen and told him: “Don’t lock the door because S.L. and Sh.L. are still coming back” – at least, that is what he thought she may have said to him. He explained that he did not specifically recall his wife calling out to him, but something must have given him the impression that S.L. and Sh.L. were not home yet. He testified: “That’s the only explanation I can think of why I didn’t actually check the door or lock the door.” He did not recall having any discussion with S.L. or Sh.L. about their coming home late.

[167] I note that according to Sh.L.’s evidence, A.L. would have been aware that she and S.L. might go back to the party after the children were in bed as he was present when the cousins extended their invitation to S.L. and Sh.L., as well as to A.L. and H.L. Sh.L. also testified as follows during cross-examination:

Q. So I assume that your in-laws were, generally speaking, aware that this plan might happen because they might have to look after the kids?

A. Yes.

Sh.L. clarified that it would be H.L., not A.L., who would have babysat the children.

[168] A.L. testified that he generally kept the front door locked all the time. On those occasions when he was working very late, he would sometimes lock the door earlier in the evening if he and his wife were not expecting company. If he was not sure that the door was locked, he would check it before he went to bed. When asked if he did either of those things on the evening of December 25, A.L. stated that he did not:

I automatically assumed that my son and daughter-in-law whenever they had come in, which I didn’t know when they came in, they would have locked it, because we sort of, you know, asked them or at least I told them, you know, “Please make sure you lock the door if you’re coming in from outside.” I should have checked, but I didn’t. And I assumed that they had locked it.

[169] A.L. could not recall when he told S.L. and Sh.L. to lock the door. In any event, they knew he was quite “neurotic” about ensuring it was locked.

[170] When asked if he gave any thought that evening as to whether the door was or was not locked, A.L. stated:

I can’t recall. The only thing that I can think of is just that I thought that my wife had said to me, “Don’t lock the door because the kids are still out and they’ll – they’ll lock the door when they come in.” Again, I don’t recall 100 percent having that conversation, but something tells me that that’s what happened that night.

[171] In cross-examination, A.L. testified that he has no memory one way or the other as to whether he locked the door or failed to check if it was locked. He agreed that he surmised that he must not have locked the door because there were no signs of forced entry into the home. None of the doors had been jimmied open and there were no broken windows. He also agreed that it would not have mattered if he had locked the door because S.L. and Sh.L. had been given the combination and could have unlocked it in any event.

[172] A.L. recalled being awakened in the early hours of December 26 when S.L. opened the bedroom door and was screaming: “E.G. is not here! E.G. is not here!” A.L. put on a robe and followed his wife out of the bedroom. He looked under E.L.’s bed to see if she was there. He then went downstairs and put on his coat, which was in the hallway closet. He recalled either S.L. or H.L. saying something about the phone.

[173] A.L. testified that he rushed to the front door and was screaming at his wife, asking her what he should do. She told him to get in the car and drive around. He was on the porch and approaching the car when he saw S.L. coming from the west side of D[…]2 and crossing the street. It was about 3:00 a.m. and still dark outside. S.L. had E.L. enveloped in his arms, “pretty much covering her.” He was screaming. A.L. described it as a horrible, pathetic and painful scream. S.L. did not say anything. He dashed past him and went into the house. A.L. followed them in. He believed he was the last one to re-enter the home. The next time he saw S.L. was when he walked past his and Sh.L.’s bedroom. S.L. was calming E.L. as they sat on the bed closest to the door.

[174] A.L. did not see E.L. cry at any time – not while she was being carried back into the house nor once they were inside the house.

[175] A.L. had no recollection of speaking to the 911 operator but acknowledged his conversation with her when it was played in court. After he had identified himself as E.L.’s grandfather, the operator asked him whether anyone had seen “what this guy looked like.” A.L. called out the same question to S.L., who can be heard in the background stating: “No. He’s wearing a sweatshirt, he’s wearing sweatpants.” A.L. repeated this answer to the operator. S.L. then took over the phone and added, “Maybe a hood over --”

[176] A.L. testified that it was quite chaotic after the police arrived. He did not recall speaking to S.L. He agreed that when Det. Brian Wookey asked him during an interview that morning whether S.L. had given him a description of the perpetrator’s clothing, he told the officer:

I thought he said he was wearing a T-shirt and run – uh sweat pants. At some point or other there was some discussion about whether it was white sweat, white sweatshirt or not. I think Sh.L. said at some point, he said a white shirt, and I, he said like it wasn’t, I wasn’t sure about it. So he … was unsure, I think, of whether it was a white sh- a white T-shirt or not, but I do remember him saying something about wearing a sweatshirt and pants.

[177] A.L. testified that one of the officers who attended at the house was quite aggressive and treated S.L. like a suspect. At some point, A.L. learned that E.L. had told the police at the hospital that it was her father who had taken her outside.

[178] A.L. provided a DNA sample to the police.

E.L.’s police interview on December 26, 2011

[179] Counsel for Mr. Belbin brought an application to adduce the statements made by E.L. to Sh.L., H.L., and Det. Cst. Sandra Arruda as proof of the truth of their contents. I allowed the application as I was satisfied that the defence had met the onus upon it with respect to the threshold reliability requirement as set out in R. v. Khelawon, 2006 SCC 57. The Crown conceded that the necessity requirement had been met, as E.L.’s parents decided not to bring her from the United States to Canada to testify.

[180] E.L. was interviewed by Det. Cst. Arruda at the Sick Children’s Hospital on December 26 from 12:56 p.m. to 1:16 p.m.

[181] When Det. Cst. Arruda asked E.L. about her pyjamas, E.L. told her that the police had said they were behind somebody’s house. She did not know how they got there. She had been wearing them. After E.L. indicated that she was too tired to talk, the interview continued as follows:

Det. Cst. Arruda: Did, what did you tell Mommy today happened?

E.L.: I don’t know –

Sh.L.: Do you want to tell, why don’t you tell Sandra what you told Mommy?

E.L.: I don’t know what you said. I forgot. You tell her.

Sh.L.: Well, can you tell, can you tell Sandra what you told me happened outside?

E.L.: I forgot.

Det. Cst. Arruda: You forgot? How did you get outside today?

E.L.: My daddy took me.

Det. Cst. Arruda: Okay. And were you sleeping?

E.L.: Yeah.

Det. Cst. Arruda: Okay. And when you were outside, what happened outside? How did you wake up?

E.L.: I opened my eyes.

Det. Cst. Arruda: So you were saying you were outside.

E.L.: Yeah.

Det. Cst. Arruda: Right?

E.L.: You tell her. I don’t know. I forgot.

Det. Cst. Arruda: Well, how did you get back inside?

E.L.: My Daddy took me.

Det. Cst. Arruda: Okay. So your daddy took you. Were, were you ever by yourself outside?

E.L.: [Shakes head no]

Det. Cst. Arruda: Were you always with Daddy?

E.L.: [Nods head yes]

Det. Cst. Arruda: So Daddy brought you outside and Daddy brought you inside.

E.L.: [Nods yes]

Det. Cst. Arruda: Um. Did you take off your pyjamas outside?

E.L.: My daddy did.

Det. Cst. Arruda: Your daddy took them off. Okay. And how come?

E.L.: I don’t know.

Det. Cst. Arruda: And was it cold?

E.L.: [Nods yes]

Det. Cst. Arruda: Was there anybody else there?

E.L.: [Shakes head no]

E.L.: And when we were outside, we saw a pussycat.

Det. Cst. Arruda: Oh, nice! And? I like, I like pussycats. They’re cute.

E.L.: They hurt.

Det. Cst. Arruda: They hurt? How come? Did this one hurt you?

E.L.: No. But then he ran away.

[Transcript of DVD-recorded statement, at pp. 12-17]

[182] Later on in the interview, the social worker, Liana Anshilevich, questioned E.L. as follows:

Q. Uh, so you were telling Sandra that when you were going outside, you were saying something to Daddy? Did I understand you correctly?

A. [Nods yes]

Q. Yeah. What were you saying?

A. I was saying, “What are you going to do to me?”

Q. How come you said that?

A. Because he was hurting me.

Q. Really? How was he hurting you?

A. He was laying on me.

Q. When you were outside?

A. [Nods yes.]

Q. Yeah? How was he laying on you? Do you remember?

A. [Shakes head no]

Q. And did he tell you what he was going to do?

A. No.

Q. No? And what happened after that?

A. Mmm. I forgot.

Q. You forgot? And did he eventually get up off of you?

A. Mmm, just when he saw the pussy cat.

Q. Oh, when he saw the pussy cat. Okay. And then what happened after you guys saw the pussycat?

A. He ran away and we went back to my Bubby’s house.

Q. And you went back to your Bubby’s house. Okay. And, and you s-, were you wearing your pyjamas at the time?

A. [Shakes head no]

Q. No? Okay. And where were they?

A. Behind this uh, house.

Q. M’hmm. And how did they come off? Did you take your pyjamas off?

A. My daddy did.

Q. You told me that you asked your daddy, “What are you going to do to me?” What did he tell you?

A. Um, nothing. He was just holding me.

Q. Just holding you? Okay. So were you, were your eyes open at the time?

A. [Nods yes]

Q. Yeah? Were you awake or were you sleepy at the time?

A. Sleepy.

Q. You were sleepy? Okay.

A. [Sighs]

[Transcript of DVD-recorded statement at pp. 24-28]

[183] The following exchange then took place between Det. Cst. Arruda and E.L.:

Q. How do you know it was Daddy?

A. ‘Cause then when he got off of me, I saw.

Q. Oh, so you only saw him after when he got off of you? Is that when he picked you up? Did he pick you up from the floor?

A. No, I came to him.

Q. Oh, you came to him. Where was he then?

A. He was behind some bushes.

Q. Okay.

A. And I found him.

Q. Oh, and you found him.

A. And we went back home.

Q. And then you went back home? So when you saw Daddy, he was behind the bushes, you were by yourself?

A. No. There was bushes for the walls in the backyard.

Q. Okay. And were you on the floor?

A. Yeah. And then I came up –

Q. Okay.

A. – the floor.

Q. And then you saw Daddy. And what did you say to Daddy?

A. Nothing.

Q. You didn’t say nothing? Did Daddy say anything to you?

A. Yeah.

Q. Well, what did he say?

A. “I love you.”

Q. Aw, that’s nice. Was there anybody else around? Did you see anybody else?

A. [Shakes head no]

Q. No? Was Daddy screaming?

A. [Shakes head no]

[Transcript of video statement of E.L., at pp. 28-30]

[184] At various points during the interview, E.L. commented that she was “too tired to talk,” that she “feels sick,” that she “did not want to be here,” and that she did not know what happened to her pyjamas.

Testimony of Dr. David Wolfe

[185] Dr. David Wolfe is a registered psychologist with both a clinical practice and academic research credentials in the area of childhood trauma. He was qualified as an expert in the areas of child psychology and the reporting by children of sexual abuse.

[186] Dr. Wolfe described the cycles of sleep and arousal in young children. Generally speaking, within the first hour of sleep, children begin to fall into the deeper cycles of sleep, which consist of four stages. Sleep gradually deepens through the second stage until, by stages three and four (also called delta or slow-wave sleep), the child does not respond to external stimuli and is difficult to awaken. If awakened from slow-wave sleep, the child is likely to be groggy and disoriented. The child is difficult to arouse in the sense of being aware of their surroundings and knowing what is going on.

[187] Children have extremely long periods of deep slow-wave sleep – much longer than do adolescents or adults. Delta sleep levels peak between the ages of three and six, and then subsequently decrease across school age and adolescence, and throughout adulthood. After the age of seven or so, children are better able to be awakened at night and be alert or attuned to their surroundings.

[188] Dr. Wolfe explained that deep sleep is marked by what is called NREM or non-rapid eye movement sleep. During that time, the brain is inactive. Since children spend more time in NREM sleep, they have very little cortical capability. They are not dreaming or thinking. The brain is “pretty much out of commission.”

[189] Dr. Wolfe testified that the ability to form memory requires some consciousness. The upper cortical functions of the brain have to be able to process what is going on and then store it into memory. That can happen very rapidly, but those upper cortical functions have to be active. They have to be able to process the information coming in, send it to the right area of the brain, and make sense of it. It then goes into short-term memory and eventually long-term memory. Children typically do not have much memory if they are awakened during deep sleep. It takes them a while to be able to establish that they are awake and that their surroundings are real.

[190] Dr. Wolfe testified that young children enter the deep stages of sleep sometime within the first three hours of sleep. From that point onward, there is a cycle, usually two or three times during the night, where they enter REM sleep and then go back to deep sleep. Young children spend most of the time in the deeper sleep cycle

[191] In REM sleep, the brain is active in the sense that it is dreaming, but it is not processing information. A person awakened during REM sleep will initially be very confused and not be able to form memories. Although it would take an adult only a few seconds to wake up from REM sleep, a child would take much longer. However, alertness returns more quickly than if they had been in NREM sleep.

[192] Dr. Wolfe was asked to comment on the following scenario:

A child who is not quite five years old is taken from her bed sometime between 3:00 a.m. and 3:30 a.m., and taken outside in the wintertime to a backyard across the street. Her pyjamas and pull-up diaper are removed. A short time later, her father comes and takes her back home, where she makes some utterances to her mother.

Dr. Wolfe testified that he would be concerned that the child would not be able to have an accurate representation of what had happened to her because of having been in a sleep state. The child may have some fleeting memories or “flashbulbs” of something happening to her. However, it would be very unusual for a small child to have a cohesive memory of the events.

[193] Dr. Wolfe was asked to comment on observations made by a caregiver that the child was still groggy when she was brought back into the house, that she was quiet, and only after a few minutes began to talk. He testified that the grogginess indicates that the child’s brain is trying to figure out her surroundings and what is going on. It is consistent with her having been woken up from either REM or NREM sleep – her grogginess and the initial silence do not indicate one way or the other which sleep state she was in. She would be groggy and not have a “clear alertness” in either stage.

[194] Dr. Wolfe was unable to comment on how factors such as adrenalin, or feeling fear, pain or cold, would affect the time required for a child who has been awakened to get to the point where they were able to appreciate their surroundings and process information. Dr. Wolfe was not aware of any research in this area. It is difficult to say how such factors would affect a particular child. He added: “All I can say to answer that is that it takes a while for children to organize what’s happened to them and make sense of it. So they may sense the pain and certainly the – anything that would be life-threatening like having someone’s hand keeping you from breathing, the brain would send some signals saying, ‘What’s going on? Wake up. Wake up.’ An adult, of course, would wake up immediately and know what’s going on; a child, not necessarily.”

[195] Dr. Wolfe was asked whether a five-year-old child would not realize that something strange is happening when she is woken up, carried outside in the cold and has her clothes removed. Dr. Wolfe testified:

We would think so, but no. I would say it would be more common that they wouldn’t know that until some time has passed and their mind has woken up. You can run into a room and yell “fire”, a child that age, shake them and they won’t – it’ll take them awhile to figure out that there is any harm. So anyone trying to take a child out of a room, doesn’t want to disturb them. So taking them outside, the first time that the child might – the mind might say something’s going on here is when they feel something on their face or they feel some cold on their body. Their mind is trying to figure out what’s going on here, but that’s as far as it goes. In terms of vocalizing it, they wouldn’t necessarily even be able to say it. Maybe a little while later they’ll have some ability to vocalize something, but it would be fragmented.

Q. Okay. But that doesn’t necessarily mean that the fragments are wrong.

A. That’s correct. It does not necessarily mean they’re wrong.

[196] Dr. Wolfe agreed that a child may have more consciousness of what they are feeling, seeing, and thinking if they are awakened from REM as opposed to NREM sleep. He added that a five-year-old child, awakened at 3:00 a.m., would be very tired and would want to go back into a deep sleep. The brain is not functioning at its highest capacity at that time of night, especially in a young child. He continued: “It would be very very tough for a child to have a complete memory of events, positive or negative, that time of night, woken from sleep or REM sleep or NREM sleep, but it is very possible they could have eyelets of memory – bits and pieces.”

[197] Dr. Wolfe agreed that it is logical that a child such as E.L., who remained awake after an event and was asked to recount it right away, may be able to state more information about it than if she had gone back to sleep and was only asked about the event later on. However, the accuracy of said statements, in Dr. Wolfe’s view, would still be suspect, given the fact that she is a young child who was awakened in the middle of the night.

[198] Dr. Wolfe was asked how long it would take before a child who is aroused from sleep would be aware of where they are, who they are, and what is going on around them. He estimated that it would take at least five minutes before a child could even recognize their mother or father. Dr. Wolfe acknowledged that this time estimate was an educated guess based on the research of Ronald Dahl, his own clinical experience, and the fact that he is the father of three children. There are no studies in this area and every child would be a little different.

Testimony of Sgt. James Cowan

[199] Sgt. James Cowan received a radio call at 3:23 a.m. to attend D[…]1 in connection with a missing child. He arrived there at 3:40 a.m., just as P.C. Thrush from the Police Dog Services Unit was arriving. Police Constables Leonard and Vandercamp were already on scene. Sgt. Cowan’s information was that the suspect had fled and was wearing a grey sweatshirt.

[200] Sgt. Cowan and P.C. Thrush walked down the path between 72 and 74 D[…] that S.L. had taken. They located E.L.’s pyjama top and bottom, her pull-up diaper, and S.L.’s yarmulke on the ground near the northwest corner of Number 72. They did not touch the clothing. They saw no one in the backyard or on the path between the houses.

[201] Sgt. Cowan and P.C. Thrush followed the same route back out towards the street. At that point, Sgt. Cowan saw an individual with a camera exiting a car around the area of 64 or 68 D[…]. Sgt. Cowan assumed this person was from the media. The person got as far as 68 or 70 D[…], and was about to walk between the houses when Sgt. Cowan called out and told him to get away from the area as he may be contaminating the scene. The person argued briefly with Sgt. Cowan but did not proceed any further. He returned to his car and drove away.

[202] Sgt. Cowan remained standing between 72 and 74 D[…] to ensure that no one entered or exited the backyard where the clothing was located. He called for more officers to attend the scene.

[203] At 3:52 a.m., Sgt. Cowan took P.C. Kinghorn down the path between Numbers 72 and 74 and directed him to guard the clothing. P.C. Kinghorn remained there until 5:55 a.m., when he was relieved by P.C. Roberts. At 6:55 a.m., P.C. Roberts was relieved by P.C. Dennis Yim, who maintained the integrity of the scene until 9:57 a.m.

[204] After directing P.C. Kinghorn to guard the clothing, Sgt. Cowan searched the area with P.C. Thrush and his dog. Sgt. Cowan walked behind them. He recalled going into the backyard at 70 D[…] but the search was not that extensive because the dog kept going to the area where the “media person” had started to enter the front yard between 68 and 70 D[…]. P.C. Thrush then began setting up another search of the area. Sgt. Cowan did not accompany him on that second search.

[205] At 4:05 a.m., Sgt. Cowan set up the command post. At 5:00 a.m., he met with Det. Cst. Arnott from Forensic Identification Services (“FIS”) and directed him to the items of clothing in the backyard of D[…]2.

[206] Sgt. Cowan testified that P.C. Roberts advised him at some point that the officer who had relieved him – presumably P.C. Yim – had told him that a neighbour reported having heard screams and had seen a male running away. Sgt. Cowan directed another officer to follow up on this information.

Testimony of P.C. Sean Thrush

[207] Constable Thrush testified that by the time he arrived on scene at 3:40 a.m., numerous police officers and ambulance personnel were already present. Police vehicles were parked on both sides of D[…]. It was dark out. There was average street lighting in the area.

[208] P.C. Thrush and his dog followed Sgt. Cowan along the west side of D[…]2 and into the backyard. The dog was on a long line but not as yet in his tracking harness. It was premature to have him start tracking because the path on the west side of the house was already contaminated. P.C. Thrush explained that police service dogs are trained to pick up the freshest scent. Since Sgt. Cowan had walked down the path on the west side, the dog would key in on his scent even if the suspect had used the same route earlier. S.L. had also followed the same path into the backyard of D[…]2.

[209] P.C. Thrush testified that the dog was pulling or leading him. When they reached the threshold of the backyard, P.C. Thrush saw the clothes on the ground. The dog showed a lot of interest in the clothing and came within inches of touching it with his mouth. P.C. Thrush, however, ensured that he did not make contact with it.

[210] As a result of the dog’s interest in the clothes and the fact that officers had been in that immediate area, thereby contaminating it, P.C. Thrush decided to track beyond the area of the clothing. He put the dog in his harness, which is the dog’s cue to start looking for a track, and stepped about halfway into the backyard, just beyond the deck. He then cast the dog out towards the northeast portion of the yard. His hope was that by removing the dog some distance from the clothing, the dog would search for a different scent.

[211] P.C. Thrush concentrated his search on the north and the east fences running along the property line of Number 72. He did not take the dog up onto the deck at this time. He explained that Sgt. Cowan had provided him with information relating to the fence rather than the deck. When the dog failed to locate a track, P.C. Thrush decided to speak to S.L., whom he understood was the last person to see the suspect.

[212] P.C. Thrush put his dog back into his vehicle. He then spoke to S.L., asking him to point out where he had last seen the suspect’s feet touch the ground. S.L. told him he last saw the suspect going eastbound over a fence. P.C. Thrush asked him to point out the exact location.

[213] During this conversation, P.C. Thrush and S.L. were standing in the boulevard/driveway area of D[…]2. S.L. then led P.C. Thrush along the east side of D[…]2 and pointed to a railing on the east side of the deck at the back of the house. S.L. had no further information regarding the suspect’s direction of travel. He told P.C. Thrush that he left the backyard immediately after locating his daughter. S.L. explained that by “immediately,” he meant “less than ten seconds.”

[214] P.C. Thrush testified that when he first asked S.L. where he had last seen the suspect, S.L. asked, in reference to the east side of the house, “Can I show you from this side?” The east side was the most direct route to the area in question and the one that they ultimately followed. P.C. Thrush testified that in hindsight, it was probably an error on his part to allow S.L. to walk along the east side but explained that “it was a bit of a dynamic call and we were, again, racing against the clock trying to get a scent.” He noted S.L.’s question in his notebook to remind himself, in the event that the dog did not find a track, of how the east side of the house happened to be inadvertently contaminated.

[215] P.C. Thrush did not allow S.L. to go the entire length of the east side of the house or into the backyard. He only permitted him to go about two thirds or three quarters of the length of the house. From that vantage point, S.L. was able to point to the area of the deck railing where he last saw the suspect. The railing runs in a north/south direction from the end of the house.

[216] After speaking to S.L., P.C. Thrush retrieved his dog. He put him in the tracking harness around the area where he had stopped S.L. from proceeding any further. He then entered the backyard with the dog.

[217] P.C. Thrush checked the ground below the area of the railing that S.L. had pointed out to him on the assumption that the suspect had jumped down from the railing at that point. He checked the entire fence that runs north/south along the east side of the property. He also checked part of the area on the north side of the deck but did not go up on the deck itself. His focus was on the northeast corner of the property. He did not let the dog get near the victim’s clothing.

[218] P.C. Thrush testified that sometimes approaching a property from a different angle or putting the dog back in the car, which he had done in this case, may assist a dog in locating a scent. However, his dog was still unable to locate a track in the backyard of D[…]2.

[219] Over the next hour or so, P.C. Thrush searched the neighbouring properties. He started at D[…]2 and proceeded into the backyards of numbers 70 and 68, which involved going over two fences. This was done on the assumption that the suspect had headed east and had travelled through those backyards. P.C. Thrush then walked between 70 and 68, heading towards D[…]. As he was coming out from between those two houses, he encountered members of the media. Realizing that that area was now contaminated, P.C. Thrush did not proceed any further; he did not want the dog to lock onto the scent of someone from the media or a passerby.

[220] P.C. Thrush then searched the backyard of 77 A. Street, which is directly behind D[…]2. Officer Thrush and the dog went over a fence to enter that backyard. The search included the fence line between these two properties.

[221] When the dog failed to pick up a track at 77 A. Street, P.C. Thrush checked the street itself, as well as the front yards of other properties on the south side. He went east along A. Street to C. Blvd., turned back and went west, and then proceeded north on G. Avenue. He checked both sides of G. Avenue, as well as the front yards of some properties on A. Street that are west of G. Avenue. He ended up in the backyard of D[…]2 again after coming in from A. Street and going over the fence. P.C. Thrush believes that this is when he inadvertently damaged the fence: he splintered off a small piece of wood from the wood running across the top of the fence.

[222] After re-entering the backyard at D[…]2, P.C. Thrush went onto the deck. At no time did his dog pick up a track during the search.

[223] P.C. Thrush testified that there are a number of factors that may affect a tracking dog’s ability to pick up a scent. These include extremely hot or cold weather, extreme wind, contamination of the starting point, and whether the suspect is running from something. A dog is more likely to lock onto the scent of a person who is excited or fearful.

[224] P.C. Thrush testified that in hindsight, it was a mistake on his part to let the dog get so close to the victim’s clothing as the dog may have locked onto the scent of the victim. If that were the case, the dog would be less likely to pick up another scent. The scent of the person who wore the clothes – that is, the victim – would be stronger than the scent of someone who had just touched the clothes.

[225] P.C. Thrush testified that his dog had succeeded in picking up a track during an investigation earlier that day.

Testimony of P.C. Dennis Yim

[226] P.C. Yim took up his posting in the backyard of D[…]2 at 6:55 a.m. Two minutes later, as he was standing by a tree near the backyard fence, R.G. called out to him from the backyard on the other side of the fence and asked him what had happened. P.C. Yim did not provide any details but indicated that there had been a major incident. R.G. stated that he had seen something that may or may not be important. P.C. Yim ended up taking a statement from R.G., whom he described as curious but co-operative and helpful.

[227] At no point did R.G. enter the backyard of D[…]2 during his conversation with P.C. Yim. He remained in the backyard of 77 A. Street, where he rents the basement apartment.

[228] P.C. Yim described the weather that day as very cold. He had taken off his gloves while recording R.G.’s statement in his notebook. As he was writing, the ink in his pen began to freeze. At 7:16 a.m., he completed the statement, which R.G. read and signed before returning to his residence.

[229] P.C. Yim was relieved from his guard duties at 9:57 a.m. but returned to the property at 10:40 a.m. At 11:06 a.m., Erin Nussbaum, the owner of D[…]2, informed him that the damage to the backyard fence (referring to the damage caused by P.C. Thrush) had not been there earlier.

Testimony of Det. Cst. Robert Arnott

[230] When Det. Cst. Arnott arrived at D[…]1, he seized the pants and shirt that S.L. had been wearing, put them in separate paper bags, and locked them in the trunk of his vehicle. He then went to the backyard of D[…]2, where he photographed and put numbered markers beside each of the items of clothing lying on the ground near the northwest corner of the house. These included the yarmulke, the pyjama top, which was inside out, the pull up diaper, and the pyjama bottom.

[231] Det. Cst. Arnott measured and collected each item and put it in its own paper bag. He changed gloves before handling each item. He left the scene at 7:06 a.m. and arrived at the Forensic Identification Unit at 7:18 a.m. He placed S.L.’s pants and shirt in a new file box in the triage room and sealed it. He then went to the evidence handling room, which contains a drying locker room.

[232] Det. Cst. Arnott cut the seal on a clean and disinfected locker, re-gloved, and placed new kraft paper on the bottom. He left the yarmulke in its original bag and put it in the locker. He then took the other items of clothing from their respective bags – the pyjama top, the diaper, and the pyjama bottoms – and hung each item on a disinfected hanger as he removed it from its bag.

[233] There is no evidence as to whether Det. Cst. Arnott re-gloved between hanging up the pyjama top, the diaper, and the pyjama bottoms. James Currie, the forensic biologist from the Centre of Forensic Sciences (“CFS”), testified that if the officer did not re-glove, DNA could potentially be transferred from one item to the other via the gloves. The transfer, however, would only relate to those particular exhibits.

[234] At 7:53 a.m., Det. Cst. Arnott sealed the locker.

Testimony of Det. Cst. Roger Landry

[235] Det. Cst. Landry attended at D[…]1 at 7:40 a.m. on December 26. He spoke to P.C. Yim, who advised him of his conversation with a witness who lived at 77 A. Street and who had seen someone running across his front yard. P.C. Yim did not provide Det. Cst. Landry with R.G.’s name.

[236] Det. Cst. Landry proceeded to take a series of photographs of the homes at 75, 77, 79, and 81 A. Street. While photographing 77 A. Street, R.G. came out onto his front porch and began smoking a cigarette. Det. Cst. Landry did not approach R.G. but spoke to him from a distance. Det. Cst. Landry asked him his name. R.G. identified himself. There was nothing unusual about R.G.’s appearance. Det. Cst. Landry did not recall R.G. asking him any questions.

[237] R.G. told Det. Cst. Landry that after hearing a scream, he came outside and saw a male running westbound across the front of his property and Number 79. As the male proceeded southbound between Numbers 79 and 81, the motion light in front of Number 79 came on. After receiving this information, Det. Cst. Landry returned to the task at hand, including photographing the light in question. He did not recall whether R.G. remained on the porch or went back inside his house.

[238] Det. Cst. Landry photographed footwear impressions that he observed between 72 and 74 D[…]. He later made a cast of these impressions. The evidence indicates that these impressions may well have been made by S.L., who was wearing his father’s footwear at the time that he went down the path between the two houses and returned carrying E.L.

[239] Det. Cst. Landry seized a white tissue located on the edge of the driveway of Number 79 A. Street. He also seized two hair follicles found on E.L.’s bed, and the bed sheet and comforter from the bed where S.L. and Sh.L. had comforted her after she was returned to the house. Det. Cst. Landry described D[…]1 as tidy. There were no signs of forced entry.

[240] Det. Cst. Landry described the steps he took in processing the items seized and his delivery of the sexual assault kit to the CFS.

[241] On December 28, 2011, Det. Cst. Landry entered the drying room at FIS and broke the seal on the locker containing the yarmulke, pyjama top, diaper, and pyjama bottom. He placed a fresh sheet of kraft paper on the examination table and put on a fresh pair of gloves. The items were dry and not touching each other. He proceeded to examine each item, one at a time.

[242] Det. Cst. Landry removed the yarmulke from the locker and put it on the examination table. He did not note anything unusual about it. He put it back in the bag where it had been stored and returned it to the locker. He then proceeded to examine the other three items in the following order: i) the pyjama top; ii) the diaper; and iii) the pyjama bottoms. He did not put down fresh paper or re-glove between examining each item. Mr. Currie testified that the failure to change the paper and re-glove created a risk of transferring DNA from one item to another item within that set of items.

[243] Det. Cst. Landry noted dirt on the pyjama top and two hair follicles, which he collected and put in separate envelopes. There were a number of areas on the pyjama top that fluoresced when exposed to Alternate Source Lighting (“ASL”), which indicated possible biological deposits. After consulting with Mr. Currie, Det. Cst. Landry submitted the entire pyjama top to the CFS for examination.

[244] The diaper and pyjama bottom did not fluoresce.

Testimony of R.G.

[245] R.G., age 52, had been living in the basement apartment at 77 A. Street for six years at the time of this incident. He has no criminal record.

[246] The backyard of 77 A. Street backs onto the backyard of D[…]2. R.G. testified that he does not know anyone who lives between 70 and 80 D[…]. In particular, he did not know the people who resided at D[…]1.

[247] R.G. testified that in the early hours of December 26, he was at home and watching a show on his computer. He was using head phones, which sat lightly on his ears. He could hear the show but it was not so loud that it blocked out other sounds. He could still hear noises or sounds around him. He had not had any alcohol to drink that day, but had taken some Tylenol and an antibiotic for tooth pain. He had been to the dentist a day or two earlier. The pain he was experiencing was one of the reasons he was still awake at 3:00 a.m., although he also described himself as a night owl.

[248] There are two sliding glass windows in R.G.’s apartment. Each window is about 35 inches wide and 20 inches high. The window facing east or towards 75 A. Street was open. A fan was running in it to take out the musty smells from the basement. The other window faced south into the backyard and was closed.

[249] R.G. testified that sometime between 3:00 and 3:30 a.m., he heard a scuffle outside – some kind of noise or scream of someone in distress or being hurt. When asked what he meant by “scuffle,” he stated that from the sound of the scream it seemed as though people were fighting. He thought it was probably “a couple of drunken goons.”

[250] In cross-examination, R.G. testified that the scuffle and scream were two different sounds that happened at the same time. He testified that it was difficult to describe the scuffle sound – that it was like someone was being dropped or pushed. He agreed that he had not described it this way during his police interview, where he referred to it as a “shuffling, like when a person runs.” However, he testified that he did not believe he heard anyone running and explained that perhaps he had just been unable to adequately describe or express to the police what he had heard. He testified that he still did not know how to describe the sound. He agreed that the sound of someone running is different from the sound of someone being dropped. R.G. re-iterated that the scream was like that of someone in distress who was being hurt or dropped. It was a “husky” sound that could be either male or female. His first impression, however, was that it was the sound of “two guys fighting.”

[251] R.G. testified that his recollection that the person who screamed could be male or female may be “biased” as a result of his knowing more details about what happened. He added, however, that it certainly did not sound like a little girl screaming.

[252] R.G. did not hear anything else after the scream. He waited a few minutes before going outside “to have a peek” and smoke a cigarette. He did not want to get in the middle of two males fighting, assuming they were the source of the scream. He exited the house through the west side door. He looked around and was listening as he smoked.

[253] R.G. walked along the cement walk on the west side of his house and up to the front or northwest corner of the house, where the walkway ends. He remained standing there in the shadows created by the street lighting. He did not see anything unusual. When he turned around, he noticed flashlights in front of D[…]1.

[254] R.G. was about to go back inside but decided to continue looking around. He returned to the northwest corner of the house and stood there for a short time. He then saw a male coming out from between two houses that were east of his house. The male was already about ten feet out from the houses and on a lawn or driveway when R.G. first caught sight of him in his peripheral vision. The male trotted or jogged on A. Street near the curb, went right by R.G.’s house, and then disappeared between 79 and 81 A. Street. As he did so, the motion sensors on those houses came on. Number 79’s sensor is at the side of the house; Number 81’s sensor is at the front of the house.

[255] R.G. drew on a map [Exhibit 45] the route that he believed the male had taken. That diagram indicates that the male emerged from between 75 and 77 A. Street, jogged in front of Numbers 77 and 79, and then disappeared between Numbers 79 and 81. The backyard of 81 A. Street backs onto the backyard of D[…]3, where Mr. Belbin lived.

[256] R.G. described the male’s speed as neither fast nor slow but a jog or trot. He never looked in R.G.’s direction.

[257] In cross-examination, R.G. agreed that he told the police that the male emerged from between houses that were two houses east of his own property. He testified that that is still his “main belief” – that is, that the male came out from between Numbers 73 and 75 A. Street as opposed to Numbers 75 and 77. He could not, however, be sure because the male was already out from between the houses when he first saw him. R.G. based his belief as to which homes were involved by estimating how far east of his location the male was at that point. In the end, he could not be certain which of the two possible scenarios was correct.

[258] R.G. estimated that only a few minutes had passed from the time that he first heard the scream until he saw this individual.

[259] R.G. estimated the male’s height at 5 feet 10 inches and his weight at 180 pounds. He was about 19 years old and had a good build – “healthy” and “strong.” He was wearing a blue winter coat with a hood. There was nothing distinctive about the coat. R.G. described the coat as plain or common. The hood was tied up tightly under the male’s chin. He wore a striped or plaid toque under the hood. Only a small portion of the toque – the part that came down onto his forehead from under the hood – was visible. R.G. could not see his hair.

[260] R.G. agreed in cross-examination that in his statement to police, he did not mention that the hood was tightly tied, although he did describe the toque as “tight to the head.” He testified that he has always recalled that the hood was cinched tight and denied that this was a “new detail” that he has added to the description.

[261] In terms of the man’s skin colour, R.G. stated that he was white. He “seemed like a Caucasian” and was clean cut. His face was “youngish” and smooth.

[262] When asked whether the lighting was sufficient to distinguish colours, R.G. stated that it was dim but he “got a pretty good look at the person.” In cross-examination, he agreed with his earlier statement to the police regarding the lighting:

Q. I haven’t been on your street. What’s the lighting like?

A. In that area? In that spot? Pretty good cause there’s a light right on our lawn or the next door’s lawn.

Q. So it lit up his face well for you?

A. Well enough, yeah.

[263] R.G. testified that the closest that the male came to him was 20 to 25 feet as he jogged along the curb of 77 A. Street.

[264] R.G. initially estimated that he had “maybe 30 seconds or less” to observe the man from the time that he first saw him to the time that he disappeared between Numbers 79 and 81. In cross-examination, he stated that it was under a minute. It did not take the male a long time to jog past the houses.

[265] R.G. turned and walked south along the sidewalk leading to his backyard. He stopped at the end of the sidewalk to see whether the male had gone through the backyards. He waited for about 10 or 20 seconds but did not see anything. He then returned to his apartment.

[266] In cross-examination, R.G. acknowledged that he told the police that he observed the flashlights in front of D[…]1 after rather than before he saw the male in the blue coat. R.G. could not now recall which sequence of events was correct.

[267] When asked about any other activity that he observed that night, R.G. testified that the lights were on at a house on G. Avenue, just north of his house. He heard “some kind of conversation” but it was inaudible. He made this observation before the male emerged from between the houses on A. Street.

[268] R.G. went back outside a few hours later and saw flashlights and police officers. Around 7:00 a.m., in response to a question he asked, an officer (presumably P.C. Yim) told him that they were looking for something. R.G. then told P.C. Yim what he had seen and heard as he thought it might be connected. The officer wrote down what he said. Later on, a reporter from CFRB started asking him questions about the incident. R.G. refused to speak to this person as he did not want to compromise the investigation.

[269] R.G. spoke to his landlady, Mrs. Gluckowski, about what he had seen and heard after a police officer attended at their house. His landlady told him that she knew the residents of D[…]1. R.G. was uncertain as to when she advised him that the incident involved a little girl. It could have been that day or days later. He may also have learned that information from the CFRB reporter on December 26.

[270] On December 26, R.G. attended at 32 Division at the request of the police and gave a DVD-recorded statement, commencing at 6:00 p.m.

[271] On December 27, 2011, at 2:00 a.m., Inspector Narine of the Toronto Police Services observed R.G. standing outside his residence at 77 A. Street. Inspector Narine investigated R.G. at that time. R.G. told him that he was the person who had provided the police with a description of the suspect. He then recounted his prior statement to P.C. Yim.

[272] Det. Cst. Aaron Akeson, who was involved in the investigation, testified that on December 28, R.G. called him and advised him about the broken fence separating his backyard from the backyard of D[…]2. Det. Cst. Akeson later learned that P.C. Thrush had caused this damage.

[273] On January 3, 2012, R.G. attended at 32 Division and provided a consent sample of his DNA. He testified that he had no concerns about providing the sample but wanted assurances that it would only be used with respect to this particular case. Prior to entering the station, he and Det. Cst. Akeson stood outside and were smoking cigarettes. After R.G. had discarded his cigarette and entered the station, the Mobile Support Team seized the butt for the purpose of DNA analysis. This proved to be unnecessary as R.G. provided a consent sample of his DNA in any event. As it turned out, the CFS analyzed the discarded cigarette for DNA and not the consent sample, which was eventually destroyed.

[274] R.G. testified that he may have laughed or made a joke during the course of providing the consent DNA sample. He explained that he tends to make jokes when he is nervous or tense. Det. Cst. Akeson described R.G. as “giggling” and saying that he just hoped that they caught the person who was responsible for the incident. Det. Cst. Akeson learned on January 6, 2012, that R.G. had been excluded as the source of the male DNA detected on E.L.’s pyjama top.

[275] On February 10, 2012, Det. Cst. Akeson contacted R.G. and asked him to take a polygraph test. He refused. He explained that he felt it was unnecessary because his word “should be good enough.” At some point in the investigation, he came to feel that the police were regarding him as a suspect, which was very unpleasant. He denied the suggestion by defence counsel that he refused to take the polygraph test because he was the perpetrator of the assault on the complainant.

[276] On January 12, 2012, R. G attended at 32 Division to work with a police artist in creating a composite sketch of the male he had seen on December 26. The resulting sketch is Exhibit 29. Det. Cst. Akeson spoke to R.G. on January 9 and 11 with respect to his participation in providing the sketch.

[277] On February 20, 2012, R.G. attended at 32 Division at the request of the police, where he was shown a photographic lineup that included a picture of Mr. Belbin. R.G. indicated that he did not recognize any of the males in the lineup.

[278] On October 21, 2013, R.G. attended at 32 Division at the request of the police and provided another consent DNA sample.

[279] R.G. testified that he is 5 feet 4 inches tall and weighed about 160 pounds in December 2011.

[280] The agreed statement of facts includes a list of ten occurrences between 2003 and 2008 when R.G. was investigated by police. Most of these incidents took place late at night when R.G. was found in a parked vehicle at the Phil White Arena. R.G. was cross-examined with respect to some of these occurrences, which are as follows:

1. On April 26, 2003, at 4:00 a.m., police officers found R.G. asleep in a vehicle at the Humewood Community School.

2. On August 2, 2006, at 12:15 a.m., police officers found R.G. sitting in the rear of a parked vehicle at Phil White Arena. He had open pornographic magazines in the car. He was wearing shorts. He was not wearing a top. R.G. recalled this incident but did not recall having more than one pornographic magazine.

3. On October 16, 2006, at 10:50 p.m., police officers found R.G. sitting in the rear of a parked vehicle at Phil White Arena.

4. On December 2, 2006, at 1:00 a.m., police officers found R.G. sitting in the rear of a parked vehicle at the rear parking lot of Alberta Avenue. He had a shirt over his head.

5. On December 17, 2006, at 9:20 p.m., police officers found R.G. sitting in a parked vehicle at the rear of Phil White Arena. He was reading a pornographic magazine.

6. On January 4, 2007, at 1:30 a.m., police officers found R.G. sitting in the rear of a parked vehicle at Phil White Arena.

7. On March 1, 2007, at 12:48 a.m., police officers found R.G. sitting in a parked vehicle at Phil White Arena. He had pornographic magazines around him. R.G. took issue at this trial with the allegation that he had pornographic material with him on this occasion.

8. On May 1, 2007, at 1:30 a.m., police officers found R.G. on foot, loitering at Phil White Arena.

9. On May 13, 2007, at 12:45 a.m., police officers found R.G. sitting in a parked vehicle at Phil White Arena.

10. On April 24, 2008, at 9:56 p.m., police officers found R.G. sitting in a parked vehicle at Phil White Arena. The officers issued him a ticket for loitering.

[281] R.G. vehemently denied the suggestion by defence counsel that he was hanging around arenas and parks late at night because he was fantasizing about sexual activity with children. He pointed out that there were no children in these areas when he was there. He also denied the suggestion that he took E.L. from her bed on December 26 and then created a story about having seen a male in the area in order to deflect the police investigation away from himself.

Testimony of Det. Cst. Sandra Arruda

[282] Det. Cst. Arruda, the officer in charge of the investigation, provided an overview of the investigation as it unfolded.

[283] On December 26, at 4:00 a.m., Det. Cst. Arruda spoke to Det. Wookey, who was on scene and advised her that S.L. may be a suspect.

[284] At 4:55 a.m., Det. Cst. Arruda attended at 71 Ch Drive. Det. Wookey told her that S.L. was in the house and had called a friend, Zev Zlotnick, who was a real estate lawyer. E.L. and her mother were in the ambulance, along with P.C. Leonard. Det. Cst. Arruda told Sh.L. that she would meet her at the hospital. E.L. appeared to be in good spirits and was playing with her mother’s cell phone. She was wrapped in an ambulance blanket.

[285] Det. Cst. Arruda testified that S.L., who was in the house, was asked to go to 32 Division, where Det. Cst. Arruda and Det. Wookey interviewed him. Mr. Zlotnick sat with him during the interview. S.L. provided a consent DNA sample at that time.

[286] Det. Cst. Arruda later attended at the hospital. E.L. still appeared to be happy. She was eventually examined by the nurse. Det. Cst. Arruda interviewed both her and Sh.L. at the hospital.

[287] On December 30, 2011, Det. Cst. Arruda was advised that male DNA had been detected on the sleeve of E.L.’s pyjama top and that S.L. had been excluded as the donor of that DNA profile. The police had no suspects at that point in the investigation.

[288] Det. Cst. Arruda testified that R.G. became a person of interest on December 27. One of the bases for this finding was that after R.G. had given a statement to the police as to what he had seen and heard, he continued to recount his observations to other officers he encountered. Since he kept speaking to the police, Det. Cst. Arruda viewed him as potentially “injecting himself into the investigation.” She testified that from her experience, as well as from discussions with other officers, this type of behaviour can sometimes be a red flag: instead of running away from the police, the perpetrator stays in contact with them in an attempt to find out what is going on in the investigation. Det. Cst. Arruda testified that later on, after meeting R.G., she was of the view that he was simply curious about the investigation.

[289] Another factor in terms of R.G.’s status as a person of interest was R.G.’s various encounters with the police in parking lots, mainly that of the Phil White Arena, when he was sometimes in possession of pornography.

[290] Bearing in mind E.L.’s statement that her “daddy took her outside,” Det. Cst. Arruda noted that R.G. was about the same height and build as S.L. and that they both had beards and wore glasses. There were no other similarities. Det. Cst. Arruda estimated R.G.’s height as 5 feet 6 inches. R.G. testified that he is 5 feet 4 inches tall.

[291] Det. Cst. Arruda also took into account that R.G.’s backyard was adjacent to the backyard where the crime took place. In addition, the fence that separated those backyards was damaged. Det. Cst. Arruda understood that S.L. had described the suspect as getting caught on something. In her mind, it was possible that R.G. got caught on the fence as he made his way home after committing the crime. The damaged fence was no longer a factor in terms of whether R.G. should be regarded as a person of interest after P.C. Thrush, on December 30, advised that he was the one who damaged it.

[292] Det. Cst. Arruda testified that on December 26 or 27, she asked the Mobile Support Team to conduct surveillance on R.G. and to collect a discard DNA sample from him if possible. When they were unsuccessful in this regard, she had Det. Cst. Akeson ask R.G. to attend 32 Division to provide a consent DNA sample. R.G. was initially hesitant but agreed to provide the sample when assured by Det. Cst. Akeson that it would only be used with respect to this investigation and not uploaded to the National DNA Data Bank. Since Det. Cst. Arruda was unsure whether R.G. would follow through with providing the consent sample, she arranged to have the Mobile Support Team collect a discard sample, if possible, when R.G. attended at 32 Division on January 3, 2012. As it turned out, both a discard and consent DNA sample were collected from R.G. on that day.

[293] On January 6, when she learned from James Currie that R.G. had been excluded as the source of the male DNA on E.L.’s pyjamas, Det. Cst. Arruda discontinued the surveillance by the Mobile Support Team. R.G. was the only person of interest in the investigation who was under surveillance by that Unit.

[294] Det. Cst. Arruda testified that at this point in the investigation, the source of the male DNA on the pyjama top was still unknown. She understood that DNA could potentially last through a laundering. In her mind, therefore, there was the possibility that the DNA was from a male relative back in Connecticut who could not possibly have committed this offence. Wanting to “keep everything open,” she instructed Det. Cst. Akeson to ask R.G. to take a polygraph test. R.G. declined.

[295] Det. Cst. Arruda testified that she never had reasonable and probable grounds to arrest R.G.

[296] Det. Cst. Arruda interviewed A.L. and H.L. on January 1, 2012. This was their second interview. She wanted to question them further about the lock on the front door. She also obtained a consent DNA sample from A.L. on that day.

[297] Det. Cst. Arruda testified that as of December 27, 2011, persons of interest in the case included, among others, a couple of individuals on the Sex Offender Registry who lived in the neighbourhood where the offence was committed, a male stopped by the police on the basis of the description of the suspect put out over the police radio, and a male jogger stopped by police at 4:00 a.m. on December 26, 2011.

[298] Mr. Belbin’s first contact with the police regarding this investigation was on December 28, when officers knocked on his apartment door during a door-to-door canvassing of the neighbourhood. On December 29, Det. Cst. Percival reviewed the canvas sheet and noted Mr. Belbin as a “possible POI.” He was subsequently added to the list of persons of interest, which led to the request that he provide a consent DNA sample. He provided the sample on January 13, 2012. On January 17, 2012, Det. Cst. Arruda submitted the sample, along with the consent DNA samples of three other persons of interest, to the CFS.

[299] On February 18, 2012, Det. Cst. Arruda assisted in the execution of a search warrant at Mr. Belbin’s apartment, during the course of which she located in a closet a blue jacket with a hood. The jacket was seized as evidence, as R.G. had described the male as wearing a blue coat with a hood. When Det. Cst. Arruda asked Mr. Currie to test the jacket for traces of E.L.’s DNA, he told her it would be “tough” and suggested that someone from FIS subject the jacket to ASL in order to determine if there was any biological matter on it. That testing was carried out by Det. Cst. Caputo with negative results. The jacket was therefore never submitted to the CFS for further testing.

The DNA evidence

[300] James Currie, a forensic biologist employed by the CFS, was qualified as an expert in the area of body fluid identification, as well as DNA analysis and interpretation.

[301] The agreed statement of facts includes admissions that the CFS handled all exhibits according to established standards and produced reliable results in the examination of the exhibits. It is agreed that the DNA sample obtained from Mr. Belbin by Det. Cst. Villaflor was taken, documented, stored, and transported in a manner that rules out contamination.

[302] It is also agreed that the pyjama top found by the police in the backyard of D[…]2 was seized, documented, stored, handled, and transported in a manner that rules out contamination, with the exception of the evidence relating to one or more officers who may not have regloved between handling the pyjama top, bottom, diaper, and yarmulke at FIS. This would only result in potential contamination between those items.

(i) The pyjama top

[303] Mr. Currie testified that the pyjama top was in good condition with no obvious signs of tearing. It appeared to be clean with the exception of some areas of staining. The entire top was subjected to chemical testing for the presence of saliva and semen.

Testing for the presence of saliva on the pyjama top

[304] The test for the presence of saliva involves testing for amylase, which is a protein that is present in high concentrations in saliva. It is also present but in lower concentrations in sweat, urine, and feces.

[305] The pyjama top tested positive for amylase in three different areas – Exhibit 13-4 on the front right sleeve, Exhibit 13-5 on the front left sleeve, and Exhibit 13-6 on the back left sleeve. These areas were sampled for DNA testing.

[306] Mr. Currie explained that the testing for amylase is a “time test.” An area that turns blue within five minutes is considered to be a positive test for saliva. An area that turns blue between five to 20 minutes indicates the presence of a body fluid that could be saliva, sweat, urine, or feces. In this case, all the areas tested turned blue after five minutes. Thus, Mr. Currie concluded that although it is more than likely that a body fluid was present in these areas, he could not say which one – that is, whether it was saliva, sweat, urine or feces.

Testing for the presence of semen on the pyjama top

[307] The test for the presence of semen involves testing for acid phosphatase, which is present in very high levels in semen. Acid phosphatase is also present in much lower concentrations in sweat, urine, and feces, as well as in non-human materials such as bacteria and fungus. In order to make a positive finding for the presence of semen, the area tested must turn purple within two minutes.

[308] No semen was detected on the front of the pyjama top.

[309] A 2 mm x 2 mm area on the back lower right sleeve turned purple in 2 minutes and 30 seconds. Based on the intensity of the test results, Mr. Currie could not identify the source of it – that is, he could not say whether it was from semen, sweat, urine, feces, or a non-human material. This area, Exhibit 13-3, was selected for DNA testing. Amylase was not present at this location.

[310] Dr. Currie opined that the acid phosphatase was deposited on the pyjama top post-laundering. It had been laundered in Connecticut and was not put on E.L. until shortly before she went to bed.

DNA Results from testing on the pyjama top

[311] In addition to DNA attributable to E.L., a DNA profile designated as “male DNA Profile 2” was detected in the following areas:

i) Up to 15 STR loci on the cut out from the back lower right sleeve of the pyjama top that indicated the presence of acid phosphatase (Exhibit 13-3); and

ii) Up to 11 STR loci on the cut out from the amylase-positive area on the front left sleeve of the pyjama top (Exhibit 13-5).

[312] Mr. Currie testified that there could be a number of reasons why test results at only 11 locations on the DNA molecule were obtained from Exhibit 13-5 on the front left sleeve. He explained that when there is both a major and minor profile, there may be insufficient DNA to get results at 15 locations. The age of the DNA and whether it has degraded may also be factors.

[313] S.L., A.L. and R.G. were excluded as the source of Profile 2 on Exhibits 13-3 and 13-5.

[314] In a report dated February 21, 2012, Mr. Currie summarized the results from comparisons made between Profile 2 on Exhibits 13-3 and 13-5 to Mr. Belbin’s DNA profile. Mr. Belbin’s DNA profile matched Profile 2 detected on Exhibit 13-3 at all 15 locations tested. His DNA profile matched Profile 2 detected at Exhibit 13-5 at the 11 locations for which there were test results. Mr. Belbin could not be excluded as the source of Profile 2.

[315] At page two of his report, Mr. Currie summarized his conclusions as follows:

Ryan BELBIN cannot be excluded, at up to 15 STR loci, as the source of male DNA Profile 2 from the following areas on the pyjama top from E.L.:

• The back lower right sleeve (13-3; 15 STR loci)

• An amylase-positive area on the front left sleeve (13-5; 11 STR loci)

The probability that a randomly selected individual unrelated to Ryan BELBIN would coincidentally share the observed DNA profile (13-3) is estimated to be 1 in 260 billion.

Probability Analysis

[316] Mr. Currie testified that the probability analysis is based on data from a sample of the Ontario population, including Asians, African Americans, Caucasians, East Indians, and Northern Ontario Natives. When uncertain as to the racial origin of a suspect, Mr. Currie calculates the estimated probability for each of the five population groups and then reports the most conservative number. In this case, that number was 1 in 260 billion, which is based on the East Indian population group data base. The estimates with respect to the Caucasian and the African-American data bases are, respectively, 1 in 420 billion and 1 in 1.1 trillion. Mr. Currie testified that all these estimates are very discriminating statistically and provide very strong scientific support for the hypothesis that Mr. Belbin is the source of DNA Profile 2 found on the back lower right sleeve of the pyjama top (13-3).

[317] Mr. Currie noted that the CFS has population data for the core 13 CODIS STR loci only. The CFS does not have population data for the additional two loci, D2S1338 and D19S433. The probability analysis was therefore done by assigning those two loci a default value of one, so that they do not factor into the analysis. If Mr Currie had been able to assign specific frequency estimates to those two additional loci, the estimate of probability would be even more discriminating. The CFS is currently attempting to generate population data for these two loci.

[318] Mr. Currie estimated the probability that a randomly selected individual unrelated to Mr. Belbin would coincidentally share the DNA profile on Exhibit 13-5 as 1 in 1.2 million. Again, he calculated the estimated probability for each of the five population groups and selected the most conservative, which is based on the Northern Ontario Native data base.

[319] Mr. Currie testified that the fact that Mr. Belbin cannot be excluded as the donor of Profile 2 on 13-3 does not assist in terms of determining whether the acid phosphatase detected on 13-3 is human or non-human. Mr. Currie could not say one way or the other as to whether Mr. Belbin’s DNA relates to that acid phosphatase.

Transfer of DNA – direct and indirect

[320] Mr. Currie testified that the touching by Mr. Belbin of E.L.’s pyjama top in the course of removing it would be sufficient to transfer his DNA onto the top. This scenario is an example of direct transfer, which occurs when an individual leaves their DNA on an item by touching it, or expels DNA directly onto the item through such actions as coughing, sneezing, or ejaculation.

[321] Indirect transfer occurs when person “A” transfers their DNA to either an object or person “B,” and the object or B then comes into contact with or touches another object, thereby transferring A’s DNA to that object.

[322] Mr. Currie was questioned regarding the indirect transfer of DNA onto pyjamas found on the ground in the middle of winter. An indirect transfer is possible if the DNA was on the ground where the pyjamas came into contact with it. However, the presence of the DNA on the ground would have to be as a result of a recent activity. Mr. Currie explained that after DNA leaves our body and is exposed to moisture, bacteria, heat or sunlight, all of which are common environmental factors, it immediately begins to degrade. Age itself is a factor in the degradation process. Contact with soil also hastens degradation. Mr. Currie noted that when he was assessing DNA Profile 2, he did not detect any signs of degradation. Thus, if DNA Profile 2 was left on the ground as a result of spitting, the spitting would have to have occurred recently.

[323] Mr. Currie testified that if a person spat on the ground in the summer, the saliva dried, and 5 to 7 months later, the pyjama top was on the ground where the saliva was located, he would not expect a transfer of DNA to take place. Although the saliva had dried, which is a factor that could assist in its preservation, it would have been exposed far too long to environmental factors, such as rain, freeze/thaw, and bacteria. In these circumstances, it would not be possible for a transfer of the type of DNA profile that he detected on the pyjama top to occur.

[324] Mr. Currie was asked what it would take to transfer DNA from dried saliva to the pyjama top if no specific time frame is taken into account. He testified that a “dry to dry” transfer can occur if pressure is applied. The resulting friction from applying pressure to the pyjama top could result in cells moving from the saliva stain to the pyjama top.

[325] Mr. Currie testified that dry contact is not a very efficient means of transferring DNA from one object to another. Ideally, there needs to be moisture. If the pyjama top were moist, it could rehydrate the saliva stain. The DNA cells could also be rehydrated by environmental moisture, such as rain or melted snow. The rehydrating of the saliva would enable a transfer of DNA to the pyjama top.

[326] Mr. Currie testified that a cold dry environment would assist in preserving DNA.

[327] Mr. Currie was asked whether DNA could be transferred to a child’s pyjamas in the following scenario:

A person spits or urinates on a spot on the ground in cold weather. A couple of days later, a child wearing pyjamas is put on the same spot on the ground. A certain amount of force or pressure is applied to her and her pyjamas are removed.

Mr. Currie testified that there is a possibility that the DNA could be transferred to the pyjamas if the DNA is relatively fresh in terms of moisture. If the DNA sample has dried over time, then just placing the garment on top of it would probably not result in a transfer. Either pressure between the DNA sample and the garment or something that causes rehydration of the DNA cells would be necessary to facilitate the transfer between the two surfaces.

[328] Mr. Currie testified that the transfer of DNA would be a possibility if the saliva or urine froze so quickly that there was no opportunity for the DNA to degrade, and was then returned to a liquid state by reason of the child’s body heat or a warmer outside temperature.

[329] Mr. Currie testified that assuming DNA Profile 2 was deposited on the pyjama top by an indirect transfer, the same phenomenon would have had to occur at two different locations on the top, that is, Exhibits 13-3 and 13-5. Mr. Currie was never questioned about the possibility of DNA Profile 2 having been transferred within the garment itself, that is, from one sleeve to the other sleeve.

DNA Profile 3 detected on Exhibits 13-3 and 13-6 from Y-STR analysis on the pyjama top

[330] Mr. Currie testified that there are two types of DNA analysis: the conventional autosomal analysis, which is very discriminating statistically, and the Y-STR analysis, which is far less discriminating as it is inherited intact from father to son. He explained, however, that the Y-STR profile is useful when there is a lot of female DNA on an item and only a minor amount of male DNA present.

[331] Using the Y-STR method on Exhibit 13-3 and the amylase-positive area, Exhibit 13-6, taken respectively from the back right and back left sleeve of the pyjama top, a major male DNA profile – Profile 3 – was determined at 11 Y-STR loci. S.L., A.L., a relative by the name of M. L., and each of their paternal male relatives could not be excluded as the source of Profile 3. The probability that a randomly selected male individual unrelated to S.L., A.L., and M.L. would coincidentally share the observed DNA profile is estimated to be, at most:

in Caucasians 1 in 400

in Blacks 1 in 1000

in Asians 1 in 337

[332] E.L.’s DNA profile was also detected on Exhibits 13-3 and 13-6.

[333] Mr. Belbin was excluded as the source of DNA Profile 3.

[334] Mr. Currie testified that the fact that S.L. cannot be excluded as the donor of Profile 3 on Exhibit 13-3 does not assist in terms of determining whether the acid phosphatase detected on Exhibit 13-3 is human or non-human. It cannot be said one way or the other as to whether S.L.’s DNA relates to that acid phosphatase, just as it could not be said whether Mr. Belbin’s DNA relates to it.

(ii) The Pyjama Bottoms

[335] No body fluid was detected on the pyjama bottoms.

(iii) Samples from E.L.

[336] No DNA profile other than that of E.L. was detected on the following samples taken from her:

• Fingernail scrapings from the left and right hands.

• A swab of the external genitalia (7-1). Additional minor amounts of DNA were detected but were not suitable for comparison due to the low amount present. It could not be said whether it was male or female DNA.

• An external genitalia swab (7-2).

• A swab of the lips/peri-oral area (10-1).

• An oral swab (1-2).

• The bloodstain on the lower front right sleeve of the pyjama top. Additional minor amounts of DNA were detected but were not suitable for comparison due to the low amount present. It could not be said whether it was male or female DNA.

• The cut-out from an amylase-positive area on the front right sleeve of the pyjama top (13-4).

[337] E.L. could not be excluded, at 15 STR loci, as the source of the female DNA profile from the hair roots from her clothing.

(iv) The White Tissue

[338] A DNA profile, “Profile 1,” was developed from a cut-out of the white tissue located by Det. Cst. Landry near the driveway of 79 A. Street. The profile was a mixture of DNA from at least two individuals, at least one of whom was male. There were never any matches with this profile throughout the investigation. In particular, E.L., S.L., A.L., R.G., and Mr. Belbin were all excluded as potential donors of the profile. No semen was detected on the tissue.

Statements made by Ryan Belbin to the police

(i) Statement on December 28, 2011

[339] On December 28, 2011, Detectives Christie and Luff knocked on the door of Mr. Belbin’s apartment while conducting a police canvas of people who lived in the neighbourhood where the abduction had taken place. Mr. Belbin answered the door. He stood at the doorway with the door slightly ajar as the officers, who were in suits, identified themselves and explained why they were there. Mr. Belbin came out into the hall, closing the door behind him. When the officers asked if they could come in, Mr. Belbin replied that he had been cooking and that the apartment was a mess.

[340] Mr. Belbin answered the officers’ questions regarding his date of birth, telephone number, and email address. Mr. Belbin indicated that he did not have a car and that he lived alone. He had a job delivering papers in the area up until the second week in December, but was now working at the Daily Bread Food Bank in Etobicoke.

[341] Mr. Belbin stated that he was home on December 26 between midnight and 6:00 a.m. but that he did not hear or see anything unusual during that time period. Nothing around the house was different. When asked if he had noticed anything disturbed or unusual around his residence, including the backyard, Mr. Belbin stated that in October, while he was with his mother, he had noticed two brothers who were pacing back and forth at the corner where the police command post was now located. Mr. Belbin refused to provide any contact information for his mother.

[342] The conversation between the officers and Mr. Belbin lasted three to five minutes. The officers described Mr. Belbin as a little nervous. He had big frizzy hair and was somewhat dishevelled.

(ii) Statement on January 13, 2012, and the obtaining of Mr. Belbin’s DNA sample

[343] Following a review of his canvas sheet by an officer on December 29, Mr. Belbin was added to the list of persons of interest from whom the police sought to obtain consent DNA samples.

[344] On January 10, 2012, Det. Cst. Villaflor called Mr. Belbin and left a message. At some later time, they spoke on the phone. Det. Cst. Villaflor told Mr. Belbin that his name had come up in an investigation and asked him to attend because “we need to speak to you.” Mr. Belbin said “fine” and they agreed to meet on January 13 at police headquarters. Det. Cst. Villaflor did not tell Mr. Belbin that he would be asked to provide a DNA sample.

[345] On January 13, 2012, at 4:42 p.m., Det. Cst. Villaflor met with Mr. Belbin at the front desk and escorted him to an interview room. The interview, which was recorded, lasted 15 minutes.

[346] Det. Cst. Villaflor began the interview by asking Mr. Belbin if he knew “exactly why you’re here …?” Mr. Belbin replied that he lived on D[…] and was aware of an ongoing investigation regarding an incident a couple of weeks earlier during Christmas time. He did not know all the details but had been interviewed at his residence by a number of detectives regarding the investigation.

[347] Det. Cst. Villaflor referred to the fact that he and Mr. Belbin had been playing “telephone tag” and that they “finally had a chance or an opportunity today to speak about your involvement, if any, in this particular matter.” Mr. Belbin replied, “Yes.” Det. Cst. Villaflor went on to state that a little girl had been taken from her home on Boxing Day and assaulted. He explained that the officers who had spoken to him were part of a canvas and that sometimes the police will follow up with a secondary interview to get more details. Mr. Belbin replied, “Okay.”

[348] Det. Cst. Villaflor then asked Mr. Belbin if he took “that girl out of her home.” Mr. Belbin answered “No.”

[349] When asked what he was doing on the night of Sunday, December 25 and the early hours of the morning on Monday, December 26, Mr. Belbin stated that he was at home and on vacation from Friday until Monday. On Sunday and Monday, he was “actually asleep early.” On Monday, his mother had called and left a message for him, telling him that there had been an incident in his neighbourhood. When he called her back, she told him something had happened a number of houses just south of his residence, and that there was an investigation and police lines just in front of his home. Mr. Belbin went on-line and searched through the Toronto Sun newspaper to find out as much information about the matter as he could.

[350] In response to other questions put to him, Mr. Belbin stated that he was 28 years old and rented a basement apartment, where he lived alone. He did not have a view of D[…] from his apartment. He went to bed on December 25 at about 10:30 p.m. and woke up on December 26 at 9:30 a.m. No one could verify that he was at home sleeping at that time.

[351] Mr. Belbin stated that he had gone shopping on Thursday (which was December 22.). He remained in his apartment from Friday to Monday. He did not leave the apartment until Tuesday, when he went back to work. That is when he noticed the police tape along two homes.

[352] Det. Cst. Villaflor then turned the topic to DNA. In response to the question, “Do you know what DNA is? DNA evidence and everything like that?” Mr. Belbin stated, “Yes.” Det. Cst. Villaflor then asked him to provide a sample of his DNA, which involved swabbing his inner cheeks. He gave Mr. Belbin a copy of the consent form and read it to him. The form indicated that the DNA sample being sought was in connection to a sexual assault/child abduction that had occurred on December 26, 2011 at D[…]2. Mr. Belbin indicated that he understood the consent form.

[353] Det. Cst. Villaflor testified that he then summarized the “main points” of the form because Mr. Belbin looked a little uncomfortable and he wanted to put his mind at ease. Mr. Belbin then signed the form. When asked for a sample of his DNA, Mr. Belbin stated, “Yeah, it’s fine.”

[354] After taking the swabs from Mr. Belbin’s cheeks, Det. Cst. Villaflor asked him if he had anything to add with respect to the case or “anything suspicious in the neighbourhood.” Mr. Belbin then repeated the information he had given to Detectives Christie and Luff. He stated that during the summer, he had noticed two boys, possibly brothers, pacing back and forth between D[…]3 and their home. The boys lived just east of where he lived. Their behaviour appeared questionable to Mr. Belbin.

[355] Det. Cst. Villaflor asked Mr. Belbin if he had noticed anything suspicious or anyone in his backyard more recently – “a week or couple of days before.” Mr. Belbin stated that he did not recall seeing anything really strange.

(iii) Statement on February 18, 2012

[356] On February 18, 2012, at 5:12 p.m., officers from the Emergency Task Force (the “ETF”) executed a “dynamic” entry of Mr. Belbin’s apartment and breached the door with a battering ram. Mr. Belbin resisted arrest and sustained some physical injuries as the officers attempted to gain control of and handcuff him. He was turned over to Det. Luff at 5:18 p.m. and transported to 32 Division by two uniformed officers. He arrived at the police station at 5:37 p.m.

[357] At 7:26 p.m., Det. Cst. Arnott photographed and made notes of Mr. Belbin’s injuries, which included the following: i) scrapes and bruising to the left side of his face below the eye; ii) the left eye was turning black; iii) scrape to the front of his chin on the left side; iv) a small cut at the bottom of the left index finger, thumb side; v) red mark on left wrist below thumb; and vi) small cut to the base of the left thumb.

[358] At 7:05 p.m., Mr. Belbin complained to Det. Cst. Akeson that his jaw was sore and that he had earlier had a problem hearing out of his left ear. Mr. Belbin was taken to the North York General Hospital, where he was seen by a doctor at 8:40 p.m. The doctor advised that Mr. Belbin did not have any fractures or broken bones but had sustained minor bruising to his left eye and superficial scrapes to his chin and left hand. Mr. Belbin was offered but refused to take Tylenol as a pain medication. He was returned to 32 Division at 9:00 p.m.

[359] At 9:13 p.m., Mr. Belbin was escorted to the interview room. Det. Rob Thomas conducted the DVD-recorded interview, which ended at 12:43 a.m.

[360] During the first part of the interview, Mr. Belbin was asked and answered Det. Thomas’s questions regarding his personal history. He stated that his parents separated when he was only three or five years old. His mother was from Eastern Canada and currently lived in Kingston, Ontario. His father was originally from Trinidad but lives in Cambridge, Ontario. Mr. Belbin had not spoken to him for 6 or 7 years.

[361] Mr. Belbin stated that he completed Grade 12 and had been living on his own for six years. He had resided at D[…]3 for over four years. During two of those years he had a part time job delivering papers twice a week for the Toronto Community News. His route included D[…]. He held this job up until the second week in December. He currently relied on social assistance but supplemented that income with work at the Daily Bread Food Bank in Etobicoke, where he commenced training as a cook in November 2011.

[362] Mr. Belbin stated that he did not have many friends and had no friends in the neighbourhood. He had some acquaintances by virtue of his job delivering papers. He explained that by “acquaintances” he meant people to whom he would say “Hi” or with whom he would have a quick conversation if he ran into them. People who wanted their paper would sometimes be at their door, in which case he would greet them. He did not know the family that was affected by the abduction.

[363] Mr. Belbin stated that he does not smoke.

[364] Mr. Belbin stated that he finished work on Thursday, December 22, and did not have to return to work until Wednesday, December 28. Other than shopping at the No Frills store at Bathurst and Wilson on Friday, December 23, he remained in his apartment the entire time; that is, from December 23 until the time he left for work on December 28. He did not even go into his backyard.

[365] When asked what time he left his apartment to walk to No Frills on December 23, Mr. Belbin stated: “It’d be Friday, but I mean I don’t remember what time it was. Um, and I prefer not to answer too many questions about the timing. Aside from that, I was home from the Friday ‘til the Tuesday.”

[366] When asked what time of day he was at the No Frills store, Mr. Belbin stated, “Could’ve been any time. I used to go there early but I haven’t most recently – whenever – whenever I can – whenever I can get there when I’m not busy.”

[367] When asked what time he would have returned from No Frills, Mr. Belbin stated: “I don’t even remember Friday. I can’t remember the time.”

[368] Mr. Belbin did not remember when he went to bed or got up on Saturday, December 24 or Sunday, December 25. He did not celebrate Christmas and did not speak to anyone that weekend. He did not speak to his mother between December 23 and 27.

[369] When it was suggested to him that the period from Friday to Tuesday was a long time to remain in an apartment, Mr. Belbin stated: “I realize that but … I have so many things to do in the apartment. I try to stay busy. … There’s nothing – I mean it’s winter out. There’s no uh – I don’t have an uh – you know I can’t really spend too much. I don’t have much to do. It’s just you know a lot of times just sleep.” He also stated that he was sorting through shows that he had recorded on a satellite service that he had recently cancelled.

[370] Mr. Belbin recalled speaking to the detectives who came to his door on December 28. He had refused to let them in because his apartment was a “pigsty.” He later spoke to his landlady “to find out what uh exactly uh they were discussing.”

[371] Mr. Belbin stated that he provided the DNA sample “to eliminate me from the – any questions.” He later searched the internet and found some information about the incident.

[372] At one point during the interview, Det. Thomas asked Mr. Belbin:

Q. I’m not suggesting you did this, alright? But, if we were to look at the evidence at the scene and compare it to your DNA, would there be any reason why there would be a match?

A. There wouldn’t.

Q. Absolutely not?

A. No.

[373] About halfway through the interview, Det. Thomas left the room. When he returned, his questioning of Mr. Belbin was more aggressive. He told Mr. Belbin that there was no doubt in his mind that he had taken “that little girl out of the house.” Mr. Belbin stated that he was being accused “because of where I reside.” At one point, when Det. Thomas told him that he knew “it happened” – meaning he knew Mr. Belbin had committed the offence – Mr. Belbin stated, “I’m telling you it didn’t.” At another point, Mr. Belbin stated: “I’m telling you I had nothing to do with it.” Det. Thomas also asked Mr. Belbin: “By sitting here and telling me that you did not – did not take that little girl out of the house, are you telling the truth?” Mr. Belbin replied, “I’m telling the truth, yes.”

[374] When told by Det. Thomas, “We have your DNA”, Mr. Belbin replied, “That’s impossible.” Det. Thomas asked: “Explain to me how your DNA got on her pyjamas.” Mr. Belbin stated that he did not know. He also stated that he thought Det. Thomas was lying to him about his DNA being on the complainant’s clothing.

[375] Mr. Belbin told Det. Thomas that he did not have a view of D[…]1 from his apartment and that he did not go out in the middle of the night.

ANALYSIS

General Principles

[376] When the Crown relies on circumstantial evidence, the evidence must be evaluated as a whole rather than as individual pieces to determine whether the Crown has met its burden. Some facts will have more probative value than others: R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at para. 27.

[377] In order to convict on the basis of circumstantial evidence, the trier of fact must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. The mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt: R. v. Griffin; R. v. Harris, 2009 SCC 28, 244 C.C.C. (d) 289 at paras. 33-34.

[378] In a case such as this, where the issue of third party suspects has been put into play, the defence will succeed unless it is disproved by the Crown beyond a reasonable doubt: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 56. Thus, in the present case, the burden is on the Crown to establish beyond a reasonable doubt that neither S.L. nor R.G. committed these offences. If I have a reasonable doubt, then I must find Mr. Belbin not guilty.

[379] In his statements to police, Mr. Belbin denied committing the offences. In light of his exculpatory statements, as well as other evidence favourable to the defence, including the statements of E.L. that her father was the person who took her outside, the principles in R. v. W.(D.) apply. As stated in R. v. B.D., 2011 ONCA 51, at para. 114, the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. Those principles have a broader sweep and are to be applied where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence in the Crown’s case that is favourable to the defence.

Findings

[380] The first issue to be addressed is whether the Crown has established beyond a reasonable doubt that S.L. did not commit these offences. If the Crown has met its burden in this regard, it must then be determined whether the Crown has established beyond a reasonable doubt that R.G. was not the perpetrator. If I am so satisfied, then I must go on and determine whether the Crown has established its case beyond a reasonable doubt against Mr. Belbin.

Has the Crown established beyond a reasonable doubt that S.L. did not commit the offences?

[381] In support of its position that the Crown has failed to establish beyond a reasonable doubt that S.L. did not commit these offences, the defence relies on E.L.’s statements to her mother, grandmother, and the police that her father took her outside. Counsel for Mr. Belbin also relies on evidence that suggests that the front door was locked that night. She submits that S.L. and Sh.L.’s evidence that they awoke at the same time is not credible – that S.L. was already up, having taken E.L. outside and returned to the house by the time Sh.L. awoke. It was submitted that the testimony of S.L. and H.L. with respect to having heard whimpering sounds coming from the backyard of D[…]2 was not reliable or credible. The defence also relies on the fact that the police dog failed to pick up a track, the inconsistencies in S.L.’s evidence, including his description of the alleged suspect, and other evidence, such as the presence of his DNA on E.L.’s pyjama top and mud on the back of his pants. The defence submits that when all of the evidence is taken into account, the Crown has not established beyond a reasonable doubt that S.L. did not commit these offences.

(i) E.L.’s statements that her father took her outside

[382] The defence submits that E.L.’s statements to her mother, grandmother, and Det. Cst. Arruda that her father was the person who took her outside are reliable evidence implicating S.L. in this crime. The statements were unprompted. No one suggested to E.L. that her father took her outside. She volunteered that information to Sh.L. and H.L. shortly after S.L. brought her home. She repeated the same information later that day to Det. Cst. Arruda. E.L. had no motive to fabricate. There is no evidence that she bore any animus towards her father.

[383] It is also clear that some of E.L.’s memories about the events that night are accurate. For example, she recalled that it was cold, that she was placed on the ground, that her pyjamas were removed, that her father picked her up and brought her back inside the house, and that he told her he loved her. According to S.L.’s testimony, she asked for her pyjamas and said that she was cold.

[384] On the other hand, E.L. made other statements during her police interview that were clearly incorrect. When asked by Det. Cst. Arruda if she were ever by herself, E.L. indicated that she was always with her daddy. That, of course, was impossible: S.L. was at D[…]1 before and during part of the 911 call. E.L. would have been alone and naked in the backyard for about eight or ten minutes if S.L. were the perpetrator. However, if another male had taken her outside and was with her until her father appeared on the scene, then her perception that she was never alone would be accurate.

[385] Dr. Wolfe testified that young children, when awakened in the middle of the night from either REM or NREM sleep will be groggy and not have a “clear alertness.” There will be some delay before the child is able to absorb information and process memories. The child may have what Dr. Wolfe described as “flashbulbs” or eyelets of memory, but it would be very unusual for a small child to have a cohesive memory of events. As a result, they may attempt to fill in the gaps.

[386] The evidence indicates that E.L. was groggy and did not have “clear alertness” when she was abducted and taken outside. For example, she told Det. Cst. Arruda that she did not see her father until he got off of her, which is consistent with her being asleep or very sleepy during the abduction:

Q. How do you know it was Daddy?

A. ‘Cause then when he got off of me, I saw.

[387] It makes sense that the perpetrator would have taken care not to awaken E.L. when he took her from her bed for fear that she might cry out and wake up the other family members. That such care was taken is apparent from the fact that E.L.’s bed covers were neatly folded back. She was not ripped from her bed. In these circumstances, E.L. may well have only started to wake up as she was being taken outside, at which point she would have been exposed to the cold temperature. Dr. Wolfe testified that a child in these circumstances, having been awakened from a deep sleep, might realize at that point that something is going on – their mind would be trying to figure out what was happening – but that would be as far as it goes. Dr. Wolfe testified that the child would not necessarily even be able to vocalize what was happening at that time. They may be able to vocalize something a little later on, but it would be fragmented.

[388] E.L.’s account of what happened after she says her father got off of her is confusing in a number of respects. She stated that he got off of her when he saw the “pussy-cat.” He was then behind some bushes. There is no evidence that S.L. was behind any bushes. Photographs of the west side of D[…]2 (see Exhibits 14, 15A, and 32A) indicate that there are some trees growing along the fence line but they are too close to the fence for anyone to be positioned behind them. E.L. stated that she found her father and then came to him. When asked if she was alone when she saw her father behind the bushes, E.L. answered, “No.” She was not asked who else was there.

[389] In describing this event to Sh.L., E.L. made no mention of finding her father behind some bushes and coming to him. She told Sh.L. that they both ran away when they saw a cat and then her father picked her up:

A kitty cat came out and we ran away. We were scared of the kitty cat. We ran away, and then Daddy picked me up and said, “I love you. I love you.” Why would Daddy hurt me if he loves me?

[390] Although E.L. recalled her father telling her that he loved her, she had no recollection of his having yelled or screamed. It is hard to imagine that if E.L. were truly alert she would not recall hearing her father’s anguished screams, which were picked up by the 911 recording from inside the house at D[…]1. E.L.’s failure to recall his screams is a clear indication that she was not able at that time to appreciate all of her surroundings. It is consistent with Dr. Wolfe’s testimony that it takes a while before a young child awakened from sleep is fully alert and able to process information.

[391] That E.L. was groggy and not fully alert is evident from her own description of herself as sleepy. When asked if she were awake or sleepy at the time, she stated that she was sleepy.

[392] S.L. also described E.L. as sleepy. He testified that she was “out of it” or half asleep when he picked her up and took her home. He brought her upstairs to the bedroom, draped a blanket over her, and cuddled her on Sh.L.’s bed for two or three minutes. Sh.L. then took over while S.L. spoke to the 911 operator.

[393] A.L. testified that E.L. did not say anything – “it was total silence” – as S.L. brought her into the house.

[394] Sh.L. testified that E.L. appeared groggy when S.L. first brought her inside. She was not crying. When Sh.L. went upstairs to tend to her, E.L. was still “very sleepy, groggy.” She was not talking initially and just lay in Sh.L.’s arms. Sh.L. had seen her in this same state on other occasions when awakened from a deep sleep. She testified that E.L. had stopped taking naps when she was two-and-a-half or three years old and that she sleeps “pretty deeply.”

[395] P.C. Vandercamp, who was in the bedroom briefly with Sh.L. and E.L., described E.L. as “not saying anything.”

[396] Dr. Wolfe testified that E.L.’s grogginess and initial silence do not indicate one way or the other whether she was in REM or NREM sleep when she was abducted. He agreed that it is logical that E.L., who remained awake after the incident, would be better able to state more information about it than if she had gone to sleep and been asked in the morning to recount what had happened to her. However, the accuracy of her statements would still be suspect, given that she was a young child awakened in the middle of the night.

[397] In summary, although some of E.L.’s statements were accurate – “flashbulb” memories – others were not, such as her recollection that her father was with her throughout the time that she was outside. She had no recollection of her father’s screams. Some statements indicate that she was confused. This is to be expected as she struggled to make sense of what had happened to her. The concern is that in an effort to fill in the gaps or piece things together, E.L. may well have come to believe her father took her outside because she saw him in the backyard and because he was the person who brought her back inside the house.

[398] The problematic aspects of E.L.’s statements, along with Dr. Wolfe’s testimony regarding the process a child’s brain undergoes when awakened in the middle of the night, raise serious concerns about the reliability of her statements that her father took her outside. The weight to be given to those statements is accordingly limited.

(ii) Evidence as to whether the front door was locked on December 25/26

[399] There were no signs of forced entry into D[…]1. An intruder could only have entered through the front door if it had been left unlocked. Counsel for Mr. Belbin submits that that scenario is unlikely, given A.L.’s penchant for checking the door to ensure it was locked. If it was locked, then the evidence points to someone inside the house – namely, S.L. – as the perpetrator.

[400] Neither S.L. nor Sh.L., while visiting S.L.’s parents, took responsibility for locking the front door. They left that task to A.L., who was very vigilant about ensuring that all the doors in the house were locked.

[401] P.C. Vandercamp, who was one of the first officers to arrive on scene, testified that both S.L. and A.L. told him that the front door had been locked before everyone went to bed on December 25. S.L. testified that he had no recollection of telling any officers that the door was locked. He explained that if he made such a statement, he had probably just assumed his father had locked it. He was also distraught at the time that he spoke to P.C. Vandercamp.

[402] The combination lock on the front door was relatively new. According to H.L., it was installed only a week prior to S.L. and Sh.L.’s visit. It took H.L. a couple of weeks to get used to it. A.L.’s recollection was that the combination lock was installed about three weeks prior to the visit.

[403] H.L. testified that S.L. and Sh.L. were given the combination but she could not recall a specific occasion when they used it or accessed the house on their own. S.L. had no specific recollection of being given the combination but assumed his parents told him what it was. Sh.L. testified that she may or may not have been given the combination. As best she could recall, she was never alone when she entered the house and therefore had no need to unlock the door herself.

[404] During the period between December 22 and 25, the L. family members were in and out of the front door on numerous occasions as they ran errands, visited friends and relatives, and went to various social functions, including the Hanukkah party on the evening of the 25th. There was some uncertainty on the part of S.L. and Sh.L. as to whether they would accept S.L.’s cousins’ invitation to return to the party after they put the girls to bed. According to Sh.L., this invitation was also extended to A.L. and H.L. but they declined upon hearing that she and S.L. might go back. H.L. agreed to babysit if they decided to accept the invitation.

[405] It was not until sometime after 10:00 p.m. that S.L. and Sh.L. decided they were too tired to return to the party. They went to bed between 10:45 and 11:00 p.m. S.L. had no recollection of calling his cousins to let them know they were not coming back. Sh.L. was quite certain that she and S.L. did not call them back. She did not consider it necessary as they had left the matter up in the air from the outset: they told the cousins that they would try their best but “don’t count on us coming back.”

[406] S.L. did not recall advising his mother that he and Sh.L. had decided to stay home. Sh.L. had no specific recollection of telling H.L. about their decision. She went on to state, however, that H.L. would only have been advised if they decided to return, in which case H.L. would be required to babysit. Sh.L. noted that the girls were already asleep in bed and her in-laws had no plans to go out that night in any event. Whatever she and S.L. decided to do in terms of returning to the party would not involve her in-laws having to change their plans.

[407] H.L. testified that as a result of her uncertainty as to whether S.L. and Sh.L. were returning to the party, she was less vigilant about checking the lock on the door before she went to bed. H.L.’s evidence as to her understanding of S.L.’s and Sh.L.’s intentions regarding the invitation was problematic and at times did not make sense. For example, although she testified she had the impression that they were going to call her sister and decline the invitation, she went on to state that she was actually standing beside S.L. when he made that call. If this were the case, it would have been clear to her that S.L. and Sh.L. were not going out again that night. In cross-examination, she agreed that she told the police that “they called and they said they were just too tired. They’re going to go to sleep. We’re having this big trip today.” Although H.L. initially testified that S.L. made the call, she later stated that she could not remember who made it – whether it was S.L. or Sh.L. She also testified that even though it seemed to her that S.L. and Sh.L. were not going back out, she thought they might change their minds. Assuming H.L. overheard S.L. or Sh.L. make a call to her sister to say they were not returning to the party, on what basis did she think that they would change their minds? I note that neither S.L. nor Sh.L. recalled making such a call and that Sh.L.’s evidence as to why they did not make it makes some sense.

[408] H.L. testified that she went upstairs briefly to say goodnight to the children, who were in bed by 9:00 or 9:30 p.m. She then returned to the kitchen to do various chores. She was unaware of what S.L. and Sh.L. were doing as they did not come back downstairs after arriving home, except to call her sister.

[409] H.L. recalled that S.L. asked her at some point that evening to keep her voice down when she was on the phone. She did not take this as an indication that he and Sh.L. were trying to go to sleep and were therefore not returning to the party. She thought they were simply concerned that she might wake up the children. She went to bed around 10:30 or 11:00 p.m. She did not see her husband before going to bed: he was working downstairs in his study.

[410] H.L. agreed that one reason she did not check the lock that night was the fact that her husband usually performed that task. Her evidence in this regard is in accordance with the evidence of the other family members.

[411] H.L.’s evidence as to her certainty or uncertainty about S.L. and Sh.L.’s intentions that night with respect to their returning to the party is internally inconsistent and confusing. However, if H.L. were attempting to mislead the court on this issue and fabricate a reason as to why the door may have been left unlocked, as opposed to just being confused about this issue, it is odd that she adamantly denied telling her husband that night not to lock the door because S.L. and Sh.L. had gone out or were planning to go out. A.L. testified that he had the impression that S.L. and Sh.L. had gone out and that he may have gotten this impression from something his wife said to him. There was obviously no collusion between A.L. and H.L. regarding their evidence as to why A.L. may have failed to lock the door that evening.

[412] A.L. drove himself to the party. He arrived later and left earlier than the other members of his family. He thought he got home around 8:00 p.m. He went downstairs to his study and worked there until 1:00 a.m., when he went to bed. He did not see or hear the rest of the family when they came home. No one was up when he went to bed.

[413] A.L. generally kept the front door locked all the time. On days when he planned to work late in his study, he sometimes locked the door earlier in the evening if he and his wife were not expecting company. If he was not sure the door was locked, he would check it before he went to bed.

[414] A.L. testified that on the evening of December 25, he did not check whether the door was locked because he assumed S.L. and Sh.L. would lock it when they came in. He was not sure where he got the impression that they had gone out, but speculated it was something his wife had said. He explained:

The only thing that I can think of is just that I thought that my wife had said to me: “Don’t lock the door because the kids are still out and they’ll – they’ll lock the door when they come in.” Again, I don’t recall 100 percent having that conversation, but something tells me that that’s what happened that night.

[415] A.L. acknowledged that he has no real memory of his wife telling him not to lock the door. He agreed that he was more or less speculating as to what she may have said to him in order to understand why he had the impression that S.L. and Sh.L. had gone out and why he did not check to see if the door was locked. Sh.L.’s evidence indicates that he knew about the cousins’ invitation to S.L. and herself to return to the party as the invitation was also extended to him and H.L. They declined the invitation upon learning that S.L. and Sh.L. might go back. A.L. was never specifically asked during his testimony whether he was present when the invitation was extended. At this point in time, he may well not recall such a matter in any event. I note that A.L.’s current recollection of events that evening was somewhat vague. For example, he initially could not recall whether all the family members went to the party together or whether he went in a separate vehicle and arrived later.

[416] A.L. testified that he currently has no memory one way or the other as to whether he locked the door or failed to check to see if it was locked. He surmised that he did not lock it because there were no signs of forced entry into the home.

[417] In summary, there is no question that it would have been unusual for the front door to be left unlocked, given the fact that it was A.L.’s normal routine to ensure it was locked. The evidence also indicates, however, that much of the regular and relatively quiet routine of the L. household was disrupted between December 22 and 25 as a result of the holidays and the arrival of S.L., Sh.L., and their two small children. As noted earlier, the various family members were in and out the front door on numerous occasions as they ran errands and attended social gatherings, including the party on December 25.

[418] Not everyone in the family arrived at and left the party at the same time. A.L. came later and left earlier than the others. A potential source of uncertainty in terms of the coming and going of family members arose as a result of the cousins’ invitation to S.L. and Sh.L. to return to the party. S.L. and Sh.L. did not make their final decision in that regard until sometime after 10:00 p.m.

[419] A.L. was working in his basement study until 1:00 a.m., when he went to bed. He had the impression that S.L. and Sh.L. had gone out. He was not sure what left him with that impression and speculated – mistakenly, if H.L.’s evidence is accepted – that his wife told him the “kids” were still out and he should not lock the door. According to Sh.L., he would have known about the cousins’ invitation because he and H.L. were also invited to return but declined. A.L. has no current memory as to whether he locked the door or failed to check if it was locked.

[420] The combination lock was relatively new, having been installed only a week or so prior to the arrival of S.L. and his family. This was their first visit to his parents’ home with the new lock in place. On the one hand, the combination lock meant that there was no reason not to lock the door since S.L. and Sh.L. had been given the combination and therefore could have unlocked it themselves. They did not need a key. On the other hand, as S.L. testified, it is easier or more convenient to simply leave the door unlocked rather than use the combination. There is, of course, always the risk of forgetting the combination, which would result in having to ring the doorbell and wake up everyone in the house.

[421] In light of all the circumstances at play leading up to and including the evening of December 25, and in the context of an interrupted household routine, I conclude that it would not be at all surprising if the front door was left unlocked that night.

(iii) The testimony of S.L. and Sh.L. that they woke up at the same time

[422] Counsel for Mr. Belbin submits that the evidence of S.L. and Sh.L. that they woke up more or less at the same time in the early hours of December 26 is highly suspect. The position of the defence is that S.L. was not asleep when his wife woke up: he had already gotten up, taken E.L. outside to the backyard of D[…]2, stripped her naked, and then decided to leave her there and return to the house. Sh.L. woke up when she heard his footsteps.

[423] Ms. Penman pointed to inconsistencies between S.L.’s testimony at trial and statements he made to the police regarding when he and Sh.L. awoke. At trial he testified that he was awakened when he heard the door chime. He and Sh.L. woke up “pretty much at the same time.” They both sat up in their beds. He asked Sh.L., “Did you hear that?” She indicated that she had. He was still in bed or his feet were on the floor at the time. He told her he was going to check on the children.

[424] During his police interview, S.L. stated that he woke up and was out of bed before he spoke to his wife. He thought that he woke her up. He agreed in cross-examination that Sh.L. certainly did not wake him up. He added, however, that his current recollection is that he said something to her before he was actually out of bed and that they woke up more or less at the same time.

[425] Sh.L., who was eight months pregnant at the time, testified that she was sleeping lightly when she heard footsteps going down the stairs. The footsteps were quicker and heavier than those of her father-in-law. A couple of seconds later, she heard the door chime. She was fully awake at that point. She looked over to S.L. and saw him wake up. He asked her, “Was that the chime?” She replied, “I think so.” She told him about hearing the footsteps. S.L. got out of bed and said he was going to check on the girls. Sh.L., who was sitting up in bed and listening, got out of bed and went to the doorway. S.L. came out of the girls’ bedroom and told her that E.L. was missing.

[426] Sh.L. recalled that S.L. wore boxer shorts and an undershirt to bed that night and that he was wearing the same thing when they woke up and discovered E.L. was gone. She recalled that S.L. was zipping up a pair of pants he had put on as the two of them ran down the stairs to the front door to see if E.L. was outside.

[427] P.C. Leonard testified that Sh.L. told her that she only heard loud footsteps and never heard the chimes. Ms. Penman submits that the discrepancy between Sh.L.’s testimony and her statement to P.C. Leonard with respect to the chimes casts doubt on her credibility. It is submitted that Sh.L. was attempting to provide her husband with an alibi by placing him in the bedroom at the same time that she heard the footsteps, which presumably were the footsteps of the perpetrator.

[428] I found Sh.L. to be both a credible and reliable witness. From the outset, Sh.L. consistently maintained that she heard footsteps going down the stairs next to the bedroom where she was sleeping, that the footsteps woke her up, and that her husband was in bed at the time. Her testimony in that regard was identical to what she told the 911 operator only a few minutes after she discovered that E.L. was gone and well before she could have had any idea that the police would come to view her husband as a person of interest. Sh.L. told the 911 operator that she heard footsteps “going quickly down the steps … on the inside. And then some-, like a door or something, and we just shot up in bed. Like it sounded strange to us. My husband ran to the kids’ room.”

[429] In my view, whether or not Sh.L. heard the chimes as well as the footsteps is not particularly significant. I note that in the 911 call, which is her earliest account of these events, Sh.L. indicated that after hearing the footsteps, she heard a noise, which she appears to have associated with the door: she told the operator that she heard “a door or something.” Sh.L. also mentioned hearing the chimes during her interview with Det. Cst. Arruda.

[430] If, as alleged by the defence, Sh.L. were prepared to “cover” for her husband so that he would not be implicated in this crime, one might expect that she would have tried to influence E.L. to change her story. However, the opposite is true. As disturbing as it may have been for Sh.L. to hear E.L. making statements that her father was the man who took her outside in the middle of the night, Sh.L. never tried to dissuade E.L. from that belief or to convince her to say anything different to the police. Sh.L. was open with the officers about the fact that E.L. was consistently making these allegations about S.L. In fact, during the police interview, when E.L. was not responding to Det. Cst. Arruda’s request that she repeat what she had earlier told her mother, Sh.L. stepped in and assisted the officer in