CITATION: R. v. M.M., 2018 ONSC 3986

COURT FILE NO.: 953/18

DATE: 20180627

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and – Applicant

M.M.

Respondent

Leonard Kim and Dave Rodgers, Counsel for the Crown

William Gordon Beach, for the Respondent

HEARD: June 8, 2018

RULING ON PRE-TRIAL APPLICATIONS

Gauthier J.:

OVERVIEW

1M.M. is charged with sexual assault, sexual interference, and invitation to sexual touching relating to L.M. who is currently 11 years of age. L.M. is the daughter of T.M. to whom M.M. was engaged to be married. The events are alleged to have occurred between February 1, 2016, and February 28, 2017.

2It is alleged that the accused forced L.M. to watch pornography with him, forced her to rub his penis and perform fellatio on him. The allegation is as well that the accused rubbed L.M.’s vaginal area and attempted to perform oral sex on L.M.

3A Direct Indictment was signed by the Deputy Attorney General for Ontario on January 24, 2018, pursuant to s. 577 (a) of the Criminal Code. The matter is set for trial, before a jury, September 10 to 14, 2018.

4On June 8, 2018, I heard three pre-trial applications, brought by the Crown:

a) The applicant requested a ruling that L.M. be permitted to give her evidence at trial through the use of s. 715.1 of the Criminal Code. L.M. gave a statement, by way of video recording, to police, on March 18, 2017, two days after she initially told her mother that she had been sexually abused by the accused. It is this video that the Crown seeks to have admitted pursuant to s. 715.1. The defence concedes that L.M. is expected to adopt her March 18, 2017, statement at trial, and, agrees that the video is admissible if it is adopted as anticipated. Accordingly, an order to that effect will be made on consent.

b) The applicant seeks a ruling that (i) the prior consistent statement made by L.M. to her mother, T.M., on March 16, 2017, and (ii) the prior consistent statement made by L.M. to Constable Zazelenchuk (who had been contacted by T.M. after L.M.’s statement of March 16, 2017), on March 17, 2017, should be admitted for two purposes: (i) narrative, and (ii) circumstantial evidence relevant to L.M.’s credibility and reliability.

c) The applicant seeks a ruling that Detective Constable Dan Zuliani be permitted to give expert evidence at trial in the area of “Computer Forensic Data Extraction and Analysis”, regarding his examination of an Xbox gaming device provided to him by the Greater Sudbury Police Service, who had obtained it from T.M. The applicant requests as well that the entire contents of Detective Constable Zuliani’s report be admissible, insofar as subject matter in the following areas:

i. oral sex;

ii. step-daughter;

iii. step-father;

iv. teen;

v. Pontiac motor vehicle; and

vi. Nursing jobs.

5After the cross-examination of Detective Constable Zuliani by Defence counsel, it was agreed that the witness may be accepted as an expert in the area in which the Crown proposed, including the examination and analysis of an Xbox gaming device.

PRIOR CONSISTENT STATEMENTS

a) The statement to T.M.:

T.M. would testify that on the evening of March 16, 2017, while L.M. was in the bath, she told her mother that she did not want to be picked up from daycare by the accused. When asked why, L.M. told T.M. about the sexual abuse. She said that the respondent made her watch pornography with him on an Xbox device that was in the residence, would make her touch his penis, would make her lick his penis, which she referred to as the “popsicle”. She indicated to T.M. that the respondent did not wear under wear and that he had a large pimple on his groin. She was crying at the time of the disclosure. L.M. was ten years of age.

b) The statement to Constable Zazelenchuk:

The officer attended T.M.’s residence after having received a call to attend that residence in connection with an alleged sexual assault. Constable Zazelenchuk initially met with T.M. and L.M.’s father who was also present at the residence, and, after having obtained some information about the allegations of impropriety by the respondent, spoke with L.M. alone in L.M.’s bedroom.

6The officer explained to L.M. the importance of telling the truth to police. L.M. was, according to the officer, adamant that she was being truthful.

7L.M. told the officer that the respondent picked her up from school and he made her do sex; that is, two people together touching each other.

8L.M. indicated that when she and the respondent are driving home, he undoes his pants; that he never wears underwear; and he pulls his penis out. He makes her touch it and does “popsicle” and “blog jobs”. This, according to her statement, occurs at her mom’s house, and that when he’s there he accesses pornography on their Xbox and makes her watch it with him.

9L.M. described one of the videos as “blog jobs” and a second video as “girl gets f-ed at home.”

10L.M. told the officer that the respondent deletes the videos from the Xbox account; and that he does not do that at his own residence, as his parents would not allow it.

11L.M., when asked, responded that the respondent always tries to video or photograph her, but she doesn’t let him. She does not want this posted on the Xbox videos. She described an incident in December, 2016, in the vehicle when the respondent, T.M. and L.M had gone to Parry Sound. While her mother was gone inside to visit someone, L.M. and the respondent remained in the vehicle. The respondent wanted her to do “popsicle” and tried to take a photo.

12L.M. described the respondent as having a pimple on his groin; that sometimes the respondent’s penis is soft or hard; and sometimes, stuff comes out of it.

13L.M. related the respondent removing L.M.’s clothing and touching her vaginal area. Also licking her some times. This occurred in T.M.’s home.

APPLICANT’S POSITION

14The above described two statements should be admitted to assist the trier of fact in determining the fact that the statements were made, and the timing of the statements, which may in turn assist the trier in understanding background and context, and how the matter came to the attention of police, and thus explain how the matter came to be before the court.

15At paragraph 24 of its Factum, the Crown says this:

It is respectfully submitted that the prior consistent statements made by L.M. should be admitted as circumstantial evidence, as the circumstances in which they were made serve credibility and her reliability…

16Additionally, the manner in which L.M. made the statements, the specific language she used (blog jobs, popsicle for example), which reflect her young age and innocence, lend themselves to the truth of her story, and are therefore helpful in evaluating her credibility.

17At page 26 of its Factum, the Crown says this:

The cogency and similarities of the statements given to T.M. and to Constable Zazelenchuk should impact positively on L.M.’s reliability, especially in the context of her age. Both statements were given in private. Both statements complain of the same act, including licking the “popsicle”. L.M. mentions to both that the respondent had a pimple on his groin and that he never wore underwear.

RESPONDENT’S POSITION

18Prior consistent statements are presumptively inadmissible because they are generally lacking in probative value and are self-serving. The repetition of a statement does not make the statement itself more truthful.

19There is no need to admit the two prior statements, even for purposes of pure narrative. In her video statement, which will be admitted into evidence, once she adopts it, L.M. tells Detective Constable Smuland why she disclosed the alleged sexual abuse by the respondent, to her mother; she recounted that she had a “meltdown” because she had to tell her mother and didn’t want to. At paragraph 19 of his factum, the respondent says this:

“…pure narrative” evidence from other witnesses is not relevant as the complainant will be able to testify to the chronological order of events herself.

20In the event that the complainant is unable to recollect when and how she initially disclosed the allegations to T.M., the part of T.M.’s proposed testimony dealing with the context in which the disclosure was made, and the steps taken to involve police, and only that part, could be admissible. “All other details would be a mere repetition of the allegations and are therefore inadmissible. In addition, repeating the details of the allegations would run the real risk that the jury uses the evidence for impermissible purposes, such as using it to confirm the truthfulness of the sworn allegation.” (para. 20 of factum).

21The applicant’s submission regarding the cogency and similarities of the statements given to R.M. and to Constable Zazelenchuk, impacting positively on L.M.’ reliability, reproduced above at paragraph 17, reflects the fact that the Crown is seeking to admit evidence that would invite the trier of fact to make the very inferences that are prohibited, and are the reason for the rule against the admissibility of prior consistent statements. The statements are self-serving and lack probative value. A limiting instruction will not reduce the risk of the trier of fact making impermissible inferences.

22Dealing specifically with the language used by L.M., i.e. “blog jobs” and “popsicle”, the fact of the use of the same term in the video and the two statements is not probative as to L.M.’s reliability or credibility.

23Admitting the proposed evidence of T.M. and Constable Zazelenchuk would simply boot-strap the jury’s assessment of the complainant’s credibility.

24The testimony of Constable Zazelenchuk in particular is of no assistance with regard to timing or chronology of the complaint and the allegations. The officer’s proposed testimony goes far beyond assisting with how the complaint arose and how matters got before the court. It is mere repetition of what L.M. has said in her video statement.

THE LAW

25Generally, prior consistent statements are inadmissible. See R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, 2008 S.C.C. 10. This is because such statements usually lack probative value and are viewed as self-serving. R. v. Stirling, supra; R.v. Dinardo 2008 SCC 4, [2008] S.C.J. No.4.

26There are exceptions to the general rule. At paragraph 37 of Dinardo, Charron J. explained:

In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed. The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” McWilliams’ Canadian Criminal Evidence (4^th^ ed. (loose-leaf)), at pp. 11-44 and 11-45 (emphasis in original); see also [page 805] R. v. F. (J.E.) 1993 CanLII 3384 (ON CA), 1993, 85 C.C.C. (3d) 457 (Ont.C.A.), at p. 476.

27In the context of sexual assault allegations involving young children, and in appropriate cases, “the way the complaint comes forth can, by adding or detracting from the logical cogency of the child’s evidence, be a useful tool in assisting the trial judge in the assessment of truthfulness.” R. v. C.G., 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245 para. 22.

28If the defence is alleging recent fabrication, then, evidence refuting the allegation of recent fabrication can be lead. The justification for the admission of the prior consistent statement would be the refuting of the allegation of recent fabrication. As the court of appeal said in J.E.F., at para 42: It is only when and if the accused raises the issue of recent fabrication, that evidence of prior consistent statements is admissible to rebut this attack. The statement is admitted for the sole purpose of providing a direct response to the suggestion that the witness concocted allegations after a triggering event. The statement is admitted to show only that the details were not added after the point in time suggested by opposing counsel. R. v. Khan, 2017 ONCA 114, [2017] O.J. No. 745 at para. 28.

29Likewise, prior consistent statements can be admitted to counter or at least mitigate defence claims that a complainant is not credible or reliable because of prior inconsistent statements. D.M. Paciocco, “The perils and Potential of Prior Consistent Statements: Let’s get it Right.” (2013) 17 Can. Crim. L. Rev. 189.

ANALYSIS

30L.M. disclosed the allegations to T.M. in the course of her bath on March 16, 2017. She was distraught and no longer wanted the respondent to pick her up from school or activities. Two days later, L.M. gave a lengthy (one and one-half hour) video statement at the Greater Sudbury Police Service station, the interview being conducted by Detective Constable Smuland.

31The transcript of the videotaped statement, which was filed as evidence in the application, is 130 pages long. It contains, among other things, detailed descriptions of the very same events that L.M. relayed to her mother and to Constable Zazelenchuk. It contains L.M.’s statement that she had a “total meltdown” because “I had to tell mom and I didn’t want to”.

32In order for the prior consistent statement to be admissible under the narrative exception, the statement must be essential to the narrative, and is only admissible to understand the complainant’s story. R. v. A.E.R. 2001 CanLII 11579 (ON CA), [2001] O.J. No. 3222 (C.A.) para. 15.

33Put another way, and as described by Finlayson J.A. at p. 472 of R. v. F. (J.E.),

It must be part of the narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice. Specifically, it appears to me to be part of the narrative of a complainant’s testimony when she recounts the assaults, how they came to be terminated, and how the matter came to the attention of police.

34The transcript of the video appears to show a child who is articulate, who is not easily confused, whose vocabulary is advanced enough to fully describe and provide detail and texture to the allegations of wrongdoing. L.M. comes across as cooperative, and appears to be responding appropriately to questions put to her.

35There appear to be few if any gaps in her memory. She doesn’t say she doesn’t remember, in response to questions put to her. She has a good grasp of time and place, and she could recall when events started and ended. She provided information about her family structure, her pets, about leisure activities, etc.

36L.M. also comes across as confident and unintimidated by her surroundings.

37The only thing that is added, in the prior consistent statements is L.M.’s statement that the respondent doesn’t wear underwear, and that he has a pimple in his groin, and that L.M. was in the bathtub when she made the allegation. The latter is contained in T.M.’s statement only.

38Thus, other than the fact that L.M. was in the bath when she spoke to her mother about the allegations, there is nothing in either the statement to T.M. or the statement to Constable Zazelenchuk which provides any additional or necessary information to give background and explain how the complaint came to be before the court. Put another way, T.M.’s and Constable Zazelenchuk’s evidence about what L.M. said to them, is not necessary to understand the unfolding of events that lead to the charges being laid. That being the case, the “pure narrative” basis for the request to admit the prior consistent statements fails. The prior consistent statements are not essential to the narrative nor are they necessary to understand L.M.’s story.

39The applicant relied on R. v. L.O. 2015 ONCA 394, [2015] O.J. No. 2956 for the proposition that

In the case of a child’s disclos[sure] of sexual abuse over a period of time, the manner in which a child discloses allegations of abuse, including the language used in making that disclosure, may assist the trier of fact in assessing the reliability of the child’s testimony. The potential significance of that evidence to the reliability of the child’s testimony flows not from the mere consistency between the out-of-court statements and the testimony, but from the manner in which the abuse is revealed by the child.

40As the respondent has pointed out, the facts in L.O. are vastly different than the facts in the case at bar. In L.O., the admissibility of the prior consistent statements was not in issue. The statements had been admitted, and the defence went on at length about the inconsistencies in those statements. The witness had “difficulty situating events in time, was easily confused, and lied on occasion.” (see para. 32). The consideration of the prior consistencies was proper in the evaluation of the witness’s credibility in that context.

41That context does not exist on the facts before me.

42The applicant is unable to demonstrate how the prior consistent statements can impact positively on the complainant’s credibility.

43Or as was the case in Khan,

If the Crown’s argument comes down to the suggestion that the consistency between the prior statement and the complainant’s evidence at trial justifies admissibility, the argument fails because consistency on its own provides no insight into credibility. To know that the complainant made a statement that is consistent with his evidence at some earlier point in time simply does not assist in the assessment of his credibility.

44As the respondent also pointed out, the best evidence as to L.M.’s reliability and credibility is her video statement. The prior consistent statements tendered by the applicant would simply be inadmissible repetition.

45The applicant’s request to admit the prior consistent statements as circumstantial evidence relevant to L.M.’s credibility and reliability will also be denied.

CONCLUSION

46For these reasons, the request to admit the evidence of T.M. and Constable Zazelenchuk for narrative and circumstantial evidence to assist in the assessment of the complainant’s credibility is denied.

47The evidence of Constable Zazelenchuk is not admissible. The evidence of T.M. is admissible only to relate (a) the circumstances surrounding the disclosure of the allegation, i.e. the child was in the bath and said she did not want the respondent picking her up. This will provide information as well about the emotional state of L.M. at the time of her disclosure. And (b) to relate L.M.’s statement about the respondent not wearing underwear and of having a blemish in his groin. This latter piece of evidence will be admissible solely for the fact of having been said by the child, and also possibly for the truth of its contexts (if T.M. testifies to the same effect).

EXPERT EVIDENCE

48The applicant requested a ruling that Detective Constable Dan Zuliani be permitted to give expert evidence at trial in the area of “Computer Forensic Data Extraction and Analysis”, in connection with his examination of an Xbox device provided to the Greater Sudbury Police Service by T.M., as documented in Detective Constable Zuliani’s report dated June 28, 2017.

49The respondent had concerns about the proposed expert’s knowledge and experience specifically with the Xbox device, however, after cross-examination, agreed that the officer should be permitted to give expert evidence in the area proposed. The four Mohan criteria are met:

a) The proposed opinion relates to a subject matter that is properly the subject of expert opinion evidence;

b) The officer is qualified to give the opinion;

c) The proposed opinion is logically relevant to a material issue in the sense that the evidence has a tendency, as a matter of human experience and logic, to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence; and

d) The proposed opinion does not breach any exclusionary rule.

50Detective Constable Zuliani has prepared a Forensic Examination Report. The report is divided into two parts:

(1) Pornography Sites Visited: “This section of the examination details all browsing history located that was pornographic in nature”; and

(2) Search Queries: “this section shows activity through Xbox 360 Internet Explorer in relation to internet searches….I have displayed all the search artifacts located and highlighted those consistent with pornography queries.”

51The report outlines 86 sites visited and 96 queries. Among the titles of the videos and queries are phrases that refer to father, fellatio, and step-daughter performing oral sex.

52Of the 86 sites with the tag “pornography sites”, there are 35 entries referring to oral sex, 3 referring to stepdaughter, and 4 to teen.

53In the “queries” section of the report, there are nine searches with the word “Pontiac”, three with the words “nursing jobs”, and one with “stepdaughter” and “stepfather” and oral sex, and two others referencing oral sex.

54The applicant requests that the Forensic Examination Report be admitted into evidence insofar as subject-matter in the following areas:

i. Oral sex;

ii. Step-daughter;

iii. Step-father;

iv. Teen;

v. Pontiac; and

vi. Nursing.

55The respondent however, seeks to restrict the scope of the evidence and limit it to the following:

a) Searches and sites visited which include the term “blow job” in their title;

b) Searches and sites that include the words “Pontiac” or “Nursing”.

THE APPLICANT’S POSITION

56The Xbox gaming device was purchased for T.M. by the respondent, at a second hand store. The primary users of the device were T.M., L.M., and the respondent.

57L.M. told her mother that when the respondent babysat her, he forced her to watch pornographic videos on the Xbox, before committing the acts for which he is before the court. In her video statement, L.M. indicated that the respondent would point out to her the activity in the pornographic video that he wanted to try with her.

58The respondent, according to L.M., would repeatedly access websites on the topics of oral sex, and older brother having sex with younger sister, in a babysitting context.

59The examination of the device show frequent visits to pornographic sites, primarily focused on oral sex, with some references to step-daughters and teens being engaged in such activity.

60Several of the sites visited were specifically focused on step-daughters performing oral sex on step-fathers.

“The current allegations before this court are alleged within this very identical context. The female complainant at the time of the allegations was 10 years old, and alleges that she has performed fellatio for her step-father, as well as rubbed his penis to the point of ejaculation multiple times.” (para. 17 of Application).

61L.M. also explained that, on occasion, the respondent would lick her vagina.

62The expert will be able to confirm the nature of the websites visited and queried, which will provide circumstantial evidence of the respondent being the person who accessed the pornographic sites and the person who conducted the searches of specific sexual content, ie step-daughters performing oral sex.

63The expert evidence will, as well provide corroboration of L.M.’s allegations of sexual assault.

64The expert evidence of Detective Constable Zuliani is required to explain the evidentiary connection between the contents of the Xbox and the allegations of sexual misconduct.

“Given the similarities between the content of material accessed on the Xbox, with the alleged sexual assault allegations upon 10 year old L.M., the opinion of Det.Zuliani’s examination is necessary for the Crown to be able to prove a motive and a portion of the actus reus of the offences on the Indictment.” (para. 20 of Application).

65With regard to the references to “nursing” and “Pontiac”, it is agreed that, at the time of the alleged offences, the respondent was completing his final nursing exams, and he had interest in a Pontiac vehicle.

66The accessing and viewing of the pornography by the respondent with L.M. forms part of the actus reus of the offences.

67Finally, the applicant submits that the probative value of the tendered evidence outweighs any prejudicial effect, and the evidence ought to be admitted, without restriction.

THE RESPONDENT’S POSITION

68The respondent agrees that, provided the evidence is limited in the manner outlined above at paragraph 54, “the benefits outweigh the costs and the evidence should be admitted. The probative value of the evidence outweighs its prejudicial effect as the evidence is reliable and the expert is impartial and objective. In addition, the issue of whether the complainant watched pornographic videos with the accused is central to the allegations.” (para. 28 of respondent’s Factum).

69The balance of the report however results in the cost outweighing the benefits as the trial will be rendered protracted and complicated. “The jury will be asked to determine if the accused was the one who accessed 86 individual pornography sites, without the assistance of any data provided by the expert. In addition, the evidence is highly prejudicial due to its morally repugnant nature, with no significant probative value.” (para. 29 of the Factum).

“The defence submits that the only relevant portions of Detective Constable Zuliani’s report are the confirmation that pornography sites and searches including the words “blow jobs” were made, and the confirmation that no websites or searches were made including the words “babysitter” or alluding to siblings having sexual relations. The defence submits that the other pornographic websites and searches are not relevant as they do not logically support any fact in issue.” (para. 19 of Factum).

70Introduction of the evidence will lengthen the trial as the jury will have to determine if the respondent was the individual who conducted each search and visited each site. Additionally, there is the risk that the jury may become confused about whether the act of viewing pornography, which may constitute child pornography, if it in fact features teenagers, constitutes one of the counts with which the respondent is charged.

71The risk of moral prejudice is also very real. The jury could be tempted to convict the accused of the offences charged on the basis of his having visited the pornographic sites. “In other words, the jury may wrongfully convict the accused of sexually abusing his child[sic] step-daughter because he is the type of person who watches pornography videos of sexual acts between step-daughters and step-fathers, or videos which may constitute child pornography.” (para. 22 of Factum).

72The Xbox 360 does not record dates and times for access to the sites, therefore it is not possible to say, with any certainty, who conducted the queries and who visited the sites listed in the report. The expert will not be in a position to testify as to who made the queries or visited the websites outlined in his report. That will be for the trier of fact.

ANALYSIS AND CONCLUSION

73Firstly, the inability of the expert to determine dates and times relating to the queries and the sites visited, and thus, assist in identifying the individual who made the queries and visited the sites, is a matter which will go to the weight to be attributed to the report, and not to its admissibility.

74The results of the expert’s examination and analysis of the Xbox device are not in dispute. The queries made and the sites visited are fact. They are subject to little if any interpretation.

75Many of the sites relate to sexual activity which closely resembles the activity that L.M. said the respondent engaged in with her, on multiple occasions. The evidence contained in the report is highly probative insofar as the respondent’s purported motive in viewing the pornography with L.M. The activity portrayed mirrored what the respondent is alleged to have had the child do to him. Put another way, the lead-up to the acts themselves was the watching of the pornographic videos. The accessing and viewing of the videos forms part of the actus reus of the allegations in the Indictment.

76There is a common theme “interwoven” in the alleged sexual misconduct on L.M. and the content accessed on the videos found on the Xbox. The common theme is oral sex involving children or teens.

77The expert will be able to confirm the nature of the website content visited and queried. This may have some impact on the credibility and reliability of L.M.’s evidence of the acts allegedly committed upon her person by the respondent.

78The applicant’s request that the Forensic Examination Report be admitted into evidence insofar as subject-matter in the six identified areas (oral sex, step-daughter, step-father, teen, Pontiac, and nursing) is reasonable. To artificially restrict the admissibility of portions of the report as suggested by the respondent would result in an incomplete, possibly misleading, and sanitized version of the report. The term “blow job” is too restrictive and does not accurately reflect the other qualifiers used either in the queries, or in the titles of the sites visited.

79It bears mentioning that the jury will be given specific instructions about the use they can make, if any, of the evidence of Detective Constable Zuliani’s evidence, including the report and its shortcomings (e.g., date and time of access of videos).

80The Application is granted.

ORDERS

i. The video-taped statement of L.M. made on March 18, 2017, will be admissible at the trial provided L.M. adopts its contents as provided for in s. 715.1 of the Criminal Code;

ii. Detective Constable Zuliani will be permitted to give opinion evidence at trial, as an expert in the area of Computer Forensic Data Extraction with his examination of the Xbox device provided to the Greater Sudbury Police Service as documented in Detective Constable Zuliani’s report dated June 28, 2017;

iii. The Forensic Examination Report referred to in (ii) above, is admissible into evidence at trial insofar as subject-matter in the following areas:

i. Oral sex;

ii. Step-daughter;

iii. Step-father;

iv. Teen;

v. Pontiac; and

vi. Nursing.

iv. The Crown’s Application for admission into evidence of the statements given by L.M. to T.M. and to Constable Zazelenchuk is dismissed, subject to the provisions of (v) below;

v. L.M.’s statements to T.M. made on March 16, 2017 shall be admissible only as it relates to the circumstances in which it was made, and as it relates to L.M.’s physical description of the respondent’s groin and her reference to no underwear being worn by the respondent.

The Honourable Madam Justice Louise L. Gauthier

Released: June 27, 2018

CITATION: R. v. M.M., 2018 ONSC 3986

COURT FILE NO.: 953/18

DATE: 20180627

ONTARIO

SUPERIOR COURT OF JUSTICE