Her Majesty The Queen – and – L.M.
COURT FILE NO.: 16-445 DATE: 20180725 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – L.M.
Counsel: Jeffrey Richardson, for the Crown Paul Lewandowski, Section 43.3 (3) Counsel
HEARD: PEMBROKE, July 9-12, 2018
MCnamara R.S.j.
REASONS FOR DECISION
(These reasons are given orally)
OVERVIEW
[1] On this indictment the accused, L.M., is charged with one count of sexual assault contrary to Section 271 of the Criminal Code: one count of sexual touching of a person under the age of 16 contrary to Section 151 of the Code: one count of invitation to sexual touching by a person under the age of 16 contrary to Section 152 of the Code: and one count of being a person in a position of trust or authority and inviting a person under the age of 16 to touch his penis contrary to Section 153 (1) of the Code.
[2] These incidents are alleged to have involved the same complainant, C.F., and to have taken place between the first day of January 2007 and the 31st day of December 2012.
[3] He is also charged that between the first day of January 2004 and the 31st day of December 2007 he committed an assault on R.F. contrary to Section 266 of the Code.
FACTUAL BACKGROUND
[4] The first witness to testify was C.F..
[5] During the time relevant to these charges the complainant, together with her mother and brother were living with the accused at his home in Griffith, Ontario.
[6] According to her testimony, the first incident that occurred between her and the accused took place when she was 11. She told the Court she was watching a cartoon in the middle of the summer when the accused came into the room. She recalled she was wearing purple pajamas. According to the witness the accused suddenly pulled her onto the floor, got on top of her, pinned her arms with one hand and with the other pulled up her shirt, grabbed and then licked her breasts. He then put his hand down her pants to an area in the vicinity of her pubic line. He didn’t go any further than that and she remembers the incident because it coincided with the time she was having her first menstrual cycle.
[7] The next incident she specifically recalls occurred when she and the accused were out on an all-terrain vehicle (ATV) when she was 13 or 14. He had taken her out to give her lessons in the operation of the machine. She was driving with him sitting behind. She testified that on this occasion he put his hands up her shirt from behind and grabbed her breasts. She went on to say the machine was stopped at this time, and she noticed another four-wheeler being operated by an adult neighbor and his son coming the other way. It was a quick drive by and she hoped that no one had seen anything. She learned later that they must have seen something because within a short time of the incident, she was being teased on the school bus about inappropriate conduct with the accused.
[8] The complainant was asked why she didn’t tell anyone about what had happened. It was her evidence that after the first incident she told the accused she was going to tell her mother, and the accused indicated that if she did the family would have to leave and have nowhere to live.
[9] The next specific incident she recalled occurred when she was 15. She did not yet have her G1 license which she received the year she turned 16. She was out with the accused in his truck for a driving lesson. They were on some back roads near their home which they had accessed using a road called Highland Creek Rd. They got to the area of a hunt camp, when the accused stopped the truck and took the keys. She testified that shortly after exiting he pushed her down, sat on her, pinned her hands over her head and then lifted her shirt, licked her breasts and put his hand down her pants and touched her vaginal area. There was no penetration.
[10] The complainant testified that over this entire period, in addition to the specific incidents just reviewed, there were ongoing incidents of inappropriate sexual behavior of varying degrees by the accused towards her. She testified it occurred approximately three times a week at what she described as “any moment of opportunity”. He would stop for a while, a month or so, then the acts would resume. It was her evidence that throughout all of this time she never told anyone about what was going on, including her mother. She indicated it was because of her fear that the accused would follow through on his threat to throw them out and they would be homeless. She also testified that she wasn’t sure her mother would believe her and she didn’t want to put her mother in a difficult situation. She indicated that she felt that way because when she and the accused had other blow ups about various things, it seemed to her that her mother always took the side of the accused.
[11] She testified that these incidents, other than the specific ones mentioned earlier, happened in their home after she got home from school. At that time the accused was always on the property in his shop beside the house and/or in the home. Her mother would be away at work and her brother was in the habit of going to a neighbor friend’s place every day right after he got home from school.
[12] She was asked if any of these incidents involved her touching the accused. She testified that when she was approximately 15, one day he picked her up took her into the bedroom and forced her to touch his penis over his clothing.
[13] When she was 17 and 18 the incidents slowed down considerably.
[14] In August of 2013 she wrote a letter to her mother speaking of her issues with the accused as a person generally but also about what had been going on between them. She indicated “not only is he abusive but a pedophile…” and “every day when C.F.1 wasn’t home and you were at work he would force himself on me take off my clothes and do other things…” She put the letter in an old dresser drawer at her maternal grandmother’s home hoping it would at some point be discovered. About a year later it was discovered by her grandmother, her mother found out and charges followed. By then the complainant had left home and was living with her boyfriend and his mother and father.
[15] She was asked about her observations of her mother’s relationship with the accused. She testified that he treated her horribly. He was rude, disrespectful, and on one occasion she could recall, violent. She was about 10 and she observed the accused, in the midst of an argument, push her mother down onto the floor. She testified her mother tried to call 911 but that the accused grabbed the phone and told her mother and the children to get out. It was also her recollection that, at some point in all of this the accused brought out a gun.
[16] The complainant testified that the day she finished high school, she came home packed her bags and moved in with the boyfriend and his family.
[17] On cross-examination the complainant was asked about the rumors that started after she and the accused had been seen by the neighbor and his son when they went by them on their ATV. The rumors apparently were to the effect that the complainant and the accused were seen kissing. She agreed with the suggestion that the source of that rumor was probably the neighbor or his son, and that it was a made up detail because there was no kissing involved. She did agree the rumor got around their small town and in fact led to a fist fight over the rumors between the accused and the man who had passed them on the ATV.
[18] Counsel returned to the incident on the ATV. The witness confirmed she went out with the accused approximately three times to get a driving lesson on the machine. On each occasion she was on the front driving with the accused behind her. She denied it was necessary for him to put his arms around her as the passenger in order to hold on, and indicated that there were parts of the seat he was on that were designed for that purpose.
[19] The complainant agreed that as she got older she became more assertive with the accused and would even call him names to his face. On one occasion she says he responded by slapping her on her face. While she told her mother about that event, she did not tell her or anyone else about the sexual abuse, again because of her fear of what would become of her mother and brother.
[20] She also agreed that when she left the home to live with her boyfriend she was not getting on well with her mother or brother at the time. She indicated she was angry with her mother, because despite the complainant’s view of the way the accused treated them all, her mother took his side in virtually every dispute.
[21] The witness agreed that shortly after the first incident involving her and the accused, she was interviewed by the Children’s Aid Society. They apparently had received an anonymous call from someone that there might be inappropriate behavior going on in the home. She confirmed she spoke with someone from that organization and denied there was any issue. Again, it was because she was afraid.
[22] The complainant confirmed that despite these many alleged physical interactions with the accused and despite her evidence that she always resisted, there was no occasion when there was any evidence of scratching, bruising or signs of physical injury.
[23] The complainant also agreed that at no time until after things got into the hands of the police did she tell her boyfriend or her best friend about what had happened to her.
[24] R.F. testified.
[25] She is 40 years of age and confirmed she is the mother of two children, a daughter C.F. and a son C.F.1. She met the accused in approximately 2004 and after a year or so she and the children moved in with him at his home on M[…] Street in Griffith. She described the home as a large split level with a detached garage, where the accused carried on his tire business.
[26] Ms. R.F. was employed out of the home over most of the years she and the accused were together. Some of those jobs involved shift work, so she wasn’t always home when her young children got off the school bus.
[27] This complainant acknowledged that in June of 2013 her daughter C.F. moved out of the home. Her expressed reasons for leaving were she wasn’t happy, she did not like the accused, and she just wanted out. She also agreed that at that time she was not getting on very well with her daughter, that she was mad when she left the home, and in consequence they didn’t speak for a short time after.
[28] In October 2014 Ms. R.F. got a call from her sister telling her a letter had been found in an old dresser at their mother’s home. That is the letter referred to earlier in the evidence and which was filed as Exhibit 1 at the trial. She went to her mother’s immediately, who was not home at the time, and after reading the letter went straight home and confronted the accused.
[29] He denied any wrongdoing. She didn’t believe him, got in her car and headed for her daughter’s home. On her way there she received a cell phone call from the accused. He wanted to know where she was and where she was going, to which she replied “it’s none of your business.” He then apparently indicated that if she didn’t come back right away, when she did return she would find the room full of blood. She continued on to her daughter’s, and after she spoke with her she drove back home and left the premises for good.
[30] She testified she had a couple of other discussions with the accused. On one occasion she had to speak with him about some financial matters and in the course of their discussion she accused him of being “sick”. He replied according to the witness, “at least I didn’t fuck her”. Finally on another occasion she phoned the home phone because she says she was still in shock, and again asked how he could do this. He said he didn’t know and “I don’t know what’s wrong with me”.
[31] She was asked if the accused was ever violent with her.
[32] She said there were two incidents she recalled.
[33] The first occurred even before she and the children moved in. She says that night they had a disagreement and he wound up pulling her out of bed by the hair.
[34] He later apologized for his behavior. The second incident was shortly after they moved in with the accused. Once again they got into a verbal disagreement; he grabbed and pushed her down, and then struck her towards the back of her head. The children were present, and after that incident she confirmed she left and stayed with a friend for a few days, but they then returned.
[35] On cross-examination she was asked how she got on with her daughter in and around the time her daughter left home. She agreed their relationship was strained, but added they get on fine at the present time.
[36] She was asked whether, after discovering the letter, she asked her daughter for more detail. She indicated that she did, and some general description of the acts was provided. As far as she knew the behavior consisted of inappropriate touching and there was no intercourse.
[37] She was asked whether her daughter had told her that there was kissing involved. She indicated at first that she thought she had said that, but when pressed on the point it became more definitive that she was in fact told that.
[38] She was aware of vague rumors in the community about behavior involving the accused and her daughter, and also was present when a fight broke out over the rumors involving the accused and a neighbor. She confirmed that to her knowledge that neighbor, A.M., was the source of the rumors. She said she didn’t pay much attention to rumors firstly because they were denied, and because rumors in small towns are plentiful.
[39] This complainant confirmed that in approximately 2005 she was contacted by the CAS on an anonymous complaint by someone about inappropriate touching. At the CAS’s request she brought the children to speak with a CAS representative who spoke with them and nothing further ever came of it.
[40] She agreed that her daughter and the accused did not get along, and that started as her daughter moved into her teenage years. It got much worse after that. She also agreed that there were several times her daughter tried to convince her to leave the accused. Her complaint was he was controlling, rude and a bully. She also told her mother he had slapped her in the face and she had slapped him back.
[41] C.F.1 testified. He is the brother of C.F. and the son of R.F.. He is now 18 years old.
[42] Briefly he testified that when he was young he spent almost all his time visiting with his friends, especially S.M., who lived nearby. He would come home from school, drop off his bag and be gone until dinner. He confirmed that the accused worked from his garage beside the house and so was home except when on a service call. He testified he has never been close to his sister and that continues to the present time.
[43] The witness did recall an incident when he was young where he observed his mother and the accused in an altercation where the accused pushed her down and she went down some stairs. His sister was present as well.
[44] A.M. testified. He is a 47 year old truck driver who has lived near the accused’s home and shop for some 15 years. He testified that on one occasion he and his young son were out on their 4-wheel ATV travelling some back roads near their home. After going through a corner he observed another ATV that appeared stopped or moving extremely slowly, and as they got closer he saw it was the accused and C.F.. She was at the controls and the accused was behind her, leaning forward around C.F. so he was directly facing her with his face right in front of hers. He found this an odd position to be in as it was not a position a passenger on the rear of an ATV would assume to explain how the machine worked.
[45] He couldn’t see anyone’s hands or what they were doing, but it looked to him to be inappropriate positioning. As their machines passed he looked into C.F.’s eyes and she looked afraid.
[46] Asked on cross-examination if the initial impression he formed was that he had caught the two kissing, he was quick to indicate that he did not see any kissing, but he may have told the police that because to him there was no other explanation for the positioning.
[47] He conceded that C.F. was a family friend and had been over to his home on a number of occasions, especially when she was younger.
[48] L.W. testified.
[49] She is the mother of R.F. and the grandmother of C.F. and C.F.1.
[50] She testified that between roughly January of 2009 and September of 2011 she lived with her daughter, the children and the accused at his home in Griffith. She had separated from her husband and it was decided she could live at the residence while she found a proper place to live.
[51] Ms. L.W. testified that while she lived there she continued to work at a local store as a clerk. Her hours were fulltime from roughly May until late November when she would be laid off until the following May. Her hours of work varied but could be anywhere between 8:00 a.m. and 8:00 p.m. When not working it was her practice to frequently visit friends in neighboring towns, as frequently as three times a week, usually in the afternoons. She also enjoyed fishing regularly and occasionally went deer hunting. She agreed that while living at the home there were times she was home when the children came home from school and times she wasn’t there.
[52] With relation to her grandchildren she became aware during her time living there that C.F.1 had a lot of local friends to the point that he was rarely around other than to eat and sleep. C.F., however, had few friends in the area, and the one she was closest to lived driving distance away from their home.
[53] When this witness got her own accommodation in the Fall of 2011 her grandchildren were frequent visitors and in fact C.F. lived with her for a couple of months. She only left when her mother came over and told C.F. it was time she got back home.
[54] Ms. L.W. confirmed that she was the one that discovered Exhibit 1 in an empty dresser drawer in a room where C.F. had stayed. She said she was afraid to inform her daughter and asked her other daughter to tell her.
[55] On cross-examination she agreed that as C.F. became a teenager she seemed to be often upset but never talked about why. She always kept to herself. She confirmed that based on her observations while her granddaughter and Mr. L.M. did argue, it didn’t seem all that out of the ordinary.
[56] She agreed with the suggestion that the door to the L.M. house was usually unlocked during the day and there were occasions when a customer would walk right into the residence and yell up from the entrance way to the kitchen area for assistance. They never however, in her experience, walked up the stairs to the main living levels. She also told us that while she was living at the home, she would share with her daughter and Mr. L.M. her work and shift schedule so they would know when she would be there and when she wouldn’t. It was not her practice to ever come home from work during one of her shifts, nor could her daughter do that because she always worked 35 or 40 mins away from Griffith.
[57] L.M. testified in his own defense.
[58] He is about to turn 70 this year. He confirmed that for many years he has been self-employed running primarily a tire business from his property in Griffith. He has lived in Griffith since the early 1970s but hasn’t been back since all these allegations arose.
[59] He confirmed he met R.F. in the early 2000s, they became a couple a year or so later and moved in together. He acknowledged he is not good at all with dates. Her two children moved in with her. He also agreed they were joined in early 2009 by R.F.’s mother, L.W., who was there for perhaps a couple of years.
[60] Mr. L.M. was asked first about the incidents where it is alleged that he assaulted R.F.. In terms of the hair pulling allegations, he denied it categorically. In terms of the push that it is alleged took place in the presence of the two children, he agreed that occurred but denied there was a punch. That occurred to his recollection, in 2006 and 2007. He testified he apologized to Ms. R.F. for his actions.
[61] Mr. L.M. was then taken through the allegations made against him by C.F..
[62] His counsel put to him C.F.’s evidence about the numerous times when she alleged he pulled her to the floor in the house, pinned her hands with one of his and then proceeded to lick or touch her breasts and put his hands down her pants. He testified that never occurred. He acknowledged that over the years there was some playful horseplay or wrestling as testified to by some of the witnesses and involving both children, but nothing sexual. He was then asked about the specific incidents Ms. R.F. described in her evidence, the one when she was 11, the one on the 4-wheeler, and the one at the hunt camp. He adamantly denied they ever occurred. It was his evidence he never sexually touched her, never attempted to sexually touch her and that he never attempted to kiss her.
[63] He confirmed he did take her out one time on an ATV to teach her how to operate it, and he was passed by Mr. A.M.. He also recalled the two of them driving to a hunt camp and getting out of the truck to let a dog out. He was adamant, however, that on none of these occasions did anything inappropriate occur.
[64] It was his evidence that as Ms. R.F. got older she was hard to get along with and was a bit of a loner. He agreed they had words on occasion and that he and R.F. also had arguments.
[65] Counsel asked about the incident where it was alleged that he forced Ms. R.F. to put her hand on his penis over his clothes. He denied it. He also denied he ever threatened to throw the family out of the house if she told anyone about what he was doing.
[66] On cross-examination he said when he met R.F. she and the children were living in a very small, quite shabby property in the area. It was, he agreed, a bit of a dump. He also agreed that comparatively speaking his large home with its 4-bedrooms, living room, rec room and in-ground swimming pool etc. was very much an upgrade to where they had been living. He also adopted what R.F. said in her evidence about her work history and schedule, that C.F.1 wasn’t around much, and with Ms. L.W. about her comings and goings. He agreed that C.F. was a bit of a loner and that her only real friend lived some distance away from their home.
[67] Mr. L.M. acknowledged he is a big man, about six foot and 230 lbs, and in decent shape because of the physical nature of his job. He agreed with the suggestion that while the children were in school and the others at work, when the bus dropped the children off, he would often be the only adult at home. He did point out, however, that there were frequent times when R.F. and/or the grandmother were also present when the kids got home. He also suggested there were occasions when there was no one there at all when the children got home because he was out on a service call.
[68] He was asked about the incident described by the witness A.M.. He recalled the incident when A.M. passed their stationery machine and that he was on the ATV with C.F.. He did not recall the unusual leaning forward described by A.M., but said if that in fact occurred, he was giving her some operational instructions.
[69] Mr. L.M. acknowledged he was confronted by R.F. after she had received and read the letter written by C.F. in the Fall of 2014. They spoke in person and by phone. He denied however he ever indicated in any of those conversations what he is alleged to have said about having a problem or that the acts could have even been worse.
[70] It was suggested by the Crown that he easily had the size and the strength to restrain Ms. R.F. in the manner she described. At first he indicated he wasn’t sure he could restrain both of her hands with one of his, but when reminded of their respective sizes he testified he probably could, but wouldn’t and didn’t. In answer to the last of the Crown’s questions he indicated he had no idea why C.F. has made these allegations.
POSITION OF THE PARTIES
[71] In terms of the counts involving C.F. it is the position of the defense that the key is credibility. In that regard counsel argues that with relation to those allegations the evidence of the complainant is contradicted by other evidence, and therefore cannot be relied upon as part of the WD Analysis to the degree required to support a conviction.
[72] Counsel submits that, first, her evidence is contradicted in all important aspects by the accused. The accused denies any of the acts occurred, and it is submitted there is no reason not to accept his evidence. He further submits that parts of the complainant’s evidence are contradicted by other evidence to the point that evidence cannot be relied upon. By way of example counsel submits that her evidence about the assault on her mother is illustrative. She testified a gun was involved, and no one else, including her mother, gave that evidence. The accused also denies using a gun in any fashion. As such, in counsel’s submission, her evidence is either false or demonstrates an unreliable memory. In either case he submits it seriously taints her credibility.
[73] He also points to the evidence that the complainant felt trapped in her home and that, combined with her fear for their situation, was the reason she stayed and didn’t tell anyone about what was going on. He submits that the evidence establishes that after her grandmother left the home, her grandmother made it clear that the grandchildren were welcome at any time and in fact the complainant stayed with her at one point for two months.
[74] He also pointed to the indication in Exhibit 1 that “every day when you were at work he would force himself on me, take my clothes off…” Counsel submits that the evidence is clear, even on the complainant’s evidence, that he never took her clothes off, and hence another contradiction.
[75] Counsel next moved to the complainant’s evidence that she never told her mother or grandmother about the abuse because of fear they’d have to leave the premises and live in poverty. Counsel suggested that that doesn’t make any sense because when she got older, she was trying to talk her mother into leaving which would have them in the same position that they would be in if they were told to leave.
[76] Counsel submits that these are significant contradictions and he reiterated that based on all the evidence including the contradictions and the evidence of the accused himself, the Crown has failed to meet its onus.
[77] With relation to the count of common assault involving R.F. counsel acknowledged that there was sufficient evidence to support a conviction.
[78] The Crown argues first that the defense submission that the complainant failed to make a timely complaint should not and cannot, on the evidence, be the subject of any presumptive adverse inference. He submits that the case law rejects these stereotypical assumptions of how persons act, particularly children, to acts of sexual assault.
[79] He further submits that in any event, on the evidence there are compelling reasons why there wasn’t earlier disclosure and that evidence comes from several sources. He further submits that on a review of all evidence, as the Court is directed to do in WD, it is clear there are in reality no serious contradictions on the evidence of C.F.. Her evidence is rich in detail – much of it confirmed by the accused’s own evidence, save and except the sexual component of the assaults which are baldly denied.
[80] Counsel submits that the evidence of C.F. was given in a clear and detailed manner, was not seriously shaken on cross-examination and is completely capable of belief. Further counsel points to the admissions made by the accused after he was confronted by R.F. upon discovery of the note. It is counsel’s submission that looking at the evidence as a whole it supports a finding of guilt on all counts.
ANALYSIS
[81] Both Crown and defense agree that the outcome of this case turns on credibility. They also agree that the governing principles here are those established by the Supreme Court of Canada in the often cited decision of R v. WD. That case provides a three step framework to be followed by the court in these cases: the steps, as set forth in paragraph 28 of WD, are as follows:
- First if you believe the evidence of the accused, obviously you must acquit;
- second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit;
- third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[82] With relation to the first and second stages of the analysis, I do not believe the evidence of the accused, nor does it leave me with a reasonable doubt. I come to that conclusion based on the fact that the accused’s version of events, taken as a whole, is not credible and is inconsistent with the other evidence in this case.
[83] Some examples are illustrative;
[84] In his testimony the accused displayed a good memory of many details except when there were any details adverse to his position. For example, he testified when taken through how the complainant said she would be restrained during the assaults, with him holding down her two wrists with his one hand, he wasn’t sure he would be physically capable of doing that. It was only after he was reminded of the vast differences in their sizes that he acknowledged that he could do it, but wouldn’t and didn’t.
[85] Similarly with the evidence of the witness A.M. as to the positioning of the parties as they went by, he seemed to have a clear recollection of the event save and except the evidence pertaining to his positioning. He testified he couldn’t remember doing that, although he seemed to remember all the other details of the incident.
[86] Then there is other evidence in this case that I accept, that affects his overall credibility.
[87] Very significant in this regard are the admissions he made to R.F. that are detailed in the evidence review. I found her a completely credible witness, not prone to exaggeration, who was not shaken in any material way on cross-examination. I accept her evidence as to the admissions made to her by the accused. Those admissions, particularly his statement that at least he didn’t have intercourse with her, and his subsequent admission that he didn’t know what was wrong with him, are very negative to his credibility.
[88] The third step of the WD framework requires that even if not left in doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence which I do accept I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. That involves a consideration of the evidence of the Crown as a whole.
[89] First there is the evidence of the complainant. I watched her carefully as she gave her testimony. I found her generally composed in the witness box keeping in mind her age and the alleged circumstances, showing emotion only in appropriate places in her testimony. It did not seem she was exaggerating her evidence. Her evidence was full of detail that satisfied me she was recalling real events that actually took place.
[90] With relation to the first of the specific incidents, she recalled the color of the pajamas she was wearing, and that she was watching cartoons on television. She remembered, significantly, that it was the time of her first menstrual cycle.
[91] With relation to the incident on the ATV, she remembered where they were in terms of location and the speed of the A.M. ATV as it went by. Her evidence on these and other points were supported by Mr. A.M. in his testimony. As for the hunt camp incident, she gave significant details of the location and the route taken to get there. It’s also worth noting that with relation to both the ATV and hunt camp incidents the accused confirms many of the details save and except the sexual components.
[92] In terms of the occurrences in the home, the evidence established that the house was often empty with no adult on the property, save the accused, when it is alleged the incidents took place. They didn’t stand out in detail as did the specific incidents for the reason that unlike those specific incidents, there was a commonality to the way they took place.
[93] I do not accept the submission of counsel for the defense that much of her evidence was contradicted on major points so as to render it unworthy of belief. One of counsel’s main submissions in this regard was the indication by the complainant of a gun being involved at the time her mother was assaulted. It’s worth remembering the complainant was very young at the time of that event, and no doubt this admitted assault on her mother was extremely traumatic to her. It’s also worth noting this incident occurred before the timeframe within which the sexual incidents are said to have occurred.
[94] Next, I found nothing unusual about her evidence as to why she didn’t tell her mother about the alleged acts of Mr. L.M.. Again, at the outset she was very young and no doubt feared being put out on the street by the accused. By the time she reduced what was going on to writing, she was older but clearly uncomfortable in raising the subject face to face with her mother, as evidenced by the scant details of what went on in the note. Further she was still quite young and the fact all of this made her uncomfortable is understandable.
[95] I also don’t accept the submission that her evidence that she felt trapped in her own home made no sense because she kept telling her mother to leave and in fact did leave the day she finished High School. It was also suggested that when she was younger she could easily have moved in with her grandmother. I accept she did feel trapped over these years. She did try to live with her grandmother, but that ended after two months when she was told to come home. Next, she left when she was 18, but she had somewhere to go – namely to live with her boyfriend and his parents.
[96] While her evidence was not perfect, it never changed in any material way despite an extensive and skillful cross-examination by Mr. Lewandowski.
[97] Next, there is other evidence confirmatory of the complainant’s version of events. First, again, there are the admissions made by Mr. L.M. to R.F.. These are far more consistent with the complainant’s version of events than his. Then there is the evidence of Mr. A.M., which I accept, as to the positioning of the accused on the ATV the day they passed, which he found “inappropriate”. It was not a position, based on his extensive experience with ATVs that would be consistent with the position of an instructor providing operational instructions. That evidence is confirmatory of something out of the ordinary going on, and again more consistent with the complainant’s version than that of the accused.
[98] On the basis of all of the evidence, I am convinced beyond a reasonable doubt that the offences took place and there will be convictions on all counts.
Mr. Justice James E. McNamara Date: July 25, 2018
COURT FILE NO.: 16-445 DATE: 20180725 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – L.M. REASONS FOR DECISION MCNAMARA R.S.J. Released: July 25, 2018