COURT FILE NO.: CR-19-30000764

DATE: 20221125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JS

Accused

Sara MacDonald, for the Crown

Royland Moriah, for the Accused

HEARD: November 29, December 1- 3, 6 -10, 13, 14, 2021 and February 7, 9, 10, and 11, April 22, September 22 and November 25, 2022

Allen J.

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made pursuant to section 486.4 of the Criminal Code. Any information that could identify the Complainant or her mother shall not be published in any document, broadcast or transmission.

REASONS FOR JUDGMENT

TEMPORARY SUSPENSION OF THE COURT

1This trial was heard during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or video conference. It has since been decided that some proceedings would be held in courtrooms as fully in person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.

2The parties agreed to this trial proceeding fully by video conference. A registrar and court monitor were present to maintain the court record. The judge, witnesses and counsel attended remotely by video conference. Witnesses testified under affirmations to tell the truth. Materials were delivered and filed with the court via the CaseLines platform and by email and were shared over Zoom.

CRIMINAL CODE SECTION 715.1

3AE was age 8 at the time of the alleged offences and age 12 at the time of trial. Pursuant to s. 715.1 of the Criminal Code, the three video recorded statements AE made to the police were played in court and were adopted by AE. That provision allows the admission of a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of if the victim or witness while testifying, adopts the contents of the video recording.

THE CHARGES

4The accused, JS, is charged under the Criminal Code with sexual exploitation under s. 151 (x 2), invitation to sexual touching under s. 152 (x 2) and sexual assault under s. 271 (x 2) against his stepdaughter, AE, who was 8 years of age and in grade 3 when the allegations arose. JS was engaged to AE’s mother, CR, at the time.

AE’S STATEMENTS TO THE POLICE

5AE gave three statements to the police, the first on December 16, 2017, and the other two on January 10, 2018, and October 17, 2018. The first statement was given at Toronto Hospital for Sick Children and the other two at Toronto Police 42 Division. AE went with her mother to the police station for the second and third statements.

6One of the more significant allegations AE made against JS was that he attempted sexual intercourse with her. AE did not tell the police about this until her October 2018 interview. When asked why she did not make that allegation in her first two statements, she pointed out that she told the police that her mother reminded her of this. In AE’s January 2018 statement she made allegations against JS about use of his devices and her instant camera to convey inappropriate messages and images to her which she did not provide to the police in her December 2017 statement.

7As noted, the video recordings for each police interview were played in court and adopted by AE as part of her evidence at trial.

8Defence counsel questioned the mother about how it happened that she accompanied AE to the second and third interviews to present additional information to the police. Regarding the additional information about JS attempting intercourse with AE, the mother testified that she reminded AE that had she disclosed that incident to her. The mother said she then set up a further meeting with the police for October 17, 2018. She explained that AE being in the shower one day triggered a memory about JS telling her (the mother) about the day he attempted intercourse and about girl’s body smells .

LAYOUT OF HOME AND FAMILY MAKEUP

9In March 2017, AE’s mother, CR, AE, the biological brother, CK, and JS moved to an address on Springhouse Sq. where the alleged incidents occurred. JS’s biological daughter, AS, also moved to the house. Two of JS’s younger biological children, a daughter ABS and son DS, would stay at the home on some weekends and go to Springhouse Sq. for dinner with their father at times during the week.

10JS and the mother had been together about two-and-a-half years before the allegations were made. They were engaged to be married.

11The home has a basement where JS’s and the mother’s bedroom and a bathroom are situated. The sleeping arrangement for the parents is relevant to aspects of the allegations. The mother slept on the left side under the red sports jersey hanging above on the wall and JS slept on the right side under the blue sports jersey. There were bedside tables on the mother’s and JS’s sides of the bed.

12There is a main floor with a living room, a television and two couches situated across from each other and a dining area and a kitchen.

13There is a set of stairs leading to a second floor where four bedrooms are situated where AE and her brother had separate bedrooms and JS’s older daughter, AS, who was about age 15 or 16 years, had a separate bedroom. The fourth bedroom was a playroom for the children. AE and her brother had separate bedrooms. When JS’s younger son and daughter would stay over, they would sleep in the extra beds in AE’s and her brother’s bedrooms.

JS’S RELATIONSHIP WITH AE

14This area of evidence will be developed more fully below in the various contexts in which the issue of the relationship arises.

15The mother testified that JS did not have a close relationship with AE. He would discipline her at times. He would yell at her and tell her to go to her room if she misbehaved. The mother thought JS was too harsh in his discipline. He believed she should spank AE when she misbehaved. JS thought the mother was too lenient.

16JS would take away her iPad or television or ground her as punishment. AE would not be happy about this. She would cry but do what she was told. The mother’s perception was that JS often blamed AE for things she did not do. From the mother’s perception, JS would paint a picture of AE as being “a very bad kid”, “nothing but trouble”, saying, “she will get someone in trouble one day.”

17The mother did not see AE’s behaviour as being different from the other children. She resisted suggestions that AE was more defiant than the other children in the household. She thought JS was just picking on AE. The mother testified that she would ask JS to be more affectionate with AE and that he would say, “Don’t force them.”

18For instance, AE complained to the police about JS disciplining her on December 15, 2017 for throwing a tantrum at the mall. This happened when the family went to the mall a few hours after one of the incidents of sexual abuse alleged by AE. JS accused her of being rude to her mother and told her she would be punished when they arrived home. Although AE acknowledged she told the police this, she testified at trial she did not recall the incident.

THE BACK MASSAGE

The December 15, 2017 Incident

19An incident involving AE massaging JS’s back in her mother’s and JS’s bed is what led to AE’s disclosure of the sexual abuse to her mother and the complaint to the police.

20On the evening of December 15th, after the family returned home from the mall, the mother and JS went to their bed in the basement after they ate dinner. The mother was talking on the telephone in the bed and AE was under the red sports jersey on her mother’s left. JS was on the other side of the bed under the blue jersey.

21When AE came down to the basement, JS was complaining about back pain. AE offered to massage his back. She had massaged his back before, maybe four or five times, which would occur while she was under the blankets on the basement bed. JS would tell AE and the mother that AE did a better back massage than the mother. The mother was still on the telephone with her mother at the time facing away from JS and AE. Then she turned and heard JS whisper to AE to go to the bathroom and get her “jammies” on. AE went into the bathroom and changed out of her black leggings and purple top that she had been wearing that day.

22After AE returned to the bed, the mother observed that AE had a t-shirt on and that she had no underwear on because she could see AE’s vagina. AE told her mother she had not worn underwear all day. The mother testified she then turned toward JS and thought that his posture was “weird”. She saw him slowly moving to sit up half-way, leaning on his arm and taking a long sip of water. The mother said she had never seen him do that before.

23The mother testified she became very angry and asked JS about this. He angrily denied knowing AE had no underwear on and said something about not being a pedophile. She apologized to him saying she did not mean to insinuate that; but that she was just confused about why her daughter did not have on underwear.

24The mother then sent AE upstairs and the mother went upstairs to put the children to bed. On the main floor, the mother questioned AE about what was going on and asked her why she was not wearing underwear. The mother told her, “You’ve got to talk to mommy. I can’t protect you if you don’t talk to me”. AE hesitated answering and then said she did not know why she was not wearing underwear. At this time, the mother observed that AE was wearing her beige underwear.

TESTIMONY ON THE DECEMBER 15, 2017 ALLEGATION

AE’s Evidence

25The December 15th incident prompted the mother to take AE to the police the next day.

26The mother picked AE up from her grandmother’s house on December 15th in the early afternoon. When they arrived home, the mother went down to the basement to lie down because she had a migraine headache. AE testified she went to sit on one of the couches in the living room and JS was sitting on the other couch. AE’s younger brother, KE, was also in the living room. They were watching television.

27JS told KE to go upstairs. AE alleges that JS came over to the couch she was on, knelt down in front of her, pulled down her leggings and underwear and licked her vagina. JS did nothing else to her on that occasion. AE was wearing a purple top and black leggings. AE testified that JS threw her underwear somewhere and her mother found it later.

28After the incident, AE put her black leggings back on. Subsequently, the purple top and black leggings ended up on the floor of her parent’s bathroom in the basement. AE identified the black leggings, the purple top and beige underwear when shown them in court. But AE did not remember how they ended up on the bathroom floor.

29The mother was still lying down in the basement when this occurred. But she came upstairs and she, JS, AE, and KE went to a mall to pick up food for dinner. AE told the police that while there, she had a tantrum over wanting a pencil. When they returned home, JS grounded her and took her television from her bedroom.

30It was after returning home from the mall that AE told her mother what JS had done to her.

31Defence counsel questioned AE about her testimony at trial that JS did nothing more to her than lick her vagina. She maintained that he did nothing else to her. Defence counsel then pointed to her preliminary inquiry evidence where AE testified that JS touched her with his finger. AE agreed she said that at the preliminary inquiry.

32Defence counsel challenged AE that JS never took off her leggings and underwear and did not lick her vagina. AE insisted that JS did do that.

The Mother’s Evidence

33The mother expanded the factual context around the first incident. She gave two statements to the police, one December 16, 2017, and the other on January 10, 2018.

34The mother testified that she normally returned from work daily around 6:00 p.m. to 6:15 p.m. JS would generally arrive home before the mother at about 4:30 p.m. Until the mother arrived home, the children were in JS’s care. The mother testified that JS also stayed home with AE at times when AE was sick. She spoke of coming home on one of those occasions and finding JS on the bed in the basement and AE on the couch. The mother felt a “strange vibe”, as AE was acting “fidgety” and she saw “weird looks on their faces.” The mother estimated this occurred about two weeks before the disclosure in December 2017.

35The mother testified that on December 15th, JS asked her to pick him up at lunchtime and she did so and went on to pick up AE at her mother’s home. The mother recounted a concern JS had mentioned that day – that she was being distant with him. Before going home, they picked up a book at a bookstore about stranger danger and the use of the internet.

36JS and the mother arrived home around 1:30 - 2:00 p.m. The mother confirmed AE’s evidence that she had a migraine and that JS told her to go down to their bedroom in the basement and lie down. AE remained on the main floor with AE and CE. The mother testified JS usually went downstairs with her and she was confused by him telling her to do that because he had accused her of being distant.

37Ten minutes after they arrived home, the mother ordered a pizza. About 30 minutes after the mother went downstairs, JS went to the basement with pizza for her and went back upstairs. The mother went upstairs a few times. On one of those occasions, she saw JS coming down the stairs from the second floor to the main floor. CE was in the living room at this time, but AE was not. She testified JS told her each time to go back downstairs and lie down. The mother testified she had never seen him remain on the main floor with her children. After work he would usually go to the basement bedroom to be with her.

38At one point that evening, JS and the mother had a brief conversation in the basement where she asked JS if he was planning to leave her. She asked this because he had said he went upstairs to talk personally to AS, his older daughter, when he usually texted her. After the conversation JS returned upstairs to the main floor from the basement.

39The mother did not witness the sexual assault AE described. She spent most of the time in the basement after they arrived home until they left for the mall about three hours later. She spent only a few minutes at a time upstairs each time she went to the main floor.

40The mother said she saw a pair of beige underwear, which she had never seen before, on the floor near the hallway sliding glass doors. The mother testified they were size 12, the same size of jeans JS’s older daughter, AS, wore. She did not think much of that at the time as she thought JS’s older daughter AS might have dropped them on the way to the laundry. AS said they were not her underwear. No one claimed the underwear when the mother inquired. The underwear were about five feet from one of the living room couch. The mother later saw the underwear had been moved to the basement steps landing.

41The mother was in the basement before they left for the mall. JS came to the bed and started to kiss her. He then initiated sexual intercourse. This lasted five minutes and the mother took 15 further minutes to get ready to leave. The mother stated she found that very strange because JS did not seek sex that way and because of what had happened that day with him accusing her of being distant. At about 4:30 p.m., they left with AE and CE to see about getting a loan for JS’s car payment and to get takeout food for dinner. Before they left for the mall, they had been home about three hours.

42The mother testified that at about 6:30 p.m., the family returned home from the mall. After dinner, JS and the mother went down to the basement to watch television.

CONFRONTATION OF JS AND REPORT TO THE POLICE

43The mother confronted JS about what AE had told her. She told him she was done with him. She said JS denied it and was trying to “gaslight her” by saying AE was lying. The mother repeated, “Take your stuff and get out!” JS then packed his belongings and went upstairs to talk to his daughter, AS. The mother said she and the kids cried about this and the mother called a girlfriend to come over for support.

44The mother’s friend called the police at about 10:00 p.m. on the same evening, December 15, 2017. The police arrived and took a brief statement and collected some evidence. The mother gave the police a note, discussed below, that AE had written. As directed, AE went to the bathroom and wiped herself afterwards and gave the tissue specimen to the police. The next morning AE and her mother attended the Hospital for Sick Children where AE was examined physically and gave a statement to the police. The police also obtained the beige underwear, the black leggings and the purple top AE had been wearing the day before.

THE OFFENCES

Sexual Exploitation and Invitation to Sexual Touching

45Both AE and her mother spoke about how the disclosure unfolded. The mother testified that AE seemed to have trouble getting her words out. She seemed panicky. The mother said she (the mother) had trouble understanding what was going on. She did not know what to think.

46But the mother thought back on AE telling her JS had told her she had a nice butt which AE confirmed in her testimony. The mother thought back on the times she would come home from work and see AE in the basement with JS and AE would have a look on her face that the mother described as “odd”. The mother spoke about a situation in the fall of 2017 when AE was “freaked out” and “scared” when her mother encountered her in the basement with JS. The mother got very annoyed with AE about this.

47The mother indicated that she noticed a change in AE’s behaviour from September 2017, which as discussed below, is a date demarcating pre- and post-sexual abuse. That is, AE’s evidence is that JS’s inappropriate behaviour started in September 2017 when she saw him masturbating in the basement. The mother said she had to raise her voice more often from September 2017 when questioning AE’s behaviour.

48When the mother was confronting AE about not having underwear on, AE asked if she could write a note. The mother told her she could do that and that she would go outside and have a cigarette and come back in.

49When the mother returned AE gave her a note that said, “Jay is trying to rape me.” The note was put in evidence. The mother testified she had never heard AE use the word “rape” before. She had never spoken to AE about rape or inappropriate touching, not even when discussing healthy relationships. The mother said AE looked “scared” when she gave her the note. When the mother questioned as to what she meant she said JS licked her and when questioned as to where he licked, AE pointed to her vagina. The mother was taken aback.

50The mother warned AE that she had better be telling the truth. AE then asked her mother if she was going to be mad. The mother asked if AE was sure and queried as to whether he touched any other parts of her body. AE said he did try but she refused.

51AE told the police, and confirmed at trial, that JS licked her vagina more than once, about once a week. She said the first time was in her bedroom at night. Under cross-examination she did not have further details about that incident, but stated it happened more than twice. It happened after the masturbation incident in September 2017. Defence counsel put to AE that JS never licked her vagina. AE disagreed.

Other Sexual Offence Allegations

52AE disclosed other incidents to the police and her mother, incidents that occurred before December 2017. The mother testified that she had not heard about these incidents before December 15th.

Other Incidents of Sexual Exploitation and Invitation to Sexual Touching

53AE disclosed that at night JS came into her bedroom woke her up and touched her vagina with his hand and put his finger into her vagina while she was in bed. He asked if he could lick her vagina and she said, “no”. But he licked her vagina anyways. She said this happened in her bedroom, time-wise, sometime after she saw JS masturbate in the basement in September 2017.

54As noted earlier, AE testified that when JS masturbated in the basement, that was the “first time she saw everything happen” and then “everything started happening afterwards.” At the preliminary inquiry she described the circumstances as “escalating” after the masturbation incident.

55The Crown brought out another incident of invitation to sexual touching from AE’s police statement where she said JS dared her to touch his penis and she did touch it. She said this happened a few months before she gave her December 16th statement. AE did not recall any other details of that incident, as to where it happened, whether his penis was bare or not, or what she was doing before it happened.

56AE added a further incident of sexual abuse at the preliminary inquiry and that was that the first thing JS did was put his fingers into her vagina. She recalls no details of when or where this happened. This is contrary to her evidence that the first inappropriate behaviour by JS was when she saw him masturbate in September.

57Defence counsel pointed out an inconsistency in her evidence about JS touching her body. At trial and the preliminary inquiry AE testified JS did not touch her bum. Defence counsel pointed out her contrary evidence to the police that JS touched both her vagina and bum and then he licked her vagina.

Sexual Assault - Attempted Intercourse in the Upstairs Bathroom

58AE also disclosed to her mother that JS tried to stick his penis into her bare vagina. This also happened after September 2017. Her evidence is that he took her from her bedroom, picked her up, and placed her on the bathroom sink counter top.

59AE said JS tried but it did not work because, as JS explained to her, she was too little. The mother testified that AE told her, “Don’t worry mommy. I can’t get pregnant. [JS] said he’s on the pill.” The mother questioned whether AE was sure JS did this. AE insisted she was sure. The mother felt the need to further ensure AE was being truthful. The mother’s father, AE’s grandfather, had recently died. AE called him “papa” and was very close to him. The mother asked AE to “swear on papa” (that she was telling the truth) and AE responded that she would swear on papa. The mother then told AE and her brother to go upstairs and lock the door.

60Defence counsel cross-examined AE about her memory. She agreed that her memory would have been better in December 2017 than in October 2018 when she told the police about the attempted sexual intercourse. He questioned why she did not remember to tell the police in her first and second interviews.

61AE testified she did not recall when it was that she remembered the incident. Neither did she recall what caused her to remember. Defence counsel referred her to her police statement where AE told the police that her mother reminded her of the attempted sex assault incident. AE agreed that if she told that to the police, that is what occurred. She did not remember when her mother reminded her.

62Defence counsel questioned AE about inconsistencies in her evidence about how many times JS tried to have intercourse with her. In her police statement she said it was two or three times. Defence counsel then referred to her preliminary inquiry testimony where she said I think he only did it once in the washroom. AE’s response to this inconsistency at trial was that he did it twice, but she could just recall the details of the second time he tried to have intercourse.

63Defence counsel also put to AE that when asked in her December 16, 2017 and January 10, 2018 interviews, whether JS touched any other part of her body or his body, she never mentioned JS trying to have sex with her. AE had no explanation for this.

64Defence counsel further questioned AE about her statement to the police where she estimated that the attempted intercourse occurred in the washroom in the summer and her further evidence to the police was that he first touched her in March 2017 as opposed to her earlier evidence that nothing happened before September 2017. Defence counsel pointed out the inconsistencies with the evidence she gave at the preliminary inquiry where she testified that it occurred two or three weeks before the December 15th incident, around mid-November. AE responded that she confused the dates.

THE SEPTEMBER 17, 2017 INCIDENT

JS Masturbating in the Basement Bedroom

65There was mention earlier of a masturbation incident in September 2017. AE’s testimony on this is that JS would help her with her math homework. She described one time around September 2017 when she went down to the basement to get help. AE said she stood by the door and saw JS was on the bed touching his penis, later in evidence describing it as masturbation. He said nothing to her at the time. She testified she felt “grossed out” and ran back upstairs and never asked for help with her homework again. Afterwards, JS told her he saw her through the bedroom door keyhole. AE indicated she did not know at the time of the masturbation that JS had seen her.

CONCERNS OVER USE OF ELECTRONIC DEVICES IN THE HOME

Access to Sexually Explicit Material by AE on Her Own

66There are issues about AE’s exposure, either on her own or by JS, to sexually explicit material on the internet and about her communications with strangers on chat lines. The use of iPads, access to Apps and websites and chat functions are the focus of concern. The question of whether AE accessed pornography on her own with guidance from JS was one of the areas of evidence allowed by Code J. on a s. 276 application.

67As will be seen, there is evidence that AE’s mother found pornography on AE’s iPad. To disprove this, the defence would have to establish that AE accessed the pornography on her own, which according to the Crown, raises the question of “other sexual activity” by AE which would require a s. 276 application by the defence. The defence indicated that it would not be advancing that argument.

The Devices in the Home

68The Crown queried AE about JS’s and her devices. She testified that JS had an Apple iPhone for which she did not have the password and an iPad which she used. She also had an iPad. She did not know whether her iPad was password protected. She did not know whether anyone else used JS’s iPad. She believed all the children knew JS’s iPad password.

69The mother’s evidence was that she bought an iPad for JS, for herself and AE. She indicated that JS’s younger daughter, ABS, and his son, DS, and her son, CE would use her children’s iPads and all the children would use JS’s iPad if he allowed it. There were no rules around any of the children using JS’s iPad to play games. The mother stated that the children never had access to JS’s iPhone because it was password protected.

70During her police interview the mother stated that she knew JS’s Apple ID. She provided this as well as a password in her statement to the police. She also said she knew the password for his iPad. But she did not recall whether she knew how to use JS’s iPad using his password.

The Issue of Pornography in Texts from JS to AE

Pre-Trial Section 276 Application

71The Crown sought to rely on incidents involving JS and AE and pornography as “grooming” activity by JS leading up to the charged offence of sexual exploitation. In his decision, Code J. cited the Ontario Court of Appeal, and found in the application brought by the Crown that certain evidence does not constitute “other sexual activity” requiring an application as that evidence constitutes:

… a deliberate course of systematic conduct by a person in a position of trust, intended to sexualize a child, with the view to have that child initiate sexual contact, amounting to an invitation to touch for the purpose of the offence of sexual exploitation.

[R. v. R.B., 2014 ONCA 12, 2014 ONCA, at para. 12, (Ont. C.A.)]

72Code J. allowed the evidence sought to be elicited by the Crown: (a) that JS showed AE pornography on the internet; (b) that JS was with AE when he showed her pornography; (c) that AE watched pornography on her own at the direction of JS; (d) and that JS asked AE to take nude photographs of herself and she complied.

73The defence denied the sexual offences and the evidence advanced by the Crown in the above-cited four areas. The defence took the position that the allegations are false, and that AE has a motive to fabricate because, as is discussed below, before AE’s disclosure, the mother had found pornography on AE’s iPad. She was disciplined by her mother and JS for this.

74A question for trial is whether the sexual activity advanced by the Crown in her s. 276 application formed part of the actus reus of sexual exploitation or is simply evidence to be considered as being closely connected to the actus reus.

75Jumping ahead, looking at the whole of the evidence, if proven, I would regard the categories of conduct the Crown presented in her application involving pornography to be closely connected to the actus reus of sexual exploitation rather than part of the actus reus, that is, conduct that JS engaged in for the purpose of attempting to elicit sexual contact with AE and therefore linked to the charged offence of invitation to sexual touching.

AE’S Allegation About Pornography

76The Crown inquired about the evidence AE gave the police that JS would give her his iPad and “texted inappropriate stuff to her”. She also said he did this after September 2017. But she did not know which App he used to send the texts.

77The Crown also asked AE about her statement that JS would show her pornography on a website that depicted naked males and females touching each other’s penises and vaginas and having sex. She said JS would usually show her the website at night in her bedroom when she was ready to sleep when no one else was around between 11:00 p.m. and morning.

78AE said she did not recall how long JS was in her bedroom. She could not recall if JS was doing anything besides showing her the video. She could not recall which device JS used to show the website. She said her brother caught her watching the inappropriate things and told their mother and she was grounded. Grounding meant she would have to stay in her bedroom.

79Defence counsel questioned AE about her allegation that JS showed her pornography. He clarified that what she said in-chief about the naked man and woman was one of the times she said JS showed her pornography. At trial AE indicated she could not recall if he showed the pornography on his iPhone or iPad. She stated that she thought he had shown her pornography close to five times. When defence counsel referred her to her preliminary inquiry evidence she agreed she was truthful when she said that he showed her pornography on both his iPhone and iPad and that he showed pornography 10 – 20 times. She also said JS did not show her pornography on her own iPad.

80When defence counsel raised the question, AE adopted her preliminary inquiry evidence, that JS never told her the name of the pornographic website. She said that later on she found out the name of a website, but she did not recall how she found out. She told the police, and testified at trial, that JS gave her the search term “sex” to access pornographic sites.

81AE rejected defence counsel’s suggestion that JS never showed her or told her to watch pornographic sites. She also resisted the suggestion that AE saw pornography when she used JS’s iPhone without his permission.

Use of PS4, Roblox, Apps, Websites and YouTube

82The Crown asked AE about playing the children’s game Roblox on her iPad. She was also asked about playing games on a PS4 which is a game console that accesses the internet through a television. The PS4 belonged to JS and he allowed all the children to play Roblox on the PS4. The mother confirmed that evidence and that AE had her own Roblox account. The other children played on AE’s account. The mother believed each of the children had their own PS4 accounts to play games.

83Defence counsel cross-examined AE about her use of devices in the home. His objective was to establish AE’s ability and skill on her own to use devices and access information through the devices.

84AE agreed that on her iPad she could send iMessages and download and play games like Roblox on the internet. AE agreed that she also used her iPad to access information by using Apps, search engines, like Safari and websites. AE agreed that she was able to use her iPad for those purposes in 2017.

85AE adopted her preliminary inquiry evidence from November 26, 2019 that she used YouTube to access information. And that at some point after AE started using YouTube, her mother put parental restrictions on her account so she could only access children’s material on the internet. AE agreed this would prevent accessing certain websites and Apps.

86Defence counsel referred AE to her preliminary inquiry evidence that she would use JS’s younger daughter, ABS’s, iPad to get around the restrictions. She testified at trial that she remembered doing this. AE also agreed that ABS’s account was not password protected.

87Defence counsel questioned AE about her use of Apps and game devices that have chat functions which allow users to communicate with each other. AE’s evidence went somewhat back and forth on the question of internet chatting.

88AE first said she was not sure whether she used the Roblox chat function but conceded she possibly did. After pointing again to her police statement where AE stated that she could “make friends and talk to people” on Roblox, AE admitted she chatted on Roblox. This was after she said she did not recall doing this. But later, on further questioning, again she said she did not know whether she told the officer that. Then, on further questioning still, she acknowledged that she told the police she spoke to people on the Roblox chat.

89AE told the police, and agreed at trial, that both JS and her mother did not want her chatting with strangers on Roblox. She agreed that restrictions were put on her account because she was talking to strangers. Defence counsel suggested that in order for her to get around JS’s and her mother’s concerns, AE used ABS’s account, which did not have parental restrictions, to chat with strangers. AE denied this.

90Defence counsel also questioned AE about putting false information in an account profile. After saying she did not recall doing this, defence counsel put to AE her police statement where she stated that in order to open an account on Roblox she entered a false age in her profile. After considerable questioning, AE acknowledged that older people could use Roblox.

91Defence counsel questioned AE about using the PS4 game console. AE testified it belonged to JS, but the whole family could use it. AE acknowledged her police statement evidence where she indicated that JS could track what people using PS4 were doing. She agreed he could log her in and out and send messages about her age. AE acknowledged that she did not like using the PS4 because of JS’s ability to access and control what she was doing.

92The mother’s evidence was that JS’s PS4 account was not password protected and all the children used it to play games. As noted, she said JS’s iPhone and iPad were password protected. She also stated that all the children used the iPads in the house including hers and JS’s.

93The mother remembered a time JS made AE get off of the PS4 chat because she was talking to someone and he did not want people to think he was a “pedo”. The mother resisted defence counsel’s suggestion that JS wanted her off the chat because it was his personal account. She pointed out that everyone was under the same account at that time. She did confirm her statement to the police that she was concerned with AE chatting on both Roblox and PS4.

94Defence counsel also put to AE that she went into her mother’s cellphone account and viewed messages where her mother told a friend that JS is cheating on her. AE responded that she did not know to a series of questions in this area. Defence counsel further put to her that she tried to go into her mother’s account to steal money to buy more access to Roblox. AE first denied this. Counsel then referred to her police statement where she told the police she did this. After considerable questioning in this area, AE admitted she had done this.

AE’s Use of JS’s Devices

95Defence counsel also questioned AE about using JS’s devices without his permission.

96As noted earlier, JS had an iPhone and an iPad. At first AE admitted she knew she was not supposed to be on JS’s devices. Then she said she did not know. When first asked whether she knew JS’s passwords she denied that in answer to a series of questions. She was then brought her police statement where she stated that she knew his passwords. AE told the police that she overheard one of his passwords when a device service provider came to the house. She told the police what she believed his passwords to be. AE further stated to the police that she knew all of JS’s passwords.

97After a series of questions in this area, AE acknowledged she knew his passwords. But when asked the specific question as to whether back in 2017 she knew the passwords for both his iPhone and iPad, she responded that she did not know if she knew them. Later still, she acknowledged she knew his password for his iPad but maintained she did not use his iPad without his permission. Then she said she did not recall whether she used it without his permission.

98On re-examination, Crown counsel questioned AE, about whether she recalled how she got JS’s password. In spite of her evidence that she overheard the password when the service provider came to the home, she responded to the Crown’s question, that she did not recall.

99Defence counsel also questioned AE about her evidence that JS would send inappropriate text messages about him and women. He would send messages from his device to AE’s iPad and send them to his own iPad after he had put his iPad into her possession. AE agreed that the messages from JS started being sent after September 2017.

100AE agreed she was being truthful when she told the police that sometimes JS would give her his iPad and send her messages on his iPad, and they would have conversations back and forth. AE said she could not recall if she and JS were together when this would occur or if he would give her his iPad and leave it with her. But she said what she did recall is that one device, his iPad, was used in these conversations.

101AE could not explain how messages were exchanged between JS and herself on his iPad in terms of what other devices JS would use to communicate if she had his iPad. She said she could not remember how the exchanges were done. AE could not recall whether she and JS were in the same room and he wrote messages to her and handed the iPad to her for her to reply on his iPad.

102Defence counsel suggested to AE that she could not recall the exchanges because they did not happen. AE disagreed.

103The Crown re-examined AE in this area and AE was not able to explain how it could be that messages could be exchanged with only one device in use. AE’s response was: “I don’t know. I don’t recall. I don’t have anything to say.”

104The Crown also asked AE about the inappropriate messages from JS’s iPhone she said JS would send her. She gave an example that he would say inappropriate things about women. And he told her she had a nice butt. When asked in her January 2018 interview about the details of the messages JS would send, AE told the police she did not remember. Neither could she recall any details at trial.

105Defence counsel raised an area of questioning from her police statement where AE told the police she wanted to be a “hacker” so she could get into JS’s account to see what he was doing. She said that would give her proof that he took inappropriate pictures. AE agreed that was true. She agreed she had his iPad password in September 2017 when everything began to escalate.

106Defence counsel also questioned AE about her statement to the police that there were inappropriate pictures on JS’s cellphone. AE agreed with her police statement that JS sent those pictures from his cellphone to his iPad when she had his iPad. The claim is that after she would look at the pictures, JS would tell her to delete them. She said she would do so and then return his iPad.

107Again, on the question of JS sending inappropriate pictures, defence counsel posed to AE that JS never sent inappropriate pictures to her; that the pictures she saw on his iPad were when she was on his iPad without his permission. AE denied this. She testified the pictures were not in his photo gallery of his iPhone. They were sent to her to JS’s iPad by text.

108The Crown asked the mother about AE being exposed to sexually explicit websites.

109The mother testified that JS called her at work one day in about October 2017 and told her that he had a conversation with AE about the “birds and the bees” and showed her a video. She waited until she arrived home to speak to him about this.

110The mother told JS she did not understand why he would have a conversation with a young girl that a mother was supposed to have. She never saw the video. She asked what video he showed her. He just said he did not know its content or where the video was. The mother asked if the video was pornographic. He denied it was and said it was educational. The mother did not think anything of it at the time. She testified she became concerned about AE accessing pornography sometime after she found out about the video JS showed AE.

Pornographic Material on AE’s iPad

111The mother testified that after the “birds and the bees” conversation with JS, she discovered AE was looking at pornographic websites. She had picked up AE’s iPad upstairs during an evening in the fall of 2017. She found the iPad opened at a pornographic website, XXNS, a site she had seen JS watching on his cellphone. The mother testified she was concerned about changes in AE’s behaviour in the fall before they went to the police. She was concerned about the exposure to pornography.

112The mother clarified her evidence from the preliminary inquiry about how she found out AE was accessing pornography on her iPad. The mother explained that on one occasion she found the pornography. And on a later occasion JS told her there was pornography on AE’s iPad.

113The mother drew from this that AE was accessing the pornography on her own. The mother explained that she asked AE on December 15th whether JS showed her the pornography and AE said he did. The mother said that made more sense than her accessing it on her own. But the mother conceded that AE used her iPad after school 50 percent of the time when she was not present.

114The mother asked JS if he had accessed pornography on AE’s iPad. He denied it saying he had his iPhone for that. This is when JS said, “AE was nothing but trouble. She is going to get someone in trouble one day.” The mother was suspicious because earlier she had seen AE in her nightgown alone with JS. The mother did not do anything more about this incident. She explained that she never raised her suspicions about JS to him because she loved him a lot and she did not want to accuse him of something she did not know for sure.

115The mother testified that when she searched the browser history feature in the iPad, she found the dates AE was on those sites; she found they corresponded with the dates she found AE alone in the basement at night with JS. She said she saw a pattern. The mother could only specifically remember one time she saw AE alone with JS in the basement. But she believed there were multiple times. The sites in the browser history, she said, were always XNXX. He said she saw the sites between the times she saw AE in the basement with JS.

116The mother testified that when she looked at the browser history the next morning, she could see the pornographic site had been accessed again. The mother could not recall a specific time when she found pornographic sites in AE’s browser history. The mother then disabled the browser before but close to the date AE disclosed the sexual abuse. She did not recall ever seeing pornography on AE’s iPad after that. The mother had cleared the history before she turned the iPad over to the police.

117Defence counsel questioned the mother on how she could obtain the times of access in the browser history. She was able to explain that the date is noted as part of the history. But while she said she could coordinate the dates and times with when she saw AE alone in the basement with JS, she could not say with certainty whether the access time to a site was a feature in the browser history.

118The mother testified that there were occasions during the time AE was accessing pornography, “quite a few times”, that JS disappeared from the bed in the night, and she would not know where he was. When she asked him where he was, he would say he got up because he heard one of the children or he went to sleep on the couch because of his sore back. She never saw him sleeping on the couch. She never spoke to him of her concerns about this. Nor did the mother mention JS disappearing from bed to the police or at the preliminary inquiry. She first mentioned this at trial.

119Defence counsel questioned the mother about why she did not talk about this. In response she said she only linked the disappearances to when she believed JS was showing AE pornography when she put this together with what AE told the police about JS showing her pornography. The mother testified she was seeing patterns.

120The mother also connected this to when AE would have her iPhone in the morning after it had been taken from her. The mother then thought JS had returned the iPad to AE without her (the mother’s) knowledge. She would at times find the iPad under AE’s pillow in the morning after it had been taken from her. When she asked JS about it, he denied knowing anything about it.

121The mother grew concerned. She called the school about the pornography, AE’s use of the internet and chatting with strangers. The mother testified she was worried because she thought something was “off” with AE. The school told her AE was crying at school and hiding under her desk. The school recommended she speak to AE about healthy relationships and internet safety and recommended the mother buy her a book that dealt with puberty issues. She took that advice and bought a book on December 15, 2017, on the afternoon before AE made the disclosure of abuse.

122The mother insisted under cross-examination that although the call to the school was about AE, the book was purchased not especially because of AE but for all the children. This is also in spite of the fact the mother told the police she bought the book for AE; and in spite of speaking to a child and family services intake worker about acquiring a book for AE; and in spite of seeing AE’s iPad open and displaying pornography.

123Also, on extensive questioning by defence counsel, the mother testified she did not see AE speaking to strangers online and she did not recall speaking to JS about this. She said she did not necessarily disbelieve JS if he said AE did this. She repeated many times that she had no special concerns about AE accessing strangers. The concerns were for all the children. However, the mother agreed with defence counsel that she and JS took steps to prevent AE from accessing pornography, steps such as demanding she not access pornography, taking her device away and disabling the browser.

124On cross-examination, the mother further testified while she never saw AE speaking to strangers on the internet she realized looking back that JS was “gaslighting” her, “grooming”, her to think badly of AE’s behaviour. She thought JS was lying about AE’s behaviour. She did acknowledge that she might not always be present when JS might have observed bad behaviour. But she was present when JS accused AE of doing a single small act unrelated to the allegations which the mother believed AE did not do.

FORENSIC DNA EVIDENCE

125The Crown called Allison Morris of the Centre for Forensic Science as an expert in examination and interpretation of items for the presence of blood, semen and saliva and the interpretation of DNA profiles. The defence did not dispute Ms. Morris’s expertise.

126Ms. Morris conducted tests on AE’s vagina, external genitalia, her black tights and a tissue that she used to wipe herself after using the washroom. A blood sample was also drawn from JS.

127Swabs were conducted on AE’s vagina and external genitalia where no male DNA was found. Tests for saliva on the tissue revealed no male DNA.

128The tights were tested for saliva and semen. No semen was detected on the area of the black tights that was tested. Saliva was detected in one area of the tights. Tests on the tights around the crouch area revealed the existence of two male DNA profiles, one designated as major (“Major Profile”) and the other designated as minor (“Minor Profile”). The Minor Profile was not suitable for comparison.

129JS’s blood test revealed that JS could not be excluded as the male-specific donor in the Major Profile in relation to the saliva deposit on the crotch of AE’s black tights. The DNA was estimated to be 807 times more likely if they originated with JS than if they originate from an unknown male, unrelated to him. Ms. Morris testified that with those results the Major Profile could account for all the saliva, some of the saliva and possibly none of the saliva.

130Ms. Morris was asked about the possibility that the deposit of saliva on the tights might have been transferred from a surface or another object onto the tights. Ms. Morris responded in the affirmative.

131Ms. Morris was presented with questions about a number of possible objects and surfaces where the tights were before they were turned over to the police. The bathroom floor, a bed, a couch, a chair and another piece of clothing were mentioned. Ms. Morris again responded in the affirmative and specified that DNA from saliva could more easily be transferred from a hard surface like a floor than a porous surface like fabric.

132While Ms. Morris’s evidence was interesting and she spoke with a clarity and professionalism that was quite impressive, her evidence was not strongly confirmatory of the Crown’s position. The results show that the Major Profile could account for all of the saliva, some of the saliva and possibly none of the saliva. There is also a possibility that DNA from saliva could have been transferred to the tights from various sources including a couch, the basement bed or the bathroom floor, all places the evidence shows the tights and JS had been before the tights were seized. The forensic evidence did not contribute to proof of JS’s guilt.

THE LAW ON SEXUAL OFFENCES AND CHILDREN

133AE testified that the sexual abuse by JS began in September 2017, some four months before disclosure to her mother and the police. That there is frequently delay in disclosing sexual offences is recognized by the courts. This is especially so with young victims. AE was 8 years old. This is also recognized as a factor if the accused is a member of the victim’s family. At the time the allegations arose, AE’s mother and JS lived together with their children as a family and were engaged to be married.

134Courts have opined on this.

It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[R. v. T.E.M., 1996 ABCA 31, at para. 11, (A.B.C.A); see also, R. v. D.D., 2000 SCC 43, at paras. 31 and 32, (S.C.C.); R. v. H.C., 2009 ONCA 56, at para. 65, (); R. v. C.B., 2008 ONCA 486, at paras. 38-40, (Ont. C.A.)].

135The Supreme Court of Canada observed:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[R. v. B. (G.), 1990 CanLII 7308 (SCC); [1990] 2 S.C.R. 30, at pp. 54 - 55, (S.C.C.)].

ASSESSMENT OF WITNESSES

The Main Witnesses

136AE and her mother are the main witnesses the Crown must rely on to prove beyond a reasonable doubt AE’s allegations of two counts each of sexual exploitation, invitation to sexual touching and sexual assault. JS did not testify or call a defence as is his constitutional right. Nothing adverse can be taken from him exercising his right to remain silent.

AE’s Credibility

137AE went to the police the day after disclosure of the sexual abuse to her mother that she alleged occurred during the four months preceding disclosure. It must also be considered that the preliminary inquiry took place about two years after the allegations and the trial some four years after the alleged abuse.

138AE’s video recorded statements to the police were shown in open court. At trial, AE adopted the evidence she gave to the police. I observed AE to be quite articulate at ages eight and ten when she spoke to the police. She was on the whole clear in answering questions. I found when the police asked her to clarify her answers she was able to sufficiently say what she meant.

139AE was quite conversant and knowledgeable about the electronic devices, Apps and platforms she and JS were using at the relevant time of the allegations. Her police statement showed a relatively sophisticated and ready knowledge of, for instance, how to search the internet, to use YouTube, to use the Roblox App to play games and chat with others, to use an iPad to send and receive texts, to place a false age in her Roblox profile, to steal money from her mother’s account to buy more access to Roblox.

140The Crown inquired about AE’s memory of the sexual abuse. AE acknowledged that at trial there were many things she did not recall. She stated that she remembered some things. But some things she could not recall whether they happened or not. AE stated that she has tried not to think about what happened to her because it makes her feel uncomfortable. AE answered, “I don’t remember. I don’t recall” in answer to many questions throughout her trial evidence. At trial she did not recall giving certain evidence to the police and at the preliminary hearing.

141As noted earlier, courts have held that failure by a victim to recall the details of sexual abuse and delay in disclosing are commonly the case. This is especially true of young persons who make allegations of sexual assault against a person in a position of trust like JS was in relation to AE.

142Like many victims, AE explained she was trying to forget what happened. I find this is certainly understandable and can explain some memory failures. Fear of not being believed, as AE said of her circumstances, or as in other cases, fear of breaking up the family and threats by the perpetrator can lead to delay in disclosing. AE’s delay was not lengthy, only four months in relation to her first visit to the police.

143In assessing AE’s evidence, memory failure must figure into the assessment of the Crown’s evidence. Care must be taken to consider the effect of traumatic experiences on memory especially with children; however, lack of memory cannot be ignored in attempting to arrive at the truth.

144The Supreme Court of Canada in R. v. B.G., in addressing the evidence of children, observed that the credibility of every witness who testifies before the courts must be carefully assessed. While the standard of the “reasonable adult” may not be appropriate, in assessing AE’s credibility, her evidence must be weighed in the full context of all the evidence before the court.

145The Ontario Court of Appeal put a finer point on assessments of the evidence of children:

The changes to the evidentiary rules were intended to make child evidence more readily available to the court by removing restraints on its use that existed previously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to a higher standard.

[R. v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811, at para. 8, (Ont. C.A.)]

146I did a careful review of the whole of the evidence I saw and heard at trial and I situate the AE’s and her mother’s testimonies in that context.

147Defence counsel posed to AE, and she agreed with his suggestion, that her memory would have been best when she gave her statements to the police in December 2017, January 2018 and October 2018 and at the preliminary hearing.

148At the commencement of her police statements at age 8, and her testimony at the preliminary hearing at age 10, and at trial at age 12, AE was tested for her ability to distinguish between the truth and a lie. The police and the judge on the prior occasions were satisfied with AE’s understanding of those concepts, as I was at trial. As stated earlier, I found AE to be quite an articulate child as I reviewed transcripts of her police statements and the preliminary hearing. She spoke freely. This was also my impression of her at trial.

149As the evidence evolved AE’s tendency to tell lies to her mother and JS was canvassed. AE admitted to the police that her mother was concerned about her lying. I am cognizant of and take account of the reality that owing to their immaturity and limited life experience children may tell lies for a number of reasons such as a way to get out of trouble or to avoid punishment. When considering a child’s evidence, I believe judicial notice can be taken of this tendency in some children.

150But when evaluating whether the prosecution has met its burden beyond a reasonable doubt, whether a child has been untruthful or not, especially when considering as serious a matter as sexual abuse allegations, any tendency to lie cannot be ignored in measuring the Crown’s success in meeting the standard of proof.

151Defence counsel referred to several areas of her police statements and questioned AE about her telling the police on several occasions in her statements that she did not want to tell anyone about what JS was doing because she was afraid people would think she was lying. AE said she did not recall saying that.

152Defence counsel pointed to AE’s admission to the police that she would lie to get toys because her mother and grandmother did not have a lot of money. AE responded that she did not recall lying to get toys. She did not recall lying to get stuff. There is also what AE told the police, that she tried to go into her mother’s account to steal money to play Roblox. On cross-examination, AE denied this. But when she was presented with what she told the police, on considerable questioning, AE ultimately admitted she had done this.

153Referring to her police statements, defence counsel posed to AE her admissions that she lied about things like getting good grades, using other people’s devices and social media accounts, and about looking around her mother’s and JS’s bedroom. AE said she did not recall those lies.

154Of some concern is a comment AE made in her January 2018 statement. She told the police she wanted her mother and JS to break up. She explained that this was because she thought that how he was treating her, for grounding her and accusing her of lying, was wrong. AE said she wanted to get revenge on him. This too casts some doubt on her evidence and hints of a possible motive to fabricate.

155I found the question of culpability in relation to pornography on AE’s iPad to be closely connected to the allegation of invitation to sexual touching. The strength of evidence related to that charge is therefore important.

156As discussed earlier, AE testified about inappropriate sexual messages JS sent to his iPad after he had put his iPad into her possession when they would have conversations back and forth. Doubt is shed on this area of AE’s evidence because she could not explain how this would have been possible. AE could not explain how messages were exchanged between JS and herself on his iPad if she had his iPad. AE said she could not remember how the exchanges were facilitated. She could not say whether or not JS was with her when they exchanged messages. AE denied she was concocting this evidence.

157As well, when asked on cross-examination whether AE knew JS’s passwords, she repeatedly denied that in answer to a series of questions. She was then brought to her police statement where she stated that she knew his password. AE had told the police that she overheard one of his passwords when a device service provider came to the house. She gave the password to the police.

158In the end, looking at invitation to sexual touching, I do not find the Crown was successful in establishing, if AE was exposed to any sexual material on electronic devices, that JS was responsible for this. I say this because of AE’s facility with using devices and communicating and accessing information on her own.

159Defence counsel also confronted AE with her mother telling her about the “The Boy Who Cried Wolf” fable, that if she lied, people would have trouble believing her when she was telling the truth. AE agreed that the conversation with her mother was about her not telling the truth. This fable refers to a problem with repetitive lying. AE indicated in her statement to the police that she understood the meaning of the story.

160All in all, as I consider the credibility issues that emerged in AE’s evidence in the context of other evidence, I find her evidence raises a reasonable doubt about JS’s guilt of all of the offences charged.

The Mother’s Credibility

161It was evident that the mother loves AE a great deal. She is her daughter, her first-born. The mother was faced with a difficult situation where she had to make decisions about whom she believed, her young 8-year-old daughter or her fiancé, whom she said she loved a great deal and whom she was planning to marry.

162As expected, the mother did not witness any of the sexual offences alleged by her daughter. The mother did witness the incident that gave rise to AE’s disclosure - AE giving JS a massage while AE was in bed beside him wearing a nightgown with no underwear. But she arrived at conclusions that supported AE’s allegations from looking back on incidents she had observed and seeing what she thought were patterns pointing to the JS’s culpability.

163For instance, AE testified that JS sent pornography to her iPad. When the mother saw the pornography on AE’s iPad, she initially thought AE had accessed it on her own. She indicated she subsequently began looking back and making connections with things she had witnessed. She concluded that JS had facilitated AE’s access to pornography on her iPad.

164The mother pointed to several types of observations that underlaid her view of JS’s culpability:

• The mother’s search of AE’s iPad browser history where she saw dates of access to a pornographic site she said corresponded with times she found AE alone in the basement at night with JS;

• Her view that the times JS disappeared from their bed at night corresponded with the dates in the browser history that AE accessed the pornography; and

• Her connection of AE’s statement to the police about JS showing her pornography and JS’s disappearances from bed with the mornings AE would have her iPad in bed after it had been taken from her which she believed JS had returned to AE without the mother’s knowledge.

165The mother said she saw patterns. She testified she would clear the browser history on AE’s iPad after searching it and would subsequently find the same pornographic website in the history. While the mother indicated that she saw AE in the basement alone with JS multiple times, she only specifically remembered one time. So it was not possible for her to support her evidence that the browser history corresponded with times she saw them in the basement together. The other problem with the mother’s evidence in this area is that she could not establish that the searches in the browser history contained dates that corresponded with the observations in the basement.

166I find the mother’s vision of patterns of behaviour between JS and AE is based solely on speculation that lacks a foundation in the evidence. There may well have been patterns in AE and JS’s behaviour but the mother was not able to link her suspicions to material evidence. I cannot apply those suspicions against JS.

167As well, her evidence that JS’s disappearances from bed at night corresponded with AE having her iPad in the morning, I find, was not sufficiently supported. It is not expected that the mother should recall precise dates and times of things that occurred several years before, but there needs to be more evidence than an assertion of a vague connection between incidents.

168The mother was strongly defensive of her daughter which I understand. I do not criticize her for coming to the defence of her child. A mother’s love is deep. That is a mother’s natural reaction especially in relation to a young child. Maternal protection of children is an innate calling and axiomatic to the perpetuation of the humankind. However, when considering how to assess the mother’s evidence I am obligated to weigh it in the context of the totality of the evidence before the court.

169The mother had seen AE’s iPad opened at a pornography site and saw changes in AE’s behavour. She became concerned about this such that she sought outside help. She contacted the school which advised her to speak to AE about healthy relationships. She also spoke to a child services intake worker and on their recommendation bought a book for AE about the internet and stranger danger. The mother told the police about the purchase.

170However, with all of this, in later evidence, the mother insisted she was not especially concerned about AE. The book was for all the children, she said. Her concern was the same for all the children. However, there was little or no evidence that supports the mother’s contention about her general concern for all the children. I find she was not being completely forthright with her evidence.

171The mother was also not prepared to accept that AE had a particular issue with not telling the truth at times. She declared that AE lied at times just as all children do. The mother’s evidence was there was no big issue with AE and lying. She told the police AE lied sometimes and that she would speak to her about this. But the mother insisted she did not recall having any conversations with AE about this. This is in spite of her demonstrating what I saw as a particular need to ensure that AE was telling the truth about the sexual abuse. She asked AE to “swear on papa” that she was telling the truth.

172AE gave evidence contradictory to her mother’s. She told the police that her mother was very concerned about her telling lies. She said that her mother used the fable of Peter and the Wolf to explain to her the consequence of lying - the lesson being if AE kept lying no one would believe her when she was telling the truth. AE demonstrated to the police and the court at trial that she understood the lesson. This suggests a problem with repetitive lying.

173The mother denied a memory of telling AE about Peter and the Wolf. Perhaps, she did not recall. That is entirely possible. However, I tend to believe AE on this. The mother asking AE to swear on papa when she was making the serious allegations against JS suggests it would be reasonable for her to introduce AE to the fable. The mother being defensive about AE telling lies serious enough to require her to give AE a lesson and swear on her beloved deceased father, casts doubt on the mother’s evidence.

CONCLUSION

174I cannot conclude with absolute certainty that JS did not commit some or all of the offences alleged against him. The law does not require the evidence meet that standard. I need only determine whether on the whole of the evidence I have a reasonable doubt about JS’s guilt. I think it is fair to conclude on the evidence I saw and heard that a reasonable doubt has been raised about JS’s guilt.

VERDICT

175I find JS not guilty on counts 1, 2, 3, 4, 5 and 6 on the indictment.

Allen J.

Released November 25, 2022

COURT FILE NO.: CR-19-30000764

DATE: 20221125

ONTARIO

SUPERIOR COURT OF JUSTICE