ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-0053-000

DATE: 2019-11-04

B E T W E E N:

Her Majesty The Queen

G. Fillmore, for the Crown

• and -

Lo. E.

O. Goddard and J. Shanmuganathan, for the Accused

Accused

HEARD: August 19, 20, 21, 22, 23, September 9, 2019 at Thunder Bay, Ontario

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Mr. Justice W. D. Newton

Reasons For Judgment

Overview

[1] Lo.E. began a relationship with M.S in early 1981. M.S. had two children, a daughter, L.S., aged 9, and a son, B.S., aged 5. Mr. Lo.E. had a son, Le.E., aged 11. Mr. Lo.E. and M.S. married in May, 1981 and separated in March, 1982.

[2] In 2017, 36 years later, M.S. accused Mr. Lo.E. of raping her before marriage and buggery during their marriage. Both of M.S.’s children accused Mr. Lo.E. of touching their genitals inappropriately in the guise of applying medicated cream.

[3] Consequently, Lo.E. was charged with:

a) committing an indecent assault (section 149
Criminal Code, 1982), rape (section 143 of the Criminal Code, 1982) and buggery (section 155 of the Criminal Code, 1982) on M.S.;

b) committing an indecent assault on a male (section 156 of the Criminal Code, 1982) on B.S.; and,

c) committing an indecent assault on a female (section 149 of the Criminal Code, 1982) on L.S.

[4] Because these alleged events took place many years ago and because the children were young, the Defence raises concerns with the reliability of the complainants’ memories. Mr. Lo.E. testified and denied all accusations of sexual impropriety. Mr. Lo.E. and his son also gave accounts of other collateral events different from the accounts of some of the complainants. The Defence, therefore, raises concerns with the credibility of the complainants’ testimony about the alleged sexual assaults.

M.S.

The Allegations

[5] M.S. did not make any allegations of sexual impropriety against Mr. Lo.E. until 2017 after her daughter reported to the police that Mr. Lo.E. had touched her inappropriately when she was a child.

A. Rape

[6] M.S. testified that the first time that she and Mr. Lo.E. had intercourse, she did not consent.

[7] She testified that this was in February or March, 1981. She said that she and Mr. Lo.E. returned to the resort where she resided after having been out for the evening. She did not remember the children being present. She described how she and Mr. Lo.E. were on the couch in the living room and began “necking and groping”. She said that clothing was removed but she was not sure how – “it may be mutual”. She said that she “did not want to go through with it. I was not ready. And I told him no”. She said that Mr. Lo.E. said, “it is too late”. She testified that she did not report this incident to anyone because she felt that it was her fault.

[8] M.S. was cross-examined on her diary entries. On February 19, 1981 she wrote that Mr. Ender’s former girlfriend called and set up a date for her and Mr. Lo.E.. She wrote that they spent their time making love. M.S. did not think that this entry referred to the first time that she was intimate with Mr. Lo.E.. She could not, however, explain the diary entry saying: “there’s something wrong with it that I can’t figure out.”

B. Buggery/Anal Intercourse

[9] M.S. testified that Mr. Lo.E. had anal intercourse with her about a dozen times during their marriage. She said that “I made it known that I didn’t like it and he said, “oh don’t be a baby”. She said that every time he had anal intercourse with her she pulled away. She never consented.

[10] In cross-examination, she acknowledged that she did not make any mention of anal intercourse in the chronology that she prepared for the police. She acknowledged that she did not, in any of her police statements, specifically say that she pulled away or resisted during anal intercourse. She acknowledged that, when she gave her statement to the police on June 16, 2017, she responded to the question of whether she was ever sexually assaulted by Mr. Lo.E. by saying: “He would talk me into stuff, like sodomizing, that kind of thing. I didn’t like it.”

[11] She discusses sex with Mr. Lo.E. in her diary. She does not mention anal sex. In fact, on July 4, 1991, she wrote:

He doesn’t even like sex! It is funny because I’ve finally found a partner who I really enjoy sex with but, but the enjoyment is not returned. I guess I’ll just stop trying.

C. Mr. Lo.E. and the children

[12] M.S. testified that her daughter, L.S., needed skin cream for a rash on her upper inner thighs. She testified that her daughter applied this cream herself since she was about five years old.

[13] She testified that she was not aware of anything “inappropriate” occurring between Mr. Lo.E. and her children while they were together.

[14] In 1998, L.S. attempted suicide. M.S. testified that, after the attempt, L.S. told her that Mr. Lo.E. had put cream “on her private parts”. Her daughter also told her that Mr. Ender’s son, Le.E., would watch while Mr. Lo.E. applied cream to L.S.’s genitals.

[15] In 2017, after L.S. saw Mr. Lo.E., M.S. told her son, B.S., what happened to her daughter and B.S. told her that he, similarly, also had been abused.

Collateral Matters

A. Mr. Lo.E. and the photograph of the young girl

[16] M.S. testified that, just before separation, she found a Polaroid picture “of a young girl in a seductive pose on a bed”. She identified the bed as at Mr. Lo.E.’s rental property. She described the girl as about 11 years old. She testified that she confronted Mr. Lo.E. about this photograph and that he replied, “if she wants to give it, I’m ready to take it, no matter how old.” She said that Mr. Lo.E. took the photograph and that she never reported this to the police.

[17] When cross-examined about why she did not report this to the police she responded: “What would the police do?” Mr. Lo.E. was a teacher working with similar aged girls. She also said that she never asked her daughter if anything happened to her while at Mr. Lo.E.’s rental property although she knew that her daughter had been there on several occasions.

[18] She did admit that both of her children could have been around while she had been talking about this photograph since then.

[19] L.S., testified that M.S. told her about the photograph but did not remember when the conversation occurred.

B. Mr. Lo.E. investigated for sexual misconduct with children

[20] L.S. testified that M.S. told her that Mr. Lo.E. had been investigated for sexual abuse before they were married. L.S. also told this to the police in her first statement on June 15, 2017.

C. Mr. Lo.E. assaults M.S. while she is pregnant

[21] M.S. testified that she became pregnant in October, 1981 and that Mr. Lo.E. punched her in the stomach. In cross-examination she said that she was punched repeatedly in the stomach, “many times” but that she never reported this to the police or sought medical attention. She confirmed that her child was born healthy.

[22] Upon separation, M.S. brought a motion for orders for support and ownership of property. She also sought an order restraining Mr. Lo.E. from molesting or harassing her. In her affidavit filed in support of that motion, M.S. deposed that when she discussed the fact that she was pregnant with Mr. Lo.E. he told her that that he wanted her to “terminate this pregnancy failing which he would consider separation.” M.S.’s affidavit does not make any reference to assaults or threats by Mr. Lo.E..

[23] The petition for divorce filed in 1985 sought divorce on the grounds of physical and mental cruelty. Particulars are given including verbal abuse and “calling me names in front of the children”. In her petition, M.S. states: “I finally left because I could not stand his treatment of me nor his rejection of me and the baby in my womb.” No particulars of physical abuse are given.

D. Mr. Lo.E. chases M.S. with the backhoe

[24] M.S. also testified that, around the time of their separation, Mr. Lo.E. chased her and her son, B.S., around the parking lot - that “he followed us”. She said that she would have been about six months pregnant. She agreed that Mr. Lo.E. was trying to run her down with the backhoe. After this incident, she called her lawyer, but not the police.

[25] In the motion material delivered after separation, claims are made for possession of the backhoe. M.S. deposed that she had discovered that Mr. Lo.E. packed most of his possessions and had taken with him possessions that belonged to her and the resort. She stated that she was “afraid that he will try to dispose of the backhoe” and so she sought an order restraining him from dealing with certain items, including the backhoe. M.S. does not depose that Mr. Lo.E. chased her or threatened her with the backhoe. It is unclear whether the backhoe was taken before or after the affidavit was composed.

B.S.

The Allegations

[26] B.S., like his mother, did not make any allegations of sexual impropriety against Mr. Lo.E. until 2017. His allegations surfaced when his sister reported to the police that Mr. Lo.E. had touched her inappropriately when she was a child.

A. Mr. Lo.E. applies cream to B.S. and L.S.

[27] B.S. testified that Mr. Lo.E. applied cream to his penis telling him that it was “to prevent infection”. He said that his sister was also present and that Mr. Lo.E. then did the same thing to her. B.S. testified that Mr. Lo.E.’s son, Le.E., might have been there. B.S. testified that this happened at Mr. Lo.E.’s rental property. He testified that this only happened on one occasion and he did not witness Mr. Lo.E. interacting with his sister improperly at any other time.

[28] In cross-examination, B.S. testified that he was aware that his sister had been sexually abused when she was younger, but he did not know the details. He also admitted that when he spoke to the police in 2017 about this incident, he told the police that the cream was applied first to his sister and then to him.

[29] B.S. also testified that he told his mother that Mr. Lo.E. had put cream on his genitals and that she responded that the same thing had happened to L.S. He said that he did not discuss the cream incident with his sister.

Collateral Matters

A. Mr. Lo.E. chases M.S. with the backhoe

[30] B.S. also testified about an incident with the backhoe. He said:

I remember standing outside in the dirt with my mother. It seemed like kind of like almost chaos, like I think they were like yelling at each other. And he, he was in the tractor. It seemed like he was chasing after us with it. We ran inside the house.

[31] He candidly admitted that his mother had discussed this incident in his presence many times but he “feel(s) like I remember it. But to be fair, it could be because my mom told me about it.” In cross-examination, he admitted that he was unsure whether the backhoe event occurred or not.

L.S.

The Allegations

[32] In 2017, L.S. was working at a school where, for a brief time, Mr. Lo.E. was the acting principal. She did not know that he was present. He walked into a room where she was and she was not comfortable, she “just didn’t feel right”. She did not recognize Mr. Lo.E. but described that “something in my body did”. She described it like seeing “a monster from the past”. She ascertained from a co-worker that the person whom she saw was Mr. Lo.E..

[33] She then spoke to her mother and her brother and then to the police. L.S. was interviewed by the police twice and testified at the preliminary inquiry. Before speaking to the police, she texted her brother and said “I had this really bad reaction when I saw Lo.E.. I don’t remember a lot. What did he do to us? Do you remember anything?” She said that her brother replied, “bits and pieces”. She testified that she did not discuss the “bits and pieces” with her brother.

[34] She described her memory process as the memories going away “until something triggers them.” She described her memories as “flashes” and said that she was getting “more flashes after” she saw Mr. Lo.E. at school. She said that her “memory started to come back, bits and pieces but not a lot.”

[35] After she saw Mr. Lo.E. at the school, she had nightmares. She said that she would wake up and remember a “new detail” that had been missing before. She agreed that, sometimes, she was unsure if the memories were real or not. She attempted to explain this response at the preliminary inquiry by saying that she was “shutting down” and “saying yes to whatever” question counsel posed.

[36] L.S. was Mr. Lo.E.’s student before and during his relationship with her mother. In describing her relationship with Mr. Lo.E. at school, L.S. described Mr. Lo.E. as “mean”, “condescending”, “inappropriate” and “creepy”.

[37] L.S. testified for about a day and one half, most of which was cross-examination. At times she was frustrated, argumentative, and evasive. For example, she attempted to avoid answering any questions about the photograph of the girl on Mr. Lo.E.’s bed because she thought that it was irrelevant. Similarly, when asked about whether she saw Mr. Lo.E. applying cream to her brother she was evasive and needed to be prompted to answer the question.

A. Mr. Lo.E. applies cream to L.S.

[38] L.S. testified that she had eczema on her inner thighs and had an ointment that was kept on her bedside table that she would apply herself at nighttime. She does not have any memory of her mother ever applying the cream, but said that Mr. Lo.E. applied it to her more than five, but less than 10, times. She described the time “that is most clear” to her as Mr. Lo.E. coming into her bedroom and telling her that her mother had told him to come in and apply the cream. She said that Mr. Lo.E. applied the cream “in and around” her vagina. She thought that Mr. Lo.E. left after applying the cream. She said that this happened at the resort where they resided and at Mr. Lo.E.’s rental property.

[39] L.S. had no memory of Mr. Lo.E. applying cream to her brother’s genitals. She did recall, however, when Mr. Lo.E. applied the cream to her genitals at his rental property that his son, Le.E., was also present.

[40] She testified that when she was in high school, she told her mother about Mr. Lo.E. touching her. She did not remember mentioning cream and thought that the first time that cream was discussed with her mother was in 2017.

[41] It was not clear from her evidence whether she discussed Mr. Lo.E. applying cream with her brother. On some occasions, L.S. said that she told her brother and on others she said that she was unsure whether she told her brother.

B. Mr. Lo.E. does other things of a sexual nature

[42] L.S. also testified that she had other memories of being abused. She wrote a letter for the police in which she talked about Mr. Lo.E. rubbing his penis up and down on her vagina. She said that she could not see his face but knew in her “soul” that it was Mr. Lo.E.. She described this as “playing house” and that this was what “moms and dads do”. She said that it was Mr. Lo.E. who taught her to play this game, and that, although she could not see his face or remember his words in her memory, she knew, “deep within her”, that it was Mr. Lo.E. who did this.

[43] She also has a memory of being read a sexual part of a novel. Initially, she thought that it was Mr. Lo.E.’s son who did this but then, later, thought it was Mr. Lo.E..

Lo.E.

[44] Mr. Lo.E. is 70 years old. He denies raping M.S., denies anal intercourse with M.S., and denies applying cream to the genitals of L.S. and B.S. He denies striking M.S., chasing her with the backhoe, or ever being investigated for sexual offences. He has never been arrested and has never been investigated for anything in his 40-year teaching career. With respect to M.S.’s evidence that she found a picture of a young girl taken on his bed and the conversation, “if she is willing to give, I am willing to take”, Mr. Lo.E. said that “nothing like that ever occurred.”

A. Rape

[45] Mr. Lo.E. testified that his relationship with M.S. began when she invited him and his son to the resort for dinner. At that time, he was the sole teacher at the rural school L.S. attended. M.S. had been widowed for about five months. After a few dinners, Mr. Lo.E. and M.S. went on a date. He testified their first date was to a movie which coincided with a teachers’ conference in early February 1981. The following week, M.S. invited Mr. Lo.E. and his son to dinner again. He said that this was when he and M.S. had intercourse. According to Mr. Lo.E., M.S. asked if he would like to have sex with her. He said he was “a bit concerned and ambivalent”, given that L.S. was one of his students. He described that they had consensual vaginal intercourse. He testified that they had sex a number of times that evening and that he and his son stayed the night.

[46] The relationship continued and they married in May, 1981. He testified that they married because M.S.’s parents would not allow her to be in a relationship with a man without being married.

B. Buggery/Anal Intercourse

[47] Mr. Lo.E. denied that he and M.S. ever had anal sex. He said that they mostly had the same type of intercourse, missionary position, and that they had an active sex life which he described as “good”.

C. Mr. Lo.E. and the Children

[48] Mr. Lo.E. was aware that L.S. had a rash that was treated with cream. He testified that he never applied cream to L.S. and that he never saw the cream being applied by anyone. He also testified that he never applied any cream to B.S.

[49] He said that he was not involved in the children’s nighttime routine and would not read to the children. He denied that he was ever alone with L.S. and B.S. at his rental property and described the rental properly differently than as described by M.S. and her children.

Collateral Matters

A. Mr. Lo.E. never assaulted M.S.

[50] Mr. Lo.E. denied punching M.S. at any time. He testified that he had extensive martial arts training and that he was a martial arts instructor. He said that M.S. was violent with him and that she would hit him and throw things at him occasionally. He said that, twice, she drew blood.

[51] He denied suggesting that M.S. should have an abortion.

B. Mr. Lo.E. did not chase M.S. with the backhoe

[52] Mr. Lo.E. testified that he and his son returned to the resort to pick up some personal items including the backhoe. He said that when his son tried to leave with the backhoe M.S. tried to stop the backhoe from moving. Mr. Lo.E. had to restrain M.S. while his son drove the backhoe off the property.

[53] In cross-examination, he testified that B.S. was not present when he and his son went to get the backhoe. He acknowledged that the backhoe was ultimately returned to M.S. as part of the separation agreement.

Le.E.

[54] Le.E. is Lo.E.’s son. He is 49 years old. He would have just turned 11 when his father began his relationship with M.S.

[55] He testified that he remembered having dinner at the resort before his father married M.S.

[56] He testified that he did not see his father applying any cream to the genital area of either L.S. or B.S. He testified that he never saw his father touch L.S. in any sexual way.

[57] With respect to the backhoe, he testified that he was asked by his father to drive the backhoe from the resort. He said that, as he was driving the backhoe, which he had often driven before, M.S. came from the house and tried to run in front of him. He testified that his father stopped her and that she attacked him.

[58] He testified that he and his father would never travel to the rental property with L.S. and B.S. without M.S. being present.

[59] Like his father, he described the rental property quite differently from the description that M.S. and her children gave.

Positions of the Parties

The Defence

[60] The Defence submits that the court should have significant concerns with M.S.’s credibility. With respect to the allegations of indecent assault, rape, and buggery, the Defence points to the discrepancies in her description of the sexual activity at trial and what is recorded in her diary entries made 38 years ago. With respect to the collateral matters – the assault during pregnancy, the assault with the backhoe, the photograph of the young girl, and the allegations of prior investigation for sexual assault – the Defence submits that these are attempts by M.S. to portray Mr. Lo.E. as a violent pervert and, that if examined carefully, these allegations are not credible. The Defence points to the court documents filed at the time of separation and the testimony of Mr. Lo.E. and his son Le.E.. The Defence submits that M.S.’s responses as to why she did not report the photograph of the young girl to the police are not believable.

[61] The Defence submits that the evidence of the children has been so tainted by M.S.’s tales of Mr. Lo.E. that their recollections are not reliable.

[62] With respect to the testimony of B.S., the Defence submits that the court should have significant concerns with the reliability of his testimony. The Defence points to his young age at the time of the alleged events, the conflict between his testimony and the testimony of his sister, Mr. Lo.E., and Le.E. and the possibility that his recollections have been tainted by discussions with his sister.

[63] With respect to the testimony of L.S., the Defence submits that the court should have significant concerns about the reliability and credibility of her testimony. The Defence points to her evolving memories, the lack of detail, the conflict with her testimony and her prior statements, the testimony of her brother, Mr. Lo.E., and Le.E. and the possibility that her recollections have been tainted by discussions with her brother. The Defence also submit that her demeanour raises concerns with credibility.

The Crown

[64] The Crown cautions against stereotypical reasoning when assessing the evidence and conduct of the complainants. The Crown reminds me that there are no set ways for victims of sexual assaults to act during and after the assaults and that, in context, the evidence of all three complaints is credible and reliable.

[65] The Crown submits that the testimony of the complainants of events that occurred many years ago are reliable and that any frailties in their recollections are attributable, with respect to young children, to their ages at the time, and, with respect to all witnesses, the passage of time. Any discrepancies, the Crown submits, are understandable and, in any event, peripheral to the main allegations.

[66] With respect to the demeanor of L.S., the Crown submits that her evident frustration was understandable, especially so given the nature of the evidence and the lengthy and repetitive cross-examination.

[67] The Crown submits that Mr. Lo.E. was argumentative and that his evidence was deliberately embellished to preclude the possibility that these assaults ever could have occurred.

The Applicable Law & Legal Principles

A. Presumption of Innocence and Proof Beyond a Reasonable Doubt

[68] Every person charged with an offence is presumed to be innocent unless and until the Crown proves guilt beyond a reasonable doubt.

[69] The burden on the Crown to prove guilt "beyond a reasonable doubt" is the cornerstone of our criminal justice system. It is not enough for the trier of fact to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Honourable Mr. Justice David Watt describes the proper reasoning process as follows:

If, at the end of the case, after considering all the evidence, you are sure that [the accused] committed the offence, you should find [the accused] guilty of it, since you would have been satisfied of [the accused's] guilt of that offence beyond a reasonable doubt.

If, at the end of the case, based on all the evidence or the lack of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, you are not sure that [the accused] committed the offence, you should find the accused not guilty of it (Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 262).

B. The R. v. W.(D.) Analysis

[70] In assessing the evidence, I must follow the instructions of the Supreme Court of Canada set down in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe the accused, I must acquit. If I do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering his evidence in the context of all the evidence, I must acquit. Finally, even if I am not left in doubt by the evidence of the accused, I still must consider whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

C. Credibility and Reliability

[71] In assessing the evidence, I must weigh the credibility and reliability of the witnesses’ testimonies. In R. v. M. (A.), 2014 ONCA 769, at paras. 9-13, the Court of Appeal for Ontario succinctly set out the following principles which are particularly relevant to this case:

[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.

[10] Second, no inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to “adult” or “child”, preferring the terms “14 years or older” and “under 14 years of age”. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence: W. (R.), at p. 134 S.C.R.

[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469, [1962] S.C.J. No. 27.

[12] [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[72] The Court of Appeal for Ontario further noted in R. v. L.O., 2015 ONCA 394, at para. 35, that "an isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on ... credibility and reliability [of the complainant’s evidence] than would several material inconsistencies going to the heart of her allegations."

1. Sexual Assault Myths

[73] In deciding sexual assault cases, the trier of fact must be vigilant that myths and stereotypes that are attached to sexual assaults do not influence the decision. As the former Chief Justice of Canada, Beverley McLachlin, stated in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 101:

Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases - the belief that women of “unchaste” character are more likely to have consented or are less worthy of belief; that passivity or even resistance may in fact constitute consent; and that some women invite sexual assault by reason of their dress or behaviour, to name only a few. Based on overwhelming evidence from relevant social science literature, this Court has been willing to accept the prevailing existence of such myths and stereotypes: see, for example, Seaboyer, supra; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 669-71; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 94-97.

[74] The Supreme Court of Canada reiterated this warning in two of its judgements this year: R. v. Barton, 2019 SCC 33 and R. v. Goldfinch, 2019 SCC 38. Both cases involved alleged sexual assaults, and, in both, the Court reiterated that reasoning based on myths and stereotypes, because these latter distort truth-seeking, has no place in our justice system.

E. Demeanour

[75] Demeanour can assist in evaluating credibility. However, caution is required. As Paciocco J.A. stated[^1]:

Before relying on demeanour, trial fact-finders should think critically about how and why they are struck by the performance of the witness, and they should be humble in their ability to draw appropriate significance from how testimony is presented.

Analysis and Disposition

[76] As the Crown cautions, stereotypical reasoning arising from delayed reporting or other conduct by the complainants distorts truth-seeking. There are legitimate and understandable reasons for not reporting abuse, even 36 years after the abuse occurred.

[77] This case, like almost all sexual assault trials, requires me to critically examine the evidence of all witnesses and assess the reliability and credibility of the testimony. The task, as always, is to determine whether I am satisfied that the Crown has proved Mr. Lo.E.’s guilt beyond a reasonable doubt. Mr. Lo.E. testified and denied all of the complainants’ allegations.

M.S.

[78] M.S.’s testimony about the sexual assaults is directly contradicted by Mr. Lo.E.. Her testimony of the collateral incidents is directly contradicted by Mr. Lo.E. and, with respect to the backhoe incident, by Mr. Lo.E.’s son, Le.E..

[79] Her diary, written contemporaneously with the alleged assaults, contain entries that seem inconsistent and contradictory to her testimony. Although there are often legitimate reasons for not including all details of conflict in family law proceedings, the absence of any mention of assault in M.S.’s affidavit filed after separation or in the Petition for Divorce, while other particulars are given, raises some concerns with her credibility.

[80] As the Defence asserts, M.S.’s explanation for not reporting the photograph and Mr. Lo.E.’s comments about sex with a young girl also raise concerns with her credibility given that Mr. Lo.E. was a teacher at the time and given that she told her daughter that he was investigated for sexual abuse before their marriage. M.S. testified that she discovered the photograph shortly before separation.

[81] Despite the Crown’s assertion that Mr. Lo.E. was not a credible witness, I did not find his testimony to be embellished nor did the evidence raise any significant concerns with respect to the reliability or credibility of his testimony. I accept the evidence of Mr. Lo.E. when in conflict with the evidence of M.S. I also accept the evidence of Le.E. when in conflict with the evidence of M.S. about the backhoe incident. Even if I did not believe Mr. Lo.E., I would have a reasonable doubt as to his guilt after considering all of the evidence given my concerns with M.S.’s credibility.

[82] Therefore, I find Mr. Lo.E. not guilty of counts 1, 2, and 3 on the indictment.

B.S.

[83] B.S. was five years old in 1981. He candidly admitted that his memory of the backhoe incident may arise from discussions with his mother. I have concerns about what was discussed between B.S. and his sister. Their assertions that nothing was discussed raised credibility concerns.

[84] He recalled that his sister, and perhaps Le.E., were present at the time of the alleged assault at the rental property. His sister has no memory of Mr. Lo.E. applying cream to her brother. Mr. Lo.E. denied that he ever applied cream to B.S. Both Mr. Lo.E. and Le.E. testified that B.S. and L.S. were never present at the rental property without their mother. B.S.’s description of the rental property varied from that of the E.’s.

[85] Because of these concerns with the reliability of this complainant’ s memory, I have a reasonable doubt as to Mr. Ender’s guilt.

[86] Therefore, I find Mr. Lo.E. not guilty of count 4 on the indictment.

L.S.

[87] L.S. was nine at the time of the alleged assaults.

[88] When she saw Mr. Lo.E. in 2017, she “just didn’t feel right”. She told her brother that she did not remember “a lot” and asked him: “What did he do to us?” She described her memories as “flashes” and that, after nightmares, she would remember a “new detail”. Sometimes, she was not sure if the memories were real or not.

[89] Her recollections of other alleged abuse by Mr. Lo.E. are vague. She testified that she did not see Mr. Lo.E.’s face on these other occasions but knew that it was Mr. Lo.E.. On one occasion, she thought that Le.E. did something but, later, thought that it was Mr. Lo.E..

[90] Accordingly, even approaching her evidence in the context of her age at the time, issues are raised with the reliability of her memories. These memories arise in the context of being told by her mother that Mr. Lo.E. was investigated for sexual abuse in the past and possibly hearing her mother speak of Mr. Lo.E. and the photograph of the young girl.

[91] Mr. Lo.E. denies ever applying cream to L.S.

[92] L.S. recalled Mr. Lo.E. applying cream to her genitals when Le.E. was present. Le.E. was 11. Le.E. denies that this occurred.

[93] I am mindful of the caution required in evaluating credibility based on demeanor. However, during cross-examination, L.S. was evasive and attempted to avoid answering questions that should have been answered directly. I make this observation appreciating that cross-examination, particularly for complainants in sexual assault cases, can be an emotional, challenging, and frustrating experience. This evasiveness raises some concerns with L.S. credibility.

[94] As noted, I find no significant issues with the reliability and credibility of the testimony of Mr. Lo.E. and Le.E..

[95] I acknowledge that L.S. believes that she was abused when she was young. I must be convinced beyond a reasonable doubt that it was Mr. Lo.E. who abused her. For the foregoing reasons, I am not convinced beyond a reasonable doubt of Mr. Lo.E.’s guilt.

[96] Therefore, I find Mr. Lo.E. not guilty of count 5 on the indictment.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: November 4, 2019

COURT FILE NO.: CR-18-0053-000

DATE: 2019-11-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

• and -

Lo. E.

Accused

REASONS FOR JUDGMENT

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Newton J.

Released: November 4, 2019

/lvp

[^1]: D. M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Ca. Crim. L. Rev. 31 p. 1. at p. 27.