COURT FILE NO.: CR-14-30000567

DATE: 20151109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DM

Defendant

Kim Crosbie, for the Crown

David Heath, for the Defendant

HEARD: October 19-22 and 26, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

E.M. Morgan J.

I. Overview

[1] The Defendant is charged with ten sexual offences against a child. The young Complainant is his step-granddaughter. The charges include sexual assault, sexual touching with his genitals, inviting the Complainant to touch his genitals, and making sexually explicit material available to a child.

[2] The incidents covered in the indictment are alleged to have occurred at various times between the years 2011 and 2013, when the Complainant was 5 to 7 years old. She is now 9 years old and testified at trial by video link into the courtroom.

[3] Crown counsel’s position is that although the Complainant may have expressed herself in a juvenile manner given her tender age, she was a credible witness. Counsel for the Crown further observes that the Complainant demonstrated in her testimony a level of knowledge about sex, sexual positions, and male sex organs that leads inevitably to the conclusion that the Defendant must have introduced her to pornographic images and, ultimately, to sexual activity.

[4] Defense counsel’s position is that the Complainant told one small “white lie” when she was caught searching “sex” on YouTube, and told her mother that Grandpa had taught her that word. Counsel for the defense further submits that the story then snowballed, and that the Complainant came to attribute to the Defendant knowledge about sexual matters that she had learned from other sources.

II. Family relationship

[5] The Complainant’s mother, LM, testified that the Defendant came into her family’s life in the early 1990’s when she was a teenager. It was at that time that the Defendant first dated, and then started a live-in relationship, with LM’s own mother, LG. LM explained that she has no relationship with her natural father, and that the Defendant has been a step-father to her through her teenage and adult years. Her four children, including the Complainant, all refer to LG as Grandma and to the Defendant as Grandpa.

[6] Until September 2013, when she confronted the Complainant about her internet searches, LM had a good rapport with the Defendant. Since getting married, LM’s husband also had developed a good, close relationship with the Defendant, who was effectively his father-in-law. They visited each other on holidays and family occasions, and the Defendant helped LM and her husband fix things around their house, build a new backyard deck, install a new floor, and buy a new screen door.

[7] The Defendant confirmed this relationship in his own testimony. He conceded that he had some arguments with LM years ago when she was going through adolescence, but that since her marriage the relationship has been a positive and friendly one.

[8] The Defendant also indicated that he is very attached to LM’s four children, and has always been generous with them. He bought them bicycles, skates and hockey equipment, installed a skating rink in his backyard for them, took them on trips around the city, and generally related to them as a grandfather would be expected to relate. When it transpired that the three older boys had Ipods and the Complainant did not have one, the Defendant bought her a digital, internet-accessible Ipod which became her favourite device.

[9] Until 2010, LG and the Defendant looked after LG’s elderly father, and were preoccupied with that task. After the great-grandfather’s death in 2010, their time freed up for the grandchildren, who started visiting them more often on weekends and holidays. At first all four children – the Complainant and her three older brothers – would visit at the same time, but the Defendant felt that this was too much for him and LG in a small house, so they started visiting one or two at a time. The Defendant testified that he suffered a workplace back injury and had surgery in 2001-02, and has been on disability since that time. It is difficult for him to engage in strenuous physical activity.

[10] By all accounts, the Complainant greatly enjoyed visiting her grandparents and they greatly enjoyed her company. She would spend the occasional long weekend with them when she started school, and spent a week or two with them at their house during summer holidays. When she visited on weekends and until 2011, she would be tended to by both LG and the Defendant. Starting in 2012, LG began working outside the home, and when the Complainant visited on weekdays she would accompany the Defendant on his various errands and in driving LG to work in the morning and picking her up in the afternoon.

[11] As the Defendant put it, when the Complainant was visiting she kept him busy. He often took her to the park, taught her cooking which he enjoys, took her shopping, and watched cartoons and hockey on TV with her. The Defendant testified that Montreal was the Complainant’s favorite team.

[12] In terms of sleeping arrangements, the Defendant indicated that at first the Complainant would sleep in one of the two basement bedrooms in his and LG’s house, and then eventually she moved to the love seat in the living room upstairs. LM was under the impression that a futon in the sun room at the front of her parents’ house had become the Complainant’s bed, but the Defendant testified that the love seat was made into the Complainant’s bed and that is where she regularly slept when visiting.

[13] The Complainant was apparently not a good sleeper, and did not like being put to sleep in the evenings. The Defendant explained that someone had to lie down with her to get her to go to sleep, and that was often his task. LG was responsible for bathing the Complainant, and the Defendant was tasked with lying next to her until she fell asleep. He testified that he typically would lie on top of the covers, unless it was chilly in which case he would put a cover over himself. He said that he wore his street clothes when he lay down with her, and testified that the Complainant never saw him undress.

[14] The Defendant indicated that he would usually get up when the Complainant finally fell asleep, and would generally spend the rest of the night watching television. When he went to sleep himself, he slept in the main floor bedroom with LG, and wore shorts over underwear as his sleeping attire when the Complainant was visiting.

[15] In general, the Defendant described a very warm relationship with the Complainant and her siblings. He said that he is not the physically affectionate type of person who would kiss his grandchildren, but he gave the Complainant hugs on occasion, and would rub her head or sometimes sit with his arm around her while watching TV. He said that he never touched her when he lay down to put her to sleep, but would simply lie next to her until she dozed off.

[16] In the Defendant’s own words at trial:

Q: How would you describe your relationship with [the Complainant]?

A: I loved that kid like she was my own.

III. Complainant’s allegations

[17] The Complainant was the Crown’s lead witness at trial. She gives a very positive impression for a 9 year old, and struck me as a likable, intelligent young girl. She stated at the outset of her testimony that she enjoys art, music, and gym at school, and that she has two dogs and two cats.

[18] The proper approach to the evidence will be further discussed toward the end of this judgment. However, it is important at the outset to note that in evaluating this testimony, which, as indicated, was done by video link to another room so that the Complainant would not be confronted with the Defendant face-to-face, an appropriate perspective must be kept in mind:

…we must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability than we would do adults… The changes to the evidentiary rules were intended to make child evidence more readily available to the court by removing the restraints on its use that existed previously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to higher standards.

R v Stewart (1994), 1994 7208 (ON CA), 18 OR (3d) 509, at para 21 (Ont CA).

[19] The allegations leveled by the Complainant are serious, but not easy to pinpoint as to time and place. Sometimes she described the sexual activity as taking place only in the master bedroom of her grandparents’ house, and at other times she described it taking place in a basement bedroom. Sometimes she said that the sexual incidents occurred only when her Grandma was not home, and other times said that it occurred when her Grandma was home and either asleep or watching TV and not paying attention to what the Defendant was doing.

[20] It is, of course, not surprising that the Complainant was imprecise in describing the details, sequence, and timing of events, given her age. This was especially true in the interview she gave to a social worker at SickKids’ Hospital in 2013 when she was 7 years old. That interview was videotaped and, with consent of defense counsel, was played as part of the Complainant’s examination-in-chief at trial. At the age of 7, the Complainant was bright and playful, but very hesitant to speak about the matters that are at the heart of this case.

[21] The Crown has produced as an exhibit several stick figure drawings that the Complainant made during her 2013 interview. The Complainant can be seen on the videotape using a marker to draw these figures. The stick figures are of the typically infantile variety; indeed, they seem even more immature than a 7 year child might be capable of drawing – especially a child who professes to like her art classes in school. This may, of course, reflect the Complainant’s reticence to talk about the topic at hand.

[22] In any case, one can observe on the videotape that with some encouragement from the interviewer, the Complainant drew lines from the crotch area of one of the stick figures to the crotch and chest area of the other. She explained, in a very hesitant way, that this represented where her and her Grandpa’s bodies touched as they lay on the bed.

[23] She also pressed together two stuffed dolls given to her by the interviewer, which she said showed the way that she and the Defendant lay down on the bed in her grandparents’ house. The dolls can be seen in the videotape lying side by side, or on top of each other, or seemingly caressing each other in various ways.

[24] The Complainant told her story again at the preliminary inquiry held on August 21, 2014. Portions of that testimony were put to her in cross-examination by defense counsel – with admirable delicacy, I might add. The Complainant was 8 years old at the preliminary inquiry, and her narrative appears to have been a bit more coherent than the previous year. She was able to describe specific instances and sexual observations or experiences in a way that had eluded her when she was 7.

[25] In particular, and as will be reviewed below, when asked at the preliminary inquiry, “Can you describe what a penis looks like”, she was able to give a rather distinctive description. While the Complainant’s language at 8 years old was admittedly peculiar and certainly not that of an adult, it was descriptive in a way which suggested that she was talking about something that she had actually seen.

[26] When she appeared at trial, she was 9 years old and spoke in a calm and far more poised manner. Although many of her descriptions were still childish and ungrammatical, and she was encouraged to use the stuffed dolls again when she became hesitant in describing sexual positions and activities, she was more mature in her deliberations than she was on the previous occasions. For example, when asked why she now said that some of the sexual incidents took place in the basement when on previous occasions she had said that they all took place in her grandparents’ bedroom, she responded without hesitation:

A: Yes, but I just realized now that it happened in a few other places… Because when I was young I had too much things on my mind.

[27] Likewise, the Complainant was non-plussed when confronted at trial with a contradiction between her own testimony and that of her mother. The Complainant had stated that, at the time that her grandfather engaged in sexual conduct with her, she did not know this conduct was wrong. She said that she would have told her mother about it had she known better. Defense counsel asked her whether she could recall her mother having a talk with her about what LM had called “good touch, bad touch”:

Q: Remember how old you were when she first talked to you about that?

A: Seven, and it’s right after it happened.

[28] Defense counsel then advised the Complainant that her mother had told the court that they had had this conversation when the Complainant was 4 years old, prior to any of the Defendant’s alleged misconduct. The Complainant was unperturbed by this apparent mistiming:

A: She might have told me before, she might have told me after. I don’t know… I just have too many things on my mind and I keep on forgetting stuff.

[29] Defense counsel then pressed her on the contradiction with her mother. The Complainant came back with a level of self-assurance that seemed almost beyond her years:

Q: Were you telling the truth when you told us that?

A: Um…[long pause]

Q: [Complainant], you don’t know whether you were telling the truth or not?

A: I don’t know. It’s been a long time since it’s happened and I almost forgot everything about it…

Q: If you had known about good touch bad touch, your mom hadn’t told you when you were 5?

A: I would have known that it wasn’t right. Thank you for giving me my memory back. If she told me before, I wouldn’t have did it.

[30] The Complainant was more specific in her description of sexual encounters at trial than she had been at any previous time. She related one incident in which she woke up early in the morning and went down to the basement where the Defendant was watching TV. She said that she joined him on the sofa, and they watched a show in which naked people pressed against each other in bed.

[31] According to the Complainant, after watching for a while, she and the Defendant went into one of the basement bedrooms and did some of the things she had seen on the TV show. In illustrating their activities, she used the stuffed dolls and showed the female and male dolls lying next to each other in a number of positions. These included one dramatic pose in which the male doll was lying on its back and the female doll was sitting astride the male doll, with her legs straddling his waist and crotch area as if riding on him.

[32] The Complainant then demonstrated the two dolls standing up without their clothes on. At another point, she placed the female doll laying on her back and the male lying on his stomach with his head resting on the female’s chest (her “boobs”, as the Complainant put it). In yet another pose, the Complainant showed the male lying on his back and the female lying on her stomach with her head on his chest. At one point she pulled up the skirt on the female doll and placed the male doll with his face near the crotch area of the female.

[33] In another of the incidents narrated by the Complainant, she and both grandparents were watching hockey on TV, when at one point she and the Defendant took a break and went to the bedroom, leaving LG by herself. The Complainant then related that she and the Defendant took off their clothes, and that he touched her “privates” and she touched his. There was no real explanation of what LG was doing all this time, although the Complainant was certain that her grandmother was unaware of the sexual activity.

Q: Did his privates also go inside of you? Inside of your privates?

A: A bit.

Q: How long did this go on for?...

A: A little while.

[34] Sometime later in the cross-examination the Complainant seemed to retract this allegation of sexual intercourse, although it was admittedly difficult to identify which specific incident she was referring to. At one point, counsel for the defense asked her how many times this had happened with her grandfather, to which she responded that she can’t exactly say:

A: A lot more than 5 times. About 100 or maybe 50 times.

Q: During those times, did Grandpa put his penis inside of you?

A: I don’t know. I forget.

[35] Defense counsel then pointed out to the Complainant that if it happened as many times as she said it did, she must have had a sexual encounter with the Defendant virtually every time she visited during 2012 and the first half of 2013. After all, she was not at her grandparents’ house on a daily basis, but rather visited there on the occasional weekend and holidays. In her response, the Complainant agreed that this is correct, that it happened at every visit.

[36] This response was rather surprising in view of the fact that the Complainant had in previous testimony said that it occurred only when her grandmother was not at home. Indeed, even earlier in her trial testimony, where she said she could now recall it happening when LG was home, she had said that it occurred on only one or two occasions. To be told that it occurred on virtually every visit, whether on the weekends when LG was home or on the weekdays when she went to work, was a marked departure from the Complainant’s previous narration.

[37] In fact, the Complainant’s two most vivid descriptions of sexual contact, and the only occasions when the Complainant related specific incidents in specific locations at specific times, were the incidents that began when she watched a sex show on TV with the Defendant while LG slept, and when she watched hockey on TV with both of them and she and the Defendant adjourned to the bedroom. In both instances, LG was home.

[38] It is very difficult to imagine that this could have happened repeatedly in what everyone describes as a small house, on virtually every visit, and that LG remained unaware of what was going on. It is even more difficult to believe that the Complainant previously forgot that LG was ever home when the sexual incidents occurred, and that now she suddenly remembered that LG must have been home each and every time the sexual incidents occurred.

[39] That said, there was one aspect of the Complainant’s testimony that was startling in its detail: the description that she gave of male genitalia.

[40] In the first place, the Complainant was asked in cross-examination if she can describe the Defendant’s sexual organs:

Q: Can you describe what your Grandpa’s penis looks like?

A: It doesn’t feel comfortable.

Q: Well, have you seen your Grandpa’s penis before?

A: Yes

Q: Well, can you describe what it looks like?

A: You never asked me this before.

[41] Defense counsel then changed his approach and introduced the question in a more general way, again to no avail:

Q: Did you ever see a penis on the television?

A: yes

Q: Can you describe for us what Grandpa’s looked like?

A: Um…

[42] Counsel was significantly more successful in eliciting a precise descriptive response when he asked not about the Defendant himself, but about the appearance of male organs more generally. He reminded the Complainant of the response she gave in 2014 at the preliminary inquiry, where she had said:

A: Some of them are round, some of them are pointy. Like some of them are circles, some of them are triangle.

[43] In her response at trial, the Complainant adopted that description as one that she continues to stand by:

A: I don’t remember saying that, but I know that it’s true.

[44] Although nothing more was made of this description on the spur of the moment, it carried with it the clear implication that the Complainant has seen a number of different male organs, whether on film or in person. In her somewhat unusual, but very graphic geometric analogies, she appeared to have possibly been distinguishing between uncircumcised and circumcised men – a physical feature that would be rather unusual for a 7 to 9 year old girl to reference.

[45] As the Complainant articulated it, this description made a very strong impression. Indeed, until LM took the witness stand, which will be discussed in detail below, this description suggested to me that the Complainant possessed a depth of sexual knowledge that must have been born of some very troubling experiences.

IV. Defendant’s version

[46] Needless to say, the Defendant denies any illicit conduct with the Complainant. As indicated above, he described in his testimony a warm, generous, grandfatherly relationship with the Complainant and her siblings.

[47] The Defendant vehemently rejected the suggestion that he ever had his clothes off in his granddaughter’s presence:

Q: Was there ever a time when she would have seen you naked, without any clothes on?

A: Not a chance.

[48] He also denies having watched pornography with the Complainant, although he concedes that he has himself watched it in the past. In answer to the Crown’s question as to whether he has ever watched a pornographic film on TV, he stated that he and his wife, LG, used to watch adult movies a number of years ago, but they have not done so in recent times.

[49] The Defendant indicated that he and LG subscribe to the Bell television ‘supreme’ package in their home, which contains all of the cartoon and other children’s programming. He agreed that within this package, adult movies are freely available on certain channels after midnight. He indicated that the Complainant, like many children her age, is well versed with the workings of the Bell TV system, and is able to navigate the channels on her own.

[50] It is conceivable, the Defendant said, that she came across pornographic films on her own on television. Nevertheless, he doubted that could have occurred in his house as he is a light sleeper because of his back problems; he would have heard the television if she were watching late at night.

[51] No explanation was provided by the Defendant for why his granddaughter would have identified him as a perpetrator of sexual misconduct in this way. He professed to have a good relationship with his stepdaughter, LM, and her husband, and did not suggest that they or anyone else might have planted the thought in the Complainant’s mind. He simply does not know where the accusations come from.

V. Mother’s discovery

[52] LM testified that the Complainant told her about the sexual activities with the Defendant on September 19, 2013. The previous night, after the Complainant was in bed, LM checked her daughter’s Ipod to see what internet sites she was on, and observed that she had been searching the word “sex” on YouTube. LM testified that she checked the Complainant’s Ipod search history nearly every day, although she said that she had never before caught her daughter looking at anything inappropriate.

[53] The next morning, LM confronted her daughter and asked her where she learned the word “sex”. As LM explained in her examination-in-chief:

A: I knew something had happened. Otherwise she wouldn’t be looking that word up.

[54] The Complainant at first told LM that she had learned the word on her own. However, LM did not believe her, and persisted in her questions. LM told the Complainant, “You’ve learned it from somewhere. You don’t learn things like that on your own.” The Complainant responded to this in tears, prompting LM to admonish, “You have to tell me. We don’t keep secrets.”

[55] One can understand why a parent would be perturbed at finding a child searching sex on the internet. However, LM’s instantaneous conclusion that something must have occurred, and that her 7 year old daughter could not have learned the word “sex” without something dramatic having happened to her, is itself noteworthy.

[56] The Complainant, after all, is a young girl who is an avid television watcher and Ipod user. She is able to navigate TV channels, along with music and videos on YouTube, on her own. According to testimony in the record, she is also a self-professed Justin Bieber fan, and has attended at least one of his live concerts.

[57] One needs to be no expert in television shows to know that sex is in the title, and is the topic, of prime time TV ranging from soap operas to dramas to sitcoms. Likewise, one needs no special expertise in pop music to know that sexually charged lyrics and imagery are staples of the Beiber generation of music and videos.

[58] A youngster with a TV and an Ipod would not need to have experienced a sexual assault, or to have been exposed to pornographic materials, to have encountered the word “sex”. LM’s shock at learning that her daughter even knew the word simply does not sound like the world her daughter lives in.

[59] In putting this testimony in context, I feel compelled to note that societal mores with respect to sexuality are today rather promiscuous: see R v Labaye, 2005 SCC 80, [2005] 3 SCR 728, at paras 134-35. I say this not to pass judgment on society, and certainly not to excuse anti-social or harmful conduct – especially not conduct directed toward children. But for better or for worse, sex talk and sexual imagery permeates mainstream culture.

[60] When asked about this at trial, the Complainant herself explained the reason she was searching sex on the YouTube site. Her explanation is an understandable one given the multi-media world in which she has been raised:

A: I wanted to get some info.

[61] LM’s confrontation with her daughter led at first to denial, then to tears, and finally to the Complainant fearing that her mother would take her Ipod away. After some very anxious moments, she finally disgorged that it was Grandpa that taught her the word “sex”. LM was so upset with her daughter’s response that she kept her home that day from school, called her husband who had not yet gotten home from an all-night shift at work, and ultimately called the police. The rest, as they say, is the history of this case.

[62] In fact, the Complainant told her mother and the police very little that first day. She suggested that something improper had occurred, but she provided almost nothing in the way of detail. As she explained it on the witness stand:

A: I had a lot of things on my mind. I was worrying and couldn’t calm down.

[63] The first time the Complainant actually told the story that has unfolded at trial was to the social worker at Sick Kids Hospital several days later. As indicated, the videotape of that interview formed part of the Complainant’s testimony in chief. As also indicated, were it not for the enormous patience and the supply of prompts such as a male and female doll by the social worker who conducted the interview, the Complainant would have provided no comprehensible information at all.

[64] Even with the social worker’s prompts, she was very reticent to testify to anything beyond simple statements that they touched each other and wore no clothes. As already described above, the Complainant drew stick figures and demonstrated sexual positions with dolls, but beyond that she actually said very little other than that her mother had caught her looking up a forbidden word on the internet.

[65] As also indicated, the Complainant’s narrative has improved with each re-telling – from social worker interview, to preliminary inquiry, to trial. This may be due to her inevitable maturation from a nervous and introverted 7 year old to a poised and more extroverted 9 year old, or it may be due to the repetition of the narrative and a studied effort to improve it.

[66] In her interview at 7 years old, the Complainant indicated that when asked about Grandpa she “feels shy”. By contrast, in her testimony at 9 years old she indicated that she feels “more brave” than she did two years ago. At trial, she was quite emphatic in stating that she is telling the truth in her testimony, even though Grandpa said that she would get in trouble if she told anyone.

[67] On the other hand, the Complainant has all of the personal frailties that any individual – especially a child – might have. She is certainly capable of lying; and I say this in a non-pejorative way, since lying is not only a natural part of human discourse but can, under the right circumstances, even have a morally “beneficial or neutral effect”: R v Zundel, 1992 75 (SCC), [1992] 2 SCR 731. One need only contemplate “the dentist who assures you that it won’t hurt a bit”, United States v Alvarez, 617 F.3d 1198 (9th. Cir. 2010), aff’d 132 S. Ct. 1421 (2012), to understand the innocuous and potentially altruistic impact of a lie.

[68] LM related that the Complainant has on occasion lied in the past, but she characterized these lies as relating to insignificant matters such as “I cleaned my room.” In cross-examination, the Complainant specifically told defense counsel that she has sometimes told an untruth to get herself out of trouble:

Q: You’ve lied before to get out of trouble? Do you think it’s okay to lie?

A: It’s not okay, but sometimes people do it.

Q: And you’ve lied before, haven’t you?

A: But not in this case.

[69] As indicated, it is the theory of the defense that when confronted with the prospect of losing her favorite music, gaming, and internet device, the Complainant told a small lie in order to avoid large consequences. Defense counsel submits that it is open for the court to consider all of the circumstances of the Complainant’s narrative, including her motive to fabricate a story such as this: R v Batte (2000), 2000 5751 (ON CA), 49 OR (3d) 321 (Ont CA), at para 123.

[70] In this regard, it is noteworthy that the Complainant says that in September 2013 she was facing from her mother the worse punishment she could conceive of – the loss of her Ipod; and, indeed, LM confirmed that this was the case. This accords with the fact that the Complainant initially refused to embellish on her statement that she learned the word “sex” from Grandpa, but as the years have gone by and the requirement to testify has been repeated, the narrative has grown.

[71] By contrast, it is the theory of the Crown that the Complainant has faced a difficult task of truth telling, and has risen to the challenge. Crown counsel says that any discrepancies in the Complainant’s story must be viewed in the context of a child who has been “asked to reveal to these imposing and intimidating strangers the most private details of what was done to…her”: R v JJRD (2006), 2006 40088 (ON CA), 215 CCC (3d) 252, at para 53 (Ont CA).

[72] In this regard, it is noteworthy that the Complainant related a number of specific details of her sexual encounters with the Defendant, one of which is that the incident that started with watching a hockey game on TV took place in February, and not during summer vacation as was suggested to her in cross-examination. This accords with the fact that hockey season is in the winter, not the summer.

[73] The Crown’s strongest point, however, is that the Complainant demonstrates a level of sexual knowledge that belies her age. It may be one thing to know the word “sex” from TV or music videos, but the Crown says that it is quite another thing to be able to describe sexual positions and male sex organs in the way that the Complainant has done. The Complainant’s illustrating of these positions with dolls, and her detailed knowledge of what adults do with their bodies and what naked bodies look like, lends the Complainant’s testimony what Crown counsel refers to as a “ring of truth.”

VI. Passion parties

[74] Although she did not describe it in any detail in her examination-in-chief, LM agreed in cross-examination that she conducts a part-time business in which she sells novelty items to customers in their private homes. As she explained it, her visits are organized by her mostly female customers, and are known as “passion parties”. At these events, LM presents and sells sex toys, lingerie, lubricants, and an assortment of other sex aids and erotic materials.

[75] LM testified that, as far as she knows, the Complainant has never seen her passion kits, which she keeps in her bedroom closet. These kits contain the paraphernalia that she sells, along with a catalogue with pictures and written descriptions of the wares and advertising the particular benefits and price of each item. LM explained that she keeps the kits handy, but does not put them out on display in her house.

[76] At the same time, LM conceded that she does not keep the kits under lock and key. She testified that it is conceivable that her children, including the Complainant, could have seen them if they were exploring her closet. In fact, defense counsel asked the Complainant whether she was aware of her mother’s business, and she acknowledged that she knows that her mom sells “party items”. She did not specifically describe any of the merchandise, but indicated that some of them were like a “soap thing”, suggesting that she has indeed seen something contained in a passion kit.

[77] None of the passion kit merchandise was produced at trial. However, defense counsel had LM identify a glossy, coloured catalogue which she confirmed is a catalogue found in her passion kits that illustrates the items that she sells.

[78] There is, of course, nothing illegal about the sale to other adults of any of the items contained in the catalogue, and I make no judgment as to the propriety or any other aspect of LM’s business. However, I cannot help but observe that the explicitly sexual nature of LM’s inventory took me by surprise when it was disclosed in cross-examination. Up until that point, LM’s household had been described in terms which seemed quaintly old-fashioned, where sex was an unspoken-about topic; LM seemingly could not fathom in September 2013 where her daughter would have even heard the word.

[79] And yet a brief perusal of LM’s catalogue reveals a definite comfort level with sexual matters. The catalogue shows an assortment of sex toys, emollients, and seductive attire, all of which would be too salacious to describe here. These are accompanied by books and ‘how to’ manuals with titillating titles and descriptions that relate to the sex aids for sale. The merchandise is displayed in attractive, advertising-style layouts, with human models in various states of undress demonstrating in a soft-core way how the items are used.

[80] Given the Complainant’s testimony, it is important to note that the men and women depicted in the passion kit catalogue for the most part are naked together in bed. The entire effect is to heighten the sensual nature of the products being sold.

[81] Accordingly, although the advertisements are not explicitly pornographic, LM’s catalogue shows people without their clothes on lying side by side or pressed against each other in different positions. The models caress each other’s nude bodies.

[82] It is easy to see how these glossy, airbrushed and purposely alluring photographs would have found their way into a child’s imagination. It takes no leap of logic to see how they may have translated into stick figure drawings such as those produced by the Complainant when interviewed by the social worker in 2013. Likewise, it is not difficult to see how the photographs in the catalogue mirror the positions that the Complainant was able to illustrate with the stuffed dolls provided to her at the 2013 interview and again at trial.

[83] Moreover, although it is difficult to know whether the pages in the books and manuals displayed in the catalogue contain illustrations, one of them in particular, entitled Ride ‘Em Cowgirl, has a very suggestive title and cover art. Without putting too fine a point on it, the book more than hints at the female-superior straddling position that the Complainant so vividly illustrated with her dolls.

[84] The passion kit catalogue was described succinctly by defense counsel, and confirmed by LM, in cross-examination:

Q: There are some graphic pictures, including of adults in sexual positions?

A: Absolutely.

[85] There are several pages of the passion kit catalogue that contain featured items and that are displayed more prominently than the rest. These colourful pages – 14-15 and 16-17 – fall in the middle of the catalogue. They present a back-to-back, four-page spread featuring an assortment of phallic-looking vibrators.

[86] These priapic toys are rather life-like in their overall shape. What is most striking about them, however, is that they appear to be grouped into two types: some are blunt, with rounded, circular tips, and some are long, with pointed, triangular tips. One might equate the contours of these devices to circumcised and uncircumcised males. The distinctive geometry of these devices, in other words, matches the description of male organs that the Complainant conveyed so surprisingly in her testimony.

VII. Reasonable doubt

[87] It is by now axiomatic that where a Defendant testifies in his own defense, “A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence”: R v JW, 2014 ONCA 322, at para 24, quoting R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639, at para 21. As Cory J. put it in R v W(D), 1991 93 (SCC), [1991] 1 SCR 742, at para 10, the trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.”

[88] As trier of fact, I proceed here in accordance with the instructions that Cory J. in W(D), at para 11, states that a jury would properly have received:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[89] The evidence, including demeanor evidence, must be considered in its totality: R v Rhayel, 2015 ONCA 377. Accordingly, “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the Complainant’s account does not equate with guilt”: R v L(CO), 2010 ONSC 2755, at para 6.

[90] I acknowledge that I must take “a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as…on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses…[or] that the standard of proof must be lowered when dealing with children”: R v B(G) (No. 2), 1990 7308 (SCC), [1990] 2 SCR 30, at 54-55. In short, I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).

[91] Under the circumstances, there are a number of exaggerations and counter-factual elements in the Complainant’s evidence that strain credulity and that therefore cannot be overlooked:

• that there were 50 to 100 opportunities for a sexual encounter with the Defendant during the Complainant’s weekend and occasional weekday visits to her grandparents in the relevant year and a half, when LG was home every weekend;

• that an internet and television-savvy young girl, who enjoys pop music and videos and who surfs TV channels on her own, could not even have heard the word “sex” from anyone but her grandfather;

• that the Complainant learned sexual positions from her grandfather, which she illustrated in drawings and with stuffed dolls, that somehow conform with the illustrations and books found in her mother’s passion kit catalogue;

• that the Complainant described in uniquely geometric terms the shape of male genitalia, but that these very shapes – circular and round tipped, or triangular and pointy tipped – can be found on the stylized vibrators contained in her mother’s passion kit and depicted in her mother’s catalogue.

[92] In addition to all of these matters, there is the fact that the entire inquiry commenced with LM’s discovery that the Complainant had been using her internet-connected Ipod to search the word “sex”. I note that there is no evidence of whether the Complainant found what she was looking for, or what it is that she saw there.

[93] At the risk of stating the obvious, if one searches for sex on the internet one will find sex on the internet. Under these circumstances, it is hard to know whether the Defendant’s conduct really prompted this search, or whether the results of the search were subsequently transposed onto the Defendant.

[94] I am left with the impression that the Complainant loves her family, including her Grandpa, and that she never intended to cause them, or him, any harm. LM testified that the Complainant always referred to both of her grandparents as her “second favorite people in the world”. Her disassociation from them now has left a sad gap in her life, and has been tragic for the entire family.

[95] It may be that something untoward occurred between the Defendant and the Complainant. However, there are enough questions hanging over the evidence to suggest “a carelessness with the truth about which the trier of fact should be concerned”: R v M(A) (2014), 2014 ONCA 769, 123 OR (3d) 536, at para 13 (Ont CA).

[96] I simply do not know how much of the testimony levelled against the Defendant was fact-based, and how much was a product of the pressure on the Complainant to defend herself, combined with a bright child’s inquisitive mind and vivid imagination.

VIII. Disposition

[97] In the result, I have a reasonable doubt as to where the truth lies. I therefore find the Defendant not guilty on all counts.

Morgan J.

Date: November 9, 2015

COURT FILE NO.: CR-14-30000567

DATE: 20151109

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DM

Defendant

REASONS FOR JUDGMENT

E.M. Morgan J.

Released: November 9, 2015