) ) HER MAJESTY THE QUEEN – v. –, 2015 ONSC 698

CITATION : R. v. B.M., 2015 ONSC 698 COURT FILE NO.: 13-63 DATE: 2013/02/09 ONTARIO SUPERIOR COURT OF JUSTICE IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486(3) OF THE CRIMINAL CODE OF CANADA DATED JULY 3, 2012 BY HIS WORSHIP JUSTICE OF THE PEACE LUC GUINDON. BETWEEN: ) ) HER MAJESTY THE QUEEN – and – B.M.

Defendant ) ) ) ) ) ) ) ) Andre White, Counsel for the Crown Ian Paul, Counsel for the Defendant ) ) ) HEARD: March 24, 25, 26, 28, April 22 and May 16, 2014 REASONS FOR JUDGMENT Justice rick leroy [ 1 ] The charges are that the day care provider sexually abused her charge. Credibility and evidentiary reliability issues are central. Introduction [ 2 ] The accused is 48. She resides with her sister who works in a nursing home from 6:00 a.m. to 2:00 p.m. five days weekly. She earned her livelihood exclusively from providing child day care services.

She cared for the complainant weekdays beginning in 2010 when he was two and not potty trained through to mid-January, 2012 when he was four. The care days entailed three hours from approximately 11:00 a.m. to 2:00 p.m. The complainant started school in September 2011. That reduced the need for day care to Mondays, Wednesdays and every second Friday. There were times in July and August when she cared for the complainant’s older brother as well as two children from another family. [ 3 ] There was a four-month hiatus in contact between the complainant and the accused immediately preceding the disclosure.

The complainant’s mother was unemployed between January 11, 2012 and May 17, 2012. Exceptionally, the accused cared for the complainant on Monday February 27, 2012 from 2:45 until 8:00 p.m. The accused’s sister was present for most of that time. The complainant disclosed to his mother on May 17, 2012 as he was about to return to the accused’s care on the mother’s first day back to work. [ 4 ] The complainant’s mother depicted the complainant’s disclosure. They were getting ready to leave. He said “I have something bad to say to you.

B.M. made me suck her winkle.” She asked him if B.M. has a winkle and he said “No, she has something else,” and depicted a humping motion. [ 5 ] She confirmed this was the first time he talked of these things. Although she did not recall situations when the complainant might have seen such activity, she did not confirm he had not. [ 6 ] There was no evidence of typical victim manifestations of abuse through the hiatus. The mother said that although the

complainant is behind his school class in reading, overall he is doing well. The complainant attended two counselling sessions and no others, without explanation. [ 7 ] The complainant’s parents separated on October 1, 2011. The complainant’s father abused cocaine. The mother removed the children from their home and moved in with her mother. The father’s access privileges were terminated by family court order as the result of proceedings brought in October 2012. The CAS supported the contact prohibition. [ 8 ] The mother does not trust the father.

She was concerned his home was what she described as a “party house”, unsuitable for young impressionable boys. She thought he falsified urine samples to secure clean drug test results. Indications suggest that the father’s behavioural issues have not ameliorated. He incurred mischief, assault, breach of peace and recognizance and indecent act charges in December 2013 and January 2014. The allegations [ 9 ] The allegations are that the accused encouraged the complainant to apply his mouth to her bare breasts and vaginal area and to simulate missionary sexual encounters.

The complainant did not report having been touched by the accused. He was always clothed. He said that the accused made these invitations daily, outside at the pool and inside upstairs on her bed and downstairs on the couch. Child’s Testimony [ 10 ] There are variations and inconsistencies throughout the complainant’s statements. The complainant gave a video recorded statement on May 24, 2012. He testified at the preliminary inquiry on March 19 and May 14, 2013 and at trial on March 24, 2014. Variations and inconsistencies are to be expected.

The issue is to identify the line that separates truth from fabrication. [ 11 ] The complainant’s testimony included the content of the video recorded statement and trial testimony. The video recorded statement becomes part of the complainant’s examination in chief and does not constitute a prior consistent statement or corroboration. My observations were that he lacked the requisite attention span to watch it with the focus necessary to confirm its accuracy. His testimony does not include answers to questions from the preliminary inquiry.

The complainant’s reporting evolved over time . [ 12 ] The complainant enhanced the nature of allegations of abuse from telling to telling. The assertions relating to the accused’s breasts and incidents outside associated with the pool were not part of the initial disclosure. At trial he said he did not remember the breast aspect in May 2012. [ 13 ] He did not disclose the pool as an event location on May 24, 2012. That memory was reported for the first time at the preliminary in May 2103 and at the time, he could not recall what happened at the pool.

At trial, he remembered the event clearly. [ 14 ] The complainant said he could not see the street from the pool location in the back yard. This was a reporting of memories from the summer of 2011, almost two years earlier. [ 15 ] I cannot disagree with the Crown submission to the point that the complainant might not necessarily characterize breast licking in the same genre as vaginal licking and in the pressure of the moment the omission could be rationalized as less significant to the investigation on his part.

That said, when the analysis gets to an attempt to read the mind and fill in blanks to this extent we border on speculation. [ 16 ] The complainant could not recall having observed the accused sexually abusing his older brother in May 2012. At trial he confirmed having observed the accused enacting the same abuse with the older brother as she did with him. [ 17 ] In the video recorded interview, the complainant said that he would know when the accused sought this attention when she said “I have a prize for you” – page 9.

Later in the interview he denied that she made overtures – page 18/19. [ 18 ] At trial, he said she offered rewards conditional on him performing a sexual act on her. For example, he said she offered televised cartoons, a gum or the option of going outside as consideration for pleasing her. His mother said the complainant told her at one point following the preliminary that when the accused was sexually engaged with one of the brothers, she instructed the other to play with a Teddy Bear. [ 19 ] At trial, he said he observed the accused take her pants off, but in May 2012 said he did not see her remove her pants.

The Interrogation [ 20 ] Directed interrogations of alleged victims are a source of wrongful accusations and conviction. The reliability of the content of the video statement is inextricably intertwined with the neutrality of the interrogator’s questions. The evaluation of the reliability of the statements made include enquiry into such matters as: Were crucial questions open ended? Did the officer steer the complainant to disclosure? Were critical questions so leading they elicited short answers? Child witnesses are vulnerable to suggestion.

The interrogation is the crucible in the decision by the authorities to proceed with the prosecution. There is a fine line between the probing needed to flesh the story out and steering. [ 21 ] The Crown’s submission is that the complainant could not understand open-ended questions. Leading questions are problematic and increase the risk of wrongful conviction. [ 22 ] The investigating officer, the Crown and the trier are required to sift through testimony and evidence that permits only a brief window into the life of the protagonists.

None are allowed a panoptic perspective that informs visceral appreciation of the purport of their communications. By way of comparison, a parent may be able to communicate effectively with a child when others, less

experienced, struggle. [ 23 ] It was a tough interview. I watched the video recorded statement a number of times and read the transcript many times. I do not know what to make of it. The interviewers were doing their best to elicit a coherent disclosure but were out of sync with the complainant. [ 24 ] The complainant’s response to the first substantive open-ended question: “But what did the accused do that was bad – Do you remember?” was “I can’t remember” – page 8 . That was followed by an effective re-direction: Q: You still can’t remember did you tell mommy something that B did that was bad?

A: Yeah Q: What did you tell mommy? A: Um she made me do this. (T does humping motion on chair) He confirms what he told his mother but did not close the loop. [ 25 ] The complainant either denies the operative aspects of the sexual abuse or denies recall – at page 8 and 9, twice each, at page 13 three times and page 15 one time. At pages 11 and 12 he asserts that it was a mistake/accident and it gets all blurry. [ 26 ] On being asked by the investigating officer as to what he did when the accused removed her pants he said he made a mistake.

He seemed to be saying that what he reported relative to the vaginal touching was a mistake or there had been a little accident. He said his memory gets all blurry. Pages 10/11: Q: Now when you told me a few minutes ago that she that you put your mouth there where did you put your mouth? A: Uh that was all steak (mistake) [ 27 ] The nature or extent of the mistake was not identified.

The interviewers declined to accept the denials, retraction or the spent memory and asked the same questions until the complainant gave an answer consistent with the mother’s reporting. [ 28 ] The Crown submission to the point that the mistake pertained to the phrase “took her mouth’ instead of ‘took his mouth’ is an

interpretation but not the only one. Another obvious possibility is that no one put his/her mouth to anyone. [ 29 ] There were instances when the complainant’s responses were non sequiturs . In response to a question about what the accused would do or say when he simulated the missionary sexual posture he said at pages 10 and 11: A: Umm umm when I always be bad at there she puts me on the couch. Q: She puts you on the couch when you’re bad? A: Yeah Q: What else does she do? A: She makes me go to sleep. Q: She makes you go to sleep when you’re bad? A: She’s mean Q: She’s mean? You don’t like going there?

A: No [ 30 ] On page 13, he could not remember if he sucked her privates and twice denied that deed. He then confirmed that he did do it after the interrogator lead him with: Q: Did you put your mouth on her privates? You’re not in trouble if you did, we just need to know if you did that. A: Um yeah I did do it. [ 31 ] That was followed by: Q: Did she make you do anything else with her privates? A: Um once I had this right here and uh she throwed me down the ground it hurted. Q: She threw you on the ground and it hurted? A: Yeah on the cold (inaudible) right here.

Q: Oh on your head? A: Yeah Q: Okay and why did she throw you on the ground? A: Because there was a squito bite there. [ 32 ] At the preliminary inquiry on May 14, 2013, the complainant denied that the accused pushed him to the ground and ascribed that incident to his older brother. At trial he said that it was his brother and not the accused. [ 33 ] The complainant disclosed animus towards the accused. Page 19: Q: She wouldn’t say nothing, ok. Is there anything else bad that happened over at her house? A: Um nothing Q: No. Is she your friend? She nice to you? A: No she is always mean. Q: She’s always mean?

A: Yeah Q: You did not like going to her house? A: No. [ 34 ] It is unfair to any witness to improperly restate what he said earlier as context for a question. Notwithstanding that the complainant consistently said his pants were not pulled down or removed – page 10 three times, his response was disregarded and unfairly misstated in follow-up questions: Page 16: Q: So a little while ago when you were talking with Tracy you talked about how you had your pants pulled down, do you remember that? A: No I said I kept my pants up. Q: Oh you kept your pants up? Then who had their pants down?

A: Um silly me I had my pants down. Q: So you had your pants down and she had her pants down and what did you do? Ok were you on top? [ 35 ] Here the interviewer signalled to the complainant that his narrative was less compelling than if his pants were down and it appears he discerned the signal and changed his recollection.

The question “Ok were you on top” is leading and in conjunction with the signal just given erodes the efficacy of the interview for the Crown. [ 36 ] At trial, he said that sometimes his pants were pulled down to his ankles by the accused and sometimes he did it himself [ 37 ] The complainant was able to distinguish between the male and female reproductive anatomy. Q: And what did her privates look like? A: Um there’s none of this tall thing Q: None of this tall thing? A: No, none of it Q: Okay. So her privates didn’t look like boys or your privates?

A: It didn’t look like boys and dads Q: No and dads what did it look like A: Um looked like it cut off [ 38 ] The complainant demonstrated the simulated intercourse motion during the video interview and at trial, he says was conducted against the accused’s vaginal area. He said she removed her pants and instructed him to suck her genital “privates” many times on the couch downstairs and on her bed upstairs. Children’s Evidence

[39] The requirement that a child’s evidence be corroborated was removed from Canadian criminal law on January 1, 1988,permitting convictions to be based on unsworn uncorroborated evidence of a child. This does not prevent the trier from treating a child’sevidence with caution where caution is merited in the circumstances of the case. A modest resort to common sense will lead the trier offact to look for supportive evidence and to draw what inferences should properly be drawn from its presence or absence. [40] I am alert to the Watt instructions regarding children’s evidence.

When the principal witness is a young child the trier needsto recognize that the child’s ability to observe and remember events and understand the substance of questions is different than a capableadult. Young witnesses do not always have the same ability as capable adults to recall precise details or to describe events fully andaccurately. The instruction allows a choice to regard inconsistencies in their testimony as less significant than they would be with anadult witness.

The important issue is whether deficiencies in precise detail signify the young witness misconceived the events hedescribed. [41] Testimonial flaws are, particularly on peripheral matters, not to toll as heavily against a child as they might against an adult. The Supreme Court of Canada in R. v. B. (G.) (1990), (SCC), 56 C.C.C. (3d) 200 and in R. v. W. (R.) (1992), 74C.C.C. (3d) at 134 mandates an approach combining both sensitivity and common sense when considering and weighing a child’sevidence.

Although child witnesses must be assessed for what they are, namely children and not adults, this does not mean that thetestimony of children is to be subjected to a lower level of scrutiny for reliability than the testimony of adults. [42] The process of assessing the reliability of evidence of a child witness or any witness involves consideration of inconsistencies,uncertainties in respect to details, plausibility and a myriad of considerations involving a witness’ objectivity, ability to observe,remember and communicate. [43] Inconsistencies on minor matters or matters of detail are normal and are to be expected.

They do not generally affect thecredibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matterabout which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth.

The judge isthen placed in a dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstratedcarelessness with the truth. [44] The law in relation to admissibility and utility of hearsay evidence in the last decades has changed to a principled analysisfocussing on the concepts of necessity, reliability and weighing of prejudice/probative values. In the seminal determination of theSupreme Court of Canada R. v.

Khan, (SCC), [1990] 2 S.C.R. 531 the court accepted the child’s statement to mom thatthe doctor “put his birdy in my mouth, shook it and peed in my ,mouth” was admissible as evidence of truth of fact rather than narrative. The statement was made within fifteen minutes of the event and was considered reliable. There was no motive to falsify. The semen onher sleeve was solid corroboration. Father’s evidence [45] The father testified to observations he made prior to and coincident with the disclosures. He was not a credible witness. Hisfirst response to the allegations was anger.

Nipping [46] Before the contact prohibition with the children, the father spent free time before and after work lounging with thecomplainant in the accused’s home. When he worked midnight shifts, he visited in the morning when the complainant was in theaccused’s care. When he was tasked with taking the complainant to day care, he visited until he had to leave for work. The time spentdaily was variable between thirty and ninety minutes.

He watched cartoons and chatted with the accused and the complainant. [47] The father said the puzzle resolved as the interview with the investigating officer in May 2012 progressed. What wasinnocent until that moment became pernicious. He recalled an incident when he was occupied watching cartoons. In his peripheralvision he saw the accused attempt to nip the complainant’s penis between her thumb and index finger through his pants as he skipped byher. He said that the complainant jumped away and laughed. He did not observe physical contact although he says she may havesucceeded in making contact with his pants.

He thought nothing illicit about the observation at the time. The accused denies the incidentor incidents in their entirety. Running and skipping were not permitted in the house. The Olfactory Comparison [48] The complainant made two visceral responses regarding his experience with the accused’s genitalia. In response to thequestion “what did it taste like?”, he said “hair” and to “what did it smell like?” he said “bad”. [49] After disclosing to his mother, the complainant spent the following day with his father. The complainant repeated thedisclosure to him.

The father reported that within an hour of the disclosure, after defecating, the complainant made a comment to theeffect that his feces smelled similar to the accused’s privates. [50] This father concluded the allegations were true and was concerned justice would not be done without some help. Witnessesedit and redact the telling of history for a variety of reasons. Knowing the history of the historian is an important component tounderstanding the version presented. A little independent corroboration buttresses the credibility of the young child’s disclosures.

It isunderstandable for witnesses, either consciously or unconsciously, to edit recollections to separate them from less than compellingsituations. This father was angry and frustrated. His was in the throes of a failed marriage and the legal issues were not going his way. He was using cocaine. The mother did not trust him, considered him to be a bad influence on the boys and suspected him of contrivingurine samples. The CAS agreed with the mother and advocated access hiatus. [51] Although the father acknowledged using cocaine, he discounted the implications.

As a badge of integrity, he emphasized thathe never failed a drug screen. He failed to recognize that the skillset inherent in that fact is deception. Initially, he suggested that hiscocaine problems post-dated the complainant’s disclosures. That was quickly debunked when he had to admit attendances for drug

rehabilitation during the marriage. [ 52 ] The nipping did not happen. The olfactory comparison attributed to the child was the father’s lewd suggestion at a time when his imagination was roiling. The child had not seen the accused for four months. If that were a comparison he made, it would have rolled out any number of times over the intervening period and subsequently with his mother and grandmother. That was not the child’s comparison and the reliability of the most compelling aspect of the complainant’s narrative is denuded. Defence evidence [ 53 ] The accused testified, as did her sister.

The accused denies the charges. She denied the nipping allegations. [ 54 ] The accused said she provided baby-sitting services for thirty-two years and cared for the complainant at least one hundred times. [ 55 ] The accused was not believable on what were obvious responses.

If the trial were a contest to decide who gave the more credible account on material facts, the accused would be in trouble. [ 56 ] Notwithstanding that she cared for the complainant beginning when he was age two and not potty trained and she participated in his potty training, she asserted vehemently that she had never touched the complainant’s body. She said that was a conscious decision to avoid allegation. She said that in over a year of potty training, the complainant did not defecate in his diaper requiring clean-up. She said his only mistakes were urine related.

That is unbelievable. [ 57 ] Further, she asserted that as she has never been asked to care for a new-born, she has never seen the need for stuffed toys and in particular stuffed Teddy Bears. Her sister contradicted her on this point declaring there were stuffed toys such as a stuffed pumpkin, a Flintstone and a couple of Teddy Bears. It is more probable that as a day care provider for infants there would be stuffed toys. [ 58 ] When asked about the reasons she maintained the diary, one of her responses related to income recording for income tax purposes. That was untrue as she has never reported this income.

Other stated purposes such as an account receivable record and diary were reasonable. [ 59 ] There are other peculiarities that might be seen to impact on her veracity, but which might also be seen as intellectual limitations. [ 60 ] People who have little or no experience with law enforcement will make spontaneous exclamations that appear suspicious when they are merely defensive. The officer reported that after advising the accused of a CAS investigation and the need to talk the accused blurted “I did not do it”.

The accused attributed this to a lame attempt at humour. [ 61 ] After being told by the officer she was under arrest for sexual offences, the accused’s response was to say, “I never touched them”. In response to the Crown’s suggestion to the effect that she had connected the dots and readied herself for the interrogation, she stated her comment lay in the context of a possible spanking allegation and she had no idea about the substance of the allegations until she attended. [ 62 ] The accused’s capacity for verbal communication comprehension is concrete.

There are times when parties to the same conversation talk at cross-purposes. It happens during police interrogations. It happens in the witness stand. The interrogator’s purpose and understanding can be so alien to those of the accused that the words spoken and understood both ways are misconstrued in the present.

This became tangible when on re-direct, she was referenced to and asked a question about a passage from the transcript of her interrogation which Court and counsel understood to be before her as she dutifully turned to the designated page number and to which she acceded, in the context of having read the specified excerpt when she had not. The transcript she had in the witness box was that of an interview of another person.

Investigation revealed that she feigned compliance with the process through much of cross-examination and on re-direct until the oversight was recognized. [ 63 ] Her response to the redirect question illuminates.

The excerpt which followed a recital of the charges was as follows: “So what I’m investigating um and the reason that the police were called because it came to our attention…some incident involving little T ok while he was in your care over the last few months…or year or so…ok and T made some disclosure to his mom about some things that happened while you were babysitting him um at your place…ok so that’s how the police became involved and the Children’s Aid became involved any time there’s an incident involving kids then CAS is also called in ok… so they’re also working with us on this investigation…you understand” After reading this passage into the record, counsel asked if she understood the nature of the allegations being advanced.

She answered in the negative and was palpably and understandably confused. [ 64 ] The accused and her sister’s testimony about dedicating the downstairs washroom to the exclusive use of the complainant, as part of recognizing and encouraging potty training progress was consistent. The same pertains to the use of the downstairs couches as beds for the boys when they slept over. The sister characterized the third bedroom as a storage area. Sleepovers were exceptional. [ 65 ] The accused said she was unaware of the nature of what her sister was to testify to.

She said they had never discussed the case in any fashion. The sister confirmed that aside from denial of wrongdoing by the accused, they did not discuss the case. I believe her.

The Sister [66] There is no reason to question the sister’s veracity. Legal standard of proof [67] Assessing credibility is not a science.

It is very difficult to articulate with precision the complex intermingling of impressionsthat emerge after watching and listening to witnesses and attempting to reconcile various versions of events. [68] The prototypical considerations triers apply are to assess witness evidence having regard to those things which either are notin dispute or are patent from the evidence, by considering the witnesses’ testimonial factors: sincerity, memory, perception and use oflanguage, by considering internal consistency or inconsistency and inherent plausibility.

What resonates with the most probable in all thecircumstances? [69] Not all evidence that I do not accept is a lie and not all cases that fail to persuade beyond a reasonable doubt are based infalsehood. [70] The key point in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 is that to avoid the credibility contest error requiresrecognition that disbelief in the accused’s evidence, as is the case here, is not equal to proof of guilt.

This is not a credibility contest.The issue is not which side I believe, but whether, on the totality of the evidence viewed as a whole, the Crown has proven each essentialelement of the offense beyond a reasonable doubt.

The burden of proof is always on the Crown regardless of what evidence defenceprovides, fails to provide or chooses not to provide, and never shifts to the accused. [71] The principles that underlie the presumption of innocence, the Crown burden of proof and Crown indifference to box scoringwins and losses serve as bulwarks against wrongful conviction. [72] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt isa doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.

While more isrequired than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty - R. v. Lifchus(1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.). [73] In R. v. Gostick (1999) 137 C.C.C. (3d) at 53, (ONCA), Finlayson, J.A. concluded that the proper approach to the burden ofproof is to consider all of the evidence together and not to assess individual items of evidence in isolation.

Where, as here, the case ofthe Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of thecomplainant’s evidence be tested in the light of all the other evidence presented. [74] Time passage erodes accuracy and reliability of memory of events at issue. Memory accuracy and reliability does notimprove over time. Here, the first reporting was made after a five-month hiatus. The complainant said he did not remember and hismemory was blurry in May 2012. His circumstances are distinguishable from child in Khan where there was no motive to falsify.

Theprospect of a return to day care with the accused was not something the complainant embraced. That could be because she sexuallyabused him. It could be because she was mean tempered. It could be because he preferred life at home with Mom. It could be he wasmired in anxiety and insecurity from the conflicted marital breakdown and return to day care was too much for him. [75] Where there is a reasonable doubt in view of the conflicting testimony, as to where the truth of the matter lays, an acquittal isrequired – R. v. Nimchuk (1977), (ON CA), 33 C.C.C. (2d) 209 (Ont.

C.A.) Conclusion [76] I am not confident in the truth of the complainant’s allegations. [77] He did not enjoy third party day care. After a five-month hiatus in which he was with a parent all the time, he would not wantto return. We can never know what he experienced during time with his father during access that would engender such allegations. Hisstory embellished from telling to telling on central issues. [78] The complainant’s responses to questions about the taste and smell of the accused’s privates resonate with the allegationsmade.

Whether that is experience in fact or his father’s aggrandizement is a fact at large. [79] He and the interviewer struggled with effective communication through the interview. He was non-responsive andinconsistent and equated bad things with unfair treatment and sexual misdeed indiscriminately. The Crown submission to the point hisobjective was to avoid return to day care is accurate.

He could not anticipate the ramifications of the allegations and the diffidenceevidenced through the interview confirms it. [80] For me to accept the complainant’s evidence of wrong doing I would have to disregard all of the times he said that he did nothave memory or that what had been said was a mistake or accident.

He responded in the affirmative when probed by the investigator andin the negative to open ended questions. [81] The Crown submits there is a thread of logical continuity to the substance of the interview if one disregards what he said andimputes an internal logical progression to his thought processes. I am not sold on that. The Court cannot see into the heart and mind ofany witness and has to go with what is said in the context of all the facts of the case. [82] The interrogators struggled with a difficult interview. Part of these difficulties might resolve with better child interrogationtraining.

In the final result if the interrogators are unable to achieve a fulsome result without resort to leading, resort to leading cannot be

an efficacious option if the plan is to adduce the recording as effective probative evidence of the allegations. The probative value of the interview was materially reduced by the fact the results flowed from leading. [ 83 ] An acquittal is not necessarily a conclusion that the offences were not committed. The criminal trial process is focused on whether the Crown has established to the exclusion of reasonable doubt that the accused has done what she is alleged to have done. It means that the Crown has not proven the offence beyond reasonable doubt.

Balance of probabilities is not enough and acquittal is the only result. Justice Rick Leroy Released: February 9, 2015 CITATION : R. v. B.M., 2015 ONSC 698 COURT FILE NO.: 13-63 DATE: 2013/02/09 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – B.M. REASONS FOR JUDGMENt Justice Rick Leroy

Released: February 9, 2015