COURT FILE NO.: CR-22-0057-00 DATE: 2024-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING T. Boisvert, for the Crown

- and -

J.M. K. Brindley, for the Accused Accused

HEARD: February 21-24, 2023 at Thunder Bay, Ontario Madam Justice T. J. Nieckarz

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

Reasons For Judgment

OVERVIEW

[1] J.M. (also referred to as the “Accused”) is charged with one count of touching a person under the age of 16 years for a sexual purpose contrary to section 151 of the Criminal Code, and one count of inviting a person under the age of 16 years to touch him for a sexual purpose contrary to s. 152 of the Criminal Code. The offences are alleged to have occurred between March 1st, 2017, and October 31st, 2018. The Complainant was his step-daughter at the time.

[2] L.M. (also referred to as the “Complainant”), was between 8-9 years old when the offences are alleged to have occurred. She was 11 years old when she initially made the allegations and had just turned 14 years old as of the date of trial.

[3] The Accused began living with L.M. and her family as of approximately September 26, 2016. The family moved to Terrace Bay, Ontario from St. Thomas, Ontario in early 2017 when the offences are alleged to have started.

[4] L.M. alleges that J.M.:

• Repeatedly had sexual intercourse with her, penetrating her vagina with his penis;
• Performed cunnilingus on her on approximately five occasions; and
• Placed her hand on his penis, forcing her to touch him on one occasion.

[5] The Accused denies the allegations.

[6] The evidence at trial consisted of the following:

a. Agreed Statement of Fact; b. The evidence of Officer A. Reccia; c. The evidence of the Complainant, L.M. orally, her video-taped statement provided to the police, and various photographs and letters identified by the Complainant; and d. The evidence of B.M. (L.M.’s mother).

[7] Central to a disposition in this case is an assessment of the credibility and reliability of the evidence of the Complainant.

[8] As an aside, the delivery of the decision in this matter was delayed as a result of the Accused’s non-attendance for the verdict on two separate occasions. This decision was original scheduled to be delivered on July 21st, 2023. The Accused did not attend. A warrant was issued for his arrest. He was arrested and appeared before me on September 8, 2023. He had been the victim of a vicious beating, and I was satisfied that while he should have updated his counsel as to his circumstances, he should be released from custody pending the delivery of this decision. The matter was scheduled for October 24, 2023, but unfortunately the Accused failed to attend again. A warrant issued for his arrest. He was arrested and appeared before me March 4, 2024. The Accused (by his counsel), the Crown, and the Complainant all agreed that the decision may be delivered by Zoom today rather than scheduling an in-person date. To the extent that my oral decision delivered that day differs from this written decision, the written decision is to the “official” decision of the Court.

ALLEGATIONS AND SUMMARY OF CROWN EVIDENCE:

Officer A. Reccia:

[9] Officer Reccia is a “child interviewer” with the Ontario Provincial Police. She conducted the police interview of then 11-year-old L.M. on November 18, 2020.

[10] Officer Reccia conducted the interview at the OPP detachment in Schreiber, Ontario. The Complainant’s mother brought her but was not present in the interview room while the interview was being conducted.

[11] Prior to the interview with the Complainant, B.M. had told the Officer that she had received a letter from the Complainant the previous weekend. Officer Reccia obtained a copy of the letter from B.M. before starting the interview.

[12] The letter written by L.M. to her mother was entered into evidence, not for proof of its contents, but rather for the fact that it was written and for the fact that it is how L.M. made the disclosure of sexual abuse.

[13] The letter was clearly written by a young child, with words spelled phonetically. Using correct spellings for words (and therefore not intending to reproduce the letter exactly as it appears), the letter stated:

J sexually abused me since we moved up here until he moved down south and he told me not to tell you or something would happen but I can’t remember but I know that he sexually abused me and told me not to tell you or something would happen but I [word uncertain] that he would not come back now so that is why I am telling you.

And this is the easiest way to tell you.

[14] When in the interview room, L.M. told the Officer she had also recently made notes in her notebook. One page of notes entitled “How J sexualey abusd me” [sic] was obtained from the Complainant at the interview. The page was entered into evidence at trial.

[15] The child’s notes were also written phonetically. Using correct spelling of the words contained in the notes for ease of reading, they say:

Where he did it: He did it in my room one in my mom’s room When he did it: at nighttime and a few times in the day when my mom grandma and brothers were out in the day What parts of his body he used: he used his privates and his mouth to lick my privates What I said and he did not listen to: I kept on saying stop but he did not listen he [?] kept on doing it. How many times he did it: He did it when we moved up here until he left [signed L.M.]

[16] At the interview the Officer had L.M. complete diagrams of her bedrooms in the two homes the events are alleged to have occurred in, and circle on a picture of a stick figure what she meant by private parts. L.M. circled the crotch area of the figure. These pictures were all entered into evidence at the trial.

The Complainant:

[17] The evidence of L.M. consisted of her video-taped statement and oral evidence. Given the arguments of the Defence with respect to credibility and reliability, and to understand the allegations, it is important to set out L.M.’s evidence in some detail.

[18] L.M. testified that she moved to Terrace Bay, from St. Thomas, Ontario, with the Accused, her mother, and her brothers. After moving to Terrace Bay, they lived in two separate houses as follows:

House #1 - Grandma, the Accused, Mom and all three brothers lived with her. House #2- the Accused, Mom and two brothers lived there with her.

[19] In each home L.M. had her own bedroom. In house #1 her bedroom was on the second floor. Her grandmother and brothers had the other bedrooms on the second floor, while her mother and the Accused had their bedroom on the main floor. In house #2, her brothers shared a bedroom on the second floor where L.M.’s bedroom was. Again, the Accused and B.M. had their bedroom on the main floor. In both homes there was a bathroom on the second floor.

[20] The Complainant’s video-taped statement was played for her, and she adopted it. A voir dire had been held prior to the trial to obtain a prior ruling as to the admissibility of the statement. This will be discussed in greater detail below.

[21] The Complainant’s video-taped statement, made November 2020 may be summarized as:

• She thinks it happened two years ago.
• When asked what happened, L.M. was initially non-responsive, but after being reassured by the Officer, the Complainant showed the Officer her notes.
• She thinks she has lived in Terrace Bay for 5 years. She doesn’t remember how old she was when she moved to Terrace Bay but believes she was in Grade 2.
• She remembers “it happened at two houses” in Terrace Bay.
• It happened “a whole bunch”.
• She does not remember the first time it happened.
• The time she remembers most:
  • She was sleeping in her room and J.M. woke her up.
  • He told her to wake up and be quiet.
  • “He was doing whatever [inaudible]”.
  • He was using his privates.
  • He was naked (he removed his clothes after coming in).
  • He said, “Don’t tell your mom, or something will happen.” He told her this before he finished “doing it” and after.
  • She felt mad and angry he was doing this and wouldn’t listen to her trying to tell him to stop.
  • Her mom and grandma and brothers were downstairs.
  • Her body (privates) hurt a little bit.
  • He was trying to put his privates in hers.
  • She was laying on her back and he was lying close to her.
  • After he left, she went back to sleep.
  • She never went to a doctor or nurse about it.
  • She was not hurt in any other way.
  • She was wearing her “jammies” that have pants. He took her jammies off and put them on the floor. He took her underwear off and put it on the floor.
  • It was dark in her room. She knew it was him when he told her not to tell her mom.
• She did not tell anyone until she wrote the letter to her mom this past Saturday. She is not sure why she thought to write it on Saturday.
• When asked if it happened like that other times, or whether it was different, she responded it was the same thing and at the end he always told her not to tell her mom.
• When asked if he just used his body or anything else, L.M. responded “He just used his privates.”
• It happened from when they “moved up here until he left”. It happened a “bunch of times”; the whole time when he was out of jail. It “probably” happened more than 20 times. “It was basically every night”.
• Sometimes it happened when her brothers were sleeping and a lot of time when they were downstairs before bedtime.
• He was in her room only when it was happened and then he left “so that my mom wouldn’t know because he didn’t want my mom to know”.
• When asked about the last time it happened:
  • The time before he had to leave when he got in a “big fight with someone”. The night before this happened or maybe two nights.
  • It happened the same way as the time she remembers the most.
  • Every time he tried to put his privates into hers.
  • Every time it happened on her bed.
• She did not know what would happen if she told her mom. She was afraid of him. She told her mom when she knew he was not allowed in Terrace Bay anymore. She has not told anyone else. Her mom told her boyfriend after she wrote the letter.
• He has two “eye drops” tattoos and a lot of tattoos down his neck, on his arms, around his finger. He has names tattooed on his arms, including hers and her brothers’. He has tattoos on his back and chest and face.
• She drew diagrams of her bedrooms and showed where the bed was located. She pointed to where he would place the clothes.
• Once, it happened twice in one day. It happened during the day. It was when she was trying to fix her room because the door would not stay shut. He came into her room. He did “the same stuff that we would have done at night”. He was looking out her bedroom window for her mom’s red van. When he saw it, he put his stuff back on then and he went downstairs and sat on the couch.”
• The first five times he “did it”, he used his mouth on her privates. Then he stopped that.
• There was never a time that he did not touch her in her privates.
• He made her touch his privates. He made her put his hand on “it”. It happened “only once”. He grabbed her hand and put it on it. She was trying to pull away, but she could not.
• He put his clothes back on before leaving her room.
• When asked how he would stop when he put his privates in her privates, L.M. responded “I don’t know. He just stopped and he got up, put his clothes on and then left”.
• She wrote her notes on the Monday following the Saturday she gave her mom the letter.

[22] In her examination-in-chief at trial, L.M. supplemented her video-statement evidence with respect to the allegations as follows:

• He put his privates inside her privates. It hurt. She wanted him to stop.
• She identified “privates” by colouring the penis and testicles of a drawing of a man.
• He did not touch her privates with anything other than his privates.
• She wrote the letter to her mom because she did not want to hide it anymore.

[23] In cross-examination, L.M. testified:

• J.M. did not use any other part of his body to touch her including his hands.
• It would happen “basically every night”.
• The same thing would happen each time.
• It would last for about half an hour.
• She remembers she started school on the third day she moved there, and this is when it started. Other than that, she does not remember anything about the first time.
• Her migraines started approximately one week after moving to Terrace Bay. They caused her to be sensitive to light, so she did not have lights on in her room at night.
• The one time she remembers most that she described to the Officer, happened in the “blue house” and she remembers the music was playing loud. Every other night the music was not playing as loud. Her mother, grandmother and two of her brothers were downstairs while her other brother was out at a friend’s place. She remembers the next day her brothers telling her they wanted to stay up all night. She does not remember if her grandmother was there. She does not remember when this happened but “maybe” it was after being there a month or two because J.M. had his stereo hooked up.
• She remembers being out of school. Originally, she said she was not sleeping with blankets that night because it was the summer. She remembered it was hot. She remembers her clothing being removed but cannot remember how. Her pants came off first. J.M. removed her clothes. She cannot remember whether she was lying down or sitting up.
• When there was a blanket, he would be on top of her under the blankets. She would put her own clothes back on when he finished and then go back to sleep.
• She had a bedtime of 8 p.m., but they did not have to follow it. Sometimes she stayed up later and sometimes earlier if she had a migraine. Her routine was to go to bed, then her mom came to say goodnight, mom would leave and close the door, she would fall asleep, J.M. would come in while she was asleep. She believes it was approximately midnight but did not always have a clock. There were three or four times it happened at approximately 8 p.m. when she went to bed early with a migraine. She remembers the clock saying “8” during those times. When she did not go to bed early with a migraine, her brother A.M. went to bed at the same time and his room was close to hers. Grandma’s room was beside hers. Grandma sometimes came in to say goodnight.
• In the “blue house” [house #1] mom did not work and was usually home. Grandma would either be home or out at a senior’s centre. Her brothers went to school.
• She remembers moving to the “white house” [house #2] during the summer because she was out of school.
• Sometimes when the assaults occurred her family members were sleeping and other times they were awake and downstairs.
• She remembers that in house #2 there was a period of a month shortly after they moved in that she could not shut her door all the way.
• She no longer remembers the first “five times” described in the video. She remembers he was “really drunk”. She does not remember anything else.
• The time it happened during the day she remembered her mother taking one of her brothers to the store and her other brother being at a friend’s home. He was in her room for around 15 minutes before he saw her mom’s car coming and got up and left. She recalls she was cleaning up the wood and tools on her floor from fixing the door. She remembers the wood being in a dustpan. She was wearing jeans and a t-shirt. She was standing up when her clothes were removed but does not specifically remember how they were removed.
• She was only alone with him that time. Another time she was there alone with him, but her friend was over. She does not remember other times her mom left her alone with him.
• When she told her mom they did not discuss details. She saw a counsellor but did not discuss the abuse with her. She has not discussed it with other adults or friends. She learned the term “sexually abused” in school. She has not heard the word “penis” before.
• When put to her by Defence counsel that J.M. did not do these things to her, she responded “that’s a big lie”.

Evidence of B.M. (mom)

[24] She was married to the Accused, and they are now divorced. They met in mid-2016 and he moved into her home shortly thereafter.

[25] The family moved to Terrace Bay the last week of February 2017. They lived in their first home in Terrace Bay until July 2018. She confirmed the evidence of L.M. as to the layout of the two homes and where everyone had their bedrooms.

[26] She recalls that after moving to Terrace Bay, L.M. began suffering from bad headaches and had urinary tract infections a couple of times. A doctor was not consulted for the infections. No medical evidence was provided to substantiate the allegations. B.M. recalls behavioural changes in her daughter after moving to Terrace Bay, noting she became more “stand off-ish” and less “cheery”.

[27] She described a relationship with J.M. that was characterized by substance abuse on each of their part. She testified that he used “meth” and cocaine and drank alcohol. He drank every day, drinking beer and whiskey. The amount he drank varied. She estimated he drank 6-8 beer a day and approximately 20-30 oz of whiskey each day. She was also drinking at the time. They would start drinking in the morning. She would not always get drunk, but there were times she did. Sometimes she would stop drinking between 9:00-10:00 p.m. and go to bed after the children. Her usual bedtime was between 10:00 p.m.-12:30/1:00 a.m. Sometimes she would pass out on the couch. When she drank, she was a heavy sleeper. The Accused went to bed after her. Occasionally the grandmother drank with them.

[28] The Accused’s addiction was so bad that he would shake in the mornings until he had a drink. Neither of them worked initially. J.M. would frequently drink to excess. When he drank, he would become loud and angry and would not listen to reason. Alcohol had an impact on his memory, with him not remembering things he had done the night before.

[29] The younger children, including L.M. went to bed between 7:00-8:00 p.m., the middle child at approximately 9:00 p.m., and the oldest between 10:00-12:00 p.m. She kept bedtimes strict, with L.M. in bed by 8:00 p.m. She checked on L.M. after she went to bed. She believes she checked on L.M. and the other children two to three times a night. The youngest son was difficult to get to bed and sometimes needed to be checked more frequently. Despite this alleged routine, she testified that she would not have noticed if J.M. was in L.M.’s room at night as she would have been drunk, watching TV, or in her room sleeping. For the most part she was attentive to the children, except when she was drinking. There was child welfare involvement, and this is the reason the grandmother lived with them.

[30] She left L.M. with J.M. “quite a bit”. She described one occasion approximately a week after moving to Terrace Bay when she left L.M. and one of her brothers alone with J.M. overnight.

[31] Prior to L.M. writing her the letter, B.M. was not aware of any sexual abuse. She asked L.M. if it was touching or if any of J.M.’s body parts went in her body parts. L.M. said “yes”. B.M. did not ask any further details. She called the police. L.M. went for the police interview days after. L.M. wrote one further letter to her mother that said it started in Grade 2 and went until he left, but otherwise she has not told her any details of what is alleged to have happened.

[32] “Private parts” is the term the family most often use to describe genitalia, but L.M. has been taught the proper terms of “penis” and “vagina”.

THE LEGAL FRAMEWORK:

The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[33] The Accused is presumed to be innocent of the charges he is facing unless and until the Crown proves guilt beyond a reasonable doubt.

[34] To secure a conviction, the Crown must prove the essential elements of the charges beyond reasonable doubt. This standard of proof is very stringent. If the Crown fails to meet this burden, the Accused must be acquitted. If the Crown succeeds in meeting the burden, the Accused must be convicted.

[35] Proof “beyond a reasonable doubt” has no precise definition. In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At paragraph 39 of Lifchus, the Supreme Court stated that reasonable doubt is based on reason and common sense. It is logically derived from the evidence or absence of evidence. While the Crown is not required to prove anything to an absolute certainty, a judge must be sure that an accused committed the offence before convicting them.

[36] As stated by Molloy J. in R. v. Nyznik, 2017 ONSC 4392 at para. 7:

[…] The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.

[37] In R. v. Amodio, 2020 ONSC 8077, at paras. 56-57, Dunphy J. highlighted these concepts and the challenge faced by judges in cases involving allegations of sexual conduct against children:

[56] Judges are neither omniscient nor magicians. The criminal standard of proof is set as high as it is set in our society for a very particular reason. It reflects a social choice to tolerate some crime going unpunished before allowing innocent people to be wrongly convicted. Even still, as with any system administered by fallible humans, our system is not perfect…

[57] Sexual assault in general and sexual assault of minors in particular raises these issues in the most terrible way. The nature of these crimes is that there is very often no forensic evidence of any kind and there are no witnesses save the accused and his or her victim. These are also the type of crimes where society’s interest in protecting some of its most vulnerable members is at its highest and most acute.

[38] The standard of proof beyond a reasonable doubt should not be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence: R. v. B.D., 2011 ONCA 51 at para. 96.

[39] The Accused did not testify, and no evidence of the Accused has been adduced. There are no inferences that may be drawn from the Accused’s decision not to testify. An accused has a right to remain silent throughout the criminal process and defend the allegations against him on the basis that the Crown has failed to meet its burden. He has no obligation to explain anything.

Credibility vs. Reliability:

[40] As identified at the outset, this is a case that turns on an assessment of the credibility and reliability of the evidence of the Complainant.

[41] Reliability has to do with the accuracy of a witness’ evidence, which requires an assessment of a witness’s ability to accurately observe, recall and recount events: R. v. L.D., 2021 ONSC 385, at para. 19 citing R. v. H.C., 2009 ONCA 56.

[42] Credibility has to do with whether the witness is telling the truth. A witness who is credible may not be reliable. Sometimes an honest witness may be mistaken in their recollection. Only evidence that is both reliable and credible and addresses the essential elements of an offence can support a finding of guilt beyond a reasonable doubt.

[43] The evidence of children requires special consideration and a common-sense approach. The Supreme Court of Canada has recognized that children may experience the world differently from adults, such that it may be wrong to apply adult tests for credibility to the evidence of children: R. v. W.(R.), [1992] 2 S.C.R. 122, at paras. 24-25.

[44] The Ontario Court of Appeal has also recognized that child witnesses may not be able to recall events in the same detail as adults. Flaws and inconsistencies in their evidence are not necessarily treated in the same manner as would be the case of an adult. As explained by Juriansz, J.A. in R. v. J.J.B, 2013 ONCA 268 at para. 70:

[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…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.

[45] In R. v. M. (A.), 2014 ONCA 769, Watt J.A., succinctly set out the following principles, many of which are relevant to this case:

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

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

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

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, 2008 SCC 24, at para. 31.

[46] While inconsistencies on minor matters or matters of detail are normal, a trial judge must exercise caution and be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral” to avoid having to address and weigh them: R. v. W.M., 2021 ONSC 3812, at para. 9.

[47] Overall, it is important to appreciate that child or youth witnesses may not be able to recall aspects of the allegations in the same detail as an adult. Having said this, the Crown’s burden of proof beyond a reasonable doubt is not lowered simply because the primary witness is a child. While it may be assessed somewhat differently based on the foregoing principles, the child’s evidence is still subject to the same standard of proof as the evidence of an adult.

POSITION OF THE CROWN:

[48] The Crown argues that the burden of proof has been met. The Complainant presented as credible and reliable. Both in her video-statement and oral evidence she confirmed she was the victim of repeated sexual assaults. She described some details consistent with her age at the time of the assaults. She was candid when there were details that she did not remember. Her demeanour was appropriate, with there being noticeable differences when she had to describe details of the assault as opposed to peripheral matters such as the layout of her home. Any inconsistencies in her evidence as to timing of the assaults are to be considered in the context of her age at the time the events occurred, and do not affect her overall credibility or the reliability of her evidence.

POSITION OF THE DEFENCE:

[49] The Defence takes the position that the Crown has failed to meet the burden imposed on it to prove the offences beyond a reasonable doubt. The Defence argues that L.M.’s evidence is too dangerous to be relied on in that it is not sufficiently credible or reliable to rise to the standard of proof beyond a reasonable doubt.

[50] The Defence argues that the Complainant demonstrated an advanced capacity to describe things such as time and place when describing her houses, times when she moved, how long she lived in each place, and the last time she saw her grandmother. Even when she could not use dates, she found words to describe it. This is to be contrasted with her description of the alleged assaults, which are devoid of detail, and contain material inconsistencies that cannot be reconciled.

[51] Very little weight should be given to the Complainant’s s. 715.1 statement evidence. As will be discussed in greater detail below, the Defence alleges there is a real concern that the Officer influenced the Complainant’s evidence, asking the Complainant leading questions such that the words of the Complainant in the statement were not her words but rather the words of the officer. This is a child who was capable of answering a non-leading question.

[52] There is also a concern that the Complainant’s evidence has been influenced by her mother. The evidence of B.M. is that after she received the letter, she had a brief conversation with the Complainant as to whether she was “just” touched or if any of his body parts went into her body parts. Prior to this the Complainant had not said what had happened. The Defence alleges that B.M. has suggested to the Complainant the nature of the alleged abuse. The Complainant’s credibility is diminished by her denial of this conversation with her mother and the fact that she even substantiated the denial with a reason; her mother told her they should not discuss the details in case it goes to court.

[53] The Defence argues there is very little of the Complainant’s evidence that is independent and was not either suggested by her mother in the initial conversation, or later by Officer Reccia. Any details that were not suggested to her cannot be corroborated and are in fact, inconsistent with other evidence. Her evidence was not reliable and did not withstand cross-examination.

ANALYSIS:

Count #1 – s. 151

[54] In accordance with the principles referred to above, I must approach my analysis with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt.

[55] I find that the Crown has met the significant burden placed on it to establish guilt beyond a reasonable doubt with respect to count 1, being that the Accused intentionally touched the Complainant, a person under the age of sixteen years, for a sexual purpose with his mouth and his penis. Despite some frailties and inconsistencies in her evidence, I found L.M.’s evidence compelling and credible such that I am left with no doubt that she was sexually abused by J.M. on more than one occasion. I am also satisfied that the sexual abuse involved penetration and cunnilingus.

715.1 Statement:

Admissibility:

[56] The Crown s. 715.1 application was argued in a pre-trial voir dire before me on February 13, 2023. On February 15, 2023, I gave brief reasons, with further reasons to be incorporated into the trial judgment. In short, I found that if the Complainant adopts the video statement evidence at trial, the statement met the requirements of s. 715.1 and shall be admitted subject to some redactions and argument as to weight.

[57] The Defence had opposed the 715.1 application and the statement being entered into evidence, arguing that the statement will interfere with the proper administration of justice for the following reasons:

i. The quality of the video and audio reproduction is insufficient; ii. There are numerous inappropriate and leading questions used by the Officer in the videotaped statement; and iii. There is inadmissible evidence in the videotaped statement (the prior misconduct evidence).

[58] In my February 15, 2023, endorsement I recognized that there were some frailties associated with the statement, but I could not conclude that its admission would interfere with the proper administration of justice. I made a finding that the prejudice from the admission of the statement does not outweigh the probative value having regard to the factors set out by the Supreme Court of Canada in R. v. C.C.F., [1997] SCJ No. 89, at para. 51. I further found that any frailties with respect to the statement should properly go to weight as opposed to admissibility.

[59] In R. v. C.C.F., at para. 51, Cory J., stated that the discretion to exclude a videotaped statement is limited to those cases where its admission would operate unfairly to the accused. It was noted by Cory J., that those cases will be relatively rare. Citing L’Heureux-Dube J., in R. v. L. (D.O.) at p. 463, Cory J. set out a number of factors to be considered in exercising this discretion. The factors that I considered relevant to this case, and my findings in admitting the videotaped evidence, are as follows:

a. The form of questions used by any other person appearing in the videotaped statement. The Defence argued that the questions of the Officer were leading, suggestive, and encouraged particular answers from the Complainant while dismissing others. The Defence took the position that the form of the questioning undermines the reliability of the statement. I disagreed. It was evident from the videotaped statement that the Complainant had difficulty discussing the alleged events. She was often non-responsive to broad/open-ended questions. It must be remembered she was an 11-year-old child at the time the questions were being asked. She was very quiet at certain times and upset at others. She responded to clear, direct, and pointed questions. The Officer often (but not always) used the Complainant’s notes and responses to other questions as the basis for these direct questions. A direct question is different from a leading question. The latter directs the witness to or prompts a particular response and is more problematic in these types of cases. I also note that there were times when the Officer was merely summarizing and repeating back to the Complainant what she had already said, and then following up with further questions. Contrary to the suggestion of the Defence, I did not find this to be leading. This does not mean that there are not examples in the statement of questions that may have bordered on leading or been somewhat leading by suggesting various responses for the Complainant to choose from. For example, when the Officer asked the Complainant how she was laying on her bed, and when she asked if she was sleeping or doing something else when the Accused is alleged to have come into her room. There were also some examples of lengthy, complex questions that often were not responded to by the Complainant as they contained multiple questions and may have been confusing. Having said this, viewing the statement overall, I was still left with the impression that the evidence was that of the Complainant, and was not influenced by the Officer such that the reliability of the evidence was undermined. I was also satisfied that any frailties with the evidence could be subject to argument as to weight. In this regard, this case is distinguishable from R. v. Pan, 2021 BCPC 251 that was relied on by the Defence. In that case, the questions asked of the complainants were clearly leading in material areas such that the reliability of the responses was undermined.

b. The quality of the video and audio reproduction. There is no doubt that there are many parts of the video in which the quality of the audio is poor. The video was also made during the COVID-19 pandemic when masks were used. The Complainant wore a mask during her interview. The Complainant was soft spoken and so was the Officer at times. Both the Officer and the Complainant are difficult to hear at times, such that there are various places in the video in which the Complainant’s evidence is inaudible. The Crown attempts to enhance the audio did not resolve this issue. The Defence correctly points out that some of the inaudible responses are during material portions of the Complainant’s statement. Despite the quality of the audio at times, the substance of the Complainant’s allegations can be ascertained from the videotaped statement. The inaudible responses were not such that I determined they were so prejudicial to the Accused that the statement should be excluded. If anything, they meant that the Crown had no evidence in the inaudible responses and would need to supplement them with viva voce evidence at trial. To treat the inaudible responses as there being no evidence is the only approach that does not result in prejudice to the Accused. There was nothing that suggested the Accused’s right to a fair trial was prejudiced by admitting the videotape with inaudible responses. The Defence argued that the inaudible responses are also particularly concerning given the leading nature of the questions asked. This, it was argued, is prejudicial to the Accused because the inaudible responses of the Officer and the Complainant make it difficult to properly assess the extent to which questions were in fact leading. An example is when the Officer asked the Complainant if she was sleeping. From the Complainant’s prior inaudible response, it is hard to know for certain whether the response led to this question or whether the question led the witness. Having reviewed the statement as a whole, I find that the prejudice to the fairness of the trial process for the Accused arising out of the inaudible responses of the Officer and Complainant does not outweigh the probative value of the statement. With respect to these areas of concern I can state that I was alive to these issues at trial and to whether the Complainant gave similar evidence without being led. The transcription of the Audio Recording that was filed as an aid was also poor. There were errors in parts, or parts marked “inaudible” when a viewing of the statement revealed there was either no response given, or the response was audible. In response to a question from the Defence at trial I made it clear that the evidence is the videotape itself, and not the transcription.

c. The presence or absence of inadmissible evidence in the statement and the ability to eliminate inappropriate material by editing the tape. I agreed with the Defence that the statement includes inadmissible evidence. The Complainant describes acts, including prior discreditable conduct by the Accused, which are not relevant to the issue of whether the Accused committed the acts complained of. Having said this, most of this inadmissible evidence was capable of being excised from the statement, and the Crown tendered a redacted version of the statement at trial. The Crown and Defence agreed that some portions of the inadmissible evidence are too embedded in necessary evidence to be redacted. With respect to those parts of the evidence, they were disregarded by me, with prior discreditable conduct forming no part of my deliberations.

d. Whether the trial is one by judge alone. This was a judge alone trial. As the trial judge I was confident in my ability to disabuse myself of inadmissible evidence and evidence obtained by leading questions, and to resist the urge to fill in inaudible answers with something that makes sense.

e. The amount of time that has passed since the making of the tape and the present ability of the witness to effectively relate to the events described. This matter was not scheduled to proceed to trial for more than 2 years after the Complainant’s videotaped statement. At the time I determined the admissibility of the statement, I was unaware of the present ability of the witness to relate to the events described. I did take note of Justice Cory’s comments at para. 19 of R. v. C.C.F., when he acknowledged that young people and children, even more so than adults, will have a better recollection of events shortly after they have occurred than later. The younger the child, the more pronounced this will be. The primary purpose of s. 715.1 is to create a record of what may be the best recollection of the events. In this case, the trial occurred 5 to 6 years post events, while the videotaped statement was given closer to the alleged events. This is a significant amount of time for a child. It only stood to reason that the videotape of her evidence made closer to the events in question may contain a more accurate recollection of events.

[60] In deciding to admit the videotaped statement I also considered the cumulative effect of the frailties of the statement and again concluded that the prejudicial effect did not outweigh the probative value. I was mindful of the need to minimize the trauma to the Complainant associated with having to testify in court and the need to alleviate any unnecessary repetition or strain. It was evident from the statement that recounting the allegations was distressing to the Complainant and therefore repetition should be minimized, while recognizing the need of the Crown to supplement the problematic parts of the statement with viva voce evidence.

Weight:

[61] At trial the Accused argued that little weight should be given to the s. 715.1 evidence given the leading questions asked by the Officer and B.M.’s potential influence on the Complainant.

Influence of Mother:

[62] Early in the videotaped interview L.M. tells the Officer that the Accused was using “his privates”. One of the follow-up questions later in the interview, and the response, is as follows:

P/C Reccia: So can you tell me what he was doing with his privates? L.M.: He was trying to put them in my body.

[63] The Defence argues that this was almost exactly the language that B.M. used when, prior to L.M. speaking with the police, she asked ‘was it just touching or did any of his body parts go in your body parts?’. The concern is that B.M. had suggested the form of the alleged abuse. While I agree that it would have been preferable for B.M. to ask her daughter a more open-ended question, this is not a criticism of B.M. B.M. was a mother who was dealing with a jarring disclosure from her child. The issue is whether this conversation raises doubt as to the reliability of L.M.’s evidence being an independent recollection of events. I find it does not. B.M. did not encourage a disclosure, but rather L.M. had voluntarily made the disclosure of sexual abuse to her mother. While she had not yet provided the details, I am satisfied from her evidence provided in the statement and at trial that there was sufficient detail from an independent recollection provided by L.M. to overcome any concerns about the question asked by B.M. For the same reasons, the fact that L.M. may have continued to recycle the language of her mother does not concern me on the facts of this case. This is clearly the way that L.M. feels most comfortable describing what has happened to her.

[64] I also do not find that L.M.’s denial of the conversation with her mother detracts from her credibility or the reliability of her evidence such that it creates reasonable doubt. Initially when asked about the first conversation with her mother, L.M. stated that her mother only asked her if it was true. She remembers her mother saying she did not want to ask her anything else because she knew it would go to court, and then she remembers her mother calling the police. She denied her mother asking about J.M.’s body parts going into hers.

[65] When confronted with the inconsistency between her recollection and what her mother had told police, L.M. offered a satisfactory explanation. She stated quite candidly that her mother likely has a better recollection of the conversation than she does given her age at the time. The conversation did take place more than two years prior to the trial. She merely remembers her mother telling her she was not going to ask about details, which is not inconsistent with her mother’s evidence that she stopped asking about details after the initial question. She remembers she decided by herself to write her notes with the details.

Influence of Officer:

[66] The Defence further argues that concerns about the Complainant’s recollection being influenced are heightened by the leading nature of the questions asked by Officer Reccia. These questions materially affected the evolution of the Complainant’s evidence. The Defence argues that this, combined with the influence of B.M., significantly undermines the reliability of the Complainant’s recollection set out in the videotaped statement. As such, the Defence argues that little weight should be given to the s. 715.1 videotaped evidence of the Complainant.

[67] The Defence concerns and my findings are as follows:

a. Early in the interview when discussing the ‘time she remembers the most’, the Officer asks L.M. to tell her in her own words what happened next after J.M. woke her up. L.M. did not respond. The Defence argues that the Officer began to ask leading questions, developing the narrative for the Complainant in the suggestive questions asked. The Defence argues that rather than an independent recollection, what the Complainant gave was a logical response to the path she was being led down by the Officer. It is argued that the Complainant has offered no further details of the alleged assaults other than those suggested by the Officer’s and B.M.’s questions. The Defence further argues that if the statement is considered question by question, we see that the words used are not the Complainant’s words but rather those suggested by the Officer. Some of the examples cited by the Defence include:

i. P/C Reccia: …can you tell me the whole what happened? [sic] L.M.: [no response] P/C Reccia: Do you want to try starting at the beginning and tell me about the beginning? L.M.: All I remember is [inaudible] P.C. Reccia: Were you sleeping? Were you doing something else? L.M.: Yeah, I was sleeping and then he woke me up.

I agree that the response suggests the Complainant may have adopted one of the suggestions of the Officer. The question is whether this taints the evidence such that it cannot be said to be an independent recollection. In my view it does not, and I am satisfied that the Complainant responded based on her recollection of events. The response also makes sense in the context of the allegations overall. The Complainant’s evidence is that most of the time the assaults happened at night. She believes some to have occurred late at night, and others earlier. It makes sense that she would have been sleeping.

ii. P/C Reccia: What did he do next after he woke you up? L.M. : [no response] P/C Reccia: Was he using his hands or something else? L.M. : Something else

The Defence argues that at this point L.M. has said nothing about touching and that any question that suggests touching or contact is leading and inappropriate. I disagree. While the Complainant had not yet offered verbally that she was touched, her written notes said that the Accused used his privates and his mouth. The Complainant offered to the Officer that the “something else” was his privates. Again, a response that was independent of the Officer’s suggestion.

iii. With respect to the issues raised by the Defence about questions pertaining to clothing I find that these questions were appropriate and direct questions. The Officer asked an open-ended question, “Was he wearing anything?” and the Complainant responded “No”. This response makes sense in light of the allegation that the Accused removed his clothing during the assaults. The follow-up questions asking if he was wearing pants, or a shirt are not concerning in light of the original question and response. Similarly with respect to the questions about the Complainant’s clothing.

iv. With respect to the questions about the Complainant and Accused’s position on the bed, I agree that they are more problematic. In the video statement, the Complainant was not asked what position she was in when the Accused put his privates in hers, she was asked if she was sitting or laying down. She responded she was laying down. Then the Officer asked, “Were you laying on your back, or your side, or your tummy, or something else?” The Complainant responded with “My back”. The Defence argues that cumulatively, this all becomes a problem when the Officer recites all the allegations the Complainant has made back to her, and this is the narrative she adopts and continues to adopt at trial. One that has been suggested to her.

I am satisfied that despite some of the questions not being as open-ended as they could have been, the narrative the Complainant adopted was her story based on her recollection of events. There are also details provided that were completely independent in that they were not suggested or logical answers to the questions posed, but rather responses consistent with the allegations being made by the Complainant. For example, when L.M. was describing the time she remembers the most and told the Officer that her mother, grandmother, and brothers were downstairs while it happened. Similarly, when asked if she was hurt or injured, she responded that her body hurt a little bit. She confirmed that it hurt at trial. When asked by the Officer what part of her body hurt, the Complainant responded, “My privates”. The Complainant did not give the impression in the videotaped statement or at trial that she was randomly selecting answers from options given, saying things to please the Officer or counsel at trial, or that she was making things up. She gave the impression that she was doing her best to recall events that had happened to her a number of years ago.

b. The Defence argues that the evidence in the statement about oral sexual abuse should be given no weight and disregarded because of the leading fashion in which it was extracted from the Complainant. I disagree. The Defence accurately notes that towards the end of the interview the Complainant was asked approximately three times if J.M. did anything else to her, to which she responded “no” or “He always did that” [referring to penetration]. It was not until the Officer asked her a direct question about her notes in which she indicated that he had also used his mouth that the Complainant discussed these events. I do not agree that anything was suggested to the Complainant. The Officer did nothing more than refresh the witness’s memory with notes that had been written by the Complainant prior to the interview. The Officer specifically told the Complainant she was looking at the Complainant’s notes and asked her directly “…And what do you mean when you say that he used his mouth too, something with your privates?”. The Complainant went on to volunteer that this was how the abuse started, with it being what happened the first time. She continued to say it was the first five times, although her videotaped evidence becomes somewhat confusing at this point as a result of some inaudible responses.

[68] As indicated above with respect to admissibility of the videotape, it was clear to me from the videotaped statement and in her viva voce evidence at trial that L.M. had some difficulties answering questions that were not specific. Being sufficiently specific and direct with questions, without being leading, can be a challenge in interviewing adults, much less children who are suffering trauma. While I agree with the Defence that some questions of the Officer went beyond being specific or direct, I am still satisfied that the evidence of L.M. is based on her recollection of events and not events suggested to her by her mother or the Officer.

Inconsistencies and amount of detail:

[69] The Defence argues that the testimony of L.M. demonstrates an advanced capacity to describe things like time and place. Despite this, her testimony lacks detail as to the allegations. The argument is that it lacks detail because it did not happen, and the allegations are a product of the suggestions made to L.M. by her mother and Officer Reccia. When details are offered, there are inconsistencies that cannot be reconciled without there being reasonable doubt.

[70] I disagree with the arguments of the Defence with respect to the Complainant having an “advanced capacity to describe things like time and place”, and that the allegations of the Complainant lack sufficient details. While I am mindful that the Crown burden does not change simply because the Complainant is a child, her evidence and the detail provided must not be assessed based on the standard of the “reasonable adult”. Her evidence and descriptions were in keeping with her age at the time of the disclosure and my impressions of her level of maturity at the time of trial.

[71] The Defence points to some of the caselaw relied upon by the Crown to show how the level of detail in the allegations differ. In my view, it would be an error for me to judge the level of detail provided by this Complainant against those provided in other cases. For example, the Defence pointed to R. v. A.K., 2019 ONSC 5160, affirmed 2022 ONCA 508 to show that a greater level of detail of the actual assault was provided in that case to support the conviction entered. In A.K. the complainant alleged she had been repeatedly sexually assaulted by her great-uncle from when she was seven years old, until she was approximately 13/14 years old. At the time of trial she was 18 years old, which can be quite different from a 14-year-old. Having said this, I have no knowledge of the level of sophistication of that complainant at the time she made the allegations or at trial to assess her capacity or comfort with recounting details of her trauma versus that of this Complainant. These are two different Complainants.

[72] What is important is that based on the detail provided in this trial, I am left with no doubt that the sexual abuse happened. I find that there was sufficient detail in L.M.’s evidence that I am satisfied beyond a reasonable doubt that she was sexually assaulted by J.M. Specifically, I note the following details, which I accept:

a. L.M. recalled that the sexual abuse happened at the two houses they lived at in Terrace Bay. While she did not remember the first time it happened, she did remember it started within days of moving to Terrace Bay. The Complainant often described time in relation to various events such as moving, being in Grade 2, Halloween, or it being hot outside. b. She also recalled the last time it happened as being days before the Accused got into a fight with another person. I note that whenever there was evidence such as this as to prior misconduct by the Accused, it has been considered by me for no purpose other than an event that the Complainant recalled happening in relation to an assault on her. c. With direct questions asked about the ‘time she remembers the most’, she remembered being in her room in house #1, in her bed, being woken up and being told to be quiet. She remembers J.M. telling her “Don’t tell your mom, or something will happen.” She remembers him saying this often either while assaulting her, or at the end of an assault. She remembers J.M. being nude. She remembered him taking her pajamas off and her having pajama bottoms and underwear on, but she could not recall exactly what position she was in when he did this or how he did it. She remembered he tried to put his privates in her privates. She remembers it hurt. She remembers she felt angry he was doing this and was not listening to her when she told him to stop. She remembers hearing music playing loudly. She remembered it was hot, and her blankets were at the bottom of the bed. d. She remembered other occasions when it was not hot, and she had blankets on her legs and J.M. was on top of her with blankets over him. e. With respect to the daytime assault, she provided sufficient details surrounding why she remembers this event for me to conclude that it did happen. It was more memorable than the other times because it was the only time that he assaulted her twice in one day. She remembered where it happened (house #2). She remembered that her mother was out with her brother. She remembers that her door to her bedroom would not shut, and she was trying to fix it. She remembers him coming into her room and removing her clothes and his. She remembers what she was doing when he came in. Not surprisingly she does not remember what she was wearing, but thinks it was jeans and a shirt. It is not surprising that she does not remember how he removed the clothing. She remembers him watching out the window for her mom, and when he saw her mom’s car coming around the corner, he put his clothes back on and went downstairs and sat on the couch. f. She remembers after “the first time he did it”, she tried to lock her door at night but forgot she did not have a lock.

[73] With respect to the details of the sexual acts, the fact that L.M.’s evidence is not more detailed, and she says that it ‘happened the same way every time’, does not cause me to doubt her evidence. I am satisfied that she remembers it being the same way as ‘the time she remembers the most’ and the daytime assault.

[74] I do agree with the Defence that merely because L.M. accurately recalled details of the layout of her bedroom or the homes she lived in at the time that J.M. lived with her family does not bolster her credibility or the reliability of her evidence. Having said this, it does not detract from her credibility or reliability that she can remember these homes but not certain details of the traumatic assaults she suffered.

[75] With respect to other inconsistencies, or evidence that is alleged to be not capable of belief, as raised by the Defence or otherwise by the evidence:

a. I agree with the Defence that L.M.’s evidence at trial that the assaults happened every day is unlikely. I do not agree that when combined with the other issues raised by the Defence it raises reasonable doubt as to the guilt of the Accused. Such a broad statement may concern me if it was an adult testifying, but it does not with this child. The Complainant used various ways of describing the frequency of the assaults in her videotaped statement and evidence at trial. In her videotaped statement taken closer to the events, the Complainant also stated that the assaults happened “a whole bunch”. At one point she talks about twenty times. I accept that it happened often enough to this child that she feels as if it was a daily occurrence, even though it was not. Based on the evidence before me there were at least a handful of acts of cunnilingus, there was the time she remembers the most, and there was the daytime incident that was combined with a nighttime assault. I accept it also happened on other occasions based on the Complainant’s evidence, supported by distinctions in details offered in her evidence. These distinctions included the difference with what happened with blankets when it was hot and when it was not, and the difference in time with some assaults occurring earlier in the night and others later. b. I do not agree that the presence of other adults and the Complainant’s brothers in the home when the assaults were alleged to have occurred (other than the daytime assault) makes it less likely that it happened to the point that I am left in doubt. The Complainant’s evidence is that most assaults happened once she was in bed for the night. ‘The time she remembers the most’, the other family members were not in bed, but the music was loud. She had a door on her bedroom that most often was closed. Her mother’s evidence is that both she and the Accused were drinking heavily at times such that she would pass out, or fall asleep on the couch, and other times she would go to bed early. Because of this, B.M.’s evidence as to the frequency with which she would check her children in bed is unlikely. The Complainant’s recollection with respect to this is likely more accurate. In any event, B.M.’s evidence is that she would not have noticed if J.M. was in L.M.’s bedroom for a half an hour at night as she would have either been drunk, watching television, or in her room asleep. Nonetheless, sexual abuse is an inherently risky behaviour. Combine this with alcohol or substance abuse and it is not difficult to accept that the Accused would have engaged in these assaults when others were home. c. With respect to allegations of oral sex performed on the Complainant, at trial when asked by the Crown if J.M. used any part of his body other than his privates to touch her she responded with “no” on two occasions in her examination-in-chief. She did not say anything about the Accused using his mouth. In cross-examination the Complainant stated that it had happened so long ago that she does not remember. She remembers watching the video and hearing her answer about the first five times. She remembers that he was drunk, and she smelled alcohol. I am satisfied that the Complainant’s failure to independently raise the allegation of cunnilingus in response to very broad questions is not indicative of a lack of credibility. The Complainant was unshaken in her evidence that it did happen, but other than what she has said, she can no longer recall the details. In addition to the broad nature of the questions, these are events alleged to have happened when she was eight years old. The time to trial is a significant lapse of time for someone her age. I am also satisfied with the credibility and reliability of these allegations given that this allegation first appeared in the Complainant’s notes with no evidence of her notes not being an independent recollection. The language she used was appropriate to her age at the time, stating he used ‘his mouth to lick my privates’. There is no evidence to suggest that this recollection was influenced. Furthermore, while there is not a lot of detail, there is enough that I am satisfied it happened. The Complainant recalled that this was how her sexual abuse started, that it started within days of moving to Terrace Bay, and she recalled the Accused being intoxicated. d. L.M. denied knowing the words “penis” or “vagina”. Her mother testified she was aware of these words. She did not once use them in her videotaped statement or her viva voce evidence at trial. She preferred to use the term “privates”. She did mark on diagrams what she meant by privates. The Defence argues that her refusal to admit she knows these terms is indicative of a lack of credibility. While I agree with the Defence that the Complainant was not being truthful about this area of questioning, I disagree that it undermines her evidence as a whole or with respect to the allegations. Both in the videotaped statement and her evidence at trial there was a significant difference in the demeanour of the Complainant as between when she was discussing peripheral matters such as the layout of her house and details of the assaults. The Complainant became visibly upset while talking about details of the assaults. I do not accept the Crown argument that I should use the demeanour of the Complainant to suggest that she is more believable. Stereotypical assumptions of how a victim of sexual assault ought to properly behave should not be used for any purpose, whether it be to bolster or discredit their evidence. To rely on such assumptions would be to jeopardize the fair trial process. I refer to it only because it was evident that discussions of a sexual nature made her extremely uncomfortable. This is an instance in which it must be remembered that this is a child and not an adult. I find that she likely does know the appropriate terminology for male and female genitalia but was refusing to acknowledge it due to her discomfort. The Complainant did not strike me as a sophisticated or mature 14-year-old. I mean no disrespect by this comment. She still struck me as a very young, age-appropriate girl who was describing traumatic events as best as she could remember and using language that she was comfortable with. Her discomfort and refusal to acknowledge her knowledge of the appropriate terminology does not undermine her credibility to the point that it raises doubt as to the other allegations. e. The Defence points to the Complainant’s failure to describe the tattoo on the Accused’s penis as another frailty with her evidence that raises doubt. The Complainant spoke of tattoos on various parts of the Accused’s body but did not mention his penis. B.M. testified that J.M. had a tattoo on his penis. This omission does not undermine her credibility or reliability and does not raise doubt. The Complainant was never asked if the Accused had a tattoo on his penis. Most of the assaults occurred at night, in the dark. There was evidence of at least one daytime assault, but no evidence with respect to where on the Accused’s penis the tattoo is and whether it is easily visible. Again, I am also mindful that this is a young witness, and not an adult. It may not have struck her as something she should, or even felt comfortable discussing. f. The greatest inconsistency with the Complainant’s evidence, in my view, comes from her allegation of the timing of the ‘time she remembers the most’. She believed it was not long after they had moved to Terrace Bay, it was in house #1 in Terrace Bay, the Accused had just set up his stereo, she was not in school, it was summer, and it was hot. The Statement of Agreed Facts indicates that J.M. was in custody from March 28, 2017, to November 13, 2017. It is evident that this assault could not have happened in the first summer the family lived in Terrace Bay. B.M. also testified that J.M. set up his stereo right away when they moved into the house and that playing loud music was a regular occurrence for him. The next year, J.M. was in custody from April 15, 2018, to July 2, 2018. The evidence of B.M. is that the family moved to house #2 at some point in July 2018. J.M. was no longer living with the family as of October 2018. When the inconsistency with respect to timing was put to L.M. in cross-examination her explanation was that she remembers it was hot out. It is possible that it was not the summer, but she was certain it was hot. I note that in the Complainant’s videotaped statement she also told the Officer she thought she had lived in Terrace Bay for 5 years, when she had only been there almost 4 years at that point. The ability to judge time was problematic for her. It is entirely plausible that the Complainant has confused summers and/or events (stereo set-up), it is even possible she has confused which home they were in, but I accept without doubt that she has an independent recollection of a sexual assault being perpetrated against her by the Accused on an occasion at night, when it was hot, the music was being played loudly, her family members were awake, and she had her blankets down at the bottom of her bed. g. The Defence argues that there is no evidence of ejaculation, with the suggestion being that there would be if there was penetration. The Defence points to the videotaped statement and the Officer’s question about how the assaults generally ended or stopped when “he put his private in your private”. The Complainant’s response was “I don’t know. He just stopped and he got up, put his clothes on and then left.” When asked how she felt when he stopped and he left, the Complainant responded “hurt”. No further questions were asked of her. Her responses struck me as appropriate responses to these questions by a child. She was not asked in the videotaped interview or at trial about ejaculation. There is no evidence of her mother noticing anything in the Complainant’s sheets or clothing. In my view, this does not undermine the Complainant’s evidence or give me doubt.

[76] None of the foregoing inconsistencies, either separately or cumulatively, cause me to have doubt as to the veracity of the allegations of the Complainant that she was sexually assaulted by the Accused while he lived in Terrace Bay with her family. This may not be all the inconsistencies and deficiencies in the evidence pointed to by the Defence, but in my view, they are the more significant ones.

[77] As Justice Warkentin noted in R. v. A.K., at para. 72, citing R. v. R.E.M., 2001 SCC 32 it is often 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. What I can say is this. The Complainant was on the witness stand for more than 1.5 days of court time, spread over three separate days. She began testifying in court instead of the CCTV room. Part way through her cross-examination she asked to testify from the CCTV room. She withstood a lengthy cross-examination with respect to the core allegations. She was candid when she did not remember. In short, I believed her evidence as to cunnilingus and sexual intercourse without any doubt.

Count #2 – s. 152

[78] I find that the Crown has not met its burden with respect to the allegations that J.M. invited L.M. to touch his penis with her hand, contrary to s. 152 of the Criminal Code. While I believe it probably happened, there are sufficient frailties with the evidence with respect to this charge that I find there is reasonable doubt.

[79] The Defence argues that the allegation the Accused took the Complainant’s hand and forced her to touch his penis is yet another example of her offering a logical response to a leading question asked by the Officer during her videotaped interview. The interview was the first time the Complainant made such allegation, with it not appearing in her notes she created before the interview as to the alleged abuse. The Defence further argues that the fact the Complainant did not mention this until prompted at the trial and could provide no details, calls into question the veracity of the allegations as an independent memory of the child.

[80] I find that the Officer asked the Complainant an appropriate direct question. The Complainant offered that he made her touch his privates by grabbing her hand and making her touch it. She further described how she tried to pull away. There are no further details elicited as to how or why she remembers this incident. For example, she remembers the daytime incident because she was assaulted twice that day. She remembered the one nighttime incident because it was hot, and the music was loud. There are details surrounding those other memories. I do not know when this is alleged to have happened or if it happened while one of the other assaults were occurring. Understandably given her age, the Complainant could not at trial add anything to her video evidence given more than two years’ prior. There is simply not enough evidence surrounding this event to test the reliability of the Complainant’s recollection with respect to it.

DISPOSITION

[81] For the above reasons, I find the Accused guilty on count 1 and not guilty on count 2 on the indictment.

“originally signed by”

The Hon. Madam. Justice T. J. Nieckarz Released: March 19, 2024