R. v. D. L., 2017 ONSC 6481

COURT FILE NO.: 1395/16

DATE: 2017 10 31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEEN

J. Prenger, for the Queen

• and -

D. L.

D. Brown, for the Accused

HEARD: August 8, 9, 10, 11, 14, 23, 2017

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4 of the Criminal Code an order has been made prohibiting the publication, broadcast or transmission of any information that could identify the complainants.

Justice Thomas A. Bielby

[1] D. L., the accused stands charged as follows:

1. That he, on or between the 20th day of June, 2006 and the 31st day of July, 2008, at the City of Brampton, in the Central West Region, did unlawfully commit a sexual assault on H. L., contrary to section 271(1) of the Criminal Code of Canada;

2. That he, on or between the 20th day of June, 2006 and the 31st day of July, 2008, at the City of Brampton, in the Central West Region, unlawfully did, for a sexual purpose, touch H. L., a person under the age of sixteen years, directly with a part of his body, contrary to section 151(1) of the Criminal Code of Canada;

3. That he, on or about the 20th day of June, 2006 and the 31st day of July, 2008, at the City of Brampton, in the Central West Region, did unlawfully commit a sexual assault on M. L., contrary to section 271(1) of the Criminal Code of Canada;

4. That he, on or about the 20th day of June, 2006, and the 31st day of July, 2008, at the City of Brampton, in the Central West Region, unlawfully did, for a sexual purpose, touch M. L., a person under the age of sixteen years, directly with a part of his body, contrary to section 151(1) of the Criminal Code of Canada.

EVIDENCE

[2] H. L. was born on […], 2000, and M. L. was born on […], 1997. They are sisters. They are the daughters of K. L. and G. L.

[3] At all material time the accused resided with the children’s aunt, R. S. who is their mother’s sister. Also living in the home was the girls’ maternal grandmother, whom they called N. and three dogs, one of whom was owned by N. who lived in the basement of the home.

[4] The Agreed Statement of Facts, made Exhibit 1, read as follows.

1. The evidence given by H. L. about cutting herself or having suicidal ideations does not in any way support her credibility with respect to the charges before the court nor does it make the allegations more likely to be true.

2. This evidence will only be heard as part of the narrative, to partially explain how events unfolded between the witnesses.

[5] M. L., who was 20 years of age at the time of the trial, testified that the incident in issue occurred when she was 10 years old and in grade five (2007-2008).

[6] M. L. and her sister visited the accused’s home often, whether just for a social visit or to be babysat. Usually N. would watch the girls.

[7] M. L. testified that the incident in issue occurred on an afternoon in April or May at the home of the accused. The weather was warm and she was dressed in a t-shirt and shorts.

[8] She could not recall why she was at the accused’s home that day without her sister. At the time of the incident N. may have been downstairs. No one else was in the house.

[9] The accused like to take photographs of the girls at family events and on the day in question he called M. L. into his office to look at photos on the computer screen. M. L. sat on the accused’s lap.

[10] M. L. testified that while they were looking at the photos the accused’s hands were rubbing her legs and upper thighs. At some point one finger lightly touched the area of her vagina, albeit overtop of her shorts. M. L. testified that his right hand was over her vagina for close to five seconds. It was “just a touch”.

[11] The entire episode of touching and rubbing, in M .L.’s opinion, lasted for 15 or 20 minutes.

[12] M. L. felt uncomfortable and got off his lap and went into the living room. She testified that she had been told that no one should touch her in that area.

[13] During the time she was on his lap nothing was said by either of them.

[14] She testified that she thought it was an accidental touch and did not think much of it, until some years later when her sister disclosed her inappropriate touch experience. Until then M. L. never thought to tell anyone about it.

[15] There were no other alleged incidents of inappropriate touching either that day or any other.

[16] Moving ahead in time, just before she turned 17, M. L. had noticed scratches on her sister’s arms and out of worry and concern, when both girls were in M. L.’s room one evening, confronted H. L., asking if she was cutting herself.

[17] H. L. told her sister that something very devastating was bothering her. H. L. told M. L. that when she was about six years old, she was raped by the accused. M. L. testified that she took this to mean that her sister was touched inappropriately in the bikini area. She further testified that it (rape) could also mean sexual intercourse.

[18] M. L. testified that H. L. told her that the accused touched her vagina under her clothes, with her pants undone, while they were in the bathroom.

[19] This discussion took place in M. L.’s opinion about five years after she had last seen the accused and R. S., for reasons that will be set out below.

[20] M. L. then told H. L. that something similar had happened to her when she was about 10 years old and the accused had touched her inappropriately. She told H. L. the accused touched her vagina over her clothes.

[21] M. L. testified that she had not disclosed this touching earlier because she thought it was an accident. H. L.’s disclosure made her realize it was not an accident. The touch was on purpose because if something like that happens more than once, it cannot be an accident.

[22] M. L. believed that she and her sister talked for about an hour and then went to their parent’s room and told them.

[23] M. L. testified that she told her parents that the accused on one occasion had touched her vagina over her clothes after which H. L. told her parents about what had happened to her.

[24] The incidents were reported to the police.

[25] At some point, after the alleged inappropriate touching, the girls’ parents and R. S. and the accused had a falling-out surrounding N. moving out of the accused’s home. M. L. testified that this happened sometime between her being 10 years old and 17 years old, and she was not sure of the reason for the falling-out but thought that it had something to do with money. Thereafter the girls never visited or spent time with the accused and R. S. M. L. stopped liking the accused and R. S. because of the way they treated N.

[26] Before this falling-out and after the alleged inappropriate touching, M. L. testified that the accused treated her no differently than he had before. They were all together during holidays and family gatherings. They continued to go to the accused’s home. There was no awkwardness. The accused was kind towards her and there were lots of hugs. M. L. felt comfortable around the accused.

[27] M. L. agreed that when she went over to the accused’s home her sister was usually with her. They were not allowed to play on the computer and they usually were under the care of N. It was not normal for them to be alone with the accused.

[28] H. L. was 17 years of age when she testified. She testified that she was six years old when her incident involving the accused occurred. At the time she was in grade one. Her teacher was Ms. Wiley.

[29] H. L. believed the incident occurred in the spring or summer as she did not need boots or a jacket.

[30] H. L. testified that the incident also occurred in the accused’s office. She believed it occurred on a PD day.

[31] She confirmed M. L.’s evidence of how on family occasions such as holidays and other special events the accused and R. S. were always with them. It was normal for the accused to hug them or kiss them on the forehead when saying good-bye.

[32] When a babysitter was needed it was usually N., in the home she shared with the accused and R. S. Usually at such times she was with her sister and the accused would be a babysitter when no one else was available.

[33] When the incident with the accused occurred H. L. testified that no one else was around, otherwise they would have been watching her.

[34] H. L. testified that she remembers going to the accused’s computer to play games, something she liked to do. She recalled being alone in the office for a while.

[35] At some point the accused came into the officer and H. L. stood up. The accused sat on the office chair and put her on his lap. This was not unusual as she would often sit on the laps of adults at various times and occasions, such as her sister’s soccer games.

[36] H. L. testified that the accused then started undoing her belt. He then undid her pants and put his hands down her pants, down her underwear. The accused placed his hands on her vagina and started stroking it. This was the first time something like this had happened to her and she was scared and did not know what to do.

[37] H. L. described how the accused was stroking her in a circular motion, inside. There was no penetration.

[38] H. L. wanted it to stop and after 10-15 minutes, she told the accused she had to go to the bathroom. She knew what was happening was wrong but she did not know what to do about it.

[39] H. L. believed that the bathroom was the only room where she could be alone. She testified that she sucked in her stomach and put her belt as tight as she could. In her mind it would be a boundary that the accused could not open.

[40] She knew she had to leave the bathroom or the accused would come looking for her. She went back to the office. The accused again put her on his lap, undid her belt and pants and put his hands down her pants and underwear. She was scared and said she sat there, kind of helpless.

[41] When on his lap the second time the accused asked H. L. if she wanted him to buy some tokens for the game she was playing. She refused his offer. She explained that her father would not buy tokens for her and she did not want to upset her father.

[42] H. L. could not recall how it ended but remembers the day ending when the accused was later lying on the living room couch, on his back. The accused told her to sit on his stomach which she did. She testified that he was the adult, she had to.

[43] She straddled him like a horse for 5 to 10 minutes. The accused told her to keep what occurred, “our little secret” a comment he also made to her after her return from the bathroom and being placed back on the accused’s lap.

[44] H. L. testified that she felt like crying but she did not want to cry so she laughed instead. She told the accused that if he saw her laughing randomly it’s because (she was thinking about how) she scared a friend at school. She wanted to act normal, like nothing had happened. She did not want to show weakness.

[45] H. L. testified that she did not disclose what had happened because she was afraid of the repercussions. She was confused. She did not want to get into trouble. The accused and her father were good friends and golfed together. She did not want to take that away from her father.

[46] H. L. could recall being taught in grade three about her private parts and that no one should touch you there unless you want them to. If such a thing happened she was to tell an adult. Nevertheless H. L. told no one but she knew the touching was wrong.

[47] H. L. testified that when she was about eight years of age, she asked her mother what sexual assault was. She told her mother she thought it happened to her. Her mother got upset and started asking questions so H. L. told her mother it happened in a dream.

[48] H. L. was aware of the falling-out within the family after which she stopped seeing her aunt and the accused. H. L. remembers everyone being upset. She believed it had something to do with N. moving out of the home she shared with the accused and R. S. While testifying this did not make her feel any different about the accused and R. S., she did not think you can treat family like that and she stopped liking the accused.

[49] Between the incident and the falling-out H. L. could not recall the accused acting any different around her. The two families continued to spend time together and interacted as they always had.

[50] It was not unusual for the accused to watch her swim or be at her sister’s soccer games. The extended family would be together for holidays, birthdays and meals. H. L., after the alleged touching, may have sat on the accused’s lap at a family function or at her sister’s soccer game.

[51] H. L. testified that she daydreamed about what happened and up until the age of 14 had nightmares about the incident. She’d be alone and a man would appear with no face or she’d be watching someone else get attacked.

[52] In regards to the circumstances when she disclosed what occurred to M. L. and her parents, H. L. testified that it occurred initially in her room. M. L. asked her what was going on, why she was cutting herself. H. L. admitted that she was upset about something and could not tell anyone. She broke down and cried and told M. L. what happened, what the accused did to her.

[53] M. L. told H. L. what had happened to her but H. L. does not remember everything she was told because she was so upset. She thinks M. L. told her about the accused touching her upper thighs.

[54] H. L. told her sister that the accused touched her down her pants. She did not want to go into detail. She testified that she does not think she told her sister about the bathroom and living room. She cannot remember if she told her sister about the belt.

[55] The conversation lasted, in her opinion, about 10 minutes after which they decided to tell their parents.

[56] H. L. did not tell her parents about the cutting. She told her parents that the accused had touched her when she was being babysat by the accused. She told them she had been sexually assaulted.

[57] H. L. recalls telling her parents that she was sorry for upsetting them and how upset her dad got because she felt she had to apologize.

[58] K. L. is the mother of the two alleged victims. She is the sister of R. S. and S. H, who also lived in the home with N., R. S. and the accused.

[59] K. L. testified that on February 24, 2015, her daughters came in her room where she was watching television with her husband. The girls looked distraught, like they were upset and had been crying, and said they had something to tell them.

[60] After the girls had disclosed to them what the accused did, both she and her husband were in a state of shock and tried to console the girls. K. L. recalled H. L. saying she was so sorry. She and her husband decided to call the police and did so that night.

[61] In regards to the falling-out, K. L. testified that her mother, in July, 2011, decided to move out of the house, an event that triggered the falling-out. Both her mother, N., and her sister, S. H., left the accused’s home. It would seem that when the house was purchased, N. contributed monies to the down payment. After she decided to move she demanded she be paid for her share of the property. R. S. and the accused were of a different opinion.

[62] Thereafter K. L. and her family did not spend time with or speak to R. S. and the accused.

[63] All K. L. told the girls was that there were money issues.

[64] K. L. testified that prior to the falling-out that it was not unusual for the accused to hug the girls good-bye or high five. He invited the girls into his office, where they would sit on his lap and watch pictures of the dogs. The girls would sit on his lap at sporting events. Both girls on occasion sat on his lap together.

[65] Up to the time of the falling-out, K. L. never noticed anything unusual in regards to the accused and the girls. The extended family were all very close. Both girls liked spending time with their aunts and uncle.

[66] K. L. could not recall a previous time when H. L. approached her and asked her about sexual assault.

[67] K. L. testified that when she needed a babysitter it was usually her mother, N. She agreed that R. S. and the accused could have babysat on a PD day. She did recall such a day when she brought the children to the accused’s house.

[68] H. L. was only allowed to use a computer when she was 10 or 11 years old and then only with supervision. Prior to that she would never have been allowed to search the internet on her own.

[69] Constable Armour is a member of the Peel Regional Police and was involved in this investigation. At 9:04 pm on February 28, 2015, this officer, along with another, arrived at the accused’s home. The accused did not seem surprised by their arrival. The accused was advised he would be arrested for historical sexual assault and that he would have to come to 21 Division. At 10:03 pm at the police station the accused was formally arrested and given his rights and caution. The charges were explained.

[70] The accused did not want to call a lawyer. At 10:35 pm a recorded interview of the accused commenced and lasted almost two hours. The recorded statement was entered as Exhibit 9A, with the transcript filed as Exhibit 9B.

[71] When told of the allegations the accused stated in his police statement that he was in complete shock, and that he did not know why the girls would say that. He denied the accusations.

[72] He told the police of the falling-out that occurred about four years earlier.

[73] The accused told the police that he could not remember ever being alone with the kids in the house. R. S. had not worked since 2000 and usually she and or N. were home at any given time.

[74] He could not recall sitting at the computer with either of the girls on his lap and could not recall a time when he was in the bathroom with H. L. and had to help her with her belt.

[75] The accused told the officer that he did not remember the incident with M. L. but that if it ever happened it was purely accidental. There was no intention (to touch inappropriately).

[76] The accused, D. L., testified on his own behalf. At the time of trial he was an engineer and working at the Pearson International Airport.

[77] In June, 2004 he, R. S. and her mother (N) moved into a house together.

[78] The accused had an office in the house with a computer. The girls were not allowed to use the computer.

[79] The accused testified that on occasion the girls were in the office with him looking at pictures.

[80] The accused testified that when the police attended at his home he had no idea they had called him earlier. He had been out of the home for dinner.

[81] The accused testified that when questioned by the police he knew he had done nothing wrong and wanted to correct any misunderstanding. He had never touched the girls in a sexual way and never touched their vaginas either over or under their clothes.

[82] When questioned by the police the accused testified that he felt there were no right answers. Most disturbing to him was that the police told him he could save the day by apologizing to H. L. and if he did not H. L. might be suicidal.

[83] The accused testified that when questioned by the police he put his arms around himself because he was starting to shake. He was cold and feeling nauseous.

[84] The accused had trouble with the time lines and did not know when things could have happened. Nothing made sense.

[85] He testified about taking pictures of the girls, sometimes at the request of the girls’ parents. All of the family spent a lot of time together. When he left the girls he would hug them or give them a kiss on the forehead.

[86] The accused testified that it was not unusual for the girls to sit on his lap. They sat on everyone’s lap.

[87] The accused testified that the usual babysitter was N. The accused worked straight days, 7:30 am to 4:30 pm. He did not come home for lunch. He had three weeks’ vacation per year and never took a vacation day to babysit the girls.

[88] He would see the girls on weekends. He never watched the girls alone other than when R. S. was outside for a cigarette break. Since 2000, R. S. has been off of work on long-term disability and was always available to watch the girls.

[89] The accused testified that he never used a credit card to purchase games or add-ons over the internet and his bank statements, some of which were entered as evidence, do not show otherwise.

[90] He denied ever saying to H. L., “it’s our little secret”.

[91] In regards to his police statement the accused said that he was so upset and in shock that he could not remember the simple things. His head was spinning and he had trouble concentrating.

[92] The accused conceded at the beginning of his interview he showed very little emotion but as the questioning went on his emotions started to come out. He had not seen the girls for years but slowly thing came out about how he felt towards them.

[93] When it was suggested to the accused that he showed very little reaction when the allegations were disclosed, he testified that he guessed it was because of his English background and his mannerisms. To the suggestion that he did not engage, he responded that he was in shock.

[94] The accused denied either one of the girls sat on his stomach when he was lying on the couch.

SUBMISSIONS

DEFENCE

[95] Mr. Brown, counsel for the accused, submits that one of the key issues is the reliability of the evidence of both M. L. and H. L.

[96] It is submitted that the falling-out created animosity, giving rise to an element of collusion, which affected the girls evidence even if it was subconsciously or unintentional.

[97] It is submitted that the girls’ evidence, while sincere has no value. Their evidence is unreliable.

[98] It is submitted that the accused lacked opportunity. There is no corroborative evidence of the child ever being left alone with the girls. It was the evidence of the girls’ mother that the girls would travel together if they needed to be babysat. The girls’ mother, K. L., does not recall any circumstance where the accused was alone when babysitting. She had no cause for concern.

[99] There was some evidence that the incidents or one of them occurred on a PD day but there is no evidence the girls ever had a separate PD day. They shared such days.

[100] Both the accused and the girls’ mother testified that the girls were not allowed to play games on the computer (or without supervision). Further, H. L. would have needed a computer password to play a game on the accused’s computer.

[101] It is submitted that M. L. did not believe the accused did anything wrong to her, having dismissed what happened as an accident, until her sister disclosed her experience.

[102] Counsel for the accused asks the court to consider the inconsistencies in M. L.’s testimony. There were variations in her memory. As such her evidence becomes unreliable.

[103] It is submitted by defence counsel that the evidence of H. L. is also unreliable, even accounting for her age. She testified about approaching her mother on one occasion and stating she thought she was sexually assaulted but her mother has no recollection of this.

[104] In regards to H. L. counsel for the accused submits that she has a strong animosity towards the accused. He did something to her grandmother.

[105] It is submitted that the evidence of H. L. contains multiple inconsistencies, by counsel’s count, 24 in number. It is submitted that while any one of these inconsistencies may be innocuous, when added up, regardless of the fact of her age when the incident was alleged to have occurred, they make H. L.’s evidence unreliable.

[106] It is submitted that the number of inconsistencies suggest an element of collusion.

[107] Apart from the issue of inconsistencies counsel for the accused submits that there is insufficient evidence to convict. As noted there was no opportunity and further, after the alleged incidents and up until the falling-out there was no change in the behaviour of either of the girls or the accused. They continued to be part of the extended family dynamics and there is no evidence of anyone acting awkwardly or seeming uncomfortable.

[108] Counsel for the accused submits that his client’s reaction when first confronted by the allegations was genuine and can be taken into account (R. v. Edgar 2010 ONCA 529, paras. 47 & 48 , 72). He struggled with the allegations and was in shock. He maintained his innocence throughout.

THE CROWN

[109] In regards to H. L. Crown counsel submits that her memory is not vague and includes a great amount of detail. She was unshaken on what happened and in what room. Her testimony was based on the memories of a six year old and special considerations apply.

[110] The Crown submits that the details provided by H. L. add to her reliability.

[111] In regards to the lack of opportunity, the Crown submits that the accused had a bold moment with H. L. that would be their little secret. She deferred to the accused, he was the adult.

[112] M. L. was 10 years old when inappropriately touched by the accused. It is submitted that she was certain as to what had occurred, albeit a brief touching.

[113] The inconsistencies on smaller details given the historic nature of the allegations are understandable and do not amount to unreliability. The girls had to recall what occurred to the police, at the preliminary hearing and at the trial. A certain amount of inconsistency is to be expected.

[114] The girls were relying on memories of their childhood.

[115] The Crown further submits that if animosity was a motive, disclosure would have occurred closer to the point in time when the family had a falling-out.

[116] The Crown submits that when confronted with the allegations on February 25, 2015, the accused should have been shocked yet the recorded statement reflects little or no reaction on the part of the accused.

[117] The Crown submits that there is no collusion between the two complainants, consciously or subconsciously. Their stories are independent and the fact that they confided in each other is normal and does not taint their evidence. H. L. buried the memory of the incident as a secret, M. L. as an accident.

[118] Neither complainant changed the mechanics of the assaults.

[119] The Crown submits that K. L. testified as to how upset her daughters were when they came to her room and disclosed what had happened.

[120] While acknowledging the extended families’ falling-out, the Crown submits that there is no evidence it had anything to do with what the girls said was done to them by the accused.

[121] The Crown submits that just because she was not allowed to play certain games on the computer does not mean she did not. Further, the facts that we do not know exactly when the events occurred, or occasions when the accused would be alone with either of the girls does not mean the events did not occur.

[122] In regards to the manner of how the accused touched H. L., the Crown asks the court to consider that a 17 year old girl was testifying as to something that happened when she was six. Something very intimate.

[123] In regards to the evidence of the accused the Crown submits that he was in a self-preservation mode and was minimizing his role in the girls’ lives. In his statement he shows no real emotion and showed no spontaneity. His evidence ought to be rejected.

THE LAW

[124] The following is a review of the authorities provided by both counsel and some principles of law extracted from them.

[125] The evidence of an expert witness in regards to the evidence of child memories is not required. (R. v. B.P. 2015 ONSC 8016, para. 90); R. v. H.P. 1992 15049 (ON SC), 1992 CarswellOnt 102, para. 32)

[126] From R. v. Sanichar 2012 ONCA 117; reversed on other grounds, 2013 SCC 4, I have had regard to the following principles and comments.

[127] The findings of credibility and reliability are within the domain of the trial judge and rarely overturned on appeal (para. 31).

[128] Credibility is often used to describe the honesty of a witness and reliability is used to describe the other factors that can influence accuracy of testimony (para 36).

[129] In cases involving historical acts of sexual abuse particular caution and scrutiny are called for in approaching the reliability of evidence, including the memories of childhood impressions (para. 38) ( see also R. v. H.P.S. [2014] O. J. No.748, ONCA, para. 38).

[130] Memories become increasingly frail over time. “Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred” (para. 38).

[131] From R. v. McGrath 2000 CarswellOnt 6560, paras. 11-14, the court in the Sanichar case, at paragraph 39, quoted the following:

“A trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability…

A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see R. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, a trier must bear in mind the “subtle and not so subtle influences” that may have over time distorted memory…

A trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants.”

[132] The Crown relies on R. v. O.M. 2014 ONCA 503, [2014] O.J. No. 3210, a decision of the Ontario Court of Appeal. In the head note it states that the trial judge understood that contradictions in a child’s testimony did not have the same effect as similar contradictions in an adult’s testimony.

[133] From paragraph 51 and 52 I quote,

“As I have said, the trial judge was alert to the approach to the assessment of children’s evidence mandated by the Supreme Court of Canada in R. v. W. (R.). at p. 42 of his reasons, he noted that the Supreme Court’s direction in R. v. W. (R.), at p. 134 that when the evidence of an adult witness concerns events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matter such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.” He also observed, at p. 42, that, “credibility of any witness, including children, is to be considered in the context of the witness’ capability, mental or otherwise, in the circumstances of the case.” This accords with McLachlin J.’s cautions in R. v. W. (R.), at p. 144, quoted by the trial judge at p. 42:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

However, based on his reasons, it is clear that he understood that contradictions in a child’s testimony should not be accorded the same effect as similar contradictions as an adult’s testimony. Rather, the evidence of a child witness must be approached with common sense.” (See also R. v. S. C. [2003] O. J. No. 4100).

[134] It is proper and logical to bear in mind that the ability of a child to recall events with precision, even when testifying as an adult, may not be the same as with other witnesses (R. v. S. C. [2003] O.J. No. 4100, para. 3).

ANALYSIS

[135] From the case law and the submissions of both counsel, given the ages of M. L. and H. L. when the offences are alleged to have occurred, I accept that the issue of reliability is at the forefront.

[136] The girls, at the time of trial were 20 and 17 years of age, just out of their childhood. The memories on which their testimony is based is that of a 10 and six year old.

[137] Nevertheless they came before this court and told their story and subjected themselves to cross-examination; an experience difficult for anyone let alone two young women.

[138] However before I continue my comments in regards to the evidence of M. L. and H. L., I must have regard for the dicta set out in R. v. W. (D.) 1991 S.C.R. 742.

1. If I believe the accused’s evidence that he did not commit the offences charge, I must find him not guilty.

2. If, after careful consideration of all the evidence, I am unable to decide whom to believe, I must find the accused not guilty because Crown counsel would have failed to prove his guilty beyond a reasonable doubt.

3. Even if I do not believe the accused’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.

4. Even if the accused’s evidence does not leave me with a reasonable doubt of his guilt, I may only convict him if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[139] Accordingly, I will first deal with the evidence of the accused.

[140] Having watched and listened to the accused’s statement to the police and his trial evidence I have concluded that I do not believe him.

[141] With respect to his police statement, and to some extent his testimony, his demeanour and lack of any real emotion is problematic. He is told that it is alleged he sexually assaulted both the girls yet initially he remained somewhat detached from what it is alleged he did.

[142] He seems to focus on a misunderstanding without any strong emotional denials. While I recognize that demeanour evidence is often unreliable, the accused’s demeanour and lack of engagement left an impression.

[143] When giving his statement the accused seemed to be trying to recollect when certain things occurred, if ever. When it was suggested by the interviewing officer that he would know if his hands touched either one of the girls, the accused responded, I don’t know (pg. 46).

[144] The accused could not remember M. L. ever sitting on his lap (pg. 47).

[145] If he never touched either of the complainants inappropriately, he would, it seems to me, not be trying to remember events but rather would be asserting in the strongest terms such things never happened.

[146] Further, earlier in his statement the accused stated that the family relationship was always strained and that they only saw each other semi-regularly (pg. 21). He seemed to be downplaying his interaction with the complainants’ family.

[147] The evidence seems clear that up to the point of the falling-out, the family in fact was very close and spent a great deal of time together. The accused and R. S. would go to the girls’ sporting events. The accused took many pictures of such events and get-togethers. The girls were known to sit on the accused’s lap.

[148] I accept as well when the police attended at his home to arrest the accused, he showed little emotion and no surprise.

[149] Moving on, it cannot be said that I am unable to say who I believe for the reasons I will soon review.

[150] I am then required to determine if the accused’s evidence left me with a reasonable doubt. For the same reasons the accused’s evidence does not leave me with such a doubt. The case really stands on whether the Crown’s evidence proves the accused’s guilt beyond a reasonable doubt.

[151] In that regard the only Crown evidence of the alleged crimes is that of M. L. and H. L. with the following exception. K. L., the girls’ mother, testified that when the girls came into her bedroom to disclose to her and their father what occurred, they were emotionally upset, looked distraught and were or had been crying. Clearly something occurred or was exchanged which triggered such emotion.

[152] There were inconsistencies in the evidence of both girls, more so for H. L. Inconsistencies are relevant to my considerations of the reliability. Caution and scrutiny are required. However such inconsistencies are not to be treated in the same manner as if the events occurred when they were adults. Their inconsistencies are to be considered in the context of their age, at the time, of the alleged inappropriate touching.

[153] I also have regard to the fact that both the girls were not much beyond their childhood when testifying at the trial.

[154] I will first deal with the evidence of M. L. and the charges related to her.

[155] She gave her evidence at trial in a matter of fact way, without the expression of any real emotion.

[156] In regards to the inconsistencies in her evidence, as examples I note the following.

[157] At one point she said the touching occurred in the afternoon. On another occasion she was unsure what time of the day it occurred.

[158] M. L. at one point said she thought N. was downstairs at the time but said, some other time that she was unsure if N. was home.

[159] She had said that she did not know the accused very well but on another occasion said they had a close relationship.

[160] The largest inconsistency attributable to M. L. is in regards to what clothes she was wearing when touched. She told the police she was wearing jeans but at trial testified she was wearing shorts because the accused was rubbing her bare legs.

[161] On the basis of such inconsistencies alone I would not categorize her evidence as unreliable. These contradictions can be attributed to her childhood memory and really do not change the gist of her story.

[162] However, I also note that M. L. only categorized the touching she experienced as inappropriate after her sister had disclosed what had happened to her. What she believed to be an accident then in her mind, became intentional, although by the age of 10 she had already been taught in school about inappropriate touching.

[163] The alleged touching was on top of her clothes. There was no attempt to touch her underneath her jeans or shorts. By her own evidence, it was a light touch of no more than five seconds. She, at the time, was uncomfortable with the rubbing but believed the touch of her vagina was an accident and thought nothing more about it until after her sister’s disclosure. It struck me that after listening to H. L., M. L. made an assumption as to intention, perhaps suggesting an element of collusion at a subconscious level.

[164] On that evidence I believe there is reasonable doubt as to the accused’s intent and whether the touch was an application of force of a sexual nature.

[165] For those reasons the accused will be found not guilty of counts 3 and 4 on the indictment.

[166] However, the evidence of H. L. in regards to the first two counts of the indictment does not leave me with a reasonable doubt.

[167] As previously noted the evidence of H. L. includes numerous inconsistencies.

[168] In her police statement she said that she could recall the dogs barking when the incident occurred. That was not her trial memory.

[169] She told the police she came out of the bathroom after the accused asked her from outside the door what was taking her so long. At trial she came out because she was concerned he would inquire or get angry.

[170] H. L. told the Crown she did not try to lock the bathroom door but to the police she said that she tried to lock the door.

[171] She told the police that she was wearing pants at the time but at trial she testified that she was wearing flowered shorts and a tank top with spaghetti straps. On cross-examination she concluded she could not recall with any certainty, what she was wearing other than a purple belt.

[172] In regards to how the accused touched her, H. L. testified as to an up and down stroke whereas she previously spoke of a circular motion.

[173] These are just a few of the examples of the inconsistencies in the evidence of H. L.

[174] However her memories are those of a six year old child, four years younger than M. L., when she alleges she was inappropriately touched. Such a memory cannot be expected to be recalled without variation.

[175] In regards to the mechanics of the assault apart from the actual manner by which the accused touched her vagina, H. L.’s evidence never varied.

[176] She answered the questions put to her without any hesitation. At times she became visibly upset but would regain her composure and continue to answer. She did not take time to answer which might suggest a witness trying to manufacture an answer or qualify a contradiction.

[177] However more importantly are the answers she gave to certain questions and the detail and/or rationale for such answers which in my opinion reflect a ring to truth from the point of view of a six year old.

[178] She testified when in the bathroom she sucked in her stomach and did up her belt tightly as a barrier to any further touching. Her rationale for tightening her belt seems appropriate for her age.

[179] She declined an offer by the accused to buy tokens for her because she did not want to upset her father.

[180] When on the accused’s stomach she testified that she wanted to cry but choose to laugh instead, explaining that she was remembering scaring a friend at school. She did not want the accused to think he upset her.

[181] When H. L. disclosed what occurred to her parents, she apologized. She did not want to upset them.

[182] While such detail in some cases does not necessarily mean the evidence is more reliable, in this case, I find that in the circumstances before me, it does in fact make H. L.’s evidence reliable.

[183] I want to comment on the issue of opportunity. There is little evidence as to when the girls would be left alone in the care of the accused. The only evidence denying such an occasion is that of the accused. While K. L. could not recall such an occasion, it does not mean there was none. We are talking about trying to recollect an occasion years old that, at the time, would be unremarkable.

[184] No doubt there were times that the girls were left with R. S. and the accused. While the girls were generally together, the fact that on one occasion one of them would require supervision would again be unremarkable.

[185] While the accused’s spouse, R. S. has not worked since 2000, it does not mean she remained at home at all times.

[186] Finally, the inappropriate touching allegations for each of the girls occurred only on one occasion, for a limited period of time. There were not allegations of multiple incidents. Had there been, the issue of opportunity would be a more important factor.

[187] I also find that there was no animosity resulting from the falling-out which in any way coloured the allegations. Both M. L. and H. L. really have no understanding of what occurred and why.

[188] Accordingly, for these reasons I find the Crown has proven its case beyond a reasonable doubt in regards to counts 1 and 2 on the indictment and the accused is found guilty on counts 1 and 2.

Bielby J.

Released: October 31, 2017

CITATION: R. v. D. L., 2017 ONSC 6481

COURT FILE NO.: 1395/16

DATE: 2017 10 31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

D. L.

REASONS FOR JUDGMENT

Bielby J.

Released: October 31, 2017