ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 18-127
DATE: 02/10/2019
BETWEEN:
Her Majesty the Queen
– and –
M. P. L.
L. Brock, for the Crown
D. Henderson, for the Accused
HEARD: September 16, 17, 18, 19, 20, 2019
The honourable MR. JUSTICE r. john harper
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE INDENTIFY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCASE IN ANY WAY PURSUANT TO s. 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons for decision
The Charges
[1] M.P.L is charged with ten Counts that allege that between June 2016 and September 15, 2017 he sexually touched and assaulted V.L., who would have been between 8 and 9 years old at that time. The sexual touching and assaults included:
i. Touching her vagina for sexual purposes;
ii. Having her touch his penis;
iii. Performing oral sex on her;
iv. Having her perform oral sex on him;
v. Making her masturbate herself in in his presence;
vi. Masturbating in her presence and having her masturbate at the same time as he was masturbating; and
vii. Attempting to have anal intercourse with her.
The Evidence
[2] The Crown’s witnesses consisted of:
a. The complainant, V.L.;
b. Her mother, A.B.;
c. Her maternal grandmother, C.B.;
d. M.P.L’s partner after he separated from A.B., C.P.;
e. The officer in charge of the investigation, Detective Constable Dan Twinem.
[3] In addition, the Crown filed, as an exhibit, the recording and transcript of the voluntary statement that the accused gave to Detective Twinem on November 18, 2017.
[4] The complaint, V.L, was 11 years old at the time of her testimony. V.L. testified by CCTV in accordance with section 486.2 (1) of the Criminal Code. A video recording of her statement to police made on November 17, 2017 was entered into evidence along with the transcript of that interview. The child watched and listened to the recording and in the course of her testimony at trial she stated that the statement was true and accurate. V.L. was cross-examined by defence counsel.
The Background and Family Constellation
[5] For the purposes of this decision it is helpful to set out the family relationships that are relevant:
a. The biological father of the child V.L. is E.L.;
b. The biological mother of the child V.L. is A.B.;
c. The maternal grandmother of the child V.L. is C.B.;
d. The girlfriend of the defendant after M.P.L. was charged was C.P.;
e. M.P.L.’s girlfriend at the time of this trial was C.R.
[6] In 2007, A.B. had a relationship with E.L. As a result of that relationship, the child V.L. was born on July 26, 2008. E.L. was in the military, at the time, and was stationed in Edmonton, Alberta. When V.L. was approximately one year old, A.B. and the child V.L. lived in Western Canada with E.L. A.B. did not like the military life and she returned to Paris, Ontario in or around 2011. The child stayed with E.L. out west for a short period of time and then returned to Ontario to live with her mother.
Their Residence in Port Dover in 2011
[7] V.L. was approximately two and half years old and, although E.L. came back to Ontario for a short period of time, A.B. testified that he returned to live out west and had no relationship with V.L. for the past 8 years. According to A.B., E.L. would only call the child once in a while. V.L. calls him E.
[8] A.B., her mother C.B, and the child V.L. moved to Port Dover, in or about 2011.
[9] The maternal grandmother, C.B., did not work and she cared for V.L. while A.B. worked at a Tim Hortons in Port Dover. That is where A.B. met the defendant, M.P.L.
[10] M.P.L. and A.B. started a relationship. As their relationship progressed, M.P.L. started to spend a lot of time at A.B.’s home. A.B’s mother C.B. and the child V.L. also resided there at the time. As the length of his stays at their home increased, the resentment toward M.P.L. on the part of C.B. also increased. According to C.B, she did not like the fact that M.P.L. was spending many over nights at their home and not contributing to the living expenses. This strained the relationship between A.B. and her mother to the point where C.B. moved out and found her own residence in Simcoe, Ontario. Once C.B. moved to Simcoe, M.P.L. moved in with A.B. and her child V.L.
[11] A.B. and M.P.L. went through a form of marriage in Niagara Falls on August 3, 2013. M.P.L. disputes that the marriage was properly registered. That is not relevant to my considerations in this matter. Suffice it to say that they acted as though they were married to each other and M.P.L. acted as a parent to the child, V.L.
[12] According to A.B., the relationship between V.L. and M.P.L. was “fantastic” at first. He would interact with her, she would do his hair and they would play together. It got the point that the child called M.P.L. “dad”.
[13] V.L also testified that things were fairly good between M.P.L. and her mother when they lived in Port Dover.
[14] At some point M.P.L., A.B. and the child V.L. moved to Ingersoll, Ontario. Both A.B. and M.P.L. found employment. He worked through a temporary staffing agency and she got a full-time job. During this period of time, A.B. worked longer hours than M.P.L. According to A.B., M.P.L. would pick and choose the jobs he took from the Temp Agency while she was working full time. As a result, M.P.L. had more time to spend with V.L. on occasion.
[15] While they lived in Ingersoll, A.B. stated that M.P.L. was more interactive with V.L. and they were more involved as a family unit. A.B stated that her mother, C.B., visited them occasionally but her involvement with the family was minimal while they lived in Ingersoll. According to A.B., her mother only tolerated M.P.L.
[16] A.B. testified that it was when they lived in Ingersoll that the “honeymoon phase” of her relationship with M.P.L. ended. According to her, M.P.L. became verbally abusive to her and constantly accused her of having affairs. She stated that he would constantly call her derogatory and disgusting names such as: a bitch, cunt and a bad and useless person. On occasion, while they were living in Ingersoll, A.B. stated that M.P.L. got very angry and he would throw things. According to her, on one occasion he hit a door that had a large glass portion to it. She stated that he smashed the glass and sustained a deep cut on his hand. A.B. testified that he left the house after this and when he returned, he said he said he was sorry and that he would get counselling. According to A.B., he never followed through with his promise.
[17] M.P.L. does not deny that he broke the glass in the door. However, he stated that he was angry and the door was open in winter and he slammed it shut. According to him, glass fell on his hand as it was falling after he slammed the door shut.
[18] According to M.P.L., he did not think that V.L. was around when this happened. However, V.L. testified that she heard a lot of yelling and heard the glass break. She stated that she was scared.
[19] In her interview with Detective Gracey, V.L. stated:
And fights lead to verbal abuse to mommy and destruction of the house. Like when I lived in Ingersoll while I was in SK, the worst argument of all, other than the break-up he flipped chairs, he broke glass. And on the … closer to the end of the fight, he smashed his arm off the glass of our door.
… yeah. His arm was bleeding and we went so far as go… cuz we lived close to the cops. We tried getting to the cops and he chased us pretty much.
… his arm was wrapped up in a red shirt that or it used to be whatever color and it possibly was dyed red cuz of the blood.
…yeah, cuz I was concerned he might hurt someone, like mom or grandma…
[20] She also testified that both her mother and M.P.L. would yell and argue. According to A.B., M.P.L. would get angry and put holes in the wall. V.L. also testified to the broken walls that happened in the house.
[21] The Crown offered this evidence for the purpose of establishing that V.L. would be fearful of M.P.L. and that is one of the reasons for her delaying the disclosure of the sexual incidents. This evidence was not offered as bad character evidence. I do not consider this evidence in that light. I find that V.L. was fearful of telling anyone about the sexual incidents as she did not want to trigger violence in the home.
[22] In 2014, M.P.L., A.B. and V.L. moved to Paris, Ontario. By that time, the maternal grandmother was also living in Paris. The accommodations that A.B., M.P.L. and V.L. had included one floor in which there was a hall, a kitchen, a master bedroom and two other bedrooms. V.L had one of the other bedrooms where she slept and the other as a playroom.
The Allegations
[23] During the period of time that the alleged sexual incidents took place, V.L. would have been between the approximate age 8 and 9 years old. At the time of her recorded interview with Detective Gracey, on November 17, 2017, she was 9 years old. She also testified at this trial and she was cross-examined by the defence.
[24] I find V.L. to be an extraordinarily smart child. In her interview on November 17, 2017, her mannerisms were that of a 9 year old child. She sometimes she would sit up on the couch she was seated on and sometimes she would lay down on her back, her side and even on her stomach during her interview. At one point in the interview, Detective Gracey left the room for a few minutes and V.L. was very inquisitive about things in the room. She knelt on the couch and looked and touched a picture behind the couch. She then got up and went over to what appeared to be a panic or stop button and pretended to hit it. She came close but she did not. At that point, Detective Gracey came back into the room asking her to please not push that button or every police officer in the building would come to see what was happening.
[25] It became apparent early in the interview that V.L. was comfortable with Detective Gracey. V.L. told Detective Gracey that she was in an enrichment class because she scored in the 97th percentile on her CCAT test. She stated that meant that she was smarter than the average child. From my review of her interview and my observation of her during her testimony, I agree that V.L. is very smart and she is very articulate.
[26] V.L. gave a very detailed account of the sexual interactions she had with M.P.L. The extent of the detail she gave and the manner in which she gave it is a significant factor in my assessment of her credibility and her reliability.
[27] I will outline the material incidents that she related in her statement to police and that she authenticated in her testimony at trial. This outline quotes V.L and leaves off the questions and comments of Detective Gracey in order to get a complete understanding of the evidence V.L. gave about the alleged incidents. The omissions of the detective’s questions and comments, “okays and ums”, do not compromise or alter the content of what V.L. was saying about the allegations.
The Tillsonburg Water Park
[28] The first time M.P.L. “touched her in her private areas” was in 2016 just before he was going to take her to a water park in Tillsonburg. V.L. told Detective Gracey that:
You know how sometimes …well, actually, it doesn’t happen often, so rarely, I should say. Sometimes people like to go play around with their bums… with each other.
He did it without my permission. Like every time he asked, I said no, but he still did it. And every time I said stop, he continued to do it.
[29] V.L. referred to her vagina as her “front bum” and her bum was her “back bum”. She stated what M.P.L. did with each bum was different.
She told Detective Gracey that around July when her mom was at work M.P.L. wanted to “introduce me to this thing, so he told me to take my bottoms off.”
V.L. stated:
I’m like, okay, why? Kind of confused with kind of hesitation. And then that’s when he showed me the first step with it, which I really did not like.
So we… he told me to lie down and take my bottoms off. Then he used his finger and you know that little thing that helps stop infections on girls’ front bums?
He started making little circles on it.
I was in my bathing suit at the time.
Yes, and the thing that stops infections, he started using his finger and wiggled just on the little nerve that on it.
Or in it rather.
And then the more he did, the tighter the muscle got, but as soon as it was over, it just let go.
Then we went in the car to go get gas and then we went to Tillsonburg water park.
I was like, ow it hurts, ow cuz it did hurt
Cuz the muscle was tightening. He like, it’s okay, just breathe. Its gonna be okay, after its all done, its gonna feel great. He said things like that.
That’s all he did the first time.
Progression to Masturbation
[30] V.L. told Detective Gracey, in this interview, that M.P.L. only did it that way for the first few times and then he told me to do it to him.
[31] When describing what she had to do to M.P.L., V.L. took her shoe off and put her hands around her foot and moved her hands in an up and down motion. While doing this she stated:
He told me to grip his front bum. Which another name is penis. He told me to go like this, hard. Demonstrating an up and down motion.
She went on to state:
All the way up and all the way down.
The longer I did it, the more liquid came out…the top
Well I can show you what colour it was like.
[32] V.L. described the liquid that came out by pointing to two items that appeared to be on the wall. One was beige-ish type and the other was greyish. She stated that it looked like the two of those colors.
[33] She then told Detective Twinem that:
It came out the top.
It ran down.
But that’s all that liquid did. But at the end with him, a bunch of that liquid spouted like a fountain. I was like, I don’t want to get hit with that stuff.
She went on to state:
He had to change his pants, otherwise Mommy would find out something was up. So, he had to change pants cuz sometimes we did it when Mommy was home. We’d be downstairs, she’d be upstairs. And whenever she came up… come to our floor, we just stopped and went under a blanket.
M.P.L. Showing V.L. How to Perform Oral Sex
[34] V.L. continued in the interview:
Well, closer to the end of the summer, um, this year cuz he only did those two (2) things for about a year. Well, around a colder time, maybe, earlier spring/later winter, around that time of year, he showed me another way off of YouTube. And that was the most disgusting way of all.
I had to do it to him. I had to use my mouth over his penis.
As gross as that was
Ew. I really don’t want to do this, this is disgusting. But every time he told me to do it, he says he’s gonna give me a reward, but he never does, like take me to the park, take me biking, things like that.
Sometimes he’d take me to the beach. And with my mouth, the first few times, I only got to put my mouth on it for a split second and then take it off and switch to my hands. And then a couple times later, I did it up and down about four (4) times each. Like going up and down, up, down with my mouth. And that’s when I found out it tastes salty and like expired butter.
[35] When Detective Gracey asks for clarification she said it was the liquid that tasted that way, the liquid that came out of his penis.
[36] V.L. told Detective Gracey that after she tasted it:
I just said, I can’t do this with my mouth any more. So, I ended up… so I changed to my hands like I always did. She further stated that when they got him to the end, that is when it comes out like a fountain.
[37] V.L told the Detective that M.P.L. had to change his pants all the time because he always got some on his pants.
Before the Port Dover Incident
[38] V.L. stated, in her interview, that she went to the beach at Port Dover with M.P.L. “close to the end.” They drove there in his car. She described his car windows as being were very dark almost jet black.
[39] She stated that this time it “hurt her way more than it hurt him.”
Summary of what she had to do Before Port Dover
[40] As the interview progressed, Detective Gracey reviewed with V.L. some of the things that M.P.L. allegedly did to her sexually over the year.
[41] She described him touching her “front bum with is his finger”. She also stated that he would use his finger when “doing me.”
[42] He used his finger on the “inside.” She said:
he always does it on the inside… otherwise it doesn’t tighten… its impossible to do I cuz it tightens, you know it’s working…. Um-ah, the inside every time.
[43] V.L. stated that he put his finger inside and sometimes spit. She stated:
Like he licks his finger to make sure it doesn’t dry…and sometimes that spit gets in the hole which really burns…and like I said, he sometimes scratches… not inside the hole, the spit gets inside the hole sometimes… he put his finger inside the hole.
[44] V.L. told Detective Gracey that she and M.P.L. use to communicate using a program on M.P.L.’s phone called S Note. She would be sitting beside him and he would write a message or mostly send an emoji to her and then he would give her his phone and she would respond either in writing or by an emoji.
[45] V.L. stated:
Normally I say. No. I really don’t want to do it. Something like that with a grumpy… not a happy face…
Well, he’s like, please, I’ll give you or I’ll give you or take you bike riding. I’ll talk you to the park, thing like that. But most of the time he never did.
He doesn’t keep his word…
The Sexual Incidents in Port Dover
[46] V.L. stated, in her police interview, that M.P.L. had taken her to the beach at Port Dover. She stated:
He told me again to take off my bottoms, but I ended up getting use to it and he…this time, he made me use my back bum…
He kind of put his…top of his penis kind of in my butt crack. Kind of in my butt cheeks…
And he told me to go up and down. Up and down like I would with my hands or mouth. And we only did that one once cuz honestly, I found it was too much work. And we were out in public. We were on a hiking trail, well, parked at the entrance of a hiking trail…
We were both in the backseat, so that we could have more room…
I was used to him saying. Take your bottoms off or take your underwear off…
Just means he want to do it and I can’t get out of it anyway…
[47] After Detective Gracey asks her to relate further what happen in the back seat, V.L. stated:
Cuz I was in my bathing suit…
I had to do this.
[48] In the video recorded interview, V.L. was on the couch and she demonstrated how she got up on her hands and feet with her back to him and she went up and down on M.P.L.’s penis. She told the detective that M.P.L’s was wearing a t-shirt and he took his bathing suit bottoms off “cuz we went to the beach…”
And we went to the hiking trail and he parked his car and said, can we do some playing. I took you to the beach…
[49] V.L. demonstrated what she and M.P.L did in the back seat a second time. This time, as she demonstrated in the same manner as she did the first demonstration, she stated:
So, pretend this is the back seat on the passenger side…
Cuz he was lying down like that…
And then my arms were on the back seat…
And I got to do this
He was also doing it to himself with me… while I was on… my back bum on his penis…
[50] As V.L. demonstrated her “back bum” moving up and down she differentiated between M.P.L’s penis being between her cheeks and her crack.
Part of it was in between my butt cheeks, part of it was kind of in my butt crack.
[51] V.L. then told Detective Gracey that:
Well, he never released because I had to go to the bathroom…
Cuz since we were in a hiking trail, there was just a little path that led…leads to a field with a curve, so I could go to the bathroom cuz there were no, no actual bathroom…
Like I had to go from the start, but he’s like, can we go in a bit, like around half way?
Like for me, after I reach the end, like my muscle is super tight, it just lets go.
And with him, the liquid releases out like a fountain… out of his penis
…it does its thing and then its done.
…which we did quite often.
[52] While V.L. was talking to Detective Gracey, she added that there was a fifth way he did it. She stated:
Oh, and also one time, there’s a fifth way he did it, which he only did this once. And I don’t remember most of it, but he used his tongue … (whisper) so slimy.
Like he actually got down and used his tongue…on me, on me.
… front bum.
[53] After she agrees with Detective Gracey that she was referring to her vagina she told him that she and M.P.L. would take their bottoms of and he would rub her vagina in circles on the “nerve” and he did that “more than 10 times.” She described it as that little thingy that she is not sure what it is called but she had referred to it as her “nerve” or the thing that prevents infections.
[54] V.L. went on to say that he did it at her house, he did it in mommy’s room, my room, my toy room. She then corrected herself and stated that he did not do it in her toy room. He did it in the car and he also made me do it to myself. She was referring to rubbing her hands and fingers on her “nerve.”
[55] After the first time when he showed her how to masturbate his penis, he did that several times.
[56] V.L. stated that he told her:
I will let you do it to yourself for half the time and then I want to do it.
[57] She told Detective Gracey that sometimes she had to do it to herself in the car. So, he’d be driving. And sometimes he’d be doing it to himself. It all depends on where we were. According to V.L.,” he did what I do what he does to me to myself.”
[58] After asking Detective Gracey if “he got the picture”, she told him that they were in the same room when they did that, she stated:
So, we know we can stop at the same time.
Whenever mommy comes around or when we release.
Cuz sometimes we release at the same time…or I’m finished before him or he finishes before me.
Cuz if we did get caught, we’d be in big, big trouble.
[59] Detective Gracey tells her that she is not in trouble and V.L. told him that:
It took grandma several times of saying that to me to finally get that through my head.
[60] V.L. told Detective Gracey that when M.P.L. was living with them, before she “kicked him out”, she and M.P.L. would do it while watching movies and if her mother came in the room they would go under a blanket.
[61] Near the end of the interview, Detective Gracey asks V.L. for clarification the short interchange is as follows:
Gracey: All right. So, you did tell me that the one time he…in the car in Port Dover at the trail parking lot.
V.L.: Mm-hmm
Gracey: And do you mean you bum crack or your vagina?
V.L.: Bum crack.
Gracey: Okay.
V.L.: Bum crack and in between the butt cheeks
Gracey: Okay and…
V.L.: Which is really weird.
Gracey: Yeah and tell me um, is that the, other than in your mouth, is that the only other place that he tried to put his penis?
V.L.: Mm-hmm
V.L.’s Cross-Examination
[62] I find that V.L.’s testimony was not in shaken in cross-examination. In many respects her evidence was enhanced. By the time she testified she was 11 years old. Her intelligence was even more pronounced. She was respectful and she was fair. There were no inconsistencies in her testimony on any of the material and core issues.
Suggestions of the Defence of Inconsistencies and other Evidence of a Lack of Credibility in Cross-examination
The number of times M.P.L. is alleged to have made her masturbate
[63] Counsel for the defence suggested that she was inconsistent with respect to the number of times that M.P.L made her masturbate. She stated that M.P.L having her touch herself happened around 20 times at the trial. However, at the preliminary hearing, she stated around 10 times. She corrected defence counsel and told him that she said over ten times at the preliminary hearing.
[64] In cross-examination she said that she gave it more thought since the preliminary hearing and it was more like 20-ish times.
[65] I find that this is the type of detail that is reasonable for a child of 8 years of age. She would not be able to keep a count other than it happened many times over a long period of time. Her credibility and reliability is not reduced as a result of this answer.
Suggestion that she used phrases she had learned
[66] Counsel for the defence also suggested that she learned some of he terminology she used by self-learning and used that in her evidence. He cited as an example her use of the phrase, “he would do things to me in steps.” V.L. did say that she did some of her own education. She did learn about progression and things happening in steps. However, I find when she made that statement she was speaking from her own experience.
[67] Her description of the events was related in such a manner that clearly showed that she experienced the steps she was referring to in a progressive manner.
[68] In her evidence she stated:
I used that word as each level personally got harder and made me more uncomfortable in a way that was a progression.
[69] V.L. also stated that:
I knew about all these acts and that they were wrong, I did not like them but did not know they were illegal.
I knew it was wrong for someone to lick your private parts and I knew it was wrong for him to ask me to put my mouth on his penis and to rub his penis…but I did not know about the liquid.
[70] I find that V.L.’s testimony in this regard is believable.
Disclosure to her Grandmother, C.B.
[71] V.L. was always close to her grandmother, C.B.
[72] C.B. lived with her daughter, A.B. and V.L. when they first moved to Port Dover. After C.B. moved to Simcoe, V.L still saw her grandmother frequently. When A.B, M.P.L. and V.L. moved to Paris, C.B. was also living in Paris and V.L continued to spend a lot of time with her grandmother. She stayed over at her house frequently. A.B. had multiple surgeries and V.L. would stay with her grandmother during these hospital stays.
[73] C.B. was forthright about her feelings for M.P.L. right from the start of the relationship between A.B. and M.P.L. She simply did not like him. She thought he was a freeloader.
[74] She stated that although A.B. was aware of her feelings about M.P.L., she never showed her feelings to V.L.
[75] During one of the stays V.L. had at her grandmothers in November 2017, and while she was rinsing her hair in the bathtub, C.B. stated that V.L. “out of he blue” disclosed to her that M.P.L. showed her how to masturbate.
[76] V.L. testified that when she was in the bathtub at her grandma’s:
I just felt it was the right time to speak up. It was on my mind.
I did not speak up before when he was there as I was afraid of violence.
He had been gone 3 weeks, over two months that sounds more accurate.
[77] According to C.B., V.L. told her that M.P.L. had shown her how to do something. She immediately started to put her hands between her legs and rub her vagina when she said that.
[78] C.B. stated that she was shocked and numb, and she sat on the toilet beside her and asked her what else had happened. She stated that she remained calm in front of V.L. V.L. proceeded to tell her about other things that M.P.L. did. She told C.B. that M.P.L. would rub her in her front bum and she had to rub him in his front bum. While she said that she demonstrated by moving her hands up and down.
[79] V.L. also told her grandmother the M.P.L. wanted her to put her mouth on his penis. She told her grandmother that it was “salty.” She also told C.B. that he showed her how to do this by showing her pictures on his cellphone.
[80] C.B. stated that V.L. told her that it is not right to hurt children and disabled people. C.B. told her that it was wrong and normally people would call the police. According to C.B., at that point, V.L. became frightened and told her grandmother that they would be mad at me. C.B. assured her the police would not be mad at her and she had to promise her that the police would not be mad at her.
[81] C.B. talked about another option and that was to call the Kids Help Line. V.L. felt better about that option. She called the Kids Help Line and after she talked to them the police were called.
[82] C.B. was straightforward in her evidence. She did not try to hide her negative feelings for M.P.L. She stated that she never demonstrated those feelings or said anything to V.L. about how she felt about M.P.L.
[83] Her testimony was not diminished in cross-examination. I find her to be a credible witness who loves her granddaughter. She did not immediately rush to call the police and she was sensitive to V.L.’s hesitation about talking to them. I find that she responsibly gave V.L. an option that still assisted in protecting her granddaughter while, at the same time, did not insight any hysteria or extreme emotional responses that would impact the child.
[84] In her testimony, V.L. described her grandmother as the “calm one.” I find that V.L was both fearful of M.P.L. and fearful of her mother’s reaction to finding out what M.P.L. did to her. She did not tell anyone partly because of that fear for approximately three months after M.P.L. left and no longer lived with V.L. and her mother.
[85] I find that V.L. told her grandmother about the sexual incidents with M.P.L. as she felt safe with her. V.L. told Detective Gracey that her “mommy has the extreme temper, that’s why we didn’t tell her yet.” V.L. told Detective Gracey that, “we let you guys do that…so didn’t freak and if she knew where he lived, she might kill him.”
[86] C.B. stated that at no time did she ever put things into V.L.’s head or coach her in any way about sexual abuse. I accept her evidence in this regard.
[87] V.L. testified that her gramma only told her to tell the truth and that no one told her or instructed her on anything that she told the police.
[88] I also find that V.L. felt that she was at fault by participating in the sexual incidents that she described. She was afraid the police would get mad at her.
A.B.
[89] A.B. did not know about any of the sexual abuse allegations until M.P.L. was arrested. She was shocked. C.P., who was M.P.L’s girlfriend at the time of his arrest, stated that she communicated with A.B. at or around the time of the arrest and A.B. was hysterical. She was screaming and yelling uncontrollably then. She had only recently heard about the allegations.
[90] I find A.B. to be a credible and reliable witness. She stated that she and M.P.L. did have a tumultuous relationship starting shortly after they moved to Ingersoll from Port Dover. A.B. stated that V.L. did hear them fighting, yelling and screaming. A.B. also testified that M.P.L., at times, would throw things around. M.P.L. admitted in his testimony that he threw a coffee cup during one of the heated arguments. He stated that was better than hitting someone.
[91] I find that V.L. lived in fear that if she told anyone about what happened to her, in her words, “violence would happen.”
[92] Counsel for M.P.L. acknowledged in his submission that Courts have relaxed their approach to dealing with delayed disclosure. I made it clear that it is not an issue of relaxing the Court’s approach. It would be a reversable error if a Court relied on what is well known to be “myths” concerning individuals’ reactions to sexual assaults.
[93] I am guided by the comments by Justice P. J. Monahan in R. v. K.B., 2019 ONSC 5287 commencing at para. 39:
c. Avoiding Myths and Stereotypes in Sexual Assault Cases
[39] The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. In particular, no negative inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. This includes the now discredited belief that a sexual assault victim is expected to make a timely complaint. As the Supreme Court of Canada noted in R. v. D.(D.):
[7] [T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave.… Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[94] As I stated above, reasons for delay are many and they include embarrassment, fear, guilt, loyalty and or a lack of understanding and knowledge. In this case, I find that V.L. did have a rational fear that there would be violence. She did not tell her mother as she was afraid she would kill M.P.L. She also stated in her evidence that M.P.L. told her not to tell anyone. He did not threaten her. However, I find that V.L felt that both M.P.L. and she would get into trouble. When asked by Detective Gracey why did she think there would be trouble, V.L. responded that “I am here talking to you aren’t I.”
[95] M.P.L. testified that he was of the view that if he did the things to V.L that she claims he did, V.L. should have told someone much earlier. I do not agree. That is one of the myths referred to above. Everyone reacts differently to sexual abuse. However, in this case V.L.’s reaction was based on her life experience in this family and more specifically her abuse experiences with M.P.L.
The Law and Analysis
[96] In R. v. K.B., 2019 ONSC 5287, Justice P.J. Monahan was dealing with a case that involved allegations of sexual assault on an adult who had intellectual disabilities who gave her testimony by CCTV pursuant to section 486.2 (1) of the Criminal Code of Canada.
[97] As Justice Monahan did in K.B., I too remind myself of the applicable legal principles that he sets out and to which I adopt. Commencing at para. 30:
Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[30] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
[31] Thus, KB is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
At paragraphs 33 and 34, Justice Monahan expands on the meaning of reasonable doubt:
[33] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that KB is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to KB and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
34] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that KB committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
[98] I adopt this legal framework as set out by Justice Monahan. The Crown must prove beyond a reasonable doubt all of the elements of the offences charged.
[99] I must assess the credibility and reliability of all of the witnesses who gave evidence.
[100] In assessing the credibility and reliability of a child witness, it is essential that the child witness’ testimony be assessed in light of all of the other evidence presented. I am aware that demeanor of a witness is only one small part of the assessment of a witness. There is a need for caution in considering demeanor as an indicator of credibility.
[101] In this case, the accused testified. I must also be guided by the principles set out in R. v. W.(D.), [1991] 1 SCR 742, 1991 CanLII 93 (SCC)
[102] The following steps as set out in W.(D.) are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt:
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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[103] In this case, I do not believe the accused M.P.L. when he denies that he touched V.L. in the sexual manners in which she testified for the reasons set out below.
M.P.L.’s Testimony
[104] I find M.P.L.’s testimony lacked credibility. During his testimony, he was evasive on multiple occasions. At times, he projected the abuse on to others without any corroboration. He was argumentative and flippant in many of his answers. His evidence was fraught with diversions instead of answers to the questions.
[105] When M.P.L. was asked a very simple question, at the outset of his cross-examination, he paused and had to think. When the Crown suggested that he was 30 years old, he said, “Yes, this is not something I commonly pay attention to, but I believe I am 30. There are many things in life more important to pay attention to.”
[106] He indicated, in his direct examination, that the present love of his life was sitting in the courtroom and that she is what is important to him now. He agreed with the Crown that that love of his life is 19 and he is 30 and when he started dating her when she was 17 and he was 29.
[107] When asked by the Crown what he disagreed with in the testimony of the child V.L. he stated:
Okay I’m not crazy, in your shoes, I know how it would look.
The words of a child are very hard to ignore.
Allegations by M.P.L. that his Recorded Interview of November 17, 2017 was Altered
[108] Immediately after that M.P.L. made an incredible allegation that the recorded interview of him and Detective Twinem was doctored. He alleged that there were numerous things that were left out of the recording. M.P.L. stated the night after the recording was played in court, he had an “epiphany.” He specifically recalled that in the interview he had talked about Canada’s Wonderland to Detective Twinem and nowhere in the recording does it capture that discussion. He also stated that he was positive there were obvious gaps in the recording that he could point to.
[109] The Crown asked him to provide a detailed list of everything that he states was missing from the recording. His list consisted of the following:
a. The detective said the first incident happened in Ingersoll;
b. The whole conversation about Canada’s Wonderland was missing;
c. He recalled that he and Detective Twinem were nasty with each other during the interview and heated words were exchanged.
[110] He stated that he sat down the night before his cross-examination and wrote down everything he could recall that was missing or irregular about the recording. He did not have the list while testifying.
[111] This statement caused the Crown to request time to be able to review the recording again before he restarted his cross-examination. I adjourned for a half day to allow for this. This was a serious accusation made against a very experienced detective. The implications for Detective Twinem would be extreme if he had altered the recording of an interview of someone who was giving a voluntary statement to someone in authority. This would be of great significance to this case if it were true.
[112] The next day, the recorded interview was played back in court. M.P.L. was given the opportunity to ask that the recording be stopped at any time during the course of the replay. Aside for some minor technical difficulties relative to the freezing of the video on re-start of the recording and one brief skip of the recording as Detective Twinem adjusted his chair during the interview, there were no interruptions in the audio. The difficulties with the video freeze was a function of Mr. Brock’s computer. He changed the computer and the difficulties were resolved. At no time was the audio interrupted in any way.
[113] After the second full replay of the recording none of the expressed concerns of M.P.L. were shown to be valid. Despite this, he continued to insist, right through the end of his testimony, that the recording was missing certain discussions that he stated happened between himself and Detective Twinem.
Deflections onto Others with No Supporting Evidence
[114] Counsel for the defence in his submissions stated that this is a case in which there is a plethora of red herrings and that the case devolved into a character assassination of the accused. I find that the only red herrings introduced came from the evidence of the accused.
[115] I also find that he was the one who tried to assassinate the character of his former spouse A.B. He called her a crazy person who tried to kill him. Neither accusation was supported in the evidence. She stated that she took mood-altering medication given to her by her family doctor and she never saw a psychiatrist.
[116] V.L. stated that she did not know about any “mental illness” her mother may have had, when asked by defence counsel in cross-examination. She stated that her mother had a temper, but that did not involve a doctor as far as she knew.
[117] A.B. was not asked by defence counsel anything about an attempted murder by her nor a conviction for fraud for which she was sent to penitentiary.
[118] I find that his numerous examples of willingness to deflect and project problems onto others was one example of him being evasive during his testimony.
Fraud Conviction and Penitentiary Time
[119] In order to cast doubt on A.B., M.P.L. claimed that A.B. had been convicted of fraud out west and did time in a penitentiary. He stated that A.B. told him about this.
[120] However, Detective Twinem did a CIPIC check on A.B. and the results did not indicate that there was any arrests, convictions nor incarceration of A.B.
[121] This allegation by M.P.L. was given during his recorded interview that was made part of the Crown’s case. It was evidence by the time that A.B. testified. Despite that, no questions were asked about this to A.B. in cross-examination. I give M.P.L’s testimony in this regard no weight. It is more an example of a deflection of bad conduct onto others.
[122] At times, M.P.L. was argumentative and instead of answering a question in cross-examination he would ask a question of the Crown Attorney. He had to be admonished to answer the questions.
[123] M.P.L. described V.L. as an incredibly smart and talented child. He wanted to take some credit for that. He stated that she is smart as a whip and she is good at everything she does.
[124] He described her as a good kid who had always been honest. However, he claimed to be “fucking flabbergasted” at the allegations.
[125] M.P.L. testified to all kinds of scenarios that others were responsible for the sexual abuse and not him.
V.L.’s Biological Father
[126] M.P.L. stated that V.L.’s biological father, E.L., sexually abused V.L. He stated that he was told that by his wife A.B. when they first got together. However, A.B. was not asked any questions about this during her cross-examination.
[127] V.L. talked about her “real dad” in her interview with Detective Gracey. She told him that her real dad is E.L. but she did know him as he lives on the base and works for the Military. V.L. stated that she only met on once.
[128] Defence counsel did ask V.L. if her biological father did anything inappropriate to her V.L. responded, “not that I’m aware of.”
[129] A.B.’s direct testimony was that E.L. was only involved with V.L. for approximately the first three years of her life when they lived out west. According to A.B., E.L. had nothing to do with V.L. for the past eight years and she did to know why.
The Maternal Grandmother’s Boyfriends
[130] M.P.L. also stated that the maternal grandmother had many male sexual partners and he claimed that she would go through them like candy. He did not give evidence as to what his source of that information was nor did his counsel ask C.B. about her partners during the relevant time period. Nevertheless, he asserted in his testimony that one of C.B.’s partners could have done what he is accused of doing. Like his allegations about E.L. there was simply no other evidence offered to support this allegation.
[131] M.P.L. also stated that A.B. hated him. He was confident that she would put these things in V.L.’s head to get back at him. There was no evidence to support this mere assertion on the part of M.P.L. Although A.B. stated that her relationship with M.P.L. was turbulent and consisted of episodes of emotional and physical abuse, A.B. stated that even after they separated, she contacted M.P.L. about having him stay on as a parent to V.L. for the school registry and in case of an emergency. That is not the conduct of someone who hates a person so much she would put all of these allegations in the child’s head.
The Pictures of a Scar
[132] In cross-examination, counsel for the defence asked V.L. if she saw anything unusual on M.P.L.’s lower part of his body near his private parts. She was specifically asked if she saw any scars. V.L. stated that she did not recall seeing any scars on M.P.L. In her re-examination V.L. testified that she did see M.P.L. from the waste down with his pants and underwear down. But she added, “I was too uncomfortable and was not paying attention to that area. I don’t recall seeing a scar.”
[133] In his testimony, M.P.L. filed two photographs that his mother took the day previous to his testimony. The photos were of his lower body in the vicinity of his pubic region. I find that the photos show a faint white line to the one side of and above his pubic hair line.
[134] I find that the scar that is depicted in the photos are not obvious and certainly would not be obvious to a child 7, 8 or 9 years of age.
[135] V.L. testified that she was not sure if there was anything unusual about his body. She was not sure if he had any scars. She also stated that she did not see his bottom half a lot. She stated that when some of the sexual incidents occurred, sometimes his pants were off and sometimes they were down around his ankles.
[136] V.L. also stated that he sometimes had his underwear on. When asked how he could expose his privates with his underwear on she stated that some underwear has holes. She was not sure if his underwear had holes.
[137] V.L. testified that M.P.L. would often get the “liquid on his clothes” and he would have to change his clothes all the time so that her mother would not find out.
[138] When one considers the nature of the sexual acts that V.L. testified M.P.L. made her do, most, if not all, would not allow for this young child to observe a faint white line near the pubic hair.
[139] The acts that would not give her any view of M.P.L.’s privates included:
a. Masturbating her with his finger;
b. Her masturbation him, often under a blanket;
c. V.L. having to move her “back bum” up and down on M.P.L.’s penis.
[140] The only sexual act that may have given V.L. an opportunity to see M.P.L.’s private area was when she had to put her mouth on his penis. Given V.L.’s description of how she did this, I do not find that a child of eight years old would be observing much of anything other than the erect penis in front of her mouth. I accept V.L.’s testimony that she was too uncomfortable and was not paying much attention to this area.
Showing her Oral Sex on his Phone
[141] M.P.L. testified that he could not have shown V.L. a video clip of how to perform oral sex on YouTube. He stated that YouTube was not a site that had such clips. He claimed that that site was family-friendly and other portions of the site that had more explicit material could only be accessed if he was signed in and he never signed in.
[142] V.L. stated that she was, “familiar with computers and cell phones.” She added that, “she is not a pro but is aware.” When testifying about learning how to perform oral sex, she stated:
I watched it in YouTube for sure.
I have access to YouTube, yes, but not the darker side of YouTube. The only time I saw it was when he pulled it up.
[143] In his interview with Detective Twinem on November 17, 2017, M.P.L was asked if there was anything on his cell phone that is going to cause a problem. He responded that he did not think so. He was asked a second time, “okay, so there’s no inappropriate videos on there of anything like that?” M.P.L. responded that there were none. He was further pressed by Detective Twinem, who asked if there was, “nothing of her, nothing that’s been shown to her or that she’s seen on there?” M.P.L. once again said no.
[144] Detective Twinem again asked, “so there will be no concerns?” M.P.L. responded, “I don’t think that there would be any concerns with anything that’s on my phone, however, you have to have a warrant as far as I’m concerned.”
[145] Detective Twinem stated that he just wanted to make sure they understood each other, that the investigation is not done. He made it clear, once again, that the investigation was not done and if there was something of concern maybe there is a reason for stuff that we find on it.
[146] M.P.L. once again said that he did not think so. He stated emphatically:
I, I know that there won’t be anything on my phone that would be considered questionable.
[147] M.P.L., once again, reminded Detective Twinem that he still needed to obtain a warrant to be able to search his personal property like that.
[148] Detective Twinem confirmed that the police needed a warrant and that that is something that they will seek. He then added that he wanted M.P.L. to be aware that he “gives everyone the opportunity cuz maybe they’ll say, well, this is on there, but it has nothing to do with the situation.”
[149] After Detective Twinem asked whether there might be something that might cause a problem at least four times and after M.P.L. was assured that the police were going to get a warrant, M.P.L. stated:
There’s regular pornography on my phone, there’s one video and one (1) regular picture.
[150] He insisted that there was nothing of V.L. at all and nothing of any child. M.P.L. explained to Detective Twinem that one picture came from “motherless.com” and “another one came from, I think it was a browser so it’s adult.”
[151] M.P.L. stated that the video was just a woman masturbating and the picture was an adult woman’s vagina. He admitted in cross-examination that he did see incest videos but they were all adults and none of children.
[152] A.B. testified that M.P.L. always had passwords on his phone. She also stated that he was always using his phone and always watching pornography on it. She went on to state that she would wake up in the night and many times see him masturbating while watching porno in his phone. M.P.L. only admitted to that happening on two occasions.
[153] V.L. testified that she would use M.P.L.’s phone by M.P.L. sending messages to her passing the phone to her for a response, she would respond and give the phone back to him.
[154] M.P.L. insisted, in his testimony, that he never had a password on his phone and V.L. did have access to it. He also stated that he never needed to put parental controls on his phone. If that testimony is to be believed, M.P.L. would be very well aware that the pornography he did have on the phone would be accessible to this 8 year old child. That is inconsistent with his testimony that he was the one who was protecting this child and that he did not need to put parental controls on his phone.
[155] I do not believe M.P.L. when he states that he did not show V.L. a video clip that acted as an instruction on how to perform oral sex on him.
M.P.L. not Telling his Girlfriend, C.P., where C.B. Lived
[156] M.P.L. moved in with C.P. shortly after he separated from A.B. C.P. testified that M.P.L. would often sit in her garage on a couch and smoke. She did not think anything of it until after M.P.L. was arrested on these charges on November 17, 2017.
[157] According to C.P., M.P.L. told her that he was kicked out by A.B. He also told her that A.B was crazy and tried to kill him on two occasions, once by throwing a lamp at him and another time by giving him arsenic. A.B. was not asked about this in cross-examination. C.P. stated that M.P.L.’s stories in this regard did not make sense. C.P. stated that she told M.P.L. to do something about this because she was now becoming concerned for her children if what he was telling her was true. M.P.L. did not do anything.
[158] C.P. stated that it was after this discussion that M.P.L. became more uncomfortable in their relationship.
[159] C.P. found out, through looking on Facebook, where A.B. lived. She reached out to her. It was only then that C.P. found out that V.L.’s grandmother, C.B., lived only two doors down from her on the other side of the street. C.B. stated that she was shocked that she had not been told this by M.P.L. She stated that she was stunned and scared.
[160] C.P.’s concerns increased when she saw that you could see right into V.L.’s grandmother’s living room from the couch in her garage. C.P. stated that M.P.L. never told her where the grandmother lived.
[161] If M.P.L. is to be believed, when he was living with C.P., he was only two doors away from a grandmother who hated him. He also knew that V.L. and A.B. frequently visited C.B. The same ex-wife, A.B., who he also professed was crazy and tried to kill him twice, was only two doors down and across the street from where he was living. Yet, under these circumstances he would not even tell the girlfriend where they were living.
[162] I do not believe M.P.L. I accept C.P.’s evidence that M.P.L. would spend a considerable amount of time alone on the couch in the garage where he could see into C.B.’s living room without being detected.
[163] I find that it is a reasonable inference for me to draw when considering this along with all of the other evidence that part of the reason he did this was to be able to see the child, V.L. He gave no explanation for why he did not tell his girlfriend about where Colleen lived.
The Port Dover Trip and the Messy Car
[164] M.P.L. has a car that has jet black tinted windows to the point that no one could see into the car but you could see out. He states that car was always messy. A.B. agreed that it was always messy. However, A.B. stated that you could sit in the back seat as long as your legs were elevated.
[165] M.P.L. heard the testimony of V.L. and it was not until after her testimony and for the very first time that he testified that he had two spare tires with rims in the back seat of his Impala. That left only enough room for V.L. to get in the back to change.
[166] His account of the Port Dover sexual allegations during his police interview contained very scant details. However, in his testimony he gave an incredibly detailed account of that whole day of the Port Dover trip with V.L.
[167] Almost two years after the Port Dover trip and his statement to police in November of 2017, he stated that he and V.L. left to go to Port Dover at 11:52 a.m.
[168] He stated that he took the scenic route to get to Port Dover and he described the route he took on a street by street and road by road basis. He described some of the residences and other homes they drove by before arriving at the beach.
[169] V.L. testified that she and M.P.L. were in the back seat in the parking lot at the hiking trail and that M.P.L. was laying down on the seat with his bathing suit off. She also stated that she had her bathing suit bottom off and he had her move her bum cheeks and her bum crack up and down on his penis. She said that when she went up and down on his penis with her bum crack it burned.
[170] It is significant to note that she described two positions relative to her back bum on this occasion. One was between her cheeks and the other was between her bum crack and that part burned when she did that.
[171] M.P.L.’s statement that he had tires in the back seat does not make sense. He stated he put them there as he had slow leaks in his other tires. He also stated that when he went to Port Dover that with V.L. he put floaties and other toys in the trunk of his car where tires could be expected to be. I do not believe M.P.L. about the position of the tires.
[172] He also stated that he wanted to go home for dinner after a long day at the beach. He insisted that he and V.L. were going home for dinner. He told this to V.L. and also told her that she knew that if they did not make it home for dinner in time that her mother would be mad. He stated that they drove by a park and when V.L. said, let’s stop for a while so she could play in the park, he told her no and that they had to get home for diner.
[173] M.P.L. then claimed that when they drove by a trail that you could hike on, V.L. asked him if they could go hiking. All of a sudden, the urgency to get home to dinner after a long day at the beach gave way to his agreeing to go on a hike. This explanation is not credible.
[174] He then stated that when they parked at the hiking trail, V.L. was picking sand out of her vagina. V.L. said she never did that she would always wait to go home and shower.
[175] According to M.P.L., he did not want to see V.L. doing this so he told her to go in the back seat so no one could see her and take a towel and wipe the sand out. He then stated that a man, who he could give a detailed description of, after two years had passed, was near the car and he as afraid that man would see V.L. However, the man left. Given his admission that his car had very a very dark tint to the windows so no one could see in, this seems like a mere diversion by M.P.L. that really did not fit into the evidence he was giving about this incident.
[176] M.P.L. went on to state that V.L. told him that she had “pee” so he took her into the hiking trail and showed her how to “farmer pee.” He claimed that as a result of going into the trail in order to have V.L. pee, they both got tics on them. He claimed that he was swarmed with the tics and it took a while to get them all of him. He claimed that V.L. only had a couple of tics near her hairline and that he took them off of her.
[177] V.L. was asked about whether there were any tics that day and she said no one had any tics. In my view, a child who was 9 years old at that time, would most certainly remember an incident with tics that had to be removed from her and M.P.L.
[178] One of the most telling pieces of evidence that the Crown brought up in his submissions was a statement that M.P.L. made when he was cross-examining him. Mr. Brock stated that he did not pick up on M.P.L.’s answer at the time it was given. However, the Crown urged me to review the audio of the testimony before I came to a decision. I did listen to the audio and I did review my notes of the testimony. My notes accurately reflected M.P.L.’s answer clearly given in the audio of his testimony.
[179] Mr. Brock suggested to M.P.L that after he saw V.L. masturbating, he got sexually aroused. M.P.L. vehemently denied this suggestion, but he went on to state:
I was not sexually interested in her, at that time.
The Evidence as a Whole
[180] A the review of the entire evidence, with particular emphasis on the interview of V.L. with Detective Gracey, and hearing this child V.L. giving such a detailed account of the sexual incidents that M.P.L. involved her in, I find that it is incomprehensible that anyone could put these detailed stories in the mind of any child of that age regardless of how smart that child is.
[181] V.L.’s account of the sexual incidents were not only articulated by her with incredible detail as it relates to the core of each incident, she also demonstrated much of what she articulated. She demonstrated what M.P.L. did to her when she described:
a. Her having to masturbate him;
b. Her having to ride him up and down with her bare bum on his penis;
c. Her describing what his “liquid” looked like;
d. Her describing what his liquid tasted like.
[182] The details of how he put his finger on her “nerve” (clitoris) and wiggled it around to the point of her describing how her muscles would tense and then release, this could not have been learned. It could only have been experienced by this young child.
[183] The details of her describing and showing how she rubbed M.P.L’s penis up and down until he released by spouting a liquid from the top of his penis could only have been experienced by this child. Especially when taken together with her description of how the “liquid” tasted when she had to go up and down on his penis with her mouth. She stated that it was “gross” and that the “liquid tasted salty” and “like expired butter”.
[184] I find that these detailed accounts were given by a child who is of an age when no child of her age should be able to describe and demonstrate such acts in the manner that she did, deplorable acts that occurred over such a prolonged period of time.
[185] I find that V.L.’s evidence was not limited by a lengthy cross-examination of this young girl with respect to any of the core allegations.
[186] According to V.L., many of the alleged incidents took place in her home in different rooms and when the mother was either not home or in a different room. V.L. described that they would be often be under a blanket in order not to be detected. She stated that it happened in her bedroom, her mother’s bedroom downstairs and upstairs while watching movies. She initially said it also happened in her toy room and then she corrected herself and said, no, that it did not happen in her play room.
[187] The incident in Port Dover as described by M.P.L. had many parts to it that simply do not make any common sense. It is replete with a fanciful tale that does not withstand scrutiny.
[188] Although he testified that, “V.L. was never a target for me,” after considering all of the evidence, I find that V.L. was most certainly a target for him.
[189] V.L. told Detective Gracey in her interview in 2017 that she was an only child. She stated:
I’m an only child, I have no cousins, I’m an only child literally…and trust me, being the only child in my family is boring. There’s no one to talk to other than adults.
[190] I find that M.P.L. groomed V.L. He would promise her bike rides, trips to the water park, trips to the beach and to parks. But in V.L’s words he did not always live up to his promises. His first promise that he did live up to was to take her to the Waterpark in Tillsonburg. However, this was not before he taught her about masturbation. He started out with acts of masturbation of her and of him and progressed through performing oral sex on her, having her perform oral sex on him and attempting to have anal sex with her.
[191] Upon a review of all of the evidence that I have detailed above, I find that the Crown has proven beyond a reasonable doubt that M.P.L is guilty of all of the counts set out in the indictment.
R. J. Harper
Released: October 2, 2019
R. v. M.P.L, 2019 ONSC 5450
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
M. P. L.
REASONS FOR JUDGMENT
The Honourable Mr. Justice R. J. Harper
Released: October 2, 2019