CITATION: R. v. B.L., 2017 ONSC 2375

COURT FILE NO.: CR-16-0342-00

DATE: 20170418

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.L.

Jason Nichol, for the Crown

Clyde Smith, for B.L.

HEARD at Kingston: 27, 28 February and 1 March 2017

An order restricting publication in this proceeding has been made pursuant to section 486.4(1) of the Criminal Code Of Canada.

REASONS FOR DECISION

MEW J. (orally)

1Between 1981 and 1989, when L.C. was between the ages of 7 and 15, B.L. had been in a relationship with L.C.’s mother. Indeed, Mr. B.L. and L.C.’s mother got married and he formally adopted L.C. as his daughter. Not long after that marriage ended, Mr. B.L. and L.C. became estranged and, for twenty-five years, with the exception of a single isolated and fleeting occasion, she had no direct contact with him.

2Then, on 12 November 2014, L.C. attended her grandmother’s funeral. So did Mr. B.L.. At the reception that followed, L.C. overheard a conversation in which Mr. B.L. was telling someone he was with a new lady who had a young girl at home.

3As a result of overhearing this conversation, L.C. found herself in a dilemma. She recalled sexually abusive conduct towards her by Mr. B.L. during the years that he had lived under the same roof as L.C. and her mother. She had not previously told anyone about this conduct. But she thought the “new lady” in Mr. B.L.’s life should know. She thought about writing to the woman and telling her. But she did not, because the woman would think L.C. was a crackpot. Then she thought that maybe she should speak to someone official who could figure out what to do. So she spoke to a police officer.

4Mr. B.L. is a retired police officer who served with the Kingston Police Force for nearly 34 years, retiring in December 2014.

5Because they were made against someone who, at the time, was a serving police officer, L.C.’s allegations were investigated by the Province of Ontario’s Special Investigations Unit. Mr. B.L. cooperated with the investigation and was interviewed. He was subsequently charged with a number of offences, including gross indecency, sexual exploitation, sexual assault and assault.

THE CHARGES

6Specifically, Mr. B.L. is charged that:

(a) Between 22 August 1981 and 21 August 1988, he committed an act of gross indecency with the complainant, contrary to section 157 of the Criminal Code of Canada (section 157 was in force from 15 July 1971 until 1 January 1988; after that until its repeal on 12 December 1988, it was renumbered as section 161 of the Criminal Code);

(b) Between 1 January 1983 and 31 December 1987, he sexually assaulted the complainant, contrary to section 246.1(1) of the Criminal Code of Canada (that provision has the same wording as the current Section 271 of the Criminal Code);

(c) On or about 22 August 1989, being in a position of trust or authority towards the complainant, a young person, he did for a sexual purpose, touch directly the body of the complainant with a part of his body, contrary to section 153(1) of the Criminal Code (this is the “sexual exploitation” charge); and

(d) Between 1 May 1984 and 31 August 1984, he assaulted the complainant contrary to section 245 of the Criminal Code of Canada.

7Mr. B.L. denies the charges. He characterised his relationship with the complainant as, at all material times, a loving one between a parent and his child. To the extent that there was physical contact between Mr. B.L. and the complainant, he maintains that it was appropriate: kisses, hugs and touching were “parental”

8Three witnesses gave evidence at trial: L.C., her childhood friend P.B. and the defendant, Mr. B.L..

ISSUE

9The Crown must prove the charges against Mr. B.L. beyond a reasonable doubt. The determination of whether or not Mr. B.L. is guilty necessarily turns on my assessment of his credibility and that of the other witnesses at trial, principally the complainant, L.C.

10Where credibility is important, the direction provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 which, applied to this case, requires me to ask and answer these questions:

1. Do I believe Mr. B.L.’s evidence? If I do, I must acquit him.

2. If I do not believe the evidence of Mr. B.L., but I am left in reasonable doubt by it, I must acquit him.

3. Even if I am not left in doubt by Mr. B.L.’s testimony, I ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of his guilt.

BACKGROUND

11L.C. was seven years old in 1982 when she first met Mr. B.L.. She knew he was friends with her mother. She eventually figured out that they were going to be girlfriend and boyfriend. Her mother had previously been living with a common law partner. But that relationship had ended. After spending about three months living with her grandmother, L.C. and her mother moved into a new apartment in July 1982. Mr. B.L., who lived elsewhere at the time, became a regular visitor.

12In September 1983, L.C. and her mother moved again. This time, Mr. B.L. moved in with them. Just over a year later, her mother and Mr. B.L. married. Mr. B.L. subsequently adopted L.C.

13L.C. considered Mr. B.L. to be her father. He was raising her. So she loved him. While she did not think that Mr. B.L. liked children, L.C. says that she was part of the package that came with her mother.

14P.B., who had been L.C.’s closest friend at elementary school, was at that time a frequent visitor to L.C.’s apartment. Her impression was that L.C. had been sad and quiet and seemed quite scared of Mr. B.L..

15Aside from the incidents that give rise to the charges against Mr. B.L., L.C. recalls discussions with Mr. B.L. where he raised sexual topics.

16According to L.C., she saw Mr. B.L. naked on a number of occasions. She described him as “very open”. She described Mr. B.L. sitting on the couch with his robe open. She was able to describe his genitals.

17L.C. recalls that if Mr. B.L. hugged her he would often cup her backside with his hand.

18L.C. described an event which occurred when she was younger, when she and Mr. B.L. and her mother were all cuddled up in bed. They were just talking. L.C. was reading a book on sex education. She asked her parents a question. Mr. B.L. then asked her if she was horny or if she ever masturbated. She said “yes” because she thought that “horny” meant that you wanted a hug and “no” regarding the masturbating part. L.C. said that she felt “grossed out” by this. Her mother admonished Mr. B.L..

19On another occasion, around the time that she was 14 or 15, L.C. says that she came out of the bathroom at the apartment. Her mother was not home. Mr. B.L. came out of his room “chitchatting”. He told L.C. that he had not slept with L.C.’s mother for about six months and that he did not know what was going on. She says that he talked about her mother’s sexual performance. L.C. said that they should not be talking about this. Mr. B.L. told her about two women he had sex with that L.C.’s mother did not know about. L.C. was seeing someone at the time. Mr. B.L. told her that once a guy is turned on, it is difficult to turn him off. L.C. told Mr. B.L. that she did not need his advice.

20Mr. B.L. denies any of these events. In particular, he says that the discussion in bed about “horny” never occurred. He acknowledged that it was possible that words like that might have been used in a joking fashion, but he has no specific recollection. Similarly, Mr. B.L. stated that any discussion with L.C. about sexual activities would have been completely inappropriate. He would have referred any “birds and bees” issues to L.C.’s mother.

21Mr. B.L. acknowledges that L.C. may have seen him naked accidently – if, for example, he dashed from bathroom to bedroom. However, he said that L.C.’s mother had a strict policy against total nakedness in the house.

22Mr. B.L. denies that he ever displayed his private areas in an indecent manner in the presence of L.C.

23For her part, L.C. confirmed that Mr. B.L. had never touched her private parts or otherwise in a sexual manner, beyond what was described during the course of her evidence at trial.

24L.C.’s mother and Mr. B.L. broke up when L.C. was 15 years old. L.C.’s mother had resumed a relationship with L.C.’s birth father. Her mother rented a new apartment and L.C. moved there with her.

25L.C. was upset that the relationship had ended. She was upset with her mother, who she regarded as responsible for the break up. Mr. B.L. had, according to L.C. been “security to me”.

26L.C. saw Mr. B.L. intermittently for about a year after his break-up with her mother. He provided her with some financial support, which she banked and put towards college. However, from the age of approximately 16, she had no further contact with Mr. B.L. until many years later when he came to her workplace. After that, she recounted a couple of occasions on which she believed Mr. B.L. had tried to re-establish contact with her. However, according to L.C., since Mr. B.L. left, she never took any steps to contact him.

THE ALLEGATIONS

27The allegations against Mr. B.L. arise from five incidents or series of incidents:

a. Numerous requests made by Mr. B.L. to L.C. for massages;

b. An encounter between L.C. and Mr. B.L. in the bathroom at their home while Mr. B.L. sat on the toilet, viewing a pornographic magazine and masturbating.

c. Mr. B.L. inviting L.C. to get into his bed and cuddle him under the blanket while he was completely naked.

d. A conversation during which Mr. B.L. talked about L.C.’s figure and used his hands to trace down the side of her body as he described it.

e. An incident on the 10th floor balcony of the apartment when Mr. B.L. picked L.C up and held her over the balcony.

The Massages

29It is not disputed that there were occasions when L.C. massaged Mr. B.L.. But they give very different accounts of what the massages entailed.

30The first time the complainant says that Mr. B.L. asked her to massage him was before he had moved in with L.C. and her mother. She says that it happened in Mr. B.L.’s apartment. He had worked a night shift. L.C.’s mother did not have child care cover and dropped L.C. off at Mr. B.L.’s apartment. He would be sleeping when L.C. was dropped off. L.C.’s mother said that she should watch television until Mr. B.L. woke up. She recalls that her mother was able to open the door to the apartment and came in with L.C. to get her situated. L.C. then sat there for some time before Mr. B.L. woke up. L.C. says that Mr. B.L. asked her to massage him. He was in his bedroom. Lying on his belly. L.C. was fully clothed. Mr. B.L. was naked. He asked her to massage his back and his back side. She says the massage would have lasted for twenty minutes.

31Mr. B.L. does not recall any occasion on which L.C. was dropped off at his apartment and left there. He says that there was no physical encounter with L.C. at his apartment. He does not believe that L.C.’s mother ever had a key to his apartment.

32After Mr. B.L. moved in with L.C. and her mother, L.C. says that she often gave him massages in the living room. He lay on his belly on the floor. He would not be clothed. She massaged his back, his backside and eventually his legs. Also his arms if he wanted them.

33If Mr. B.L. wanted his inner thighs massaged, L.C. could see some scrotal tissue. But not his penis. She did not come into contact with his genitals. He would give directions as to where and how he wanted to be massaged. There was a certain way he wanted his legs done so that L.C. did not pull the hair on his legs.

34L.C. recalls that on one occasion, her mother was present when she massaged Mr. B.L.. The mother did not do anything or act any differently at the time. But some time later, according to L.C., her mother told her that she had seen that when Mr. B.L. got up from the massage, he had an erection.

35According to L.C., Mr. B.L. said he needed massages because he spent so much time at work sitting on his backside in a police cruiser. Mr. B.L. denies ever having said this.

36L.C. says that she did not want to give Mr. B.L. massages. However, if she said no, he would say “fine, with everything I do for this family, we’ll see what happens next time you want something done”. This happened several times.

37Mr. B.L. acknowledges that there was massage contact with L.C. From time to time, he would come home and ask his wife for a massage. Shoulders and neck. If L.C. was present, she would come over and ask “can I help, Dad?” According to Mr. B.L., in the presence of her mother, L.C. might touch his shoulder or neck. He would be sitting on the floor.

38Mr. B.L. says that there was never an occasion when L.C. massaged him at the apartment while they were alone. Nor, he says, was he other than fully clothed on occasions when L.C. attempted to massage his shoulder or neck.

39L.C. says that on two occasions, Mr. B.L. massaged her. She says that the first such incident occurred when, after declining a request from Mr. B.L. that she give him a massage, he said “I’ll massage you”. He then massaged her back and backside. L.C. was nine or ten at the time. She started out fully clothed. Then, she says at Mr. B.L.’s request, she took her top off. She was a little bit developed at the time, but not wearing a bra. She had bottoms on. But she says that Mr. B.L. pulled them down when massaging her backside.

40Mr. B.L. denies that there was ever an occasion when he removed L.C.’s clothing and touched her in any way. If she was ill or had been crying, he would comfort her by running his hand along her spine. However, he says that he never groped or cupped her when she was clothed. And he asserts that he never touched her unclothed posterior.

The Bathroom Incident

41L.C. recalls that when she reached puberty at the age of 11, she wanted privacy. She did not want Mr. B.L. coming into the bathroom when she was there, a regular occurrence until then. Although she told her mother about her concern, she says that Mr. B.L. kept on trying to come in. When L.C. told him that she did not want him to, she recalls him responding “why, it’s not like I haven’t seen you before”.

42L.C. did, however, tell another adult about this. That individual suggested that L.C. announce to all in advance her intention of going to the washroom. That way, her mother or Mr. B.L. could get in to the bathroom before L.C. went there. This strategy worked.

43However, there was, according to L.C., another incident.

44Mr. B.L. was in the bathroom. L.C. knocked on the door – she said just in case he was not doing something private. He said “come in”. She did so. She says that he was on the toilet, with a pornographic magazine, masturbating. Mr. B.L. did not ask her to leave. L.C. says that she was shocked. She did not want to be there and finished up quickly what she had to go and got out.

45Mr. B.L. denies the incident occurred. If he was doing something private in the bathroom, he says that the door would be locked. Indeed, he believes that there were only two occasions on which he walked in on L.C. when she was in the bathroom.

46L.C. claims that there were pornographic magazines and videos kept in the apartment. She says that the magazines were kept in a box under the vanity in the bathroom. The movies were in a jar with other videos in the living room.

47Mr. B.L. acknowledges that there was a time when there were some pornographic magazines and videos in the apartment. He had obtained them in anticipation his brother-in-law’s stag party, which he was organising. The magazines were borrowed and kept in the vanity in the bathroom. The videos were stored in a box on the very top shelf in his bedroom.

48P.B., recounted an occasion when, as children of 10 or a little older, she and L.C. were alone in the apartment. L.C. played a pornographic tape. P.B. also saw pornographic magazines on the vanity in the bathroom or occasions, in a magazine rack.

49According to Mr. B.L., there was no magazine rack in the bathroom.

The Bedroom Incident

50In July 1984, there was a bachelor party, organised by Mr. B.L., for L.C.’s uncle. The venue was a party room in the apartment building that L.C. lived in. L.C. recalls Mr. B.L. coming up from the party in a drunken condition. She recalls this occurring fairly early in the evening – it seemed to her to be about 7:00 p.m. Her mother was angry with Mr. B.L.. She told him to get to bed. L.C. described how, after being admonished by her mother, Mr. B.L. had crawled along the floor and into bed.

51Later in the evening, but still before L.C.’s normal bedtime, she says that Mr. B.L. called her into the bedroom. He asked her to come and cuddle him under the blanket. He told her how proud he was of her and how much he loved her. L.C. was fully clothed. She described what happened as “kind of like I was sitting in his lap but lying down”. When she pulled back the blanket to go, she saw that he was completely naked. She said that she felt disappointed, let down and a bit “cringey”. She left the room. She did not discuss what had happened with Mr. B.L. afterwards.

52Mr. B.L. recalls that the stag party for L.C.’s uncle had started at around 7:00 p.m. He says that he would have had something to drink at the party, but as he was responsible, and would be running back and forth to the apartment to replenish supplies, he would not have drunk very much. Mr. B.L. could not think of any occasion, let alone that particular evening, when he might have done the crawling movement described by L.C. He denies having been in bed with L.C. at all that night.

53Mr. B.L. acknowledged that there were times when he and L.C. were in the same bed. He explained that when he worked night shifts, L.C. would sometimes sleep in the same bed as her mother. When Mr. B.L. got home, his wife might have got up but L.C. could still be in the bed sleeping. Mr. B.L. would then get into bed himself and go to sleep with L.C. still there. He says that he would have had shorts on. He cannot recall ever having been in bed at the same time as L.C. with him naked.

54Mr. B.L. also acknowledged that he would not ever hesitate to cuddle with L.C. – in his words “I loved the little girl” – and conceded that it was possible that there might have been an occasion where he was in bed without clothes when she came in, but that this was not deliberate and that he would have remained covered up.

The Hands on Body Incident

55Around the time of L.C.’s 15th birthday, Mr. B.L. took her for a birthday dinner at the Casa Domenico Restaurant in Kingston. Just the two of them. L.C. was wearing a red dress which she had purchased with her first pay cheque. This dinner occurred around the time that L.C.’s mother and Mr. B.L. broke up (Mr. B.L. disputes that). L.C. remembers what she wore and where she and Mr. B.L. sat. Mr. B.L. also recalls the dinner as “a wonderful evening”. After dinner, they went home.

56The next day, L.C. says that she and Mr. B.L. were on the couch at the apartment. Mr. B.L. started talking about her figure. He was using his hands to trace down the sides of her body as his described it. From underneath her armpits to down beside her buttocks. She was wearing regular clothes that day. Mr. B.L. made a number of comments. He said that her breasts were blossoming; that her waist was coming in; and her hips curving out nicely. The touching was over L.C.’s clothing. There was no one else in the apartment.

57Mr. B.L. cannot recall the conversation or what, if anything, he may or may not have said about how L.C. looked or about her dress.

The Balcony Incident

58L.C. recalls this incident as having occurred when she was about 10 years old. She said that she, her mother and Mr. B.L. were on the balcony of the apartment, which was located on the 10th floor of an apartment building. L.C. says that she was “probably mouthing off”. Mr. B.L. said that he could pick her up and hold her over the balcony. She claims he then proceeded to do just that: he picked her up and held her around the torso, facing out and able to look down to the ground below. She said that it was as if he had scooped her up and held her over the balcony edge at his arm’s length. It felt like a long time, but it was “maybe a couple of minutes”. Mr. B.L. was not saying anything to her while this was happening. L.C. says that she was terrified. She started to flail, “acting like a wild cat”. She knocked a cigarette out of his Mr. B.L.’s mouth. She described herself as being a “chubby” girl at the time and would have weighed 60 to 70 lbs. Mr. B.L. eventually put her down. L.C. then “took off” and ran inside.

59Although L.C. recalls her mother being present throughout this incident, nothing was said either then or subsequently about it.

60Mr. B.L. denies that any such incident ever took place.

DISCUSSION

61Adding to the usual challenges of undertaking a credibility assessment in a “she said, he said” situation, the principal witnesses in this case are a complainant, now an articulate health professional aged 42, recounting events that occurred in her childhood, and a recently retired police officer who, as such, would be more than accustomed to legal procedures and testifying in court.

62I start by saying that I was impressed by L.C. She gave her evidence in a straightforward manner. I was left with no sense that she had embellished her story. When she could not remember accurately or explain something, she conceded as much.

63Indeed, I believe that L.C. gave an honest account of events as she recalls them. Whatever else may or may not have happened, her evidence leaves me with the firm impression that Mr. B.L.’s behaviour towards her was often ill-considered or inappropriate, not only by today’s standards but, also by those prevailing between 28 and 35 years ago.

64Mr. B.L. was more comfortable in the witness box, no doubt reflecting, at least to some extent, his greater familiarity and experience with the judicial process.

65He served in the City of Kingston for over 34 years with an unblemished record.

66He gave a voluntary statement to the S.I.U. However, when he was subsequently interviewed, Mr. B.L. took with him some handwritten notes, one of which said that he had never touched L.C. inappropriately in a sexual way. Asked at trial why he would have to remind himself that he never did anything wrong, Mr. B.L. responded “because that’s what I do”. It was a reasonable question for counsel to ask, but I found the answer disquieting.

67The first step in the W.(D). analysis requires an evaluation of an accused’s evidence in the context of all of the evidence, rather than in isolation. As stated by Doherty J.A. in R. v. J.J.R.D (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.):

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

68Furthermore, as Feldman J.A. explained in R.v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.) at para. 15:

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

69The Crown submits, relying on the above-cited extract from J.J.R.D., that if I accept L.C.’s evidence, I do not have to go through Mr. B.L.’s evidence and explain why it should be rejected.

70This submission is at odds with the Court of Appeal’s decision in R. v. Wills, 2016 ONCA 965, where the Court wrote, at paras. 17-18:

… On appeal, relying on D. (J.J.R.), the Crown argues that the trial judge's reasoned acceptance of the complainants' evidence justified his rejection of the appellant's evidence.

15 We do not accept this argument. The "reasoned acceptance of a complainant's evidence" that would justify the rejection of the evidence of an accused must occur in the context of a proper consideration of the whole of the evidence. For example, in R. v. D. (R.), 2016 ONCA 574, 30 C.R. (7th) 373 (Ont. C.A.), at paras. 19-20, Laskin J.A. noted:

In J.J.R.D. . . . [t]he accused's denial in that case, when "stacked beside" the complainant's evidence and her diary entries, "did not leave the trial judge with a reasonable doubt." And so Doherty J.A. explained that "an outright rejection of an accused's evidence" may be "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence . . . " (emphasis added). In doing so, he addressed the need for the trial judge to be convinced that the conflicting credible evidence established the accused's guilt beyond a reasonable doubt.

The burden of proof point: a trial judge who says only "I reject the accused's evidence because I accept the complainant's evidence" risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused's guilt had been proved beyond a reasonable doubt. [Emphasis added.]

71A further error would be to decide a case like this based on a complainant’s evidence alone, when mens rea – the plaintiff’s intention or knowledge of wrongdoing – must still be proved by the Crown. The complainant can say what happened to her but that will often not be dispositive of the question of an accused’s intent.

72However, if an accused person has testified, as a practical matter, an assessment of his or her testimony will inform a determination of what the defendant intended or knew.

73The Crown also cautions that, although when an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses, the presence of inconsistencies, especially on a peripheral matters such as time and location, should be considered in the context of her age at the time when the events about which she is testifying occurred: R. v. M.(A). (2014), 2014 ONCA 769, 123 O.R. (3d) 536 at para. 11.

74In a similar vein, in R. v. M.C., 2014 ONCA 96, the Court of Appeal, after making reference to the trial judge’s observation that the complainants had no motivation to fabricate their evidence, cited with apparent approval the trial judge’s observation that in cases involving offences, and particularly sexual offences, against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary (see para. 6).

75In J.J.R.D. the complainant’s allegations of sexual assault against her father were supported by a diary she had kept. She was nine when the alleged events had taken place, ten when she told her mother what had happened, and eleven when she testified at trial. As Doherty J.A. observed, at para. 53, just before the passage referred above:

The trial judge rejected totally the appellant’s denial because stacked beside [the complainant’s] evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave to trial judge with a reasonable doubt.

76As will be apparent as I go through the W.(D). analysis in these reasons, having regard to all of the evidence which I heard at trial, I find that I am not able to accept beyond a reasonable doubt the truth of all of L.C.’s evidence. This is not because I think she was untruthful. But, while I accept parts of her evidence, it is necessary and in the interests of justice that I further analyse the other evidence given at trial.

77The first limb of the W.(D.) analysis requires me to consider whether I believe the exculpatory account advanced by Mr. B.L..

78Many episodes of physical contact between an adult and a child, in this case a step-father who then adopted the complainant, are part of everyday life if they occur without sexual intention or purpose. Children do cuddle in bed with parents. Or give or receive back and shoulder rubs. Parents may keep and view pornographic magazines at home. And children may see their parents naked and vice-versa.

79Mr. B.L. conceded that he received massages from L.C. But, he says, around the neck and shoulder only, and only while he was fully clothed.

80Similarly, he acknowledged that there were times when L.C. was in his bed and that it is possible that on some such occasions he was naked.

81He also admitted that at some point in time there were pornographic magazines kept in the bathroom.

82He says, too, that L.C. may have heard discussion about personal matters, including about his genitals and having had a vasectomy.

83For the most part, however, Mr. B.L.’s evidence consisted of bald denials that what L.C. alleges happened actually took place.

84Given my impression of the qualities of Mr. B.L. and L.C. as witnesses and the substance of L.C’s evidence, I find that I cannot uncritically accept Mr. B.L.’s evidence concerning the incidents described by L.C.

85So I turn to the second and third steps of the W.(D) analysis, which have been explained and, I would suggest, clarified, by Binnie J. in R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-12 as follows:

10. The precise formulation of the W. (D.) questions has been criticized.

11. As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused's testimony or not. In either circumstance the accused is entitled to an acquittal.

12. The third question, again, is taken by some critics as failing to contemplate a jury's acceptance of inculpatory bits of the evidence of an accused but not the exculpatory elements. In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) [(1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C. C.A.) — suggested an additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit". [p. 155]

86I will deal first with the gross indecency charge which, it will be recalled, arise from the massages, bathroom and cuddling in bed incidents.

87Section 157 of the Criminal Code (in force from 15 July 1971 until 1 January 1988 and, thereafter, from 1 January 1988 until 12 December 1988 as Section 161) provided:

Everyone who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

88In R. v. Quesnel (1979), 1979 CanLII 2883 (ON CA), 51 CCC (2d) 270 (Ont. C.A.) at p. 280, the Court of Appeal stated:

… although the Code does not define the offence of gross indecency, it may be defined as a marked departure from decent conduct expected of the average Canadian in the circumstances that existed. What is needed is a fair objective standard in relation to which the conduct can be tested. It is not to be a subjective approach where the result would be dependant upon and varying with the personal taste and predilections of the particular Judge or juryman who happens to be trying the case: see R. v. St. Pierre (1974), 1974 CanLII 874 (ON CA), 17 CCC (2d) 489, 3 O.R. (2d) 642, 16 R.F.L. 26.

89Regardless of what else may have been intended by Mr. B.L. or inferred from L.C.’s description of the massages, an adult asking a child to massage his bare backside or massaging an adolescent child’s bare backside would ordinarily cross a line into conduct that could reasonably be regarded as sexual in nature.

90Because Mr. B.L. flat-out denies that anything beyond neck and shoulder rubbing occurred, I have to consider what, if anything, else happened and whether such conduct amounted to one of more of the criminal offences charged.

91There are aspects of L.C.’s account of the massages that seem improbable. For example, L.C.’s evidence that Mr. B.L. habitually lay naked, albeit face down, on a wooden floor while she massaged him.

92Furthermore, during at least one of the massage incidents, L.C. says that her mother was present. And yet, she says that her mother did and said nothing at the time (although later she commented that Mr. B.L. had had an erection after the massage was over). It seems surprising that there would have been no comment, let alone intervention, by the mother (I pause to note that L.C.’s mother was described at trial as now being “medically fragile”: she did not testify).

93Mr. B.L. acknowledged that he may have rubbed the complainant’s back and run his hands up and down her spine in circumstances where, according to him at least, he was offering comfort. I cannot rule out the possibility that such actions form the genesis of what L.C. now recalls.

94Yet there are also aspects of L.C’s evidence about the massages which seem plausible. For example, that there was a certain way Mr. B.L. wanted his legs rubbed so that she did not pull the hair on his legs or if he wanted his inner thighs massaged, she could see some scrotal tissue. These are details that I do not believe she would have made up.

95Ultimately, having regard to all of the evidence which I have heard, I am unable to determine with confidence what actually happened. I cannot to se sure to the level of there being no reasonable doubt that the massages which occurred would satisfy the definition of grossly indecent acts.

96Turning next to the bathroom incident, according to L.C., the door to the bathroom was shut. Mr. B.L. was inside. She asked if she could come in. This was at a point in her development where she had already made it plain that she did not want to be near the bathroom when Mr. B.L. was in there. After having done so, her evidence was that although she was shocked and did not want to be there, so finished up quickly what she had to do and then left.

97One is bound to ask why an adolescent, who had complained about Mr. B.L. invading her privacy when she was in the bathroom, would seek to venture in to the bathroom when Mr. B.L. was in there behind a closed door?

98While I accept L.C.’s testimony as an honest recollection of an incident that she believes occurred, I am not sure where the truth lies.

99Accordingly, I am not satisfied beyond a reasonable doubt that the bathroom incident occurred as described.

100With respect to the bedroom incident, there were, according to both L.C. and Mr. B.L., times when L.C. and Mr. B.L. were in the same bed. Although he initially denied ever having been naked at any time that L.C. was in his bed, Mr. B.L. conceded that it is possible that he was, but that this would have been inadvertent and that he would have remained covered up.

101I make the general observation that, while the course of prudence might well have been for Mr. B.L. not to sleep naked when he knew that from time to time L.C. was going to get into the bed, it would not seem to me to cause sufficient offence to Canadians’ sense of decent conduct to condemn, as grossly indecent, the practice of a male parent being naked in a bed which a clothed female child might get into, absent any element of sexual purpose or intent.

102Whether or not the specific incident that L.C. recounted occurred after her uncle’s stag party, and whether the incident was early or later in the evening, are matters in the periphery of L.C.’s evidence: I accept her evidence that there was at least one occasion when she was in the same bed as, and cuddled with, Mr. B.L. only to find, as she left, that he had been naked.

103What I am less sure about is whether it was Mr. B.L. who invited a L.C. to get into bed and then cuddled with her, she being unaware until she left that he was naked and, if so, whether the circumstances were such as to amount to a marked departure from the conduct of the average Canadian.

104Once again, I find myself unable to determine what happened with the requisite degree of certainty. Accordingly, I find Mr. B.L. not guilt of gross indecency.

105The massages also form the basis for the sexual assault charge.

106A massage being used by an accused for a sexual purpose can amount to sexual assault: R. v. Dinardo, 2014 ONCA 758. In that case, the complainant consented to a professional chiropractic massage, but not to a massage applied with a massage tool held in the accused’s left hand while he surreptitiously masturbated with his right hand.

107The Crown urges that massaging the buttocks of a daughter or step-daughter must surely be an assault of a sexual nature such as to violate the sexually integrity of L.C.

108While I would agree with that submission, for similar reasons to those given in respect of the gross indecency charge, I am not satisfied beyond a reasonable doubt that that is what happened, particularly given the passage of time between the alleged events and the first time L.C. told anyone about Mr. B.L. massaging her.

109The 15th birthday incident gives rise to the charge of sexual exploitation, based on section 153(1) of the Criminal Code, which provides:

153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person …

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 5 years; or is guilty of an offence punishable on summary conviction.

110When he was originally interviewed by the SIU, Mr. B.L. denied knowing that there was a restaurant called Casa Domenico and, effectively, denied any recollection of the 15th birthday dinner. He subsequently put this down to the pressure of the interview and now agrees that the dinner took place.

111Given that there were other occasions on which conversations took place between L.C. and Mr. B.L. which had a sexual overtone – which I accept to have occurred (without necessarily accepting the detail of such discussions as recounted by L.C.) - I have no doubt that Mr. B.L. did make comments similar to those ascribed to him about L.C.’s figure. I also accept L.C.’s evidence that Mr. B.L. ran his hands down the sides of her body, albeit without touching her breasts.

112Whether by the standards of 1989 or present day standards, Mr. B.L.’s actions in commenting on his daughter’s figure and running his hands down her side was sexist, patronising and disrespectful.

113However, absent something more in the evidence to show his intent, I am left with reasonable doubt as to whether Mr. B.L. touched L.C. for sexual purposes.

114Accordingly, I find him not guilty of sexual exploitation.

115Finally, with respect to the assault charge, while there may well have been some sort of incident on the balcony of the apartment, I have difficulty accepting that the incident occurred as related by L.C.

116According to her, Mr. B.L. assaulted her by holding her upside down and in a precarious position from a balcony ten floors above ground level, while L.C.’s mother looked on, seemingly making no comment or in any other way intervening. Even if that could be explained, it seems improbable that there would not have been some subsequent discussion of or reference to the incident – perhaps even a row between L.C.’s mother and Mr. B.L. – which would have registered in L.C.’s memory.

117I am left with sufficient doubt as to what happened that it would be unsafe to register a conviction on this count either.

DISPOSITION

118While I do not doubt the sincerity, integrity or motivation of L.C., and while I do have numerous concerns about the way in which Mr. B.L. conducted himself during the course of his relationship with her, the Crown has not met its burden of proving any of the charges against Mr. B.L. beyond a reasonable doubt.

119Our law therefore requires that I must acquit him.

Graeme Mew J.

Handed down: 18 April 2017 (orally)