SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-280

DELIVERED ORALLY: 20171005

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.E.

Defendant

B. Bhangu and S. Sullivan, for the Crown

C. Hanson, for the Defendant

HEARD: July 31, August 1, 2, 3, 8, and 10, 2017

VERDICT

MULLIGAN J.:

[1] J.E. is charged on a 10-count indictment. This matter proceeded by way of trial by judge alone. At the conclusion of the evidence, the Crown asked for a stay with respect to three counts. This verdict therefore deals with seven counts remaining before the court. Mr. J.E. pleaded not guilty to all of these counts. The defence elected not to call evidence at this trial.

[2] A number of Crown witnesses gave evidence at this trial, including three young complainants and their mothers. Central to the relationship between the complainants and the accused is S.L., who was Mr. J.E.’s common law spouse. Her daughter, A.L., gave evidence at this trial as one of the three complainants. A.J.L. was another complainant who gave evidence at this trial, together with her mother, A.L.L. and her father J.L., who is a cousin of S.L. M.A., is a complainant who gave evidence at this trial, as did her mother, S.T. S.T. was a co-worker of S.L. at a Tim Horton’s location. R.L. also gave evidence at this trial. She is a young person whose father was another cousin of S.L. Because many of the parties share the same surname, L., I will refer to them by their initials.

[3] At the time of the alleged incidents, S.L., Mr. J.E.’s then common law spouse, had two children, a son, Z.L., and a daughter, A.L. Her daughter, A.L., gave evidence at this trial as one of the three complainants. One of S.L.’s co-workers, S.T., gave evidence at this trial, as did her daughter, M.A., who was another one of the complainants.

[4] S.L. has two cousins, J.L. and P.L., who were referred to in this trial. A.L.L., the spouse of J.L., gave evidence at this trial, as did their daughter, A.J.L., who was another one of the complainants. R.L. gave evidence at this trial. She is the daughter of S.L.’s cousin, P.L.

[5] In addition to these witnesses, the Crown called Shannon Hunter, the sexual assault nurse at Soldiers’ Memorial Hospital, Orillia, Allison Morris, a biologist from the Centre of Forensic Sciences, and Det. Const. Browne. The Crown also filed on consent, two Agreed Statements of Facts with respect to firearms issues.

[6] At the time of his arrest, Mr. J.E. was residing in a certain residence in rural Ontario. A brief review of the undisputed evidence of the occupants there and the relationship between the parties will provide context for the discussion that follows.

[7] S.L. testified that she began dating Mr. J.E. in 2010. She was working at a Tim Horton’s. He was a customer. They struck up a relationship and a few months later, he moved into her apartment where she resided with her two young children, her son, Z.L., and her younger daughter, A.L. In June of 2011, they moved into a certain residence in rural Ontario. S.L. was working but was unable to finance the purchase of a house. The house was purchased by Mr. J.E.’s parents, but S.L. and Mr. J.E. treated it as if they owned it. They paid the mortgage payments, taxes and insurance. Mr. J.E. worked part-time/casual for a salvage company, and cutting trees for a while, but primarily relied on his ODSP income. He received this support based on a prior back injury.

[8] The house was a bungalow situated in a rural area. Although the property was not large, it was surrounded by farms and woods. As well as a pet dog, they were able to keep some livestock from time to time, including chickens, a cow and a pig. Mr. J.E. had two older tractors on the property. S.L.’s evidence is that one tractor was not in working order and the other required a great deal of maintenance. There was a garage on the property. The main floor of the bungalow was an open-concept living room, dining room and kitchen, and two bedrooms. The basement had a wood-burning stove in an open area and two bedrooms.

[9] One of the bedrooms on the main floor was the master bedroom occupied by S.L. and Mr. J.E.. The second bedroom may have been occupied by her daughter, A.L. for a while, but eventually A.L. moved to her own bedroom in the lower level. This main-floor bedroom became a sewing room.

[10] S.L.’s son, Z.L., occupied one of the bedrooms in the lower level, but he moved out a few years later and had not been living in the house for several years prior to Mr. J.E.’s arrest on May 19, 2015.

The Offences

[11] Originally, there were ten offences before the court. The Crown requested a stay with respect to three counts. The remaining seven counts can be divided into four categories. Counts 3, 9 and 10 deal with firearm related offences. I will deal with those counts separately in this decision. Count 1 relates to the complainant, A.J.L., Counts 5 and 6 relate to the complainant, A.L., and Count 7 relates to the complainant, M.A.

[12] Before reviewing the evidence in detail, it is important to review the sequence of events as to how these complainants came to disclose the sexual activity alleged. A.J.L. was 14 when she gave evidence at this trial. About a year before Mr. J.E.’s arrest, she stayed at the residence for a sleepover with her cousins, R.L. and A.L. I will discuss her evidence about what occurred on that weekend visit later. About a year after this sleepover, in May of 2015, her mother, A.L.L., did a check on her cell phone history, something she did periodically. Her review indicated that her daughter had been searching sites to learn how to tell parents about being molested. She confronted her daughter, A.J.L., and A.J.L. made certain statements. The next day, she took her daughter to the police station. A.J.L. was interviewed and gave a statement that was videotaped on May 18, 2015.

[13] In 2015, a co-worker of S.L. named C., moved into the residence as a renter occupying one of the bedrooms downstairs. One day, C. called S.T. at work to indicate that the CAS was at the house. Mr. J.E. was arrested at the residence on May 19, 2015 without incident. A search warrant was executed at that time and the police recovered two firearms.

[14] As a result of the phone call from C., S.L. confronted her daughter, A.L., who was then 15 years of age. She questioned her daughter about any inappropriate sexual activity with Mr. J.E.. Based on comments made by her daughter, she took her daughter to the O.P.P. station. Her daughter gave a statement on May 20, 2015, which was video-recorded.

[15] The third complainant was M.A. Her mother, S.T., was a co-worker of S.L. at the Tim Horton’s. Her daughter, M.A., then age six-and-a-half, had been left at the residence a few days before the arrest to be babysat by S.L.’s daughter, A.L. S.T. became concerned about certain Facebook messages she received from C., a co-worker at Tim Horton’s. M.A. was already in bed for the night, but the next morning they talked and M.A. provided some information which caused S.T. to take her to the O.P.P. station in Midland. M.A. gave a statement on May 20, 2015, which was video and audio-recorded.

[16] The three complainants’ allegations of sexual contact with Mr. J.E. were different. M.A. gave evidence about a discreet event that occurred when she went on a tractor ride with Mr. J.E. while she was being babysat at the residence. A.J.L. gave evidence about one or two discreet events of sexual touching while she was at a sleepover at his residence about a year before Mr. J.E.’s arrest. A.L.’s evidence was markedly different. She gave evidence about sexual activity that occurred for several years, commencing with inappropriate touching, eventually leading to repeated acts of sexual intercourse, as well as fellatio and cunnilingus.

Applications to Admit Video-Recorded Evidence Pursuant to Section 715.1 of the Criminal Code of Canada

[17] At the commencement of trial, the Crown brought an application seeking to introduce the video-recorded statements of the three complainants, pursuant to the provisions of 715.1 of the Code. That section enables the Crown to introduce video-recorded statements of persons who are under 18 at the time of the offence if the complainant adopts the contents of the video recording. Voir dires were conducted with respect to each of the complainants and they testified and were cross-examined in the voir dire. The Crown withdrew its application to rely on the video statement of M.A. on the basis that she did not adopt or recall giving the video statement. The Crown, instead, chose to rely on her viva voce evidence during the voir dire and trial. It was agreed by Crown and defence that evidence given on the voir dire, in-chief and on cross-examination, absent the video recording itself, would become evidence at trial.

[18] Voir dires were also conducted with respect to the video statements of A.J.L. and A.L. It was clear that they adopted the video statements given by them previously. Based on submissions, I was satisfied that the recordings were made within a reasonable time after the alleged offence, and it was ordered that these two video statements were admissible in evidence. In addition, it was agreed by both counsel that viva voce evidence during the voir dire in-chief and on cross-examination would constitute evidence at trial.

Legal Principles

[19] There are a number of legal principles that have application to a trial such as this, where credibility and reliability are very much at issue based on the historic nature of some of these allegations. In submissions, both Crown and defence made reference to some of these principles. The Crown bears the onus to prove guilt beyond a reasonable doubt, and that onus never shifts. Mr. J.E. has no obligation to prove his innocence.

[20] As judges often explain to juries, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or lack of evidence. Proof of probably or likely guilty is not proof of guilt beyond a reasonable doubt. However, it is nearly impossible to prove anything with absolute certainty, and Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.

[21] There are a number of factors at play when assessing a witness’ credibility or liability. But at the end of the day, the court can accept some, all, or none of a particular witness’ evidence. In doing so, the court must examine whether there are innocent discrepancies in a witness’ testimony or deliberate lies. In assessing credibility, jurors are often asked to use their common sense to assess a witness’ credibility.

[22] In any trial, the Crown is required to prove the essential elements of each offence beyond a reasonable doubt. But individual pieces of evidence may draw a different level of scrutiny. As the Court of Appeal stated recently in R. v. Wu, 2017 ONCA 620, at para. 15:

It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p.361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p.76.

[23] At this trial, three complainants gave evidence about events that occurred in their childhood. M.A. is now 9. She testified about an event that occurred when she was six-and-a-half. A.J.L. is now age 14. She testified about events that occurred when she was twelve-and-a-half. A.L. is now 18. She testified about events that occurred when she was between 12 and 15 years of age. In R. v. W.(R.)R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, Chief Justice McLachlin reviewed the change in attitude towards the evidence of young children. When speaking about evidence from adults who are recalling events from their childhood, the Court stated at para. 26:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[24] With respect to the change in attitude toward the evidence of children, Chief Justice McLachlin in R. v. W.(R.)R.W., supra, made reference to the comments of Wilson J. in an earlier Supreme Court of Canada decision, R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30. As Wilson J. stated at para. 48:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years, we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath-taking and corroboration and I believe this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed, but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[25] With respect to when a person discloses allegations of sexual assault, the timing of allegations was the subject of further guidance from Chief Justice McLachlin in the Supreme Court of Canada decision R. v. D.D., [2002] S.C.R. 275 at para. 65:

Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for the delay are many and at least include embarrassment, fear, guilt or lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of a complaint is simply one circumstance to consider in the factual mosaic of a particular case.

[26] In a case such as this, it is important to review the principles of credibility and reliability. The difference was explained in R. v. C.H., 2009 ONCA 56 at para. 41, by Watt J.A., who stated:

Credibility and reliability are different. Credibility has to do with the witness’ voracity, reliability, and the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately (i) observe; (ii) recall; (iii) recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

Similar Acts

[27] In this case, the Crown seeks convictions against the accused with respect to three separate complainants. The Crown brought no application seeking to have similar acts used as an evidentiary basis to prove that conduct occurred. When successful applications are brought, there is a danger that a jury may find an accused guilty solely on the basis that he is the type of person that might engage in such conduct. In this case, I caution myself that each count must be reviewed and decided solely on the evidence relating to that count and that complainant.

[28] With those principles in mind, I will now review the evidence of the various witnesses.

The Evidence of A.L. and her Mother, S.L.

[29] At the time of trial, A.L. was 18 years of age. When she gave a videotaped statement to the police about allegations of sexual assault by J.E., she was 15 years of age. Several years earlier, in 2011, she moved into the residence with her older brother, Z.L., her mother, S.L., and J.E.. Several months earlier, her mother had formed a relationship with Mr. J.E.. He lived in their apartment for a while until they moved into the residence, which was purchased by his parents for their use.

[30] On a day-to-day basis, A.L. went to school, arriving home in the afternoon. Her mother worked at Tim Horton’s, working the afternoon shift and generally arriving home around midnight. Her brother, Z.L., went to school and often hung out with friends after school, not returning home until later. Generally, Mr. J.E. was home all day. He was not employed outside of the home. As a result of a prior back injury, he was in receipt of ODSP.

[31] J.E. was arrested on May 19, 2015, as a result of information the police received from another complainant, A.J.L. I will describe her evidence in more detail later. When the police arrested Mr. J.E., they executed a search warrant and located two firearms in his residence. I will discuss the firearms issue in more detail later in this decision.

[32] Continuing with the evidence of A.L., she gave a videotaped statement on May 20, 2015. The Crown made a successful application to have this evidence admissible at trial. On consent, it was agreed that her testimony on the voir dire would also be considered evidence at trial.

[33] Before discussing her allegations of sexual impropriety, I will discuss the relationship between A.L. and Mr. J.E.. She described that she was usually home alone with him a lot. When she was asked how he acted towards her, she stated, “Yes, he’s always so very nice…he’d be all like, if you want anything, if you want anything at all, just tell me and I’ll get it for you.” When she was asked, “Did he ever buy you anything?” she replied:

He always buys me shoes…and he always buys me new clothes and everything…he’s all like here’s the credit card, go clothes shopping, like cool…so he always gives me his credit card…he got me a kitten once… … I got a tablet…for the family…I think it’s J.E. and my mom pays it [for her cell phone].

[34] She was asked when she told anyone about the sexual impropriety, and she answered that she told her mom “yesterday”, referring to the time of his arrest. She answered, “Because she [her mother], ‘cause he was arrested and everything and she talked to him, she was telling me he did it to M.A. …”

[35] In her videotaped statement, she testified as to how things progressed over the four years she was in the residence. After a month or two, he began sitting beside her on the couch or in his room, touching her on her thigh. They would often be watching TV. She was wearing clothes. This went on for several months. Then she testified, “He started like, undoing my pants and everything…he’s all like, this is gonna be our little secret. Don’t tell anyone.” He continued touching her on her upper thigh and on her chest, after he took her shirt off. Things progressed and by the end of grade 8, she testified:

Q. So, what happened after that?

A. Uh, he was, uh, like I’m just gonna put it in there and …

Q. And did he?

A. Yeah.

Q. Okay, when did that happen?

A. A few months after he started touching my legs.

Q. Okay, so dick or penis, when he said “it”, is that what he was referring to?

A. Yeah.

Q. Okay, when you said he put it in here, you’re referring to your vagina?

A. Yeah.

[36] As to frequency, she was asked:

Q. So, you’re coming home from school and your mom’s at work. How often did this happen?

A. Often. Maybe every other day.

Q. When was the last time?

A. About a week ago.

[37] She testified that it usually happened in his room, but she also stated, “He would like, wake me up, like 1:00 a.m. I’m sleeping, and then he’s like ‘I’m gonna just stick it in here for a minute’”.

Q. You’re talking about his penis in your vagina?

A. Yeah.

[38] She was later asked:

Q. Did you do anything else?

A. No. Well, he told me to suck on his dick.

Q. Okay, did you?

A. Yeah.

[39] She was further questioned:

Q. Did he ever kiss you anywhere else?

A. Like my legs…like here, between my legs.

Q. And so, we’re talking before, would that be your vagina?

A. Yes.

Q. So, and how often would he do that?

A. Only sometimes.

[40] She indicated that she did not tell anyone about this activity, and stated, “He was just like ‘don’t tell nobody, it’s our secret’, that’s all he said…he’s all like, um, ‘we don’t tell anybody because people might not understand and everything’”. She indicated that no condoms were ever used during any of this sexual activity. She further testified:

Q. So what you were saying yes about is that your mouth was on his penis. Did he –

A. Yeah.

Q. Ever cum?

A. Yeah.

Q. And where did he cum?

A. In my mouth.

[41] In her video statement, she indicated she did not tell anyone about the sexual activity that she alleged had been going on for years at the residence, at a time when she was between the ages of 12 and 15. This issue was explored further by the Crown and the following questions and answers are informative:

Q. Did you ever think about telling anyone?

A. At the time, I don’t believe I didn’t want to tell. But at the time, I don’t believe I understood why I wanted to, but now that I’m older, I understand.

Q. And tell us that progression in your understanding. How do you understand it now? How would you put that into words?

A. … Okay, so when I was younger, I didn’t understand. I knew it was wrong, what he was doing, but I was too afraid to tell anyone. I thought it was my fault or something…I thought it was my fault or something. And, as I got older now, I know it’s not. I have a better understanding…

Q. What were you afraid of, A.L.?

A. I thought I was going to get in trouble and I don’t like being in trouble.

The Sexual Assault Kit

[42] As a result of her videotaped statement to the police, A.L. was taken by her mother to Soldiers’ Memorial Hospital, Orillia, on the same day. She met with Shannon Hunter, who was employed there as the Sexual Assault Nurse Examiner. Ms. Hunter conducted an interview and a physical examination of A.L. Shannon Hunter gave evidence at trial. She had no specific memory of meeting with A.L. She conducts about 100 such interviews per year. However, she did identify the Forensic Evidence Form which was completed by her in her handwriting, and filed as an exhibit. She stated that her practice is to ask the patient questions as per the form and record her answers. The form indicated that they met on May 20, 2015, and the dates of the alleged assaults were – “unknown – May 15, 16, 17, 18, 2015”. The form noted that there was penetration of the patient’s mouth by the assailant’s penis, and that ejaculation occurred. No condom was used. The form indicated that the patients said yes to the following question: “Did the assailant attempt or perform cunnilingus/fellatio on the patient?” The form noted that the client had a shower prior to this visit and the client was unable to tolerate a speculum examination. She explained that this was a more invasive procedure which would have been able to make a more thorough examination of the patient. But she noted on the physical examination with respect to labia majora and minora: “Both labia majora and minora are red, raw and excoriated.” She explained this medical term as damaged skin which was rubbed raw or chafed. No other injuries were noted. Swabs were taken and sealed for later examination by the Centre for Forensic Sciences.

[43] As a result of this examination, it became evident to A.L. and her mother that her recently worn underwear might assist the police with their investigation. A.L. testified that she went home and collected her recently soiled underpants from her laundry hamper in her room. She gave this to her mother, who put them in a brown paper bag and left it in the kitchen. A.L. testified that she had her own hamper in her bedroom and did her own laundry from time to time, with each occupant of the home doing their own laundry.

[44] S.L. testified that this underwear was kept in a paper bag. It sat there for several days and then she called the investigating officer, Officer Browne, to pick it up. On June 8, 2015, he picked up the brown bag from S.L.’s home and made arrangements to have it sent to the Centre for Forensic Sciences for testing.

[45] Photographs of the underwear were made exhibits and A.L. testified that it was her underwear. S.L. testified that she recognized the underwear as something she bought for her daughter, appropriate for her daughter’s age at the time. S.L. testified that she did not disturb or interfere with the underwear while they were in the bag at their home.

Testing of the Underwear

[46] At this trial, Alison Morris, a biologist with the Centre for Forensic Sciences, was qualified to give expert opinion evidence based on her knowledge, training and experience. She was qualified to give expert evidence about biology, specifically in the area of human bodily substances and DNA testing.

[47] Ms. Morris supervised or conducted tests on the swabs from A.L.’s physical examination by the sexual assault nurse. Her conclusion was that no male DNA was detected from this sample. She came to a different opinion as a result of the examination of the underwear. As a result of A.L.’s consent and a DNA warrant for J.E., Ms. Morris had DNA samples from both individuals.

[48] After explaining the science involving DNA, she indicated that semen could provide a good source of DNA, but could be diminished or removed if an undergarment was washed. Further, there is a possibility of transfer of DNA by direct or indirect contact.

[49] As a result of cutting and examining small samples from the crotch area of the underwear, her evidence indicated that DNA was present from A.L. and one male. Based on the blood sample from Mr. J.E., she testified that the area of the underwear examined matched the DNA profile of J.E., such that the possibility of generating a random match was 1 in 30 quadrillion, and Mr. J.E.’s DNA profile could therefore not be excluded.

[50] Ms. Morris testified that keeping the underwear in a brown bag was an appropriate way to protect DNA from degrading.

[51] I have already addressed A.L.’s evidence as to why she did not tell anyone. S.L. gave evidence about concerns she had about her daughter. On one occasion, she found Mr. J.E. coming out of her daughter’s bedroom around bedtime. She was upset and confronted him but he denied any inappropriate activity and she did not pursue that issue further. She further testified that she asked her daughter on several occasions about anything that was bothering her. Her daughter denied any inappropriate activity and became upset that she was being asked such questions.

[52] In cross-examination, A.L. acknowledged that she lied to her mother about what was going on between her and Mr. J.E.. She acknowledged that no condom was used. She was not under any birth control medication, and the discussion of pregnancy was never raised between her and Mr. J.E.. Her evidence was that the risk of pregnancy did not cross her mind. She acknowledged that she was lucky not to get pregnant.

[53] She identified her underwear in the photograph filed as an exhibit. She only had one pair of the brand shown. She told the court that she had a hamper in her own bedroom and she mostly did her own laundry.

Count 5 (Sexual Assault)

[54] It is not disputed that A.L. was under 16 at the time of the alleged offences and further, consent is not an issue with respect to this count. The essential elements of this offence are the intentional application of force in circumstances of a sexual nature. I am satisfied that the Crown has made out the essential elements of this offence, sexual assault. I found her evidence to be credible and competing. Her evidence indicated that Mr. J.E. groomed this young person in his own sexual interests. A.L.’s evidence was not shaken in cross-examination, although several years had passed since her original video statement. The following points assist me in these findings:

• Her evidence given in the video statement was given only a few days after the last sexual activity took place.

• Mr. J.E. had ample opportunities to be at home with her, almost daily over the years while no one else was at home.

• A.L.’s evidence was compelling as to why she did not tell anyone. She was a child of tender years and she thought she would get into trouble. She was asked to keep it a secret.

• J.E. bought her things and was nice to her.

• The examination by the nurse examiner indicated that the labia majora and minora were red, raw and excoriated on this 15-year-old, who reported sexual intercourse with Mr. J.E., both repeatedly over the years and recently.

• The DNA evidence extracted from her soiled underwear pointed very strongly to the presence of his semen.

• The evidence of sexual activity reported by A.L. was different than the sexual activity alleged by the other complainants and there was no evidence of any collusion among the complainants.

[55] I therefore record a verdict of guilty with respect to Count 5.

Count 6 (Invitation to Sexual Touching)

[56] The elements of this offence are that the complainant is under 16, that the accused invited the complainant to touch his body with her mouth for a sexual purposed. Because of the age of A.L., consent is not an issue with respect to this count. I am satisfied that the Crown has made out the essential elements of this offence and I rely on the points previously mentioned with respect to the sexual assault count. I am satisfied that her evidence indicated that she committee fellatio on Mr. J.E. at his request on more than one occasion. I therefore record a verdict of guilty with respect to Count 6.

Count 1 – Sexual Interference on A.J.L.

[57] A.J.L. is the complainant with respect to Count 1, touching for a sexual purpose, alleged to have been committed by J.E.. A.J.L. gave a videotaped statement to the police on May 18, 2015. After a voir dire, an order was made under s. 715.1 of the Code admitting this videotaped statement as her evidence. At the time of trial, she was 14 years of age.

[58] Before reviewing her evidence about sexual contact, it is useful to review how these allegations came to light, allegations that arose with respect to a sleepover by A.J.L. about one year earlier at the home of S.L. and J.E..

[59] Both A.J.L.’s parents gave evidence at trial. Her father, J.L., is a cousin of S.L. His spouse is A.L.L. They had visited S.L.’s home on several occasions.

[60] A.L.L. testified that she periodically conducted cell phone checks on the cell phones of her young children. Around May 17, 2015 while conducting a search of A.J.L.’s phone, she found that her daughter had been making inquiries about how to tell parents one had been molested. She confronted her daughter, A.J.L. A.J.L. gave her certain answers to questions at bedtime. A.L.L. and her spouse, J.L., discussed the issue and decided to take their daughter to the police station the next day. They did so. She was interviewed at the O.P.P. detachment in Orillia, which was closest to their home. A.J.L.’s video statement provides the following evidence about what occurred on the evening in question. Before answering questions, she acknowledged that she understood the importance of telling the truth to the officer questioning her. She testified that about one year earlier, her parents dropped her off at the home of S.L. and J.E., so that she could enjoy a sleepover with her cousin, A.L., and her other cousin, R.L., who had also been dropped off there for the sleepover. Both of her cousins were older than she was. Her evidence was that the sleepover occurred in the living room of the residence, where there was a couch and a television. The girls were watching movies and fell asleep in front of the TV. Her evidence was that she slept on the floor. When she was asked about why she did certain searches on her cell phone, she answered, “I was searching out things to…like ask how to approach your parents about…umm.” She said she was searching on Google. In her testimony she was questioned:

Q. How did you explain it to your mom?

A. I said Uncle J.E. was doing inappropriate things to me and that I didn’t like it.

Q. What was he doing?

A. He was licking me.

[61] When giving this testimony on the videotape, she was crying and answered, “When he noticed that I woke up, he stood up, blamed it on the dog, and he said ‘night’ and walked away.” She was asked, “When you said he was licking you, where was he licking you on your body?” Her answer was, “Here.” She then pointed to her vaginal area. She said that A.L. was asleep on the couch and the dog was cuddled up with A.L. She gave further evidence at trial, indicating that there was no prior sleepover by her at this residence, and that this sexual activity took place on two nights that she slept over. The same thing happened again the second night. She did not tell anyone, but indicated she conducted this Google search about one year later, prior to speaking to the police. She testified that both she and R.L. were sleeping on the floor with blankets and pillows. She was woken by somebody who had pulled down her pants and “doing that to me”. He didn’t say anything to her, other than it must have been the dog. Her evidence was that she told R.L. the next morning that she wanted to leave. She said that in the months that followed, she was slowly processing it. She lived with it. When she woke up, her pants were down. He was licking her. He pulled up her pants.

[62] She did not know how to tell her parents and she had had no sex education. She said that she conducted the search because she had been watching TV shows and she realized that the activity was not okay, and it should not have happened.

[63] In cross-examination, she said she did not understand the situation completely and was confused. She said that A.L. was sleeping on the couch in the living room. It was a loveseat that was not folded out. After the first incident, she woke up R.L., wanting to leave but was convinced otherwise.

[64] She learned from her mother about A.L.’s allegations and she came to understand that it happens to other people. She felt reassured and stated that, “I was believed.”

[65] After completing her evidence, she was cautioned by the court not to discuss her evidence with any other witnesses that might follow. The next witness that testified was her mother.

[66] During the lunch break, it was reported to the court that one of the Court Support Officers had overheard A.J.L. discussing some of her answers to a group which included her mother and father, A.L.L. and J.L. Because A.L.L. and J.L. had not given evidence, they were not under any caution by the court about discussing the evidence. However, A.J.L., a 14-year-old, was under a caution.

[67] Mitchell Barkley, the Court Support Officer, testified that he was walking to his car in the parking lot during the lunch break when he came upon A.J.L. and her family walking to their car. His evidence was that he overheard A.J.L. talking about questions she had been asked about the name of the dog that was sleeping in the living room with A.L. during the sleepover. When he got closer to them, the discussion stopped.

[68] As a result of this evidence, further questions were put to A.L.L. during her continuing cross-examination. Her evidence was that there was not talk about the evidence. There was no talk about the dog. A.J.L. was recalled so that questions could be asked about this issue. She said her parents asked why she was upset during this walk to the car. She said by accident, she may have said something about the dog, but otherwise she did not talk about the evidence.

[69] In my view, there is nothing inappropriate about her parents asking why she was upset. I accept her evidence that she may have blurted out something about questions about the dog, making her upset, but otherwise did not discuss the evidence. I remind myself that she was 14 years of age when she gave evidence at trial. She was not an adult and she was not a person used to giving evidence in court. I am satisfied that this brief discussion about what happened in court does not affect her credibility. Her evidence already had been given and completed.

[70] I am also satisfied that it does not in any material way affect the credibility of her mother, A.L.L. A.L.L. had no direct evidence as to any sexual activity between her daughter and Mr. J.E.. The strength of her evidence came with respect to the phone search history she conducted on her daughter’s phone, but that evidence was corroborated years earlier when A.J.L. gave her videotaped statement to the police on May 18, 2015.

[71] The other members of the sleepover, A.L. and R.L., gave slightly different evidence about the sleeping arrangements in the room that evening. They both fell asleep while watching movies and neither saw or heard Mr. J.E. in the room. A.L. recalled the sleepover at her home. She indicated that she slept on the pullout sofa. She said they all slept on this pullout sofa. She did not think anyone slept on the floor. She said the dog slept with her but she did not have a clear memory. Her memory was hazy.

[72] R.L. was also at the sleepover. She recalled that they watched movies while in the living room. She was sitting on the pullout couch with A.L. and A.J.L. She testified that she fell asleep on the couch with A.L. next to her. She testified that A.J.L. was on the recliner near the couch. The dog was on the bed at times. She could not recall whether it was one or two nights. She has had other sleepovers with A.L., but not with A.J.L.

[73] Although there is a discrepancy about where the three girls slept that evening, I accept A.J.L.’s evidence that she slept on the floor. This was the only time she slept over at A.L.’s house. I accept that the memory of what happened that evening remained strong in her mind. A year later, it still bothered her. She was conducting a search on Google to ascertain how to talk to her parents about such issues.

[74] On the other hand, A.L. said that her memory was hazy. This was not the only sleepover she had with cousins.

[75] R.L. also had sleepovers with A.L. on other occasions. In my view, there was nothing memorable about these sleepovers, as far as R.L. and A.L. were concerned. They had no memory or recollection of seeing Mr. J.E. enter the room that evening.

[76] A.J.L. gave her videotaped evidence when she was 14. She testified about events that took place one year earlier. She did not tell anyone about the events in question, but came to understand over time that something was wrong. She conducted a Google search to try to find out how to talk to parents about inappropriate conduct. It was only when confronted by her mother about her cell phone history that she indicated what happened.

[77] I accept her evidence that on one night in question while she was sleeping, Mr. J.E. entered the living room, pulled down her pyjamas, and licked her vagina. I accept her evidence that when she woke up, he discontinued this activity, said words to the effect that it must have been the dog, pulled up her pants and left the room. On the video, she was recalling events that took place a year earlier. I am not satisfied beyond a reasonable doubt that this activity took place two nights in a row. R.L.’s evidence indicated she was unsure that the sleepover took place for two nights.

[78] Given the age of A.J.L., consent is not an issue. I am satisfied that the Crown has proved the essential elements of the offence beyond a reasonable doubt. I therefore record a verdict of guilty with respect to Count 1.

Count 7

[79] Count 7 alleges that Mr. J.E. touched M.A. with his hands for a sexual purpose.

[80] M.A. gave evidence at trial. She is 9 years of age. At the request of the Crown and on consent, she testified with the aid of a screen and a support person was nearby.

[81] She was interviewed and gave a videotaped statement to the police on May 20, 2015. The Crown initially sought to have this introduced as her evidence pursuant to s. 715.1 of the Code. However, on a voir dire, it was clear that she could not recall giving this video and thus could not adopt her evidence given then. The Crown withdrew the application and the matter proceeded with her answering questions in-chief and cross-examination after she promised to tell the truth.

[82] Her mother, S.T., gave evidence that she was a co-worker of S.L. at the Tim Horton’s where they both worked. In May of 2015, she was looking for a babysitter for her daughter, M.A., then age 6½. She needed a babysitter so that she could complete her shifts at the Tim Horton’s. In discussing the issue with her co-worker, S.L., she learned that S.L.’s daughter, A.L., may have been available to babysit. She attended at S.L.’s residence with her daughter and met with A.L. It was agreed that she would leave her daughter there on subsequent occasions for daycare, so that she could complete her shifts.

[83] On the first occasion, she dropped her daughter there, and several hours later, her husband picked up M.A. when his work had completed. The next babysitting opportunity was toward the long weekend in May 2015. S.T. dropped her daughter there in the morning and picked her up at the end of her shift. Another co-worker of both S.T. and S.L. was a woman named C. At the time, C. had been living as a roomer at the residence for several weeks. S.T. learned through a Facebook message from C. that Mr. J.E. had been arrested and there may have been inappropriate activity with children. When S.T. learned this information, her daughter, M.A., was already asleep for the night. The next morning, she talked to M.A., asking some general questions. Having received certain answers, she took her daughter to the police station and her daughter was interviewed. As indicated, M.A.’s video statement was not received into evidence.

[84] M.A. gave evidence at trial. She was 9 years of age, having finished grade 3. She indicated she could not remember giving the video interview, but she indicated she could remember the event in question because “I knew it happened, and I remembered it happened to me.” When questioned by the Crown, she indicated that somebody touched her “butt”. This was in the woods behind the residence of Mr. J.E. and S.L. She told the court she went on a ride on a tractor with a big boy. She said that while on the tractor riding with this big boy, she was taken off the tractor. Her pants were pulled down and this person touched her “butt” with his fingers. She told the court she was touched in “front of her butt”, in an area where she “pees”. She told the court she said stop but he did not listen. A minute later he stopped, put her pants on and they got back on the tractor and returned to the residence. She said she was mad at him but she was concerned he might bite her, and she did not say anything. She did not tell anyone, but later she told her mom that somebody touched her “butt”. In cross-examination, she could not remember the name of the boy who touched her. She estimated the boy’s age at 24. She has not seen him since.

[85] Her mother, S.T., testified that M.A. fits high on the autism spectrum. She sees an occupational therapist and she was non-verbal until she was about 3½.

[86] S.L. testified that she was home when A.L. was babysitting M.A. She was able to observe Mr. J.E. riding the tractor with M.A. from the kitchen window. The tractor went out of sight as it went to the back of the property into the woods, but otherwise, she thought that the trip took no longer than usual. The evidence of S.L. also confirmed that there was a tractor on the property which Mr. J.E. had use of from time to time.

[87] Prior to taking her daughter to the police, S.T. had a talk with her daughter. Although she asked probing questions, her evidence was that she did not telegraph any information to her daughter. She said that she was calm and she emphasized that she was not putting any thought in her daughter’s head.

[88] M.A. was not asked to identify Mr. J.E. in court in the dock. She testified behind a screen so that she would not have to see him while giving her evidence. However, her evidence made it very clear that it was an adult driving the tractor that she rode on. S.L.’s evidence was that she saw the tractor driven by Mr. J.E., with M.A. as a passenger. Although she did not see the event in question, she acknowledged that they were out of sight for 10 or 15 minutes during the ride.

[89] I am satisfied that the Crown has proved beyond a reasonable doubt the elements of the offence. M.A. gave evidence as a child of tender years. Her answers were appropriate to a child of that age. Her words used did not come across as words that might have been suggested to her by her mother. She said that she was touched on the front of her “butt”, the area where she goes “pee”. She was clear in her evidence that she knew it happened, and she remembered that it happened to her. I am satisfied that the touching she described, the touching of her vagina, while her pants were down, constitutes a touching for a sexual purpose. I therefore record a verdict of guilty with respect to Count 7.

Gun-Related Offences

[90] The indictment against Mr. J.E. contained three gun-related offences. The first count, Count 3, related to possession of a firearm and ammunition contrary to a court order. Count 9 related to careless storage of firearms. Count 10 dealt with careless use of firearms.

Possession Contrary to a Court Order

[91] I am satisfied that the Crown has proved all of the essential elements of this offence beyond a reasonable doubt. The Agreed Statement of Facts indicated that Mr. J.E. was made subject to a weapons prohibition court order on November 7, 2006. The police conducted a search of Mr. J.E.’s residence on May 19, 2015, at a time when the prohibition order had not expired. The further Agreement of Statement of Facts indicated that as a result of the search warrant, the police located a gun cabinet in the bedroom occupied by Mr. J.E. and S.L. It was locked. Det. Const. Bill Browne asked Mr. J.E. as to the whereabouts of the key. He was provided with information by Mr. J.E. that the key could be found above the safe. Upon opening the safe, Officer Browne seized two .22 calibre rifles. The rifles were not loaded, but ammunition for these weapons was found in the safe. No other weapons were found in the cabinet or elsewhere in the house.

[92] S.L. gave evidence about Mr. J.E.’s possession and use of guns over the period of their common law relationship, from the time they moved into the residence in June of 2011, until his arrest in May of 2015. I will discuss her evidence more fully later, but she indicated she was not a gun person and had no prior experience with guns, with the exception of some brief scout training.

[93] She testified that Mr. J.E. got the gun case about two years after they moved in. It was kept in their bedroom closet. With respect to the keys, she said that initially the keys were on the shelf above, but he kept moving them and she would not know where the keys were, and could not see what was inside the cabinet.

[94] Section 4(3) of the Criminal Code speaks to the definition of possession and constructive possession of property:

4(3) For the purpose of this Act,

(a) a person that has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;

[95] I am satisfied that the two rifles seized from Mr. J.E.’s residence were his rifles and under his care and control. The weapons prohibition order that he was subject to was still in full force and effect. I am satisfied that he had possession or constructive possession of the weapons while under a weapons prohibition order. The following facts assist in that conclusion:

• The residence was occupied by Mr. J.E. and his common law spouse for several years, and he was in the residence when the police attended with a search warrant.

• The gun cabinet was found in the bedroom of Mr. J.E., a bedroom occupied by him and his common law spouse, S.L.

• S.L. and her teenage daughter, A.L., were the only other occupants of the house. S.L. was aware of the gun cabinet, knew it was locked, knew that it contained weapons belonging to Mr. J.E., but did not have access to the key.

• The gun cabinet was locked at the time of the search warrant. It was Mr. J.E. who provided the police officer with the location of the key, enabling the gun cabinet to be opened.

[96] I therefore record a verdict of guilty with respect to Count 3.

[97] With respect to the remaining two counts, it is useful to review the evidence of several other witnesses who gave evidence as to what they saw about guns in the residence.

[98] I start with the review of the evidence of S.L., Mr. J.E.’s common law spouse. She indicated she was not a gun fan and had very little exposure to guns prior to living with him. She testified he had several firearms in the residence. She specified that he had long rifles and they were moved into a gun cabinet in their master bedroom a couple of years after they moved in. She was not aware of the location of the keys to the gun cabinet. At one time, there was a gun kept in her young daughter’s bedroom. At that time, A.L. would have been between the ages of 12 and 15. She spoke about seeing a gun in the kitchen.

[99] At one point, they had an argument about a gun located in her daughter’s bedroom. As a result, he took it out of her bedroom. S.L. indicated she was aware that he was not permitted to have guns. She did not know why she did not call the police, but offered that he was aggressive, he was a control freak, and that he was threatening and demanding. She was aware that he used guns to kill animals. He put down dogs, geese and cats. She indicated that he often kept a gun in the kitchen to put down coyotes that might enter their yard.

[100] Near the back of their property, on a neighbour’s land, there was an informal gun range. S.L. said Mr. J.E. tried to teach her how to use guns at the gun range by shooting at targets. S.L.’s daughter, A.L., also gave evidence about the presence of guns in the house, the house she occupied as a pre-teen and teenager with her mother and Mr. J.E.. She testified that Mr. J.E. had several long guns. She testified that she had no prior experience with guns, but he showed her how to put in a shell and how to aim the weapon. When she was 12 or 13, she went to this informal gun range, where she received further instruction from him about how to hold and aim a rifle, and how to pull the trigger. She testified she saw him shoot rodents and shoot at the firing range at this nearby informal gun range. In cross-examination, she testified that he instructed her about gun safety at the firing range.

[101] A.J.L. gave evidence on cross-examination about seeing guns in the house when she was there for a sleepover. She said she saw one or two guns on the walls and in the basement, piled up in the corner. She was given no warnings about guns.

[102] Her mother, A.L.L., also gave evidence about seeing firearms in the residence. She saw Mr. J.E. with a gun in his hand in the backyard, a long gun. She recalled seeing a gun on top of the fireplace. In cross-examination, she testified he was carrying the gun in his hand in the yard, but it was not pointed. It may have been for 10 or 15 minutes. She did not find anything particularly alarming about this.

[103] J.L. also gave evidence about seeing guns in the residence. A.J.L. is his daughter, and A.L.L. is his wife. He had been to the residence for numerous visits. On one visit to the house, he testified that Mr. J.E. showed him guns that were owned. He recalled three guns, an antique gun, a .22 and a shotgun. He recalled that the antique gun was in the living room. Mr. J.E. brought it over and showed it to him. It was a long-barrelled older weapon. No ammunition was shown.

[104] The next weapon shown to him was a .22 calibre, which he said was on an island in the kitchen. It was a long-barrelled rifle. Mr. J.E. explained that he had it there to shoot coyotes. J.L. said that he had seen it there once before on another visit. He also saw shotgun shells on the counter.

[105] On one visit, he was shown a shotgun. Mr. J.E. went into the bedroom to get it and brought it to show him. He did not pay much attention to it. He did not know if any of these weapons were loaded. He testified in cross-examination that he was not a gun person and it was not really anything of interest to him. The purposed of his visits was to visit his cousin, S.L. and her daughter, A.L.

[106] S.T. visited the residence with her daughter, M.A. The purpose of the visit was to determine if the house was safe and if A.L. could be an appropriate babysitter for her daughter, M.A., who was 6½. S.T. was looking for a babysitter so she could work her shifts at Tim Horton’s. She was a co-worker of S.L. When she visited the house, she saw no weapons and would have been quite concerned if she saw weapons, and would not have agreed to allow A.L. to babysit in the home.

[107] R.L. gave evidence about seeing weapons in the home. R.L. was a teenager and a cousin of A.L. She was at the residence for several sleepovers. She was asked about seeing guns in the residence. She said she saw guns above the TV in the living room. She said it was longer gun with two barrels; might have been camouflage in colour. She testified she saw Mr. J.E. shoot a squirrel through the kitchen window, in a tree in the backyard. She indicated he was complaining about the squirrels making noise.

[108] On cross-examination, she was asked if this was a BB gun. She testified that there was no chance of that. It made a loud noise and she was familiar with BB guns. She did not recall any smell from the firing of the weapon.

Analysis

[109] Counts 9 and 10 deal with careless storage and careless use of a firearm, pursuant to s. 86(1) of the Criminal Code. That section provides:

86(1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner, or without reasonable precautions for the safety of other persons.

[110] The Crown provided a casebook of authorities with respect to firearm offences. In R. v. Finlay, 1993 CanLII 63 (SCC), [1993] 3 S.C.R. 103, Lamer, C.J. stated at para. 26:

In s. 86(2), Parliament has addressed the threat posed by the use and storage of firearms by rendering those whose conduct shows a marked departure from the standard of care of a reasonably prudent person, subject to criminal liability and possible imprisonment. The nature of the objective standard for the determination of fault was concisely stated by McLachlin J. in the case of R. v. Hundal, in which she stated the following:

…The question is not what was in the accused’s mind, but the absence of the mental state of care. This want of due care is inferred from the conduct of the accused. If that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances, the necessity of fault is established. [Citations omitted.]

[111] In R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R., 867 at p.883, Cory J. stated:

The test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered out of the objective test concerns what the accused “should” have known.

[112] In R. v. Batty, 2014 ONCA 620, the Ontario Court of Appeal allowed an appeal from conviction with respect to an accused who had used a gun in a rural area to ward off a dog. As the Court noted:

The trial judge and the summary conviction judge both erred in concluding that firing a shot in this rural environment, whatever the manner in which the shot was fired, necessarily amounted to a marked departure from the conduct of a reasonable person.

[113] In R. v. Brueske, 2004 CarswellOnt 5043, the Court of Appeal upheld convictions for firearm storage charges. As the Court noted at para. 7:

Ammunition was readily available and present in the home in abundance, the firearms were haphazardly positioned in various locations throughout the home; no trigger locks were in place on any of the firearms; and two children, aged 9 and 13 years, were present in the home.

[114] The Court continued at para. 9:

The summary conviction appeal court judge held that “there was absolutely no doubt” that the convictions for careless firearm storage were supported by the evidence, particularly in light of the fact that there were children in the premises.

Count 9

[115] I start by commenting on the evidence of S.T. In her brief visit to the residence prior to allowing her daughter to be left there for babysitting purposes, she saw no weapons. She did not see any weapon on the kitchen table or mounted anywhere else. In my view, there is nothing unusual about her lack of observing weapons. First of all, at the time of her visit, guns were kept in a gun cabinet in the bedroom belonging to Mr. J.E. and S.L. Second, knowing that a stranger was coming to the house to determine if it was a proper location for her daughter to be babysat, it stands to reason that the occupants would take necessary steps to remove any observable weapons.

[116] There was a great deal of evidence about witnesses seeing long guns in various locations throughout the residence at different points in time. There is a discrepancy about whether the guns were on a rack above a fireplace. Some witnesses indicated there was no fireplace. When the police conducted their search warrant, the only guns found were in the locked gun cabinet. No guns were found in any of the other locations and the investigating officer did not note the presence of any racks in the house suitable for gun storage.

[117] But the evidence of a gun on the kitchen counter was clearly stated by several witnesses.

[118] J.L. visited the J.E. property on many occasions. S.L. was his cousin. He observed a .22 calibre rifle on an island in the kitchen. He had seen it once before when he observed Mr. J.E. carrying it in the backyard. He did not know if it was loaded.

[119] S.L., Mr. J.E.’s common law spouse at the time, saw guns in the house on many occasions, including in the kitchen. She thought that the gun in the kitchen was loaded sometimes. The purpose was so that he could shoot coyotes and it was always there.

[120] R.L. also gave evidence about seeing a gun in the kitchen. She had been at the house several times to visit with her cousin, A.L., and for sleepovers. She gave evidence that she not only saw the gun in the kitchen, she saw Mr. J.E. shoot the gun and heard a loud bang. In cross-examination, she said there was no chance it was a BB gun. Her evidence was that she saw Mr. J.E. shoot the gun out the kitchen window, shooting a squirrel in the tree in the backyard. Her evidence was that he was complaining about the squirrels making noise.

[121] At the time of Mr. J.E.’s arrest, R.L. would have been around 16 years of age. This event occurred on a weekend when she was visiting her cousin A.L., who was two years younger than she was.

[122] With respect to Count 9, I am satisfied that the Crown has proved the essential elements of this offence, storage of a firearm in a careless manner. As noted, the evidence from several witnesses indicates that a rifle was often kept in the kitchen. Mr. J.E.’s purpose as told to witnesses was to have it available to kill coyotes that might come on the property. While some allowance may be made in some cases for the use of firearms in a rural environment, I am satisfied that those allowances ought not to apply to Mr. J.E.. There were often children in the residence. His step-daughter, A.L., who was under 14 years of age, resided there all the time. In addition, her cousins, R.L. and A.J.L. visited the home for sleepovers. I therefore record a verdict of guilty with respect to Count 9.

Count 10

[123] I am also satisfied that the Crown has proved the essential elements of this offence, use of a firearm in a careless manner. I start from the premise that Mr. J.E. had no right to use a firearm in any circumstances because he was prohibited from doing so. I am satisfied that on a particular occasion referred to by R.L., he discharged the firearm from inside the house through the kitchen window in the presence of a young person.

[124] I am satisfied that his conduct showed a marked departure from the standard of a reasonable person in such circumstances.

[125] I therefore record a verdict of guilty with respect to Count 10.

[126] I summarize the verdicts on the seven counts as follows:

• Count 1 – guilty

• Count 3 – guilty

• Count 5 – guilty

• Count 6 – guilty

• Count 7 – guilty

• Count 9 – guilty

• Count 10 – guilty

Delivered orally on October 5, 2017

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.