R. v. J.L., 2015 ONCJ 777

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction CITATION: R. v. J.L. , 2015 ONCJ 777 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — J. L. Before Justice C. Kehoe Decision released on March 26, 2015 Ms. Tansey................................................................................................................... for the Crown Mr. Hall............................................................................................................ for the accused, J. L.

KEHOE, J.: [ 1 ] Mr. J. L. is charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he committed a sexual assault on J. S-L., contrary to section 271(1) of the Criminal Code of Canada . [ 2 ] He is also charged that between January 1, 2005 and April 30, 2008 at the City of Ottawa and elsewhere in Ontario he did, with a part of his body to wit his hands, his mouth and his penis, for a sexual purpose touch the body of a person under the age of 14 years, namely J. S-L., contrary to

section 151 of the Criminal Code of Canada . [ 3 ] Mr. L. is charged that between May 1, 2008 and August 31 2012 at the City of Ottawa and elsewhere in Ontario, he did, with a part of his body to wit his hands, his mouth and his penis for a sexual purpose, touch the body of a person under the age of 16 years, namely J. S-L., contrary to

section 151 of the Criminal Code of Canada . [ 4 ] He is also charged that between January 1, 2005 and April 30, 2008 at the City of Ottawa and elsewhere in Ontario he did, for a sexual purpose, counsel a person under the age of 14 years, namely J. S-L. to directly touch with a part of her body to wit her hands the body of J. L. , contrary to

section 152 of the Criminal Code of Canada . [ 5 ] He is also charged that between May 1, 2008 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario he did, for a sexual purpose, counsel a person under the age of 16 years, namely J. S-L. to directly touch with a part of her body to wit her hands the body of J. L. , contrary to

section 152 of the Criminal Code of Canada . [ 6 ] Mr. L. is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario he did, being a person in a position of trust or authority towards a young person, with a part of his body, to wit his hands, his mouth and his penis, for a sexual purpose, directly touch the body of that young person, namely J. S-L., contrary to section 153(1) (

a) of the Criminal Code of Canada . [ 7 ] He is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he did, being a person in a position of trust or authority towards a young person, for a sexual purpose, counsel that young person, namely J. S- L., to directly touch with a part of his body, the body of J. L. , contrary to section 153(1) (

b) of the Criminal Code of Canada . [ 8 ] He is also charged that between January 1, 2005 and August 31, 2012 at the City of Ottawa and elsewhere in Ontario, he did, knowing that another person, namely J. S-L., was by a blood relationship to her as a parent, have sexual intercourse with that person, contrary to section 155(2) of the Criminal Code of Canada . [ 9 ] The Crown elected to proceed by indictment. Mr. L. elected to be tried by a Judge of the Ontario Court of Justice and pleaded not guilty. [ 10 ] J. S-L. and M.

S.-L. were permitted to testify by closed circuit TV. [ 11 ] The plan was to play the video-taped statements of J. S-L. and M. S.-L. and to proceed with the statements as their evidence if adopted pursuant to

section 715.1 of the Criminal Code . Mr. Hall, on behalf of Mr. L. consented to proceeding with the video-taped statements and admitted that all of the threshold requirements concerning the statements had been met.

[ 12 ] J.

S-L. watched the video statement and then made a promise to tell the truth prior to the Crown asking questions to complete the examination in chief. [ 13 ] When asked to confirm that when J. was giving her answer to police that she was telling the truth about everything, she stated, “I might be exaggerating a little bit some of it, but yes, some of it, most of it – some of it was the truth”. [ 14 ] J. testified that she was prepared to accept “the parts of her statement that she did not feel that she exaggerated”. [ 15 ] Over the lunch hour, J. was given the transcript of her video statement and asked to indicate parts of the statement that she exaggerated. [ 16 ] As a result of the changes to the original video statement, the statement was not admitted into evidence pursuant to

section 715.1 and a voir dire concerning its admissibility was entered into. [ 17 ] The Crown began the examination in chief. J. testified that she was in court to give some evidence and identified that the person who she was testifying about was her father, J. L.. Identification of Mr. L. is admitted. J. testified that she was 9 years old when “something” started to happen and that the family was living on Limberlost in London, Ontario. J. testified that she would have been in grade 3 or grade 4. J. testified that she entered puberty at age 9.

J. testified that “this all started out” with her father when she was 9 or 10 when he began having talks with her about “the fact that she was maturing and that the opposite gender would be maturing as well… just the birds and the bees and puberty talk.” When asked to explain what she meant about the “birds and the bees”, J. explained, “He would explain what the male would do to a woman during these acts of intercourse or sexual acts…just how they would do it, I mean how they would act on – on the action…that the male would like the female’s chest and things along those lines…because that’s what man was born to like…they would like to…touch a female’s chest…they would like to see their private areas…that one day she would enjoy the feeling of what the male would do to me.” J. testified that Mr.

L. said that she would like their package downstairs, their anatomy, or genitalia. When asked to use the specific words used, J. testified, “penis” but it was obvious that J. was reluctant and did not feel comfortable saying the word. [ 18 ] When asked what her father told her about a man’s penis and what she should do, she stated, “Well, he didn’t really say – I didn’t – it’s not really idea, he more like he told me that I would most likely like to do…that a male’s – the anatomy will have blood flow and it will get hard because it likes what it sees and then I might like to touch it” meaning the penis.

J. testified that her father would have told her this when she was 9 years old. J. explained that the talks were random, sometimes in her room, sometimes in the living room and sometimes in the kitchen-dining room. J. could not remember if anyone else was around when the talks took place. [ 19 ] J. was asked whether her father would tell her anything about what a man might do to her to make her feel good, she stated, “Yes, but not in great detail…he would say that they would very much like to put their mouth on my chest or on my neck or just a kiss”.

J. clarified that her father used the word “breast” instead of “chest”. J. testified that her father also told her, “a man would like to touch a woman’s vagina”. J. testified that she could not say exactly how long these talks went on but she thought almost a year. She testified that they were random, sometimes they would not talk for a month and sometimes it could be twice a week.

J. explained that some of the conversation were just general conversations about school and sports and estimated that there would have been between eight and ten conversations during the year where the subject was of a sexual nature. [ 20 ] J. did not tell her mother about the conversations her father was having with her.

She testified that her mother would also have conversations with her about sex, about how the body would change and things along those lines. [ 21 ] J. testified, “as the years grew, just talks became, you know, just the same and then they became hands on, that one – that one talk.” [ 22 ] J. testified that the talks started when she was around 9 or 10 and continued when she moved to Ottawa, in November of sixth grade. J. agreed that the talks became hands on when the family moved to Ottawa. J. testified that she was 12 when they moved but turned 13 shortly after coming to Ottawa.

The family lived in an apartment on Donald Street in Ottawa. J. testified that her father put his hands on her thigh, and indicated with her hand and fingers pointing down towards her knee. She testified her father would say that if a guy does that and she was not feeling the attraction towards him she should probably tell them to back away. J. also testified that her father placed his hand on her shoulder at the base of her neck. These touches and the talks took place randomly in the apartment, but recalled Mr. L. putting his hand on her thigh in the living room once.

J. did not tell her mother about her father touching her thigh or

neck because she thought they were doing a simulation of what would happen and did not think much of it. [ 23 ] When asked what her relationship with her father was like, J. testified that it fluctuated and is pretty rocky as she does not really speak with her father. She testified, “We don’t really see eye to eye…we have different ideas and thoughts on certain things. So that kind of creates conflict…”. [ 24 ] J. testified that the hands on talks started when the family lived in Ottawa and she would have been 13 or 14. J. testified that she did not think anything of the hands on demonstrations.

When asked whether her father had ever said what should be done with the penis, J. testified, “He said that a woman would like to put their mouth on it, but most of them do not enjoy doing that”. J. denied that her father gave her a demonstration of what she might want to do with a man’s penis. [ 25 ] J. was asked to review the transcript of the video-taped statement, dated September 7, 2012, which she did. When asked whether that had refreshed her memory, J. testified that she remembered the scene.

Concerning the scene, J. testified, “He was – when I stated that he was letting me touch his package, I wasn’t thoroughly clear on that as in I wasn’t touching him, I was touching a – an example of a guy’s anatomy…for example a banana. [ 26 ] When asked to explain what “package” meant to her, J. explained, “the guy’s anatomy…the lower – the genitalia part of a male’s body”. When asked to use the proper word, J. testified, “I know, but I don’t feel comfortable saying it, that’s why I say other words for it”.

J. explained that “package” meant penis. [ 27 ] When asked whether her father ever asked her to touch his penis, she stated, “Only just his thigh, but that was just the one time”. [ 28 ] When directed to her video statement to refresh her memory concerning whether her father had at any time asked her to touch him, J. stated, “Yes, like I said it was not on him directly, it was the banana”. She testified that her father was holding the banana. She testified that it happened in Ottawa but she could not recall how old she was. She testified that she would have been in grade 6 to grade 8.

J. testified that her father asked her to “stroke it or to touch it, to be more specific, to touch it.” When asked what stroke meant she stated, “Hand movement up and down…or more caress, probably would be a better word, caress”. When asked was she asked to “caress a banana” J. stated, “yes”. When asked if she did that, she stated, “I didn’t feel comfortable doing it so I only just kind of – like poked it and then I didn’t do it anymore because I don’t like bananas and yeah”. J. testified that she did not tell her mother because she thought it was just like a simulation so I didn’t think anything of it.

She could not remember which room in the apartment where that happened. [ 29 ] J. was taken through the transcript of her video statement.

When asked what her father told her that she would need to learn to do, she stated, “Just to be comfortable in the presence of the opposite gender…just to be confident and just be – feel okay, just basically be confident in the – yeah, just be confident…in how to pleasure the opposite gender and just in the presence of, just like you don’t need to be shy.” [ 30 ] When asked what he told her she would need to learn to do in order to pleasure the opposite gender, J. stated, “Oh, like I said to be confident and to be – I’ll explain, to be on the attack and I’ll explain that too.

So what I mean by to be on the attack to make the first move.” J. testified, “that was the hand on the thigh that I mentioned before”. J. continued that her father told her, when asked were there other things, “Yes. Like to – I don’t know how to explain this properly – to put your mouth on the penis, but I never did though, but he was giving me explanations on such.” She would have been 13 or 14.

When asked whether there were ever demonstrations, J. stated, “No, but he said that if I ever needed – no, that was something else, no, never mind, scratch that.” J. denied there were ever any demonstrations (assimilations) but that her father explained “to put her mouth around it and that she would figure it out herself”. J. testified that she did have questions and asked her father “Why would someone want to do that?” and her father explained “it just makes a person feel good”. [ 31 ] When asked whether her father ever put his hands anywhere else on her body, she testified, “On my back”.

When asked to tell about that, she stated, “I don’t really remember the specifics of the details of it, but I do remember there was a hand on the back.” She did not recall which room but remembered that it was in the Ottawa apartment. When asked whether her father put his hands anywhere else on her body, after reading the transcript of the video statement J. stated, “He said to me that I should touch my own chest, not him himself, but me.

He indicated how the guy would like touch me, if that makes sense…he said to put your hands on it, like just to cup it…referring to her breast…like the top part, not where the nipples are, but like the flat surface, if that makes sense.” J. denied that she did it stating, “No, I didn’t I – ‘cause I don’t feel comfortable with my body at the time”. She confirmed that her father asked her to touch her breasts. She could not remember the season (time of year) or what she was wearing at the time.

[ 32 ] J. remembered touching her father’s chest through a shirt. She testified, “It was – I think it was one of those simulations where there is different kinds of guys out there, there are some that are muscular, some are scrawny, some are in between and her father said, “this is what muscle feels like through a shirt, kind of thing.” J. denied that her father asked her to touch his chest but stated that she “did it herself out of curiosity”. [ 33 ] J. was asked whether her father ever touched her body with a part of his body other than his hand.

She stated, “Yes, his mouth…on the neck and like where the neck and the shoulder contact, so the same area last where he put his hand.” When asked where he put his hand, she stated, “Yes and once on my chest…Yeah, but that was like over the heart, so I say the chest, but it’s really over the heart.” [ 34 ] J. testified that her father explained, “Someone – some guys enjoy kissing on the neck and he asked if it was okay he showed me and I said, ‘okay’ and he placed one and it kind of felt squeamish, so I said, ‘that’s gross’…and yeah, like he placed a peck on the neck.” J. testified that it felt squeamish because she doesn’t like it when things touch her neck.

She believed that she was 13 or 14. She was not sure but thought it was a different time from when her father had put his hand on her neck and different again from the time of the demonstration with the banana. [ 35 ] J. never told her mother anything because she did not think anything of it. [ 36 ] J. explained that her father had “brushed his lips over her chest” and later testified that he kissed her on the upper breast.

She testified concerning her reaction, “Nothing really, maybe a little bit confusion, but that was just like I don’t understand why would someone want to put a kiss there, but yes.” She testified that she felt nothing when it happened. When asked if her father did anything else with his mouth on her breast she stated, “He suckled the skin, if that makes sense”. Asked to refresh her memory with the transcript she stated, “So yes, he suckled the area of my breast”.

When asked to explain how he managed to do that, J. stated, “Oh I mean – sorry, I mean like through the shirt I was wearing, if that – I don’t know if that makes sense. Like I wasn’t – like my clothes were on and so it was through the shirt. It was a simulation of someone doing that of a guy of the opposite gender doing that.” She testified that her father told that “some guys like to do that” when asked whether he told her why he was doing that.

J. testified that she felt nothing and did not tell her mother anything. [ 37 ] J. testified that her father also placed a kiss on her thigh after referring to her transcript. She stated, “He placed a kiss on my thigh, but that was – I’m using my transcript again to make sure I…Q. You’re needing to refer to your transcript? A. Yes. There’s the part where I say that he told me to lie down to lick my private parts. That’s what it said in the transcript. That is not exactly the – entirely true.

What actually transpired was what a guy would like to do lick my private parts, but I didn’t feel comfortable doing that, so he just placed a kiss on my thigh.” J. agreed that her father told her to lie down and agreed that that part of her statement was true. J. testified that she believed they were in the living room. She stated, “…Okay, I wasn’t really technically lying down, I was sitting up, so like sitting up lying down position, if that makes sense”…”slouching”. She stated, “I was slouching.

He said to lie down, but I didn’t really want to, so I kind of did a slouching position instead.” Asked why she did not lie down when her father asked her to, J. stated, “Because we were on the couch and you don’t lie down on the couch”. Asked if she was saying that her father wanted to lick her private parts, but she didn’t feel comfortable, J. stated, “I didn’t say he wanted to – I didn’t say he wanted to, I said we were doing a simulation that a guy would like to.

So he was showing a demonstration of how they would approach to do that, but then it felt kinda weird so he placed a kiss on my thigh.” J. explained the demonstration/simulation: “I was slouching and then he kind of – kind of crouched where my knees are, so when I’m sitting where my knees are. I instinctly(sic) like kind of – no, that’s not true. I don’t know how to explain this. He said – okay, so he put his hands on my knees and explained that the opposite gender would enjoy licking my vaginal area.

I said, ‘That’s kinda weird since that’s where you urinate’, and he tried to – he was explaining to me that it’s just one of those things that people like to do or sorry, men like to do.

I said, ‘that’s kinda weird’ and he just kinda placed a kiss there and says like, ‘you will like it when you’re older’ or something like that…like sort of near the thigh and the knee”, indicating about 3 to 4 inches above the knee between the front and side of the thigh. [ 38 ] J. explained that her father was crouching on his knees in front of her as she slouched on the couch. [ 39 ] J. agreed that she would have had a better memory of the events when she gave the video statement. She was again referred to the transcript of the video statement.

J. testified that what she was referred to at page 8, last paragraph was a different talk or example. J. testified that this was referring to an incident in her bedroom when she was 15. She testified that the incident on the couch was when she was 13 or 14. [ 40 ] Concerning the incident in her room she testified that it was after they had had a “very harsh argument and he was trying to reconcile”. J. could not remember what the argument was about but she was saying, “Get out of my room, I hate you” and her father said

to her, “You know I love you, you’re my daughter, it doesn’t matter, you know I’m your father and you can’t really hate me” and she was saying things like, “No, I can hate you”.

When asked what her father was saying to her when he was trying to reconcile, referring to the words in the transcript, J. testified, “We started – he was trying to reconcile and then I ended up forgiving him and then we started to have just a general conversation of how was school and things like that and I told him about this one girl in school who I didn’t particularly was fond of and how – how she acted in school and then we begin to have one of our talks and that’s when he said, ‘You are ready’. The Crown repeated, “He said, ‘You are ready?’” and J. testified, “Yes.

Well, not exactly, ‘You are ready’, something, it was like – I can’t even remember the words exactly, ‘You are ready’, doesn’t really sound correct, but he said – what did he say? I think, ‘Would you like to’ would probably be more accurate, ‘would you like to?’…I think, ‘Would you like to try something new’ or something like that. I can’t really remember, but you are ready doesn’t really sound correct.” [ 41 ] Asked what happened and she stated, “Okay. I believe that it was that time when we were having – when I was telling you of the – when we were trying to make up.

We did the talking and whatever and he told me to lie down. I think I was wearing pyjamas, I don’t really remember. He got on top – top of me and put his penis on my pants, like where the thigh is, like where the groove between where – the groove line, if that makes any sense. No?

Anyways, yes.” Asked to name the part of the body she was referring to, J. stated, “the crotch”. [ 42 ] Asked if she was saying that was where her father’s penis was, she stated, “Through the material of his pants – well no that’s not true, it was his – of shorts, it was more like shorts, boxer shorts type of thing…you could see that it was erect through the pants.

J. testified that she was wearing underwear and that her father did not do anything with her underwear but that the underwear was probably rubbing against her during… When asked to refresh her memory at page 9 of the transcript, J. stated that her memory was refreshed as to responding to the question of whether her father did anything to her underwear, truthfully and correctly, she stated, Yes, it technically shifted, not exactly come off, it shifted.

Asked who shifted her underwear she stated, “In the process it was shifting, so I suppose you could say it was him, but really it was – it shifted by itself.” [ 43 ] J. testified that when her father was on top of her and her underwear got shifted, he was “sort of grinding on top of her”. She testified that she could tell that he had an erection because “something was poking her or something was hard, I felt something hard, and it was near his lower region so it was an educated guess”.

Asked if she said anything to her father, she stated, “No, not really, I think I felt that I had an out of body experience really”. When asked if she tried to escape, she stated, “No, I kind of just lie there not really sure what was going on. I kind of felt like I was watching it from above if that really makes sense”. [ 44 ] J. testified that the incident happened in her bedroom on her bed. Asked if her father told her why he wanted to do this, she stated, “No, he just gave me a – he just say lie down and I did”.

J. was not sure if her father ejaculated but asked how the incident ended, she stated, “He sort of shuddered or shivered and then he got up and I went to use the washroom”. [ 45 ] Asked to refresh her memory from the transcript, J. testified that she remembered the incident vividly. She told the Crown that the area in the transcript she was referring to was about another incident. J. was asked to describe what happened in the ‘other incident’. She stated, “Well, it happened just like the one where he was on top of me except this time my undergarments are removed and he was inserted inside”.

She testified that this incident happened in her bedroom in the Ottawa apartment. She testified that the incident where her father was inserted inside happened a couple of months after the grinding incident. She believed that she was wearing a nightgown. J. testified that her father asked her to lie down. She testified that she was on her back. She testified her father was wearing track pants and a longish – a long shirt, like a long sleeved shirt. She testified that he just shifts her underwear to the side and that’s it…inserted his penis inside her.

She testified that he thrust his penis while he was inside her. Asked if he ejaculated she stated, “Yes he – I think it was either on his hand or on my stomach or a tissue, I’m not – I don’t really remember, but I know he did.” Asked what made her remember, she stated, “Because he did a shudder, he kinda shivered, and then he quickly pulled out”. J. testified that she just got up and went to use the washroom. She testified that when she came out of the washroom her father was gone. [ 46 ] J. testified that she did not tell her mother about the incident. When asked why, she stated, “I have no idea”.

J. testified that that type of incident never happened again. J. was again referred to her statement at page 12 concerning the number of times it had happened. She refreshed her memory and testified, “I believe a hundred was an over exaggeration of the number, it really wasn’t a hundred, about ten times maybe, four, between four and ten times, no that’s not true, between six and four.” [ 47 ] Asked how many times this happened, J. stated, “Between six and four times.” She testified that it would have been in her bedroom and the same thing would happen. It was all in Ottawa.

J. clarified that it was intercourse that happened 4 to 6 times. Asked whether he would ejaculate when he was inside her she stated, “Never inside me, in his hand or on my leg or on my stomach”. Asked if her father said anything to her she stated, “He said that other guys would – you shouldn’t do it – that doing it with – by him doing it, it will stop me from doing it with other guys and getting me in trouble, which it will get me in trouble…meaning getting her unwantedly pregnant.”

[ 48 ] When referred to page 11 of the transcript where she stated it had started in London, Ontario, J. testified that she was referring to the talks. [ 49 ] J. testified that condoms were not used.

J. testified that when she said in her statement that her father was congratulating her, “I personally think that was in my head – it’s more like I felt like that was happening or the whole gist of the scenario that happened I felt like he was saying like congratulations you did it, but really he never said that”. [ 50 ] Asked if there were ever any other positions used, J. stated, “Once on my stomach” but that it was included in the 4 to 6 times. J. testified that no one suggested that she lie on her stomach, but that she was just lying on her stomach.

Asked what her father did, she stated, “The same thing…inserting his penis”. She stated that he did ejaculate but “never inside her”. She could not recall what she was wearing at the time. Asked if anyone else was in the house, she stated, “No, I know that it says in my transcript that I had said that some people were there, but no, no one was ever home, it was usually when no one was home”. J. agreed that when she said “insert in me” she was referring to her vagina. When asked if her father used a term to name the position, she stated that she did not recall.

Asked to refer to the transcript to refresh her memory as to a word she used to describe the position, she stated, “I see it, but I was just giving an example of what I meant like of like the positions”. Asked what word she used, she stated, “I said the doggy – going on top of – the term is cowgirl I think but those were just examples of positions, I didn’t actually do any of them.” Asked “Doggy and Cowgirl” she stated, “Yes, that’s when you’re on top of him – on top of someone.

Yeah, but those were just examples of the positions, I didn’t actually act on any of them.” She denied that her father suggested the terms to her. Asked again to refresh her memory from the transcript, she stated, “I know I did, but really I don’t recall him ever doing it. I’m sure I said he did and he probably did, but I don’t remember right at this moment that he did…I said I don’t recall that he did. It says in the transcript that he did, but I don’t remember…that he did suggest.

I don’t remember, that’s what I’m saying.” J. agreed that everything would have been fresh in her mind when she gave her statement but testified, “Not at this moment, no” when asked whether reading it helped her to remember the positions her father would have suggested to her.

She denied hearing her father use the terms “Doggy and Cowgirl” stating that she learned or heard them in school. [ 51 ] Asked whether she recalled her father saying how she made him feel physically, she stated, “It says in my transcript that I said that – that I made him – that I was good and I taste sweet, but really I don’t – that was just a simulation of what a guy might say to me so….” Asked what she meant by a simulation of what a guy might say to her J. testified, “He says that sometimes a guy would like to describe or tell you how he’s feeling during the sexual act, so he was describe – he was telling me some of the words or terms that they would use.” Asked what those words were, J. testified, “That you’re so tight and you taste sweet, along those lines”.

J. testified that her father would use those terms before inserting his penis inside her. J. testified that the actual act would happen in her bedroom, the talks were at random places in the house or the apartment. [ 52 ] J. testified that throughout the incidents Mr. L. would usually drop his pants to his ankles and his underwear as well. She testified that he only removed all of his clothing once but kept his undershirt on.

He took off the long sleeved shirt and his pants and underwear but left the undershirt on. [ 53 ] J. testified, as to what her father explained to her as to why he was doing this to her, “He said it’s just to make us get closer, again our relationship was really – actually it was horrible, our relationship, we fought every time, every conversation we ever really had so yeah, so it was that and also to lead me off the boys in the neighbourhood, which the boys in the neighbourhood weren’t really the greatest, so I guess he was doing this to protect me.” [ 54 ] Asked if her father was ever physically aggressive with her, J. asked to refer to her transcript and stated, “Thank you.

Found it. Okay, I’m going to refer to page 24 at the top of the page or the line where it’s – I don’t – kind of it follows through from 23 okay. So I stated that he hit me, kicked me, and slapped me, and pulled out my hair twice”. Asked if that was true, she stated, “Not the kicking part. The kick was really by accident it was more like a top (sic) really. The hitting one, I don’t remember that one, but the slap and the hair was true where I remember.

J. could not recall why he slapped her and pulled her hair, stating, “I don’t really remember, we were arguing and then the next thing you know my braids were on the floor…My braids. I had braids at the time and I believe the slap was because he didn’t like what I said. We were having another argument and yeah. He told me to be quiet and I wasn’t so…” Asked to describe what she meant about her braids being on the floor, she stated, “Yes. Yes, like my hair attached to the braids were on the floor”. She confirmed that it was her hair, braids that were pulled out of her head on the floor.

Asked if she was injured, she stated, “No, I was just really sad because my mom did really such a good job on my hair at the time”. She testified that she did not really feel anything when the braids were pulled out. [ 55 ] Asked if her dad ever gave her money, she testified, “Yes, I would periodically sometimes get money.

I said in my transcript there were during the times of the said acts but really I think that was an exaggeration on my part ‘cause he hardly gives me money so I’m just saying there has to be a reason, so I’m just tying it to that, but really that could be just how I thought it was perceived.” Asked how much money he would give her she stated, “Sometimes five dollars, sometimes ten, sometimes 20. It never went higher than 20.” He started to give her money “during the age of 15”.

J. testified that she said in her transcript that it was a bribe, like hush money, but again it was a complete exaggeration, that’s just what I thought. That could most likely be giving me money…but that could be just how I thought it was perceived. She testified that he started giving her money when she was in grade 6, when they came to Ottawa. Her

assumption was that it was “usually just bribe really”. J. testified, “At the time I didn’t think anything of it, it’s only now recently during this process of this trial that I came to realize that it’s probably most likely hush money”. [ 56 ] J. testified that she and her mother and family, except Mr. L., were living in a shelter when she went to the police to give her statement. J. was 15 at the time but turning 16 in a couple of days. J. testified that prior to going to the shelter, she told her mother what her dad had been doing to her and they left the apartment immediately and went to the shelter.

J. could not remember the last time her father would have had intercourse with her prior to going to police. J. testified that she told her mother what her father was doing to her on the same day that they left the apartment. After referring to her transcript, J. testified that the time could have been in June, July, August or March but she did not really know. [ 57 ] J. testified that she did not say anything to her father during or after the incidents. Asked whether that had anything to do with her mother, she stated, “My mom really wants us to have a really close knit family.

The family she grew up in wasn’t really all that close, so she kinda always suggests the importance of family oneness, which is something I also like to have too.

So I’m guessing, this is what I think, I think the reason why I didn’t say anything is because of that reason.” Asked how it would have made her mom feel if she had said anything, she stated, “I think she would be angered, distressed, concerned, a whole bunch of fluctuations of emotions, most definitely anger.” Asked whether J. had any concerns as to how her mother was feeling or thinking over the last two days of the trial, J. stated, “I think she’s feeling a whole bunch of emotions. I don’t – I don’t ask her how she’s feeling because our emotions are different from each person.

I’m sure she’s feeling a whole bunch of things.” Asked if she was concerned about how her mother might be thinking or feeling about J. giving her evidence and telling the court about her dad, J. stated, “I think my mom wants me to do what’s right. She’d want me to tell the truth and nothing but the truth. So yeah, that’s pretty much it. My mom just wants me to – she just wants to know what happened really. She’s not taking any sides. I mean she believes me, but that’s – yeah.” [ 58 ] Asked if there was a point where she thought she should tell her mother, J. stated, “Yes.

There was a point where I thought that maybe I should tell my mom, but at the – like my father convinced me otherwise…My father suggested or implied that my mom wouldn’t understand what we are doing and then there was a age cap for the lesson or talks that we were currently doing…I say in my transcript that my mother will – that he said my mother would hate me for the rest of my life and would never forgive me. I don’t remember him saying nothing about hate me, but I do remember him saying that she might not forgive me…I also stated that he said that she’ll give me up and I’ll never see her again.

I don’t really recall him ever saying that. I think that was just an exaggeration on my part, so yeah.” [ 59 ] Asked what she meant by exaggeration, she stated, “I’m just saying that when he generally says that I shouldn’t tell my mother what is going on because she wouldn’t understand and I just add in some fillers to explain why he said that…the fillers I’m stating is the part where it says that my mother will have me for the rest of my life and she’ll give me up and never want to see me again.

Those are the fillers.” J. explained that the fillers are something that she herself thought, not something she invented.

Asked what part her father actually said to her, J. stated, “That she wouldn’t understand and that she might not forgive me.” J. also testified, “…What I do remember is that he said she would not understand and it will cause a huge ripple in the family and you’ll make everyone cry and things along those lines.” [ 60 ] J. testified that she did not tell her mother stating, “Yes I was afraid that my mother would hate me or more like disgusted with me, but yes”. [ 61 ] J. testified that watching an episode of Criminal Minds prompted her to tell her mother.

In the program the character was “like the same case that I’m going through right now, so I kinda felt like okay, if she could do it, and there was just like a screen that said I could do it too and her mother didn’t really support her, but our mothers are like a contradiction, my mom supports me almost everything I do and she loves me dearly so I should be able or have the confidence to tell her, since I tell her everything.” [ 62 ] Asked whether there was ever a time when she had to intervene in

an act of violence between her father and her brother, J. stated, “I know it says in my transcript there was the time where he looks like he was about to strike my brother. I believe they were just having a heated argument and it looked that way from my perspective. I don’t think he would actually – he was actually going to.” Asked whether she intervened, J. stated, “Yes, I was in between them and said, ‘Don’t hit my brother’, but he never really did at that point, I just felt like he would – he was going to.” [ 63 ] Asked if the incidents of violence caused her to fear her father, J. testified, “Yes.

I don’t really fear my father. My feelings for my father is complicated, but I do not fear him…I don’t see him the same way as I see my mother. Like I care deeply for my mother, like I’ll do anything for her whereas for my father, it’s not the same”.

[ 64 ] Asked if she had any injury to her vagina or any soreness as a result of the incidents, J. testified, “I wobbled, kinda like a stiffness or does that make sense to walk…I think it was just like the pelvis area.” Asked what caused her pelvis area to be sore, she stated, “I’m guessing after the acts, I don’t really remember or recall.” Asked if she felt it after the acts of sexual intercourse, she stated, “Sometimes, but not all the time”. [ 65 ] The Crown ended her questioning on the voir dire concerning the admissibility under

section 715 at that point, but stated that the Crown was proposing to make a section 9(2) application to cross-examine J. on the inconsistencies between the original video statement, the corrected transcript of that statement and the evidence given in Court. [ 66 ] The Crown referred to page 8 of the transcript where it indicates “He would, you know, lick my private part downstairs” which the Crown maintained was contradictory to what J. testified to.

Also J. had referred to “touch my boobs” in the plural, and what he meant by all of this and in the statement it said, “You’re ready for taking it to the final step of womanhood. You finally know what to do”. Also that J. , in her statement referred to him actually removing her underwear and that “he would just take it out”, that “he put it in his hand or in a tissue”, that intercourse started happening prior to 2011 and that it actually started happening when she was in London, Ontario.

Also at page 12, that he stated to her, “You taste so sweet, you’re so tight, and you feel good”. [ 67 ] There were several other inconsistencies referred to. [ 68 ] Mr. Hall had no submissions on the application to cross-examine on the inconsistencies. [ 69 ] Mr. Hall admitted that J.’s statement to police, the video statement, was voluntary. [ 70 ] J. was immediately hostile and adverse on Day 3 of the trial. When Ms. Eastwood indicated that she had a few more questions to ask her and asked whether Det.

West told her that it was important to be truthful in her police interview, J. stated, “I have nothing to say to you…I refuse to answer to this woman right now.” Asked why, J. stated, “You insulted my mother yesterday with allegations that was completely not – uncalled for”. Asked whether her mother told her not to answer any further questions, J. stated, “No. By insulting my mother, you insulted me.” When the Crown suggested that it was not a reason not to answer questions, J. stated, “Yes it is. I don’t even understand why you have to say something that was totally uncalled for.

She was only wondering.” [ 71 ] The witness was directed to answer the questions no matter how she felt about the Crown personally. Asked whether Det. West told her it was important to tell the truth, J. replied, “Yes”. J. agreed that she knew it was important to be truthful in such matters. She agreed that he told her that the interview was being video-taped and the consequences of lying. J. disagreed that she was not tired during the interview but agreed that she did not ask to make any corrections to her statement. J. could not really remember whether Det.

West asked her to make sure she corrected anything he stated wrong, but was sure he did. J. agreed that she had the opportunity to view her video before trial and that she did not advise Det. West or the Crown of anything that was incorrect or exaggerated in the videotape.

J. testified that she did not take drugs or alcohol. [ 72 ] J. confirmed that her father eventually had sexual intercourse with her on 4 to 6 occasions. [ 73 ] J. could not recall and said that when she had said in her interview “So um one day he came into my room and he told me that I would need to learn how to have intercourse” was an exaggeration and she did not recall him ever saying that. [ 74 ] Asked if she understood that exaggeration was adding something on that is bigger than it was, J. testified, “I shouldn’t have used the word exaggeration. I don’t remember or don’t recall him ever saying that”.

Asked if her memory would have been better when she gave her statement to Det. West, J. stated, “No” and disagreed with the suggestion that her father would have said that to her. J. agreed that she would not have lied to Det. West when she gave her statement. J. agreed that what she was saying is that it was not an exaggeration but that she just did not remember her father saying that. [ 75 ] It was put to J. that the day before she had testified that her father had suckled the upper part of her breast over her shirt but had said in her video statement that “he would be sucking on them”.

The Crown suggested that “them” meant both breasts and not just the one over the heart. J. testified, “I don’t remember that”. Confronted that she told Det. West that, she stated, “That could be wrong. I mean that is wrong”. It was put to J. that she would not exaggerate that, and asked whether she was forgetting that, J. stated, “No, I’m saying that’s an exaggeration…he did it once. I was just implying both.”

[ 76 ] J. was directed to the words, “You said, ‘And he would, you know, lick my private part downstairs’, and it was suggested that when they were on the couch, her father told her to lie down, but that she just slouched on the couch. She testified, “No.” J. agreed that she had said that her father was on his knees and kissed her thigh. She disagreed with the suggestion that he was licking her private parts. [ 77 ] The Court intervened due to the obvious anger and hostile attitude from the witness on Day 3 and asked what was going on today as her demeanour was so completely different from the day before.

J. stated, “I’m tired, I’m missing school and it’s almost Christmas break”. Asked what that had to do with how she was acting that morning, J. stated, “I never said that I wanted to be in trial, they are forcing me to be here. So I don’t understand why I have to do this”. Asked who was forcing her to be there, J. stated, “The Crown, everyone. I never said that I wanted to do this”. [ 78 ] Asked why she did not want to do this, J. stated, “Because I don’t want to be in trial”. Asked why not, J. stated, “Because he’s my father”. Asked if she was worried about her dad, she stated, “Yes”.

Asked what she was worried about, she stated, “Everything. He’s my father. I’m not going to on trial against my father. I never said I wanted to follow through and you guys said I had to…I said I never wanted to go to trial and they said I had to.” [ 79 ] Asked whether the issue was that she was not saying what she had told Det. West was not true, but that she just didn’t want to be in trial, J. said that was not the issue. J. testified when asked what the issue was, “I just don’t want to go to trial. I don’t want a trial. I don’t want to accuse my father of this. I don’t want to put him through jail.

I don’t want to do any of this, this whole…” [ 80 ] Asked why she went to the police, J. stated, “Because they said I had to”. Asked who told her she had to, she stated, “The people at the shelter”. When it was suggested that she was at the police station voluntarily, that no one dragged her to the police station to speak to Det. West, J. stated, “They said I had to”. Asked if she wanted to look at the video again to see herself, J. stated, “Yes, I saw myself in it and I remember I watched it like four times.

They said at the place where I was that I had to do this and I did it.” [ 81 ] When it was suggested that she could have gone to the police station and not told anyone anything and no one at the shelter would have known the difference, J. stated, “They told me not to lie”. When it was suggested by the Court, “Okay. So that’s the question. You haven’t lied, but you don’t want to be here now.” J. stated, “No”.

And the Court stated, “And you don’t want anything to happen to your father”, J. stated, “No, I lied.” [ 82 ] Asked in what areas she lied, J. stated, “That I wanted to through – I never said I wanted to go through this. I don’t want to be here. I don’t want to do this”. [ 83 ] When it was suggested that she didn’t want to do it, but it was just because she was afraid and worried about that her dad is going to go to jail, she stated, “I’m not afraid…I’m not afraid and I’m not worried, I just don’t want this – I never got a choice to say if I wanted to go through – do this.

No one came to me and said, ‘Do you want to press charges?’ No one asked me that. I should have a right to say if I wanted to or not.” [ 84 ] Asked if she remembered Det. West discussing that with her, telling her what the options were, and he asked her about speaking to her mother about it and J. saying, yes go ahead and speak to her mom, J. did remember that. She agreed that Det. West talked to her about getting some counselling and she told him that her mother had suggested that she get some counselling. She also agreed that at no time at the end of the interview that she was lying about anything.

J. agreed that she had not, up until this point in the trial told anyone that she had lied. Asked whether her mother had told her to come to court and not say anything or was it her own decision, J. testified “This is my decision”. [ 85 ] The matter was discussed in the absence of the witness. The Court gave instruction, due to J. ’s anger with the Crown about something that happened with her mother, that there should be a full investigation into what had happened to cause the obvious hostility before continuing. [ 86 ] The matter was adjourned from December 2013 to September 2014 to continue. Ms.

Tansey replaced Ms. Eastwood as Crown counsel and the 9(2) cross-examination continued on the next day.

[ 87 ] There was no mention as to the reason for the change in prosecutors or the results of the police investigation referred to above. [ 88 ] The original videotaped statement transcript was filed on the voir dire originally as Exhibit A, but the original was not logged in the Exhibits. As a result, on consent a copy of the original transcript was filed as Exhibit C and the edited transcript copy was filed as Exhibit A. The videotaped statement was filed as Exhibit B. [ 89 ] Ms. Tansey applied to have the witness, J.

S-L. declared adverse and to cross-examine her at large on the statements under section 9(1) of the Canada Evidence Act. Mr. Hall made no submissions on the application. [ 90 ] J. was reminded that she had made both a promise to tell the truth and taken an oath on the Bible to tell the truth. [ 91 ] J. was asked how she felt about being in Court. J. stated, “I’d rather not be here”. Asked why, she stated, “’Cuz as much as this is a cool experience I’d rather, this is kind of awkward for everyone. It’s like emotionally wearing on the soul”.

Asked to explain that statement, J. testified, “Well, I’m a daughter prosecuting my father. That’s pretty physically, emotionally, mentally weary on the very fabric of myself”. Asked whether she was worried about her mom at all, J. stated, “Of course. I’m always worried about my mom”. She replied “I guess so” to the question of whether she was worried about her mom and specifically about what’s going to happen here with your dad. She agreed that she had thought about that.

Asked in what ways she had thought about it, J. stated, “Like what’s next for our six-figured family, soon to be five, or maybe six again, we don’t know”. J. testified that she was the oldest of 4 children and that it was a lot of responsibility. She agreed that she felt some responsibility for her younger brothers and sisters.

Asked what she thought might happen to her dad, J. testified, “Um, well, if this goes – like if it goes he might like get – go to jail and it probably won’t go well for him in jail.” Asked why she thought it would not go well for her dad in jail, she stated, “’Cuz his family keeps him grounded”. She agreed that that was something that was weighing on her. [ 92 ] J. remembered being in Court on the previous days and described that she was feeling miserable. J. agreed that she was miserable, angry and did not want to answer any questions on the last day.

When asked if she remembered not even wanting to admit that she was angry the last day, J. stated, “I wasn’t, well, I remember being kind of like passive aggressive”. Asked why she was feeling like that that day, J. stated, “Well for one thing the trial was getting me frustrated, and then the prosecutor wasn’t being very friendly. Well, she was friendly but sort of…She just insulted my mother and that I didn’t really enjoy – appreciate that”. J. agreed that something had happened outside of court and that she was very protective of her mother and likewise her mother was protective of her.

J. described her mother as her best friend. [ 93 ] Asked to tell the Court how she was feeling the last day, J. stated, “Well this is like a novelty, so it was kind of like cool ‘cuz I was just like watch Law and Order and things like that, but at the same time it was like, oh, this is actually real.” Asked what was happening for real, J. stated, “Um, actually in court, answering questions.

I have a lawyer on one side and a lawyer on the other side, and the judge in front of me, and we’re all trying to figure out what happened.” J. agreed that it was stressful and that she was concerned for her dad and what might happen to him. J. testified, “Yeah, it started to kick in…the aftermath of this whole trial…not just for him but for like everyone.” J. agreed that everyone meant her whole family. She agreed that she was concerned that her father might go to jail and what he would do in jail without his family. She stated, “Yes, and how we will do without – well, how K. and A. would do without him.

And maybe M. too.” [ 94 ] J. agreed that M. is the second oldest and that she was a little less concerned but still concerned about him. She agreed that she was concerned for her mom. Asked about herself, J. stated, “Well, I’m eighteen now so it’s kind of like I’m all right, kind of like a lost cause, but…” Asked if she was a lost cause, J. stated, “Kind of. Well, um, this is kind of – I’m already eighteen so I’m like an adult, so I don’t know if this is something I could do again.

If that makes any sense.” When asked what she was referring to being unable to do again, J. explained, “I don’t know, like, just being in the same room, like all six of us being in the same room again and to talk, ‘cuz this is pretty stressful.” Asked if she was saying that she didn’t know if she could be in the same family again, J. stated, “Yes”.

J. agreed that those were the things she started to think when she was testifying and that it was a roller coaster of emotions for her and testified “I don’t do well with that”. [ 95 ] J. was asked if she knew what minimizing was, she stated, “I do…Making something smaller than it really is, or making something larger and gradually making it become smaller.” [ 96 ] J. recalled going through her statement and taking a pen to it, crossing things out and making changes to it.

[ 97 ] J. agreed that she had changed how long some of the sex acts with her dad took, going from 10 minutes and changing it to 7 minutes. J. testified that she changed the number because she was not sure of the amount (of time). [ 98 ] On Exhibit B, page 8, it is suggested that J. crossed out, “Yeah, well yeah, eventually we had sex but like you know”. The Crown suggested that this was an example of something J. was trying to minimize that happened.

J. testified, “You don’t have ‘plead the 5 th ’ here, do you?” [ 99 ] It was suggested that that is one example of minimizing something because she didn’t want it to look as bad for her dad. J. testified, “Somewhat”. When asked if she could explain what she meant by somewhat, she stated, “No, I can’t.” [ 100 ] J. agreed that she told the court on the second day that her father did have intercourse with her. She agreed that it was also in her video statement a couple of times and that she only crossed out one of the occasions in the transcript.

The Crown then suggested that the reason she wanted to cross it out in some spots and not others was so it didn’t look as bad for her dad. Asked if that was a fair statement, J. stated, “It is. What you said made sense.” Asked if that was why she crossed it out, J. testified, “Yes”. [ 101 ] Asked if that was a difficult thing for her to agree with, J. said “Yes” but did not know how to put the reason it was difficult into words. J. agreed that she had drawn a picture before testifying on this day. J. described the picture as two grey wobbly things with a little purple person standing kind of in the middle.

The dialogue bubble coming from the little person said “Help”. J. said the Help could be being said by the person or the two blobby things. J. testified that the two grey blobs could be rocks, “a rock and a hard place”. Asked if that is how she was feeling, J. stated, I…Could be. I don’t know.” [ 102 ] J. was referred to page 7 of Exhibit A (the edited transcript of the video statement), to the line “Uh, let’s see. When I was little so I’m guessing around nine. Yeah, I think it was around, okay, around nine, that’s when I started maturing as a female”.

You crossed out the word nine and wrote ten on top of it and then crossed it out and wrote nine again. J. agreed that she took the time to really think about something and made a decision that in fact she was right the first time when she said nine. J. agreed. J. agreed that she started maturing and started puberty at nine and that the talks with her dad started at that time. [ 103 ] The next area: page 12, Det. West says to you: “Okay. Did…How many times did this happen? And you say, What do you mean like, a day or…and Detective West says: Rough. Like, are we talking one or two, fifteen, twenty, a hundred?

And you cross out “probably a hundred” and write, “twice”. J. responds, “No, it’s once.” The Crown says, “I’m looking at what you cross out, just on top of “probably” there is a word, it says “twice”, and that is crossed out, right?” J. agrees. J. agrees that it looks like two words that she crosses out and that she leaves the word “once”. The Crown suggests to J. that this is a minimization. J. stated, “I do not know”. J. agrees that she crossed out 100 and put in twice and then crossed that out and decides to go with once.

J. agrees she does that because she wants to be truthful about what happened with her dad. J. agrees with the Crown’s statement, “And be honest that there were times when he – and this is in the context of him getting on top of you and penetrating you – but you are worried about how bad it is going to sound if it happened more than one time.” J. also agrees with the Crown’s statement, “Because we know it happened more than one time, right, because you tell us it does in this very same statement.

Right?” [ 104 ] Ultimately J. agrees that she told the court that intercourse had happened between four and six times and that she was being honest. She agreed that intercourse happened more than once. She agreed that this crossing out was an example of minimization. [ 105 ] When asked about a time when her mom and M. walked in when something was happening with her dad, J. testified, “So I’ve been told…I was sleeping”.

J. testified that she knew they walked in because “they told her that they did”. [ 106 ] J. testified that she was asleep and has no recollection of her dad being naked from the waist down on top of her with her nightgown hiked up. [ 107 ] J. agreed that the time that her mother and brother walked in, it was shortly after being told about that happening that she told her mom about all the other things that had been going on with her dad. J. agreed that it was a hard thing for her to do.

J. agreed that she had not been surprised when her mom had told her what she had seen because things like that with her dad had happened in the past. J. answered, “Sure” and was asked if “sure” meant that is true. J. testified, “Yes”.

[ 108 ] J. agreed that it was hard keeping secrets from her mother and that she did it partly because she feels protective of her mother and knew that telling her would have really hard consequences for her and for the family. J. denied that M. talked to her about what he had seen because they don’t talk about that even though they have serious talks about other things. [ 109 ] In cross-examination, Mr. Hall asked J. , what instructions she was given when she took her original statement of September 7, 2012 and edited it. J. testified, “Take out things that don’t matter or are irrelevant, or… Q.

Or not part of your evidence? A. Yes”. [ 110 ] J. agrees that she had promised to tell the truth when giving the original statement. J. agrees that there were no problems with the first six pages or up to the place where she changed “nine” to “ten” and back. [ 111 ] J. agreed that the blacked out portion on page 8 was because she did not want that to be part of her evidence. [ 112 ] J. agreed that she changed the part where she said her father would touch her breasts to that he would talk about touching her breasts. She agreed that her father talked about touching her breasts but did not touch her breasts.

She also agreed that further down on page 8, she changed the word or the context of the sentence from “he would do certain things” to “he talked about doing certain things”. [ 113 ] At page 12 J. agreed that originally she wrote, “Well, he would make me try different positions” to “suggest to try different positions”. J. agreed that her father never made her try positions but that he suggested different positions during the talks. [ 114 ] J. agreed that her father never got on top of her and did anything, ever. When Mr.

Hall continued, “from the time she was nine to the time when you are sixteen or seventeen”, J. asked him to explain more. Mr. Hall asked, “Did he ever get on top of you?” J. stated, “It says later that I said he did”. Mr. Hall then stated that they would get to that later, but for page 12, she agreed that she changed the whole context of the sentence from doing something to suggesting or talking about it and J. agreed. [ 115 ] J. agrees that two sentences down, she took out the whole sentence.

J. agrees that her intention in taking it out was that it was not true. [ 116 ] J. agrees with the suggestion, “So it wasn’t true when you said it in your evidence, and you took it out completely because it was not true.

He did not do the doggie on top of you.” [ 117 ] J. agrees that she changed one hundred to twice and then once. [ 118 ] J. agrees that when referring to “once or twice” she means talks. [ 119 ] J. agrees that mid-way on page 13 she takes out a whole sentence because it was not true to begin with. [ 120 ] J. agrees that on page 14, she removed a whole sentence because it was not true, that her dad did not say that. [ 121 ] J. agrees that on page 16, she takes out “He told me about choke my sister, my little sister, and she pushed mom, my mom” because that was not said or done.

J. qualified her answer by saying, “No. Not that I’m aware of anyways, no”. [ 122 ] J. agrees that she took out, where it talks about smashing the coffee table, that “he like lifted it up overhead and like tried to hit my mom” because it was not true. [ 123 ] J. agrees that on page 17, she took out, “When he’s mad he would hit my brother a lot, but then I had to intervene” because it was not true. When it was suggested that “it never happened”, J. testified, “Well, I don’t know. I mean, I’m never there for that so…”

[ 124 ] Asked why she took out “Because he would just get so mad, and then I’d be like, don’t hit my brother. I don’t care what he did, don’t hit him”, she stated, “Well, I wasn’t there for that. I was just like half-way through the whole argument so I don’t really know what really happened.” J. agreed that she never saw him hit her brother. [ 125 ] J. agreed that when she put things into her statement to Det. West and then took them out it was because they are not true. Asked if they are exaggerations in the first place, J. stated, “Some of them could be exaggerations”.

Asked if some of them could be lies, J. states, “No. They could be exaggerations but I don’t lie.” [ 126 ] When confronted that the last day she was in Court she told the Court that she lied, J. stated, “Oh, I was just frustrated with the prosecutor. I just was kind of fed up, so, yeah. It wasn’t, it wasn’t..” [ 127 ] When asked whether the things Mr. Hall had pointed out so far are not true, J. stated, “Right. Exaggerations”. [ 128 ] Mr. Hall referred J. to page 20, to “It happened once. It would be like in my room where I would be…like by myself.

He would just spring out of nowhere and he’d like, let’s talk.” J. agreed that the talks could be any kind of talk in general. [ 129 ] J. agreed that she had changed that her father had touched her “chest” to “arm”. She agreed that her father never touched her chest. [ 130 ] At page 21, J. agreed that she had scratched out “package” in the sentence, “Tell me where to touch him so his (package)”. J. testified that “package” means genitals. She agreed that she scratched it out because it was not true. She agreed that she put in “his thigh”. When asked that the word “package” was not true, J. stated, “Right.

It would be, it was an exaggeration, not true. It’s exaggeration.” [ 131 ] J. agreed that she had scratched “his manhood”. [ 132 ] At page 21, she agreed that she had written under “This this is how a guy would lick you downstairs (inaudible) right” “never actually happened”. J. testified that she had scratched out the “licking stuff”. She agreed that her father never licked her. When it was suggested that he never even said that, J. stated, “I do not remember that.

But…” [ 133 ] Again on page 21, J. agreed that she had scratched out, “So it would be like, he would be like, lay on your back and now spread your legs, and he’d do that, yeah”. When asked why she had scratched that out, J. stated, “’Cuz, I don’t remember that”. Asked “because it is not true?” J. testified, “I wouldn’t say that, but I don’t remember it.” [ 134 ] Mr. Hall suggested to J. that a lot of the things that she said to Det. West she had recanted or she is withdrawing from because in fact they were not true.

J. stated, “Exaggerations, yes.” When it was put to J. that she had agreed a couple of times that she took out was not true, J. stated, “I was under the impression that you mean like exaggerations not true as in exaggerations.” [ 135 ] J. testified that from page 8 to page 23 were mostly exaggerations and not truths. Asked to explain what the difference between an exaggeration and what is not true, J. testified, “Uh, the – well, let’s go, let me go find an example. Okay. The suggestion was not true. I mean it was an exaggeration because it was never actually happened, it was a suggestion.

That was an exaggeration. And the lying on my back was a not true. If I got that right.” [ 136 ] J. refers to page 13, the “they wouldn’t be able to”. That sentence was not true. J. was referring to the statement that her “father said they wouldn’t be able to satisfy her and that she wouldn’t know what to do”. Asked if that was not true, J. stated, “Yes”. Asked, he never said that, J. stated, “No. To my recalling no. No.” [ 137 ] It was explained to J. that she was saying that it was not true and when asked to confirm that, she would say not that I recall.

J. was confused and testified, “You know what, I don’t even know, Your Honour. I’m really…Most of it’s…I remember some of this and

then I don’t remember some of this, so, sorry”. [ 138 ] J. then went back to page 7 and worked through the edited transcript again. [ 139 ] J. testified, “Okay, so page 7 is true. That one is an exaggeration, that’s page 8.” [ 140 ] Asked what that meant, and to explain page 8, “Like one day, like to touch my boobs, and then he’d be like this is how they would do it.” J. testified, “I never – right, that was an exaggeration.

That, it was just a talk, not really an actual full hands-on touch.” J. agreed that her father would talk to her about that. [ 141 ] Asked if he would talk to her about licking her private parts, J. testified, “That I don’t remember him saying, so it could be true, could not be true. I don’t even know at this point. Yeah. I’m being so unhelpful right now I know, but, yeah.” [ 142 ] She continued, “Okay, page 12 is not true, like completely. The dog part, not true. So, if that helps…Those are the example.” [ 143 ] Mr.

Hall referred J. back to page 8 “Like, one day he would like touch my boobs and then he’d be like this is how they would do it” and you now describe the act as “talked about how one would grab their boobs”. Mr. Hall also referred to “He would, you know, lick my private parts downstairs” and that both were changed from doing the act to talking about the act. J. agreed. [ 144 ] J. agreed that she had said earlier that when she said her father would do this or that was not true. She agreed that it was not an exaggeration. [ 145 ] Mr.

Hall referred J. to page 24, “And then I, uh, he sometimes hits me, kicks me, slap me. He pulled out my hair like twice” and put to her that she had taken that whole sentence out. When asked was that because it was not true, J. stated, “Well, the pulling on my hair part was by accident, so that was by accident.” [ 146 ] She agreed that her father did not hit her, did not kick her, did not slap her, and by accident, not once but twice pulled out her hair. [ 147 ] J. agreed that the once was not true because it was twice. [ 148 ] At page 25, Mr.

Hall referred to “And this would be…I’m guessing this is probably like bribe money to keep my mouth shut” that J. had taken out. J. agreed that there was no bribe money, but that her father had given his daughter some money. [ 149 ] At page 27, Mr. Hall put to J. that she had taken out “Oh, there is only one time when he actually fully took off all his clothes” but left in but most of the times he just takes, drops his pants.” Asked why J. took most of the sentence out, J. testified, “Because I was minimizing it”. [ 150 ] J. testified that she never told any of her brothers or sisters about the events.

She testified that they would ask her about what was going on but it was more as to why they fought so much. [ 151 ] In re-examination, J. agreed that the parts that she had not scratched out in her edited statement were true. [ 152 ] J. confirmed that when she spoke to Det. West she knew that she had to tell the truth and she knew that he in court she had to tell the truth. She confirmed that on both occasions, she knew what the words she was saying meant and that she was talking about her father. J. was asked what had changed between the time that she spoke to Det.

West and now that she was providing somewhat different

versions from the first one she told Det. West and what she had just told the Crown and Mr. Hall that were exaggerations or not true. J. stated, “I don’t know, I guess it kind of hit me”. Asked what hit her, she stated, “The reality of the situation”. Asked what the reality of the situation was for her, she stated, “That I’m pressing – well, I’m in court against my father”. J. was asked, “why does that make what you said in the beginning different from what you are saying now in court?” She stated, “I don’t know. I really don’t know…Q. Well you have to know because you are saying two different things? A.

I don’t know, Your Honour. I guess I’m conflicted.” Asked what she was conflicted about, J. stated, “Uh, family. Family, I guess.” J. was asked, “And how is it that you are conflicted with your family? Who specifically are you conflicted about?” J. stated, “Just family in general”. Asked, “And why does that make you tell another version in court from what you told Det. West?”, J. stated, “’Cuz, I don’t know. I don’t know. I don’t know how to put it. I don’t know. I really don’t know how to put this in words. I really don’t.” Asked, “Well you know what you’re doing?, J. states, “I do”.

Asked, “So just tell me what you’re doing and why?”, J. states, “I just want everyone to be happy at the end of this. That’s all. I just want everyone to be happy.” Asked, “And are you telling me that’s the reason you are changing your statement?”, J. states, “Yeah, I just want everyone to be happy. I just…I want…I like knowing that I have a complete family, but at the same time I did enjoy having separate parents. If that makes sense.” [ 153 ] The Court states, “No it doesn’t make sense” and J. states, “I know.

I don’t know how to explain it.” The Court asks, “What do you mean, separate parents?” J. states, “I mean I enjoy the, um, the whole family thing, everyone’s together, one whole family, but at the same time it was a different experience when it was just my mother, with just my mom. It was…I was…It was an okay experience, like I didn’t mind it so much as I thought I would. [ 154 ] J. confirmed that she was talking about since July. [ 155 ] J. A. S., the mother of J. , M., 16, K., 11, and A., 10 has been married to J. L. for 16 years. He is the father of the 4 children. Ms.

S. testified that J. and M. were born in Montreal. Ms. S. and Mr. L. moved from Montreal, leaving J. and M. with Ms. S.’s mother, to Limberlost Street, in London, Ontario. Ms. S. testified that she and J. first moved from Montreal to Scarborough, Ontario and then to London, Ontario. She believed that they lived in London, Ontario from 2002 to 2007. [ 156 ] Ms. S. testified that currently she and Mr. L. are separated. They separated in August 2012. Ms.

S. testified that there were a lot of things that caused the breakdown of their relationship in August 2012, one being that a family of 6 had moved from a house to an apartment and the apartment was not big enough. [ 157 ] Ms. S. confirmed that they had lived in a house on Limberlost Street in London, Ontario and moved to the apartment on Donald Street in Ottawa. Ms. S. testified that they also had issues with the kids, with the neighbourhood and the apartment. Ms.

S. also referred to the loss other things along the way before they got to Ottawa, i.e. that when they left Montreal there were 4 in the family and they had left J. and M. in Montreal with her mother but had to bring them to Scarborough after a time and later in London, K. and A. were born. Ms. S. testified that they never recovered the living standard they had in Montreal. [ 158 ] Ms. S. worked at Tim Horton’s after coming to Ottawa. Mr. L. did not work between 2007 and 2012. The family was supported by Ms. S.’s job and social assistance. [ 159 ] Asked what the issues were with the kids in August 2012, Ms.

S. stated, “Well, there was problems with school. There was billing issues within the neighbourhood. Yeah.” [ 160 ] When asked if there were problems between Mr. L. and J. in August 2012, Ms. S. stated, “I don’t know. I don’t know, I mean… I don’t know”. [ 161 ] Ms. S. confirmed that she did not want to be in court and did not respond when asked why. Ms. S. was directed to answer the questions. Ms. S. then testified, “I’m expected to discuss something that may or may not have happened”. [ 162 ] When asked what she was referring to, Ms. S. stated, “Well, we all know why we’re here”.

When asked what she was referring to, there was no response. [ 163 ] Ms. S. was informed by the Court that the Court did not know anything about the case other than what is heard in court. Ms. S. then responded, “Okay. Well my daughter is – has made statements that her father, which is my husband, of, um, assault.”

[ 164 ] Asked whether her daughter made the statements (accusing her father of assault) to her, Ms. S. stated, “correct”. When asked when that happened, Ms. S. testified, “I don’t remember”. Asked if it was around the time that her relationship with Mr. L. broke down, she stated, “I don’t remember”. Ms. S. denied ever seeing anything of a sexual nature between Mr. L. and J. . [ 165 ] Ms. S. was asked if she wished to refresh her memory with her September 7, 2012 statement to Det. West. Ms. S. remembered going to the Ottawa Police on September 7, 2012 and speaking to Det. West.

She confirmed that J. and M. went to the police station with her and that all three were interviewed by Det. West. Ms. S. agreed that she had reviewed her statement. When asked whether looking at page 3 of the transcript helped refresh her memory about an incident of a sexual nature between her daughter and her husband, Ms. S. did not respond. The term refreshing her memory was explained. Ms. S. then testified, “Well, I don’t know if it…a sexual nature. It’s not like I saw anything.” [ 166 ] When asked to tell the Court what she was referring to, Ms. S. stated, “Well, my statement, what I’m reading.” [ 167 ] Ms.

S. was asked to tell what she saw. She stated, “Well I saw…Like I said, I didn’t like see anything. I just, I mean, I closed the door, I didn’t see anything, so I don’t know what I saw…” [ 168 ] Asked what door she was talking about, Ms. S. stated, “The bedroom door” and then “J.’s” when asked whose bedroom door. [ 169 ] Ms. S. testified that only J. and her father were in the bedroom. There was an inaudible response when she was asked where was J. . She then replied, “She was – she was on her bed. It was…Yeah.” [ 170 ] Ms. S. was then asked by the Court to speak up. [ 171 ] Asked how J. was on the bed, Ms.

S. testified, “She was lying down”. She could not remember which way. She stated, “I don’t…I can’t remember. She was just lying down. Because it was in the morning, s

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