COURT FILE NO.: CR-76/20 DATE: 2022/11/07

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

Plaintiff

– and –

J. W.

Accused

Jeff Mazin, for the Crown

David Oake, for the Accused

HEARD: September 12-13, 2022

reasons for JUDGEMENT

The Honourable Justice R. J. Harper

The Offence

[1] J.W. is charged with seven counts as follows:

i. J.W. stands charged that, on or about August 15, 2019, at the City of Brantford in the said region, he did commit a sexual assault on M.L. contrary to Section 271 of the Criminal Code of Canada.

ii. AND FURTHER THAT J.W. on or about August 15, 2019, at the City of Brantford in the said region, did for a sexual purpose invite M.L., a person under the age of sixteen years to allow him to touch directly the body of M.L. contrary to Section 152 of the Criminal Code of Canada.

iii. AND FURTHER THAT J.W. on or about August 15, 2019, at the City of Brantford in the said region, did for a sexual purpose touch M.L., a person under the age of sixteen years directly with a part of his body, namely his mouth and penis contrary to Section 151 of the Criminal Code of Canada.

iv. AND FURTHER THAT J.W. between November 1, 2017, and August 15, 2019, at the City of Brantford in the said region, did for a sexual purpose invite M.D., a person under the age of sixteen years, to allow him to touch directly the body of M.D. contrary to Section 152 of the Criminal Code of Canada.

v. AND FURTHER THAT J.W. between November 1, 2017, and August 15, 2019, at the City of Brantford in the said region, being in a position of trust or authority towards M.D., a young person, did for a sexual purpose touch directly the body of M.D. with a part of his body, namely his penis, contrary to Section 153(a) of the Criminal Code of Canada.

vi. AND FURTHER THAT J.W. between November 1, 2017, and August 15, 2019, at the City of Brantford in the said region, did for a sexual purpose touch M.D., a person under the age of sixteen years directly with a part of his body to wit: his penis contrary to Section 151 of the Criminal Code of Canada.

vii. AND FURTHER THAT J.W. between November 1, 2017, and August 15, 2019, at the City of Brantford in the said region, did commit a sexual assault on M.D. contrary to Section 271 of the Criminal Code of Canada.

[2] At the outset of the trial the Crown and the Defence agreed to the following admissions:

i. Jurisdiction

ii. Identity

iii. Continuity of a number of items

iv. Photos and audios admitted as authentic

v. Audio recording extracted from A.D.’s cell phone is admitted as authentic

vi. It was admitted that both complainants were under the age of 16 at the time of the alleged complaints.

[3] The video recorded statement that was made to police on August 15, 2019, by M.D. was played and M.D. confirmed that the statements that she made were truthful.

[4] The video recorded statement of M.L. that was made to the police on August 15, 2019, was played and M.L. confirmed the statements to be true and accurate.

Background and relevant relationships

[5] M.D. (M.D.). is the daughter of A.D. (A.D.).

[6] J.W. is M.D.’s stepfather. He is the common law spouse of A.D..

[7] M.D.’s biological father is T.D..

[8] Her biological brother is T.R.D. (T.R.D.).

[9] Her maternal grandmother is A.N.D. (A.N.D.).

[10] M.D.’s friend and co-complainant in this case is M.L. (M.L.).

[11] At the time of the alleged incident on August 14, 2019, M.D. was 13 years old, and M.L. was 15 years old.

[12] M.D. lived with her mother, A.D., her brother, T.R.D. and the accused, J.W., in the City of Brantford, at the time of the alleged incident. They lived in a house on Marlborough St. in Brantford. The house was divided into an “upstairs residence” with a separate municipal number than the “downstairs residence” that was referred to as M.D.’s Uncle “D”’s residence.

[13] The grandmother resided in the upstairs residence. M.D.’s mother A.D., and her stepfather J.W. had their bedroom in the upstairs residence. M.D. and her brother T.R.D. spent much of their time during the day in the upstairs residence, however, they slept downstairs at their Uncle “D”’s residence.

Summary of the Offences

[14] It is alleged that J.W. went with his stepdaughter, M.D., and her friend, M.L., shortly after 10:30 p.m. on August 14, 2019, to have alcoholic drinks in a park. M.D. and J.W. walked to a designated place to meet up with M.L.. Before they left, M.D. put alcoholic bottles in a backpack, along with a blanket.

[15] Once all three had met, they went to a convenience store to buy 3 slushies. They proceeded to walk to one park, however, they did not stay at that park and walked to a second park that was more secluded. Once at the second park, a blanket was placed on the ground. They all put some of the alcohol that M.D. had brought from home and sat on the blanket. They had some drinks of the slushies that they laced with rum. They played two sexualized games. The first game was “Never Have I Ever”. The second game they played was “Truth or Dare.”

[16] One of the last dares that J.W. had for M.L. was that he wake her up in some exciting way. He tried to have vaginal sex with M.L., however, he could not get an erection and told his stepdaughter to “blow him.” M.D. started to give him oral sex as he requested and, when she stopped, J.W. had vaginal sex with M.L..

[17] M.L. stated that she did not want to have sex with J.W. and was in shock and panic when he had both oral and vaginal sex with her.

[18] After the sexual acts, they cleaned up the area in the park and proceeded to walk M.L. to an intersection near where she lived. Subsequently, both J.W. and M.D. walked to a Subway restaurant. They each ate a sub and then proceeded to walk home. They arrived at the park where the sexual activity allegedly took place at approximately 10:30 or 11 pm on August 14, 2019. M.D. and J.W. did not return home until shortly after 3 a.m.

[19] Before I assess the evidence given in this case, it is helpful to set out the legal framework upon which I am guided in assessing the credibility of all of the witnesses. In this case, the complainant’s evidence of the events of August 14/15, 2019, is in stark contrast to the evidence given by the accused and his witnesses. The complainant, M.D.’s, evidence with respect to the sexual activity relating to J.W. and her from November 1, 2017, and onward is denied by J.W..

[20] J.W. denies that he sexually assaulted anyone. In fact, he paints a picture of him being the victim of a devious plan that was initiated and acted upon by his 13-year-old stepdaughter and her 15-year-old friend M.L.. According to J.W., M.L. drugged him, waited until the drug took effect and then she proceeded to have sex with him. M.L. and M.D. would then falsely accuse him of sexual assault.

[21] J.W. claimed that M.D. and M.L. did this in order to get even with him for disciplining M.D. a couple of days before the alleged events by telling her that he could no longer have an unrestricted relationship with a best friend. In addition, J.W. testified that his stepdaughter M.D. was told that they were moving to Cambridge and M.D. did not want to move. J.W. asserted that the plan of making up these false allegations was to get rid of him.

Credibility and Reliability

[22] I am well aware of the admonition in R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 that all of the evidence must be examined to determine if a reasonable doubt exists and that the Crown bears the burden of proof beyond a reasonable doubt throughout. As Abella J. stated in R. v. C.L.Y., 2008 SCC 2, [2008] 1, S.C.R. 5 at paragraphs 6 &7:

6 ...This Court has consistently warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (W.(D.), at p. 757). Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused (R. v.. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361). The following suggested steps 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.

[23] However, and significantly, the Court has also consistently confirmed that these steps need not be religiously followed or articulated. Cory J. made this very clear in W.(D.):

... the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.

[24] As our Court of Appeal stated in R. v. Hull 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5:

[5] W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused [Emphasis added].

[25] Recently, the Ontario Court of Appeal reviewed the purpose of the W(D) test in R. v. Smith, 2020 ONCA 782, commencing at para. 11:

D. Analysis

[11] The purpose of the W.(D.) test is to assist the trier of fact in “evaluating conflicting testimonial accounts” to determine whether the Crown has proven its case beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. The W.(D.) test is not a “magic incantation”: R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533. It is the substance of the test that must be respected: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The test is a reminder that the “burden never shifts from the Crown to prove every element of the offence”: J.H.S., at para. 9.

[12] The W.(D.) test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Kirlew, 2017 ONCA 171, at para. 17.

The Assessment of the Conflicting Evidence

[26] In this case, the Defendant called witnesses and testified himself. In addition to himself, his witnesses were A.D., his common law spouse and mother of the complainant, M.D., A.N.D., M.D.’s grandmother, and M.D.’s 12-year-old brother, T.R.D..

[27] In addition to three police witnesses, the Officer in Charge, Kelsey Annaet and two other police officers, the Crown also called both complainants, M.D. and M.L..

Assessment of the Credibility and Reliability of the Witnesses

The Law and Analysis

[28] This case pits the evidence of the two complainants against the evidence of the accused and his witnesses. It is a tragic saga of a mother, grandmother, brother, and stepfather against M.D. and her co-complainant and friend M.L.. The assessment of the credibility and the reliability of everyone’s evidence is pivotal in the determination of whether the Crown has proven its case on any of the counts beyond a reasonable doubt. I emphasize that any determination of whether the Crown has proven its case on every count beyond a reasonable doubt is based on all the evidence.

[29] My assessment of their credibility and reliability is guided by numerous cases in which judges have outlined various important tools to assist in this task.

[30] The starting point is R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 62. In that case, the Supreme Court of Canada made the following comment at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[31] The complexity of the analysis of credibility and reliability of the witness makes it a daunting but necessary task. I will set out some of the more significant tools that I am using to assist me in the performance of this task.

[32] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. A trier of fact may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence: see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 93.

[33] My analysis of the credibility (the truthfulness of a witness) and the reliability (the accuracy of the evidence) of the witnesses includes many of the considerations that are set out by Leroy J. while sitting in appeal in the case of R. v. Henry, 2020 ONSC 7276.

Demeanor

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

[35] Demeanour alone should not suffice to find a conviction where there are significant inconsistencies and conflicting evidence on the record.

Evidentiary Content and Credibility

[36] As noted, the more dependable way to evaluate credibility is to heed the testimony offered rather than the source or manner of presentation. This will involve consideration of the list by Leroy J. in R. v. Henry, 2020 ONSC 7276, at para. 35:

• The plausibility of the evidence.

• Supporting or contradictory evidence – independent supporting evidence.

• External consistency – this includes not only consideration of how similar or different the testimony in question is to other independent testimony but includes how well it fits with what is known about time, place and circumstance.

• Internal consistency – where there is an internal inconsistency about a key fact, the factfinder will be unable to accept the witness’s testimony about this fact unless there is a rational basis for preferring the in-court testimony over the prior inconsistent account. In a judge alone trial, if internal inconsistencies are material or frequent enough, it can be legal error to rely on that witness unless the trial judge articulates a reasoned basis for doing so despite those difficulties.

• The balance of the evidence – Balance exists when a witness shies away from apparent exaggeration or evidence minimization; admits unflattering or personally difficult facts. A balanced witness answers the questions asked and does not attempt to answer strategically.

[37] My analysis will consider:

a. Identification of any material inconsistencies, internally and externally.

b. Whether there is evidence of inconsistencies on material issues as compared to previous statements, preliminary hearing transcripts, and interviews given to the police.

c. Whether there is evidence of inconsistencies or confirmation of their evidence by other witness and or other objective evidence presented at the trial.

d. Observation of the witness as a whole, not only by considering the demeanor of the witness during trial but also attempting to understand, where there is evidence to assist in this regard, impediments that may be present to giving a full accounting of any particular incident or event.

e. The plausibility of the material events related in the evidence of all of the witnesses.

f. The most important thing that can never be forgotten is, after considering all of the evidence, including any limitations that may exist of a particular witness, was a reasonable doubt raised relative to each count in the indictment.

[38] The demeanor of a witness can never be used as the sole criteria for assessing credibility. Nevertheless, taken together with a consideration of all the evidence, it is still an important factor.

[39] I also adopt the comments and approach of Bell J. in R. v. K.G.A., 2019 ONSC 275, commencing at para. 45:

[45] My assessment of the credibility and reliability of the testimony of the witnesses takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.

[48] I am mindful of inconsistencies and contradictions in a witness’ testimony. While consistency is an element of truthful testimony, I do not expect perfection in a witness’ testimony. Minor inconsistencies are an element of truthful testimony. Significant inconsistencies or contradictions, however, are treated much differently and can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

The Evidence of the Complainants

M.D.

[40] As alluded to earlier, M.D. adopted her video taped interview with the Brantford Police Services dated August 15, 2019, as truthful. At the trial, she further testified that on Wednesday August 14, 2019, she was living at a residence in Brantford. Her mother, A.D., and her partner, J.W., and her brother, T.R.D., were also living at that same address. The assigned municipal number for the upstairs residence was 161 Marlborough. M.D.’s grandmother, A.N.D. resided at #161 as well as her mother, A.D. and J.W.. They had a bedroom upstairs. M.D. would spend the day in the upstairs residence and she and her brother T.R.D. slept downstairs at their Uncle “D”’s at #163.

[41] M.D. testified that prior to her 12th birthday, she lived with her mother A.D., J.W., and T.R.D. at a different residence at 7 Church St. in Brantford.

[42] M.D.’s mother worked, and J.W. was, in his words, “a stay-at-home dad”.

[43] On August 14, 2019, M.D. was planning on going out drinking that night with a friend of hers, however, that friend “bailed on her.” M.D. contacted another friend, M.L. Beamer Linn, who agreed to go out with her on August 14, 2019. M.D. communicated with M.L. by text at approximately 6:30 pm. It is in that text that M.L. agreed to go out with M.D. later that night.

[44] M.D. stated that she placed a 26-ounce bottle of rum and a mickey of rum she was taking from their home, in a backpack along with a blanket. Shortly after 10 p.m. on August 14, 2019, M.D. and her stepfather, J.W., left their house and walked to the vicinity of M.L.’s house where they met M.L. on the street.

[45] At approximately 10:30 p.m., they all proceeded to a convenience store where 3 slushie drinks were purchased by J.W.. They then proceeded to one park that they felt was too light and open to public view. They proceeded to a second park called Shari Mar Park, where they decided to stay. M.D. stated that she laid out a blanket on the grass and they all poured some alcohol into their own slushie drinks.

[46] All three of them started to drink the alcohol laced slushies while playing a game called: “Never Have I Ever” followed by the game “Truth or Dare”. Both games were games with sexual content.

[47] At some point, while playing the games and drinking, it became cold and all three decided to get under the blanket to get warm.

[48] According to M.D., while they were playing the game: “Truth or Dare” J.W.’s dared M.L. to let him wake her up in some fun ways. According to M.D.: “that was pretty much him trying his hardest to get into her pants”.

[49] She stated that J.W. then went completely under the blanket with his head in the vicinity of M.L.’s vagina. At that point, she blocked her vision because she knew what he was going to do.

[50] According to M.D. they were all under the blanket when his head was around M.L.’s vagina and her friend M.L. was laying right beside her. M.D. stated that J.W. came up between M.L.’s legs and told M.D. to: “blow him”. She stated that she just did what he wanted.

M.D.’s Evidence of Historical Incidents

[51] M.D. testified that J.W. has been sexually assaulting her since she was 11 years old. This request made in the late hours of August 14 or early hours of August 15, 2019, for her “to blow” J.W. was nothing new to her.

[52] She stated: “it was J.W. just doing what he normally did.” M.D., stated that J.W.’s sexual activity with her began approximately one week before her twelfth birthday. Her birthday is on […]. At that time, they lived at 7 Church St. in Brantford. M.D. stated that she has no memory of what occurred on that date because she has tried to push it out of her head. All she could remember is that it was one week before her twelfth birthday in […] 2017.

[53] M.D. stated that he would just tell her that he wanted to go into either his or her bedroom and “talk” but there was no talking. She stated that the sexual activity happened on the second floor of 7 Church Street.

[54] M.D. testified that J.W. would get her to do sexual things to her and it would then end in vaginal sex. She described one time that she could recall her sitting on him while he was having vaginal sex with her, and he was holding her by having his arm around her back.

[55] She recalled another incident when J.W. was having vaginal sex with her while she was on her back, and he had his hands around her throat. She could hardly breathe, and she let out a gasping noise. At that point: “he stopped hurting me”.

[56] M.D. testified that most of the time, he would have sex with her in the bedroom, but she recalled one time he had sex with her in the bathroom.

Back to Shari Mari Park

[57] M.D. stated that, when J.W. told her to blow him that night in Shari Mar Park, she was tired, and she had alcohol in her system. She stated that he grabbed her by the back of the head and pushed his penis in her mouth. M.D. stated that she was going to try to push him off of her, but he was a lot bigger than her and a whole lot stronger. She testified that after about 5 minutes, she pushed her head back and that ended that oral sex incident.

[58] J.W. then had sexual intercourse with M.L.. M.D. stated that she just stared off into the distance trying to pretend like it wasn’t happening. She could tell he was having sex based on the movements of J.W. under the blanket.

[59] After he finished, she stated that it was: “as if nothing had happened.” The three of them cleaned up by putting the drinking cups that they used in a plastic bag and into a trash bin nearby. She put the blanket and the liquor bottles back into the backpack and they proceeded to walk M.L. home. They walked her to an intersection close to where she lived. She went the rest of the way by herself.

[60] According to M.D., after M.L. had gone home, J.W. and she walked to one subway restaurant that was closed and they then proceeded to another Subway restaurant. They walked a fair distance to the next restaurant. M.D. stated that J.W. purchased two subs, one for each of them. They both sat in the restaurant and ate their subs.

[61] M.D. stated that after the restaurant J.W. and her walked to a Maple convenience store to get a something called an Apple Blossom to bring back for A.N.D.. Following that purchase they both walked home. They arrived home shortly after 3 a.m.

M.D. had difficulty testifying. She was emotional at times. As it is shown later in these reasons, much of her testimony about the events of August 14/15, 2019, including the sexual activity that took place, was corroborated by her friend M.L..

M.L.

[62] M.L. was 15 years old on August 14/15, 2019. M.L. testified that she agreed to go to the park with her friend M.D.. She stated that she never consumed alcohol before that night. She also stated that she did not take drugs. She conceded that she did not consider marijuana a drug and admitted that she smoked marijuana approximately three times.

[63] M.L. confirmed that she was met on the street near where she lived by J.W. and M.D. at or about 10:30 pm on August 14, 2019. They walked to a convenience store. J.W. bought three slushies and they then walked to a park.

[64] It was obvious that M.L. found it very difficult to testify. When questions started to be asked relating to the any games with sexual content that might have been played, she quickly asserted that she could not remember. When asked if her video interview with the police, which was played in court in her presence, was true and accurate, she stated that it was and then she started to cry and needed a break.

[65] After the break, M.L. stated that it was difficult for her to remember as she has pushed this all to the back of her brain.

[66] M.L. stated that while at Shari Mar Park all three of them played the games “Never have I Ever” and “Truth or Dare”. She stated that she didn’t think much of it until: “he started touching me and stuff”. M.L. then became emotional in her testimony. During the police interview she also became emotional, at that point in her interview. After the police interviewer told her that he recognized that this was hard, she stated that:

… he pulled down my pants and started to lick me down there…and touching my breasts and…then um he couldn’t get excited, so he had [M.D.] perform oral sex on him, which is his stepdaughter, and I was like so out of it, I was just laying there in shock but I didn’t… I couldn’t speak, I couldn’t move…I could have ran. I should have ran…but I couldn’t.

…after Misty did that, he continued, he had sex with me.

[67] At the trial, M.L. confirmed that she was laying under a blanket as it was: “freezing”. She also stated that Misty was laying beside her when all of this sexual activity was taking place.

[68] M.L. testified at the trial that when J.W. was licking her vagina, he also put his finger inside of her.

[69] According to M.L., after J.W. finished having intercourse with her, she pretended to go behind a tree to urinate. However, she did not urinate, she called her boyfriend and stated that “I have just been raped”.

[70] M.L. was not shaken in cross examination. She was challenged on much of her evidence, and she was consistent on all material facts relating to the sexual touching, oral and digital sex, and vaginal intercourse.

[71] There was one line of questioning in her cross examination that counsel for the defence argues revealed a material inconsistency. I do not agree.

[72] M.L. agreed that she had been at Turkey Point the week before the incident with M.D. and her mother, A.D., J.W., her maternal grandmother, and her little brother. She agreed that she stated in her direct-examination that she walked with J.W. and M.D. to a street near her home after the assault as she did not want J.W. to know where she lived. She stated that she did not recall that they had been there, and she was still in a state of shock when she walked home.

[73] I find that this inconsistency in M.L.’s testimony is not material. In addition, I find that it is understandable that under the circumstances of the events that had just occurred in the park that she would not remember that J.W. knew where she lived.

[74] In cross-examination, counsel for the defence suggested to her that there were homes near by and she could have yelled out for help if this assault happened. This is one of the myths that has long been rejected by all levels of court, see R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 51. In any event, M.L. quickly replied that she was frozen and in shock. It has long been recognized that there is no one way to act in such circumstances. M.L. stated that she tried to scream but nothing came out. She was in shock and in panic. I accept her testimony in this regard.

[75] When defence counsel suggested to her that she was part of a conspiratorial plan to frame J.W., M.L. tearfully but forcefully stated that she would not make up something like that. She stated:

I would not get someone in trouble for no reason.

[76] When defence counsel suggested to M.L. that she is the one who took the lead and tried to mount J.W., M.L., once again forcefully responded:

That is my friend’s stepfather, that is disgusting… I’m sorry I did not do that”

[77] M.L. also rejected defence counsel’s suggestion to her that she put some type of drug into J.W. drink, she replied:

I was 15 and didn’t know anything about that… I didn’t put anything in anyone’s drink

[78] M.L. denied that she ever went to Simcoe to buy drugs as was suggested to her in cross-examination.

[79] M.L. stated that she could only recall M.D. making vague complaints about her stepfather. She denied that she conspired or had a plan to get rid of J.W..

[80] I find that M.L. was credible. Her testimony was consistent internally and externally when compared to M.D. on all of the material elements of the offences under consideration.

The Brantford Police Investigation

[81] Detective Constable Kelsey Annaet was assigned as the lead officer in charge of this investigation. After the interview of M.D. at the Brantford Police station, she attended at the Shari Mar Park in Brantford at approximately 3:50 a.m. August 15, 2019, to do crime scene photos. The photos that she took were filed as exhibits at the trial. Detective Annaet attended at the park at that time with M.L. and her mother.

[82] Detective Constable Annaet testified that while at the scene, she found a grey plastic bag inside of a garbage can with 3 drinking cups inside of that bag. One cup was placed inside another, and one cup was separate. She processed and tagged them for evidence.

[83] Detective Annaet also attended at the convenience store that M.L. had indicated that she, J.W. and M.D. had attended in order to purchase slushies. Detective Annaet reviewed a surveillance video from the store’s security camera. It showed that M.L., M.D. and J.W. entered that store at 10:57 p.m. It also showed J.W. purchasing three slushies.

[84] Detective Annaet stated that she did not recall if she submitted the surveillance video to the property section at the Brantford Police Services. She stated that it could have been another officer who had attended at the scene. She simply did not recall. Nevertheless, that surveillance video could not be found. Defence counsel suggested that this was an important piece of evidence as it would allow for the inference that either something else may have been lost by the police or there may have been exculpatory evidence that the defence and the court would be deprived of.

[85] I do not agree with the suggestion of counsel. All witnesses, including J.W., testified to what happened at the convenience store and all their testimony was the same. That evidence amounted to J.W., M.D., and M.L. attending the store at approximately 10:30 p.m. on August 14, 2019, and that J.W. purchased three slushies.

[86] Counsel for the defence further suggested in cross-examination of Detective Annaet that it was possible that other evidence was lost. She replied three times that she did not recall if any other evidence was lost. She did admit after the question was asked a fourth time that it was possible.

[87] I do not find that Detective Annaet’s investigation was conducted in any manner that would create a reasonable doubt as to J.W.’s guilt considering all of the evidence in this case.

[88] Detective Annaet testified that she did not submit the form that was sent to the Centre for Forensic Science that sets out what tests are being requested.

[89] Detective Annaet testified that after hearing the statement of M.L. and viewing the corroborative evidence at the Shari Mar Park and the convenience store, she made the determination that there was reasonable cause to arrest J.W..

[90] She and another officer attended at the home that J.W. was residing. The police officers arrived at 5:10 a.m. on August 15, 2019. She testified that she told A.N.D., the person who answered the door that they were there to arrest J.W.. J.W. came from his room. Detective cautioned J.W. and advised that he was under arrest for sexual assault. She stated that she read him his right to counsel. She also stated that he was awake, alert, and that he understood the caution she gave him.

Sergeant David Bauer

[91] Sergeant Bauer has been a police officer for 21 years.

[92] On August 15, 2019, he was the Sergeant on duty at the Brantford Police Services. He was asked to process the accused, J.W.. Sgt. Bauer got the call at approximately 3 a.m. that there had been a sexual assault. As Sgt., he approved the taking of crime scene photographs and processing some drink containers at Shari Mar Park.

[93] At Approximately 5:11 a.m., he was advised that an arrest of J.W. had been made. J.W. was brought to the police station and was introduced to Sgt. Bauer at approximately 5:45 a.m. Sgt. Bauer was told that J.W. had already spoken to his lawyer.

[94] Sgt Bauer’s next task was to process J.W.’s clothes as evidence and to collect and process DNA samples from him, including a penile swab from J.W. who indicated to him that Sgt. Bauer could take that sample.

[95] All of the above noted processing and the taking of the DNA samples occurred between 5:45 a.m. and 6:00 a.m.

[96] Sgt. Bauer noted that J.W. was very cooperative and answered all of the questions that he asked him. Sgt. Bauer had no issues with J.W.’s behaviour.

[97] Much of Sgt. Bauer’s continued involvement related to the processing of the evidence and transferring the items that were requested to be tested and analysed to the Centre for Forensic Sciences in Toronto.

[98] It is significant to note that J.W. showed no signs of being limited in his functioning as a result of being subjected to some form of intoxicant by at least 5:11 a.m. on August 15, 2019. When he was arrested by Detective Annaet at his home, he was noted to be awake, alert and understood the caution given to him and his rights.

[99] Sgt. Bauer stated that at approximately 5:45 a.m., when he was introduced to J.W., he was advised that J.W. had already talked to a lawyer. He was also noted to be cooperative with Sgt. Bauer during the process of taking his clothing and DNA samples.

[100] All of the above noted police evidence is inconsistent with J.W.’s evidence that he did not remember anything from the time he took the second sip of his drink at the park until waking up at the police station.

Nurse at the Sexual Assault Unit of the Brantford General Hospital

[101] Emily Vandeopeole was a nurse on duty at the sexual assault and domestic violence unit of the Brantford General Hospital in the early morning hours of August 15, 2019.

[102] She testified that M.L. arrived at her unit of the hospital at 1:45 a.m. on August 15, 2019. She collected all of the urine and blood samples as well as the genital swabs from M.L.. She noted that there was nothing out of the ordinary in this collection.

The Forensic Evidence

[103] Much of the evidence of both M.L. and M.D. was corroborated by the evidence of the witnesses from the Centre for Forensic Science.

[104] There were two witnesses from the Centre for Forensic Science. Both witnesses were qualified as experts in their field. Ms. Betty Chow was qualified as an expert in the interpretation and assessment of toxic substances in blood and urine.

[105] Ms. Chow prepared and submitted a report date September 30, 2019. Alcohol was not detected in M.L.’s Blood sample that was taken at approximately 5:37 a.m. on August 15, 2019.

[106] She testified that Alcohol was found in a urine sample of M.L. that was taken at approximately 5:55 a.m. on August 15, 2019. It was found that there was 22 mg/100 ml. She testified that given the standard elimination rate of 10 to 20 mgs per hour. The Crown calculated that there would have been approximately 60 mgs of alcohol in her system at the material times in the park. His calculations were not disputed by the defence. This result would corroborate M.L.’s testimony that she was drinking alcohol earlier in the night of August 14, 2019, that she placed in her slushie drink, and that she was starting to feel its effects when the sexual incidents occurred.

[107] There was no toxicology test requested for the blood sample taken of J.W. on August 15, 2019. That blood sample was taken and sent to the Centre for Forensic Sciences only to the Biological Section of the Centre for DNA analysis.

[108] Ms. Johnston was qualified in the interpretation of DNA results. She testified that there was substantial DNA of J.W. from the vaginal swab of M.L.’s vagina. There was also DNA of M.L. found on the penile swab taken from J.W.. All this DNA evidence is consistent and corroborative of the evidence of M.L. with respect to J.W. having vaginal intercourse with her on August 14, 2019.

[109] There was one further finding with respect to the oral swab taken from M.D. that the defence submitted was significant. This swab showed no DNA of J.W. from this oral swab taken from M.D.. Defence counsel submitted this demonstrated that the evidence of M.D. with respect to her having to give J.W. a “blow job” that night did not happen. I do not agree.

[110] The evidence of Ms. Johnston was that the absence of DNA could mean that it was never there, or it could also mean that it was there, and it was eliminated over time. This swab was taken on August 15 at or around 5:55 a.m. The alleged demand for oral sex by J.W. and oral sex performance by M.D. took place in or about midnight of August 14/15, 2019. M.D. and J.W. went on a lengthy walk after they dropped off M.L.. They went to one Subway restaurant that was closed. They then walked to another Subway restaurant that was open. M.D. stated that both she and J.W. sat down and ate a sub at that restaurant. They then walked to a convenience store and returned home shortly after 3 a.m. At that time, M.D. had a shower and went to bed.

[111] The most relevant independent evidence with respect to this alleged act of fellatio and the lack of any DNA in the Oral Swab taken from M.D. is:

a. M.D.’s testimony that the act lasted about 5 minutes and J.W. did not ejaculate in her mouth.

b. M.D. and J.W. left M.L. near her residence between midnight and 1 a.m.

c. M.D. and J.W. walked for a lengthy period of time between the time that they left M.L. and when they returned home after 3 a.m.

d. M.D. and J.W. ate a submarine sandwich at approximately 2:30 a.m. on August 15, 2019.

[112] Considering the above noted evidence, I do not accept the submissions of the Defence that the absence of DNA in M.D.’s Oral swab is evidence that no oral sex occurred that night.

August 6, 2019

[113] There was a lot of evidence brought by the defence with respect to the events of August 6, 2019. This date became somewhat of a focal point as counsel for the defence asked questions about what happened on August 6, 2019, to J.W., A.D., A.N.D. and T.R.D.. Each of those defence witnesses went into significant detail about what they did when they returned from Newfoundland on August 6, 2019. The detail included where everyone was situated throughout most of that night from the families’ return home until bedtime. All of this evidence was to make an effort to show that M.D. could not have been alone with J.W. on August 6, 2019.

[114] August 6, 2019, became important to the defence since M.D. had related in her cross examination by defence counsel that J.W. had frequent sex with her since she was 11 years old. She stated that it happened sometimes every two weeks. In her cross examination she stated that the frequency of J.W. having sex with he would depend on when her mother was home. If her mother was away all week it would happen every other day. It all depended on when she came home. She also stated that she did not remember the events too well.

[115] M.D. stated that the last time it happened before August 14, 20219 was the Tuesday before being one week earlier. She stated that she thought it was in the afternoon.

[116] Defence counsel did not ask M.D. any questions about where everyone was upon the family’s return from Newfoundland on August 6, 2019. He only asked the above noted defence witnesses.

[117] During the trial I ruled that there was a breach of the Rule of Browne v. Dunn, 1893 CanLII 65 (FOREP), and allowed the Crown to recall M.D. in order to question her about August 6, 2019.

[118] When she was recalled, I allowed defence counsel to question M.D. about August 6, 2019, and two other areas of questioning that I ruled were an infringement of the same rule.

[119] With respect to August 6, 2019, M.D. was asked about when the family returned from Newfoundland. She stated that she recalled when the family returned, and she agreed that she spent little time upstairs and that she slept downstairs that night at her Uncle “D”’s. When it was suggested to her that she did not spend any significant amount of time with J.W. that night, she stated that she did not remember specifics but that was possible.

[120] In re-examination by the Crown, M.D. was asked about her stating that it was possible she did not spend any significant time with J.W. on August 6, 2019, she stated that she did not remember specific days. She does not remember ordinary things. She only remembers specific events. She did remember the events of August 14, 2019, and some: “big days”. She went on to state that if it was” just a day” she doesn’t remember from 3 years ago.

[121] I do not consider M.D.’s lack of clarity with respect to when the last time that J.W. had sex with her to be a serious blow to her credibility. She was not specific about any dates that the alleged sexual events that happened to her with J.W. except for August 14, 2019. All other dates of sex with J.W. were related to events surrounding time frames. Her testimony was that she had sexual relations with J.W. since about one week before she turned 12. They lived on Church St. in Brantford. Other sexual events that took place with J.W. were related by M.D. in vague time frames that were specifically tied to whether her mother was home or if she was away for a week. I do not find that this testimony damages her credibility with respect to the evidence about the offences that are before me.

The evidence of J.W.

[122] J.W. is the common law spouse of A.D.. He is the stepfather to M.D. and father to M.D.’s brother, T.R.D.. He called himself a “stay-at-home-dad.” He acted as M.D.’s parent, and I find that he was in a position of trust toward M.D. at all material times. He stated that he would discipline the children once his common law wife A.D. agreed that he could. That discipline would include time-outs and spankings. He stated that the spankings had stopped by the time of the allegations made by M.D. and M.L..

[123] J.W. testified that on or about August 12, 2019, he told M.D. that he was limiting the time that she could spend with her best friend, “C”. He stated that he was doing this because he did not like “C”’s boyfriend, “J”. He felt that he was a bad person and a bad influence. J.W. told M.D. that “J” was not allowed to come to their home. He also imposed further limitations on “C”’s contact with M.D.. There had to be supervision if she was around.

[124] The restrictions J.W. imposed on M.D. with respect to her involvement with her best friend were the last incidents of discipline he imposed on her prior to August 14, 2019.

[125] J.W. testified that on August 13, 2019, M.D. came to him, in the afternoon and told him that she wanted him to come with her on the next night to have some drinks. He testified that he did not want to go and M.D. told him that if he didn’t go with her, she would claim that he assaulted her or worse.

[126] J.W. stated that this frightened him since, M.D. had made a complaint against him before. Nothing came of any investigation that was purportedly done by the police and Children’s Aid Society. Nevertheless, J.W. testified that, given this previous complaint against him, he took her threat very seriously.

[127] J.W.’s common law wife, A.D., was not asked anything about this alleged previous complaint. Neither was the maternal grandmother, A.N.D..

[128] With respect to the alleged “false allegation of abuse” that J.W. claimed M.D. had previously made against J.W., M.D. was cross-examined about this. She was asked if she had previously told her biological father that J.W. had physically assaulted her. She stated that she did not remember telling her biological father that J.W. assaulted her nor that he hit her with a belt and punched her in the face as hard as he could. M.D. stated that she could not remember that.

[129] M.D. did remember that her biological father took her to the police station at one point when she was very young. All she remembered about that was that the police told her father that he had to bring her back home. M.D. testified that she thought she was only 7 at the time. That would have been approximately 6 years before the allegations of August 14, 2019.

[130] Counsel for the defence also suggested to M.D. that there was a Children’s Aid Society investigation when she lived on Church St. in Brantford. At that time, she was approximately 11 years old. M.D. did not remember any details of any CAS investigation other then nothing happened.

[131] Other than counsel suggesting that this happened in his questioning, there was no other evidence presented with respect to these alleged previous complaints made by M.D. about J.W.. Suggestions of counsel in their questions are not evidence.

The Alleged Threat by M.D. to Make a False Allegation Against J.W.

[132] J.W. testified that on August 13, 2019, M.D. came to him at home, stood in front of him, and blocked his ability to move. According to J.W., she then told him that she wanted him to go out with her the next night in order to have some drinks. He stated that he did not want to go. J.W. testified that M.D. then threated him that if he did not go with her, that she would claim that he assaulted her or worse.

[133] J.W. stated that he was so upset about this threat, from his 13-year-old stepdaughter, that he went upstairs to his bedroom, curled up in the corner and cried. He stated that he simply did not know what to do and that he was afraid of M.D.’s threat.

[134] J.W. had 24 hours to think about what options he had but he could not think of anything other than going along with what M.D. wanted him to do. He did not tell his spouse, A.D., about this alleged threat by M.D.. He stated that he did not tell her because there were still questions about the previous allegations of abuse and he did not want to have to deal with that.

[135] According to J.W., he was so afraid of M.D.’s alleged threat, he took an alarm clock with him and set it for the prescribed time so that he would not be late to meet up with M.D. on August 14, 2029.

[136] Both J.W. and A.D. testified that they went for a drive in their car at about 5 or 5:50 p.m. on August 14, 2019. They purportedly went to play a game while driving called Jurassic World Live. They were still playing this game when A.D. testified that M.D. called J.W. at approximately 10 p.m. A.D. asked what she wanted, and J.W. told her that she wanted him to go out with her in order to go for a walk and play a different game called Pokémon Go.

[137] Despite A.D. stating that she was not happy about this, she drove J.W. home and dropped him off in order for him to allegedly go with M.D. to play this walking game. After dropping J.W. off, A.D. drove away to continue playing more Jurassic World Live.

[138] This testimony by A.D. is not consistent with her later testimony when speaking with M.D. on one of her recorded versions of M.D. recanting. In that recording, A.D. suggested to M.D. that she went out drinking on August 14, 2019, with J.W. because her Uncle “D” would “not let [her] drink fuckin alcohol in the house”.

The Meetup with M.L. and the Walks to the Park

[139] J.W. testified that when he was dropped off at the house by A.D., M.D. was waiting for him with a backpack. He stated that when she told him she had the backpack, he knew it had alcohol in it. According to J.W., he was told that her friend M.L. was coming with them. They walked to an intersection to meet up with M.L.. J.W. had met M.L. the previous week as M.L. had come with him, A.D., M.D., T.R.D., and A.N.D. to Turkey Point for a day at the Beach.

[140] All three of them went to a convenience store where J.W. purchased three slushie drinks. They went to a park and J.W. stated that it was M.L. and M.D. who didn’t want to stay at that park because it was too light.

[141] J.W. stated that he wanted to stay there as he was hoping someone would come along to kick them out. He wanted the Brantford Police to come along and kick them out. According to J.W. if that happened, then he could not be blamed and M.D. could not make good on her threat.

[142] They eventually walked to Shari Mar Park. Once again there was a lighted area that J.W. claimed he wanted to stay at. He claimed that it was M.L. and M.D. who brought everyone over to an area of the park that was dark with less chance of being seen by anyone. J.W. asserted that he simply went along with whatever M.L. was suggesting.

[143] M.D. laid down a blanket on the grass. Each of them poured some alcohol into their slushies and, according to J.W., M.D. told him to sit on the blanket. Once again, he simply complied out of fear. He stated that he needed help getting down on the blanket and M.L. took and held his drink while he was getting down to sit on the blanket.

[144] Once seated, J.W. stated that M.D. told him to take a sip of his drink and once again J.W. complied with her demand. He then stated that a short while later, M.D. glared at him and told him to take another drink. Once again, he complied out of fear of M.D.’s consequences.

[145] J.W. testified that he has no memory of what happened after that until he woke up in the police station the next morning.

A.D. and A.N.D.

[146] A.D. spent much of her testimony listening to and commenting on multiple recordings taken from her cell phone. A.D. stated that she had an App on her cell phone that allowed her to record all incoming and outgoing calls on her phone. She stated she had the same App on her previous phone that she used in 2018. She installed the same App on the new phone she got in 2019, however, she stated that she did not transfer the recoding data from the old phone into the new phone.

[147] A.D. testified that she recorded a number of conversations that she had with her daughter M.D. after J.W. was arrested. She also confirmed that there were 2 conversations that were recorded on her phone between J.W. and her.

[148] A.D. would activate the recording of the conversations that she was having with someone not talking to her on the phone by calling her mother, A.N.D. in order to start the App. She did that for certain conversations that she had with her daughter M.D.. She agreed that M.D. was not aware that some of her conversations with her mother were being recorded.

Realistic or Coerced and Directed Recantation by M.D.

Audio Recordings on A.D.’s cellphone

[149] There are 4 significant audio recordings from A.D.’s phone that were placed in evidence. The recordings were made:

i. September 21, 2019, there were two recordings on A.D.’s phone. The first one was very short and the second one was much longer. Both were conversations between A.D. and the accused, J.W..

ii. September 22, 2019, was a recording of a conversation A.D. had with her daughter, the complainant, M.D.. A.D. admitted that M.D. did not know this conversation was being recorded.

iii. October 2, 2019, there was a recording of a conversation between A.D. and her daughter M.D..

iv. October 27, 2019, was a further conversation between A.D. and M.D.. On this occasion, A.D.’s mother, A.N.D., was listening in.

[150] Prior to the September 21, 2019, recording, A.D. testified that she had a discussion with her daughter, M.D., about the allegations that she made to the police of the events of August 14/15, 2019. She did not state when that discussion took place.

[151] A.N.D. stated that she was at the same park, Shari Mar Park, where the alleged sexual assault took place on August 14, 2019, with her granddaughter, M.D.. She was there about one week after the alleged incident had taken place. A.N.D. took her granddaughter M.D. to that park as it was getting dark. It did not matter if she may have been further traumatizing her granddaughter by doing this, since A.N.D. did not believe M.D.. She testified that she knew M.D. was lying about J.W. sexually assaulting her when they drove M.D. to the police station in the early morning hours of August 15, 2019. According to A.N.D., she had been sexually assaulted and she knew how someone who had been sexually assaulted should act. She felt M.D. showed none of the signs of being sexually assaulted.

[152] It is important to note that A.N.D. had bailed J.W. out of jail about the same time she was taking her granddaughter to Shari Mar Park. J.W. was living at her residence at this time since A.N.D. was his surety.

[153] When A.N.D. and M.D. were at the park. A.N.D. said to M.D., “take me to where it happened and give me details about what you and M.L. did to J.W..” According to A.N.D., M.D. told her that M.L. had gone to Simcoe to get drugs. She had a plan to get rid of J.W..

[154] In her direct-examination, A.N.D. stated that M.D. told her everything that happened. She stated that J.W. gave M.L. his drink in order for J.W. to be able to sit down on the blanket. She went on to state that M.L. then put something in his drink.

[155] In cross-examination, she admitted that it was not M.D. who told her that he gave his drink to M.L., it was J.W. who told her.

[156] I find that A.N.D.’s testimony was often a mixture of what someone else had told her or her over hearing parts of conversations. It was clear that A.N.D. simply did not believe her granddaughter.

[157] I also find that A.N.D. tailored much of her evidence from the prism of her disbelief. A.N.D. stated that there was an alleged confession by M.D. that she and M.L. framed J.W. by drugging him, having M.L. have sexual intercourse with him, and then claiming she was sexually assaulted.

[158] According to A.N.D., M.D. told her that she and M.L. waited for the drug to kick in and once it did, M.L. reached over pulled down J.W.’s shorts and told M.D. to “spit on his penis.”

[159] This version of A.N.D.’s testimony makes no logical sense. The only sense it would make is as part of a potential explanation for why M.D.’s DNA might be on J.W.’s penile swab. M.D. testified that she was directed by J.W. to “blow him” and she complied.

[160] A.N.D. then stated that M.D. told her that she moved away to watch out to make sure no one was coming while M.L. “pretty much raped J.W.”. A.N.D. testified that she told A.D. and J.W. about M.D.’s alleged admission/confession. Nevertheless, both A.D. and A.N.D. embarked upon a process of what I find to be a nefarious plan to coerce and record a recantation from M.D.. For the reasons below, I find that J.W. was aware of and participated in this plan in order to deflect and conceal his participation in the events of August 14, 2019.

The Directions of J.W. to A.D.

[161] A very short recording was filed in evidence of a conversation between A.D. and J.W.. This conversation took place on September 21, 2019, at approximately 6:23 p.m. A.D. was listening to J.W. telling her what the lay of the land was at one their relative’s home that M.D. and A.D. were at. At that time, A.D. was at that house with T.R.D. and M.D.. He told her that everyone will be outside, including T.R.D.. He then directed her to “take dumb ass downstairs and everything is good, and you do your thing baby.” The reference to “dumb ass” was M.D..

[162] Shortly after that conversation between A.D. and J.W., A.D. did take M.D. to the basement of a relative’s house. According to A.D., in her testimony at trial, she took her down to the basement in order to deal with her lying and stealing cigarettes when they were living at the grandmother, A.N.D.’s house. I do not accept this version of her testimony.

[163] The second recording that was made on September 21, 2019, was a conversation between J.W. and A.D. that took place approximately one and half hours after the first conversation she had with him at 6:23 pm. The recording of the second conversation starts out with A.D. asking J.W. if he had his shorts on because she wanted him to go outside with her mother, A.N.D., where he was staying and put her on speaker so that she could have a conversation with the two of them.

[164] As it turned out, A.N.D. was not home so A.D. proceeded to have the conversation with J.W.. After J.W. expresses that he wanted to know what A.D. wanted to talk about since “she knows that she was caught with it.” A.D. responds at p. 2 of the recording commencing at L13:

Oh Honey, you should know me better than that when you give me a half inch of something I will take the mile if I need it.

[165] A.D. then stated: “Step 1 is complete.” She told J.W. that Step One (1) was M.D. allegedly: “admitted that she is lying about you”.

[166] She told J.W. that M.D. is now “open to recanting” the story she gave to the police. She also stated that she was: “not there yet”. She advised that M.D. was too vague and emotional. On this recording, she advised J.W. that if she went to the police at this time, it would appear as though M.D. was coerced in making a statement about recanting.

[167] It is essential to understand the context of the whole conversation that A.D. had with her daughter on September 21, 2019. I find that this context corroborates M.D.’s testimony that she was afraid of her mother. In the conversation A.D. had with J.W., A.D. made the following statements:

[168] Page 2 commencing at L.17:

A.D.: Step one (1) is complete. My daughter has admitted that she is lying.

J.W.: Lying about what?

A.D.: About you.

J.W.: What did she say?

A.D.: Um, she hummed, and she hawed. She didn’t fucking admit straight out of course. So, it’s nowhere near where we need to be.

[169] At p. 4 Commencing at L. 9:

A.D.: I did not. So, we’re not there yet. That’s okay because I don’t want this to be said that it was coerced.

J.W.: Yeah

A.D.: I told her straight out, I said, I’m not taking to you right now because you’re very fucking emotional. I was like, and you are going to give this cop no idea that this was coerced or pushed or what have you. I was like, you give her… I told her straight out. I said, you give her the idea that this was coerced, I’m going to jail and you’re going to her father’s house. And she panicked.

[170] At p. 5 commencing at L.10:

A.D.: We’re not out of the woods yet, we need her to say this completely. We need her to admit to it completely, this is Step One (1)

[171] At p.5 commencing at L.20:

A.D.: That’s just it, she’s being very careful not to say a whole hell of a lot. But I also emphasised to her, I was like, no, no. I was like, you don’t seem to get it, M.D.. I was like, J.W. is not your enemy in this, you picked the wrong enemy, you picked your mother. She goes, I didn’t mean to make you an enemy. I was like, oh, oh but you did. And if you are going toe to toe with your mother this is how it’s gonna go down. I was like, and once he’s found innocent, I will be pressing the charges against you and M.L., and I will be putting a publication onto it. I want that publication ban removed, and I will make sure that both of you are very well known for exactly what you fucking did.

A.D.: I was like, so you’re gonna go about this right and you’re gonna hope for these false allegations. I said, cuz if not, I was like, ten (10) years minimum. You’re whining about five (5). I said, we play this right, maybe you’ll just get counselling. (pause). So. No. Honey, the second you gave me the warning about this I was like, no. no, no, don’t fuckin warn me, oh baby thank you, that just opened the door…wide open.

[172] At p. 7 commencing at L.16:

A.D.: She’s been very careful not showing her anger. And I was like, no no she needs to see this. And that’s just it, is I played all nicey-nicey until we got downstairs. Apparently, the cracks on the ass kinda bothered your dad, but.

J.W.: You slapped her?

A.D.: Oh yeah, oh yeah, I guarantee you people outside heard it. Cracked her three (3) good ones. They assumed…

[173] A.D. went on to talk to J.W. about the issue of M.D. “coughing up” that she had taken some cigarettes called ‘Castros”. A.D. confronted M.D. about this and then the following statement was made by A.D. to J.W., as reflected in the transcript of September 21, 2019:

A.D.: I was like, you know, two (2) people come home with Castros, someplace you have to get the rex to get them and you’re gonna sit there and try to tell me that one of your fuckin friends gave you, bullshit. And she was like no that one’s yours. I’m like, there your fuckin go. There’s no that one’s yours. I’m like there’s admittance number one (1). I was like, I’m not taking any stealing, I’m not taking a lie, I’m not taking your drama and I’m not taking any attitude. You give me any of he fuckin four (4) I’m likely to beat your fuckin ass and I’ll drop you off at your fuckin father’s house, I’m done. And she kinda sunk right into herself at that point and was actually just fuckin listening as opposed to arguing with me or anything else. And at that point, I’ll admit. It was mostly me talking. She was asking questions. Things like, will you know …cuz there’s something like five (5) years for false allegations. I was like, yeah it is. I was like, however if they go after other things like sexual assault and drugging somebody, date rape, I said, you want the false allegations. I was like, for somebody underage there’s a very good possibility it’s gonna work out nicely for you so you just need to lay down and just do this right, the way you should have done at the beginning, which was not doing it all.

[174] A.D. then told J.W. that she told her daughter that she needed help. J.W. wanted to know if she actually admitted anything to A.D.. A.D.’s response was at p. 10 para 20:

A.D.: Even I had her on recording, its jag and stiletto and its not something that could be used. So even if I had a recording of this one it would have done me any good because its not that she lolled at me and said, I made it all up… um. It was more the fact like I put it out there. I said, I know what happened that night. I know that you girls concocted this plan. I know that it was you guys that were the aggressors. I was like, and I’m fucking right, ain’t I? And she went, yeah. So, it’s stuff like that its not something that we can use because that’s considered leading a witness, right?

[175] J.W. thought it was more like tampering with a witness. Unfortunately, they are both right. Nevertheless, A.D. recognized that what she was doing was not proper. She stated the following in that same transcript:

A.D.: Step one (1) is there, she started to fucking put this into place. You know, this isn’t her going to the cop that she, right on the heels of that, on that part of the conversation she asked right out, she goes, when do I go talk to this police officer? I was like, well I’m gonna give you at least a day to cool down because I bring you in there right now and you’re fuckin sobbing and losing your mind, the cop’s gonna be looking at me instantly. I was like, so you’re gonna calm the fuck down and when you’re calm, we’ll talk about it.

[176] In the conversation with J.W., A.D. told him that she was thinking of going to the cops herself in order to be able to “pitch it” by telling the police that M.D. came to her all upset, and she wanted to know what would happen with this and that. A.D. told J.W. that she would tell the police that she “came out with information that she didn’t fucking know.”

[177] At a later point in the conversation between A.D. and J.W., M.D.’s brother, T.R.D. could be heard. He started to participate in the discussion. Both A.D. and J.W. were talking to T.R.D. about how M.D. lied about her allegations and that caused J.W. to have to go to jail. During this part of the conversation, T.R.D., who was 9 years old at the time stated: “I’m going to crush her like a sour grape”

[178] When A.D. told T.R.D. that he would not do that, J.W. stated at p. 16.L 24 of the transcript:

J.W.: You know what, here, here’s, here’s what’s gonna happen, and you don’t say anything of this. She’s probably gonna go to juvie for a little bit and those other little juvie bitches are gonna run through her like a fuckin pig though a pile of apples.

[179] J.W. immediately followed that up with the fact that that sounded grosser than he intended. He then stated that he meant to say: “eat her up”. J.W. once again thought that was not what he meant, and he thought he tempered his remarks down to: “chew her up”. He stated that was also not what he meant and finally settled in on: “there’re gonna destroy her… beat her up.”

[180] During this conversation, A.D. emphasised multiple times that this was only Step One (1) and that: “they were not our of the woods yet.”

[181] Near the end of this conversation, A.D. states that: “all of this was happening kinda fast” and the first little bit started with A.D. telling M.D.: “this is what happened, and her saying yes.” A.D. stated that M.D. was being vague, and she asked her if she had to give details to the cops. The Conversation ended with A.D. telling J.W.: “she fought this at first.”

[182] I find this conversation between A.D. and J.W. beyond disturbing. A.D. reveals to J.W. that she had physically assaulted her daughter by giving her three (3) “cracks on her ass” so hard that the neighbours could hear. She then told her daughter that she knew what had happened and she angrily threatened her that she would be charged with an offence that ranged from the child going to jail anywhere from 5 to 10 years. She then told her that “if she did things right” she may only get counselling.

[183] I find that A.D., J.W. and the maternal grandmother, A.N.D., participated in this effort of coercion that included threats of criminal charges, public humiliation, jail terms that ranged from 5 to 10 years. However, if M.D. “did things right” she might only get counselling.

[184] J.W. contacted A.D. approximately one and half hours before her conversation with M.D. in the basement. In that brief discussion J.W. directed A.D. to: “take the dumb ass to the basement:” and told her to do her thing. Taking her to the basement included physically and harshly hitting her on the bottom.

[185] J.W. also made the following admission in that same long second recording of September 21, 201,9 commencing at p. 27 L.6

J.W.: I told you pressure is what would fuckin get her to crack though.

A.D.: Mm-hmm.

J.W.: I called that shit.

A.D.: I know.

J.W.: I fuckin called it.

[186] A.D. then relishes in the fact that she did something the week before to her daughter M.D. that made this happen. On p. 27 commencing at L. 16:

A.D.: I know, but here’s the thing, is I knew that if I had done this say last week, this wouldn’t have happened. I would have been able to do this in such a way. However, what made this possible was the fact that last week, it really took the winds out of my sails when I slammed her against the door. That, that really calmed me, that really took a chunk of the anger out of my um, words and actions. Like it really took the wind out of my sails. And that was the only reason that I was able to stay clam enough and not get violent with her throughout this.

[187] A.D. testified that she was angry at M.D. and she “grabbed her by the throat and slammed her against the door. This was one week before she took her into the basement and gave her three (3) cracks on her ass. A.D. stated that she slammed her against the door because M.D. had pointed a knife at her son T.R.D. and when he grabbed the blade he got cut. M.D. denied that she pointed a knife at T.R.D. at any time.

[188] It is incredible that any mother would admit that grabbing her 13-year-old child by the throat and slamming her against the door would have a calming effect on the mother.

The Path to Step Two (2)

[189] The conversation recorded on September 21, 2019, was only the beginning of A.D. and A.N.D.’s attempts to get what they considered to be a complete recantation from M.D. that was good enough to take to the police. There were further recordings made on September 22, 2019, October 2, 2019, and October 27, 2019.

[190] The October 2, 2019, recording is of a conversation with A.D. and her daughter, M.D.. A.D. relates that she is in a Starbucks parking lot, and she has been waiting for over a week for someone at police services to call her back, but no one had.

[191] A.D. introduces that discussion by stating she is going to have a discussion with her daughter, M.D., in order to: “capture stuff.” She goes on to state, in M.D.’s presence, that her daughter was going to recount events of August 14 and 15, 2019.

[192] I find that A.D. did a lot more than: “capture stuff”. A.D. constantly interrupted M.D. to make suggestions and corrections in this version of M.D.’s recantation.

[193] M.D. started out by stating that, “on Tuesday August 14…” her mother interrupted by correcting her that it was August 13. M.D. agreed and proceeded to relate a narrative about a very heated fight that she had with her mother and J.W. that night about J.W. limiting what relationship she could have with her best friend, “C”. J.W. did not like a boy that “C” was hanging out with. A.D. interrupted again and stated: “because he was dangerous.”

[194] M.D. stated that it was a big fight that went on for hours. A.D. interrupted again and stated that it was only an hour and a half.

[195] M.D. stated that she was extremely upset because she loved her best friend and “she has been [her] very best friend for a long time.”

[196] She also stated that she was not happy that J.W. and A.D. planned to move them to Cambridge.

[197] In this version of the recantation, M.D. stated that she had planned to go out the with a friend and J.W. to, “go and have some drinks and just have a relaxing day.”

[198] M.D. stated that she told her friend M.L. about the fight with A.D. and J.W. and that she was really mad. At this point, A.D. interrupts her again and asks M.D. what time this discussion with M.L. took place. M.D. stated that she did not remember. A.D. then suggested that it was in the afternoon of August 14, 2019. M.D. then adopts that time.

[199] M.D. then states that M.L. told her that she knew how to get rid of J.W.. She told M.D. just leave it to her and that she would not tell her anymore about her plan to get rid of J.W.. M.D. was to just go along with M.L.’s directions.

[200] There were inconsistencies in the various versions of the recantation about someone “ditching” M.D. and stating they would go with her and then reneging on that promise. In this version, M.D. stated that M.L. ditched her again and then later in the day she agreed to go with her over a text message she sent.

[201] M.D. could not remember when J.W. came home in order to go out drinking with them. A.D. suggested the time was between 10:30 and 11 p.m. M.D. agreed with her mother’s suggestion.

[202] M.D. then stated that she and J.W. walked to meet up with M.L.. From there, they went to a convenience store to buy slushies and a Dr. Pepper. M.D. stated that they were supposed to go to one park. As she related the name of that park, A.D. interrupted and stated, “that park did not suit what you were going to do.”

[203] M.D. then described going to Shari Mar Park where they laid out a blanket, each poured their own drinks and then sat on the blanket and played “Never Have I Ever” and “Truth or Dare.”

[204] According to M.D. on this version of the recantation, it was not long before J.W. was not saying anything and at that point, M.L. pulled his pants down. M.D. stated that she did not want to see what was going to happen and she looked away. M.D. stated that M.L. must have drugged J.W. and her.

[205] M.D. then stated that J.W. started to become aware and, since she and M.L. were now getting tired, they all decided to pack up and walk M.L. home. M.D. stated that, after walking M.L. home, J.W. stated that he was hungry, and they should walk to the Subway store to get subs. At this point, A.D. interrupted again and told M.D. that was not what she told her the last time. The last time you told me it was your idea to get the subs. M.D. did not agree to this suggestion. She insisted that: “no, it was J.W.’s idea to go and get subs to eat.”

[206] It should be noted that in this version of the recantation, that was being recorded, the scenario being advanced would not be consistent with J.W.’s version of events in a very material way. J.W.’s testimony is that he was drugged shortly after the three of them got to the park. He stated that he did not remember anything until he woke up in the police station the next day.

[207] However, during this recorded discussion between A.D. and M.D., M.D. goes into detail on what took place after they dropped off M.L. in the early morning hours of August 15, 2019. M.D. described walking to one Subway restaurant, and it was closed and then walking to another that was open at or about 2 a.m. She stated that J.W. ordered the club, and she ordered the steak and cheese and they both sat down and ate the subs.

[208] After the Subway restaurant, M.D. stated that they walked back to the convenience store to get A.N.D. a Cherry Blossom. They then walked home, put the alcohol away, showered, and went to bed.

[209] A.D. questioned M.D. as to why she just went along with M.L. when she realized what she was doing. M.D., at first, didn’t know why. She then stated that she was afraid of the people that M.L. knew. She was concerned that they might come and do some horrible things to her if she did not go along with it. There was no evidence to corroborate this statement.

[210] Apparently, this version of the recantation was still not good enough for A.D.. She recorded yet another conversation with M.D. on October 27, 2019.

October 27, 2019, Recording

[211] The October 27, 2019, recording was made from the parking lot of the Weber Inn in Kitchener. A.D. opened the recording stating that it had been 23 days since she had tried to communicate with Detective Constable Annaet with no reply. She did talk to a different officer who told her that Detective Constable Annaet was still the officer in charge, and she may still be on leave.

[212] A.D. opens the audio by telling her mother, A.N.D., that she was not muted and that she should mute herself. A.D. then introduces this conversation by stating that “at this point, I will see if M.D. will talk to me”. She then calls her daughter over.

[213] A.D. asked M.D. to start with Monday August 13. A.D. states that she had an argument with M.D.’s Uncle “D” because he makes M.D. do laundry. A.D. then states that it was the Tuesday that and there was the argument with J.W. regarding M.D.’s friend “C” and her friend “J”. A.D. told M.D. on this recording that J.W.’s parting words to you were that you and “C” could no longer hang out.

[214] A.D. then asked M.D. if anything had been set up with M.L. yet to go drinking in the park on August 14, 2019. M.D. told her that they had not. At that point, it was just supposed to be M.D. and a friend, “H”, who was going to go drinking. A.D. then suggested to M.D. that it was supposed to be just her and J.W. having a couple of drinks because her Uncle “D” would not let her drink at the “fucking house.”

[215] M.D. replied that later, “I got a message from “H” that she could not come.” M.D. then suggested to J.W. that her friend Faye might come with them. And J.W. said: “no, invite M.L..” A.D. can then be heard vehemently stating: “wow, wow, wow, the last time you said M.L. was your idea.”

[216] It is significant that in all of these discussions between A.D. and M.D., there was never any mention of M.D. merely going out with J.W. at 10 or 10:30 p.m. simply to play Pokémon Go. That statement was made by A.D. in her testimony when she stated that J.W. got a call at 10:00 pm on August 14, 2019, from M.D., to get J.W. to go on a walk with her while J.W. was playing Jurassic World Live with A.D..

[217] A.D. testified that she would allow M.D. to drink in their home. At first, she stated that she would only allow her to drink maybe one drink of alcohol. She later testified that she would monitor M.D. when she was drinking in the home and stop her if she was looking tipsy.

[218] I find that A.D. knew that M.D. and J.W. were going out drinking in the park that night. She freely admitted that to M.D. on this recorded discussion on October 27, 2019 when she made the suggestion to M.D. that she was going out drinking as Uncle “D” would not let them drink in the “fucking house.”

[219] In the October 27th conversation that was recorded after M.D. was insistent that J.W. wanted M.L. to go with them drinking after “H” bailed on her and M.D. suggested another friend Faye, A.D. came up with a suggestion to M.D. that J.W. would not have suggested M.L..

[220] A.D. states that they had met M.L. the week before when the family went to Turkey Point Beach and both J.W. and her agreed that they did not like her. She then stated that she knew he would not have suggested that M.L. go with them. A.D. proceeded to tell M.D.: “and the last time you said it was your idea.”

[221] In this October 27th recording, M.D. then stated, “I texted M.L. about 6:45 p.m.” and that is when she told her that she would go to the park with her drinking.

[222] A.D. then questioned M.D. about when she would have met up with M.L. before the 6:45 p.m. texting. M.D., once again, reiterates the fact that she had told M.L. about the argument with J.W. and A.D., and that M.L. told her that she could help her get rid of him. M.D. did not answer when that discussion may have taken place. However, According to M.D. in this recorded version of events, M.L. would not tell her what her plan was and, according to this version, M.L. simply stated: “never mind I will deal with it and just follow what I’m doing.”

[223] M.D. continued to relate what all three of them did once they were at Shari Mar Park. At one point in the recording A.D. is heard telling M.D.: “stop embellishing”. This occurred when M.D. started to state that she was so far gone from some sort of intoxicant that she suspected M.L. put in her drink that, “she could not walk straight or think.”

[224] At that point A.D. said: “that is new. You did not tell me that and don’t embellish. Just tell me what happened.”

[225] M.D. repeated that: “the entire time I was out of it and feeling funky.”

[226] The difficulty with this part of the recorded version is that if M.D. was that “out of it,” she could not have related the other version of the recantations that had M.D. describing what M.L. did to J.W..

[227] A.D. said, if you were feeling that off you would have had a conversation about that earlier. A.D. reiterated to M.D.: “stop bullshitting and embellishing.”

[228] After this admonition to M.D., A.D. continued to summarize her version of the recantation and to move M.D. along in the narrative that she was suggesting.

[229] With this prodding by A.D., M.D. continued with the narrative. She stated that it got to the point that J.W. was not responding to questions while playing the game “Truth or Dare” and at that point M.L. said: “ok its time to get rid of him.” On this recorded version, M.D. stated, “at first, I thought we were going to kill him and if that was her plan, I was not going to be able to do that.”

[230] M.D. then stated that “M.L. pulled his pants down and she told me to spit, so I did.”

[231] A.D. suggested “spit on your hand?” and M.D. appears to have agreed with that suggestion. A.D. than said, “no more delicacies you need to have details in order for this to be useful.”

[232] After a long pause in the recording M.D. can be heard sniffling and crying. At that point, A.D. can be heard saying, “what’s with the water works.”

[233] Again, there is a long pause and crying and sniffling on the part of M.D.. A.D. interrupts that pause with, “I’m sorry it’s been three months and now you feel bad?”

[234] Once again after a lengthy pause, A.D. states: “this is the first time I’ve seen you have any reaction to this. Well, you keep saying apparently all you did was spit on him.”

[235] M.D. then tells her mother that she was sick to her stomach, and she wanted to go home when she saw M.L. starting to undress from the waste down, so she looked away.

[236] In this recorded version, M.D. told her mother that everything around her was a blur. After a while, J.W. was starting come around. On the recording, A.D. could be heard asking M.D. what M.L. did or said. M.D. said she waved her hand in front of my face and it was like nothing ever happened. M.D. then told her mother that while she and M.L. were talking to each other, J.W. said, “lets get going.”

[237] A.D. then asked what happened as he came to. M.D. replied that he was blinking a little bit faster then normal. At that point, M.L. and M.D. told J.W. that they were tired and wanted to go home.

[238] M.D. told her mother that they all just packed up and walked M.L. to the corner. After M.L. went home, J.W. and her walked to one Subway that was closed so they walked to a different Subway.

[239] Near the end of the conversation in this recording, A.D. refers back to an earlier discussion that she had with M.D. about M.D. being at serious risk for criminal prosecution and jail time. A.D., once again, stated that, “the one thing you have going for you is your age.” A.D. tells her daughter that she knows she has seen all this stuff about people who get away with crimes and never get caught. She mentions to her daughter that she knows she knows about Jack the Ripper. M.D. seems confused about that reference.

[240] A.D. wanted to get M.D. to confirm that she was willing to go to the police and admit that what she told them about J.W. was false.

[241] I find that A.D., with the assistance of her mother, A.N.D., and at crucial times, J.W., created relentless pressure on M.D.. Pressure that included physical violence by her mother A.D. by grabbing her by the throat and throwing her up against a door and by severely hitting her on her buttock. A.D.’s pressure also included threats of criminal prosecution and public humiliation. J.W. was aware of these deplorable actions on the part of A.D.. In fact, on the September 21, 2019, recording, J.W. is relishing in the fact that it was his idea to put the pressure on M.D. and it worked.

[242] The conduct of A.D., A.N.D., and J.W. invoked fear in M.D. and resulted in a series of recordings that can only be characterized as inconsistent and fanciful stories of recantations that were fed to A.D., by her 13-year-old daughter who was telling her mother what she wanted to hear. However, Step Two (2) of their efforts was never achieved. Just like Step One (1), they never got to where they felt they needed to be.

[243] The defence submitted that the Court could not draw the inferences I have just referred to. The Defence stated in submissions: what kind of mother would do that? I find that the kind of mother that would do that was clarified by A.D.’s own statement to J.W. in the recording she made on September 21, 2019, as follows:

But I also emphasised to her, I was like, no, no. I was like, you don’t seem to get it, M.D.. I was like, J.W. is not your enemy in this, you picked the wrong enemy, you picked your mother. She goes, I didn’t mean to make you an enemy. I was like, oh, oh but you did. And if you are going toe to toe with your mother this is how it’s gonna go down.

Analysis and Conclusion

The Alleged Threat by M.D.

[244] J.W.’s version of the events of August 13, 14, and 15 of 2019 was not plausible when taken together with all of the evidence. I am very aware that J.W. does not have to prove anything. That burden always rests with the Crown. However, it is important to assess his evidence in light of what he states is material to his defence when he testified.

[245] J.W. states that he was so afraid of the alleged threat that M.D. had made to him on August 13, 2019, that he huddled in the corner of his bedroom and cried. In order to make his extreme reactions grounded in reality, he stated that M.D. had complained about him before and that is why he took her threats very seriously. However, not only was there no evidence about the nature of the previous complaint(s), nor the nature of any investigation or the outcome of any investigation, J.W.’s own testimony raises concerns about the nature of the previous complaints. He testified that he did not tell his wife, A.D., about M.D.’s threats because there were still questions that she had about the previous complaints that he did not want to have to answer.

[246] The easiest option that J.W. would have had was to tell his wife. It would have been his wife who would have refused to allow M.D. to go out drinking with two under-aged girls late at night in a park. It wouldn’t have been J.W.’s fault if A.D. refused to let them go.

[247] Instead, J.W. stated that he lied to A.D. and told her that M.D. wanted to go for a walk at around 10:30 at night to play Pokémon Go. He left his wife to play Jurassic World Live alone in order for him to meet up with M.D..

[248] J.W. gave evidence that he was hoping that someone else would see them and kick them out of the park. In addition, he would have rather had the “the cops” come by and see them to kick them out of the park.

[249] I do not believe J.W.’s evidence that he was so scared of his 13-year-old stepdaughter’s threat to make a false allegation against him that he would put himself in a position to be in a dark park at around midnight with a 13 and 15-year-old girl with alcohol.

The Allegation that M.L. Drugged J.W.

[250] The testimony that M.L. put a drug into J.W.’s drink to cause him to lose consciousness is equally unbelievable. J.W. testified that he obeyed his 13-year-old daughter M.D. when she told him that he had to take a sip of his drink and then complied with her when she made a face at him and told him to take yet another drink. According to J.W., shortly after the second sip he has no memory of anything that happened until he woke up in the police station the next morning.

[251] J.W. denied that he played any sexualized games with M.D. and M.L.. According to J.W. he just did as he was directed to do by M.D., sit on the blanket and take two sips of a drink. It strains credulity to accept that J.W. would be afraid that if he did not do as asked that a false complaint would be made against him by M.D. and that he could not tell his wife in order to avoid being put into the position he was in.

[252] In my view, he was putting himself in a worse position by allowing himself to be sitting on a blanket and complying with that same 13-year-old’s directions to drink with two very young girls late at night and in the early morning hours in a park.

[253] J.W. did not have any of this newly found fear of M.D. when he demanded on August 13, 2019, that she could no longer have a relationship with her best friend “C”. J.W. did not have any of this newly found fear when he agreed that he would discipline M.D., including spankings. Although it is unclear when he stopped the spankings, he did testify that he did not spank her any more around the time of the allegations.

[254] J.W. was in the park with his 13-year-old stepdaughter and her 15-year-old friend from approximately 11:30 p.m. until sometime after midnight. According to A.D., he did not arrive back home with M.D. until shortly after 3 a.m.

[255] I accept the evidence of M.D. that J.W. helped clean up at the park and walked M.L. to an intersection near her home. J.W. and M.D. then went to a Subway restaurant and ate at approximately 2 a.m. M.D. was very detailed even as to what they ate at that restaurant. After they ate their subs, they walked home. When they got home J.W. had a Subway restaurant bag with him. This confirmed the testimony of M.D. that they did go to Subway.

[256] Detective Constable Annaet arrived at J.W.’s residence at approximately 5 a. m. and indicated that she was there to arrest J.W.. Detective Constable Annaet testified that she cautioned him, that he was awake and alert, and that he understood the caution. I accept her evidence in this regard.

[257] When J.W. attended at the police station, he related that he was given his right to have a lawyer. J.W. had spoken to his lawyer by the time Sgt. Bauer was introduced to him between 5:30 and 6:00 a.m. There was no indication that he did not understand the police cautions, warnings and rights to legal representation. All of that evidence is not consistent with J.W.’s assertion he had no memory of anything once he took the second sip of the drink in Shari Mar Park as he was directed to do by his 13-year-old stepdaughter.

[258] I reject J.W.’s evidence and the evidence of A.D. and A.N.D. because it is not credible. I do not reject it because of the evidence of the two complainants. My belief in the evidence of M.D. and M.L. is only one factor in my assessment that the accused is guilty beyond a reasonable doubt on all counts charged.

[259] The evidence of M.D. and M.L. is corroborated in material ways that include but are not limited to:

a. The crime scene photos of the layout of Shari Mar Park.

b. The forensic biology DNA evidence that I accepted and alluded to earlier: evidence from M.L.’s vaginal swab and J.W.’s penile swab.

c. The forensic toxicology evidence of the presence of alcohol in M.L. that would have been consistent with her evidence of the amount she drank.

d. The internal and external consistency of the evidence of the events that occurred on August 14/15, 2019, as related in the testimony of M.L. and M.D.;

e. The realistic fear by M.D. of her mother, A.D., and her mother’s efforts supported, and at times directed, by J.W. to coerce and direct M.D. to recant.

My Findings Relating to the Sexual Offences Charged

Relating to M.L.

[260] I find that J.W. on August 14/15, 2019, at Shari Mar Park in Brantford Ontario did the following to M.L. while she was 15 years old:

a. He invited sexual touching of M.L. by suggesting that he would wake her up in exciting ways while they were laying on a blanket, drinking alcohol and playing a sexualized game of “Truth or Dare.”

b. I find that J.W. sexually touched M.L. by touching her breasts immediately before he performed oral sex on her by licking her vagina.

c. I find that J.W. sexually assaulted M.L. by touching her breasts, performing oral sex on her by licking her vagina and by having sexual intercourse with her.

Counts relating to the child M.D.

[261] I find that J.W. between November 1, 2017, and August 14, 2019, did the following to M.D., while she was between the ages of 11 and 13 years old and while he was acting in a position of trust as stepfather to M.D..

[262] While they were residing at 7 Church St. in Brantford, he would invite M.D. to sexually touch him and be touched by him in a sexual manner.

[263] While they were residing at 161 Marlborough St. in Brantford, he had oral sex with her. I accept M.D.’s evidence that if J.W. wanted her to come off, it came off, and if he wanted her bottoms to come off, they would come off. I find that J.W. invited M.D. to perform oral sex on him and she did perform oral sex on him on multiple occasions.

[264] I find that J.W. would have M.D. perform all of these acts, including sexual touching, oral sex, and sexual intercourse either in his bedroom or her bedroom. The frequency of these sexual events would depend on if her mother was working, or she was away.

[265] I find that on one occasion, J.W. had sexual intercourse with M.D. while he had his hands on her throat causing her to have difficulty breathing.

[266] While they were in Shari Mar Park in Brantford, he did invite sexual touching by playing sexualized games such as “Never Have I Ever” and “Truth or Dare” and he demanded that M.D. perform oral sex on him.

[267] J.W. is guilty on all counts beyond any reasonable doubt

Justice Harper

Released: November 7, 2022

COURT FILE NO.: CR-76/20 DATE: 2022/11/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

Jeff Mazin, for the Crown

-and-

J.W.

David Oake, for the Accused

REASONS FOR JUDGMENT

Justice Harper

Released: November 7, 2022