R v BL, 2011 ABQB 361

Court of Queen ’ s Bench of Alberta Citation: R v BL, 2011 ABQB 361 Date: 20110606 Docket: 100449925Q1 Registry: Edmonton Between: Her Majesty the Queen - and - BL Accused Restriction on Publication: By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code ,

section 486.4. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] BL is charged with five offences: 1. Sexual assault of KM between June 30, 2009 and March 21, 2010. ( Criminal Code s. 271)

2. Sexual touching of KM, a person under the age of 16, between June 30, 2009 and March 21, 2010. ( Criminal Code s. 151) 3. Exposure of his genital organs to a person under the age of 14 for a sexual purpose, between June 3, 2009 and April 15, 2010. ( Criminal Code s. 173(2)) 4. Sexual assault of KM between June 30, 2009 and April 15, 2010. ( Criminal Code s. 271) 5. Sexual touching of KM, a person under the age of 16, between June 30, 2009 and April 15, 2010. ( Criminal Code s. 151) [ 2 ] BL is about 70 years old. He was born in England and emigrated to Canada in 1965 when he was 24 years old.

Since then, except for three years when he returned to England to look after his ailing mother, he has lived in Edmonton. He was employed in various capacities until he retired in late 2005. He has never married. [ 3 ] In 1995 he sponsored the emigration from England of his nephew WN who was then 16 years old. Mr. WN lived with Mr. BL first in the latter ’ s apartment, and then in a rented house, and later in a house which Mr. BL bought. Mr. BL arranged for Mr. WN ’ s first employment in Canada. [ 4 ] In 2005 Mr. WN bought Mr. BL ’ s house. The sale permitted Mr. BL to fund his retirement. About the same time Mr.

WN was married. Thereafter Mr. BL lived in a basement suite in the house and Mr. WN and his wife lived on the main and upper floor. [ 5 ] Mr. WN ’ s first marriage ended in about 2008. Thereafter Mr. BL continued to live in the basement and Mr. WN continued to live on the main and upper floor of the house. [ 6 ] In 2009 Mr. WN met AK. When Ms. AK testified before me, she had become Ms. N. It will be convenient, however, for me to refer to her as Ms. AK throughout these Reasons. [ 7 ] Mr. WN and Ms. AK began dating around June 2009. Ms. AK has a son, KM. He was born [in] 2001.

In June 2009 he was 7 years old. [ 8 ] Mr. BL first met KM in late June 2009. After that meeting, Mr. BL and KM had little or no further interaction until late August 2009. [ 9 ] By September 2009 the relationship between Mr. WN and Ms. AK had become very close. They were engaged to be married at the end of October 2009. The wedding date was set for March 27, 2010. [ 10 ] From late August 2009 until the end of March 2010 Mr. BL and KM spent a great deal of time together and developed a very close relationship. [ 11 ] During the fall of 2009 and winter of 2010, Mr.

BL frequently looked after KM, by then 8 years old and in grade 3, when Mr. WN and Ms. AK went out or when Ms. AK was otherwise in need of assistance with child care. On the September 2009 Labour Day weekend, Mr. BL, Mr. WN, Ms. AK, and KM took a short trip together to Drumheller, and other points of interest in southern Alberta using Mr. BL ’ s motorhome. Mr. BL would pick KM up from school on early dismissal days and look after him until Ms. AK was finished work.

[ 12 ] One weekend in the fall of 2009, Mr. WN and Ms. AK went to Calgary to visit Ms. AK ’ s sister and KM stayed behind with Mr. BL because he had a birthday party he wanted to attend. On another occasion that fall KM spent several days with Mr. BL when he was ill and unable to go to school. [ 13 ] In early 2010 there was a policy change at Ms. AK ’ s work place. Prior to that KM would go to Ms. AK ’ s work place after school. In 2010 this was no longer permitted. Thereafter Mr. BL picked KM up from school everyday. [ 14 ] Mr. BL looked after KM during the teacher ’ s convention break from school in early 2010.

He took KM to the City Hall, the new Alberta Art Gallery, the Convention Centre and the Alberta Legislature. [ 15 ] In February 2010, Ms. AK sold her house in Sherwood Park and moved into Mr. WN ’ s house. [ 16 ] As noted, Mr. BL and KM developed a very close relationship. KM called Mr. BL, “ Uncle ” . KM would frequently spend the whole night at Mr. BL ’ s basement suite. Mr. BL would supervise the routine which KM followed in preparation for bed. Some nights this included KM having a shower. [ 17 ] Mr. WN ’ s sister and parents came from England for the March 27, 2010 wedding of Mr. WN and Ms. AK.

They arrived more than a week before the wedding day. They stayed in Mr. WN ’ s house. Mr. WN ’ s mother, who is Mr. BL ’ s sister, and Mr. WN ’ s father are divorced. Mr. WN ’ s mother stayed in the basement suite with Mr. BL. Mr. WN ’ s father and his sister were accommodated in the part of the house where Mr. WN, Ms. AK and KM lived. Evidence of AK and WN [ 18 ] On Sunday, March 21, 2010, at about 7:00 p.m., Ms. AK was supervising KM as he had a shower in preparation for bed. KM ’ s usual showering routine included Ms. AK reminding KM to properly wash his penis.

KM was not circumcised and he had a tight foreskin. It did not retract normally. Ms. AK had been advised that the condition might be remedied by pulling the foreskin back to, in effect, stretch it. If this did not work, circumcision could be necessary. KM was aware of the problem. [ 19 ] Ms. AK testified that she reminded KM to clean his penis when he was showering on Sunday, March 21, 2010. KM said that Uncle, Mr. BL, had told him he could fix his penis for him - he could just pull the foreskin right back. Ms. AK asked how Uncle had seen KM ’ s penis.

KM responded that Uncle had seen KM ’ s penis in the shower one time. [ 20 ] Shortly after this conversation, Ms. AK told Mr. WN what KM had said and that she was going to talk to Mr. BL about it. She then went to the basement suite and told Mr. BL that KM said Mr. BL had told him he could fix KM ’ s penis. Mr. BL said he had not told KM that. Ms. AK told Mr. BL that from that point on she did not want KM showering in Mr. Lowe ’ s suite. She said that policy would protect Mr. BL and would make her feel better. She testified that Mr. BL indicated that he accepted her direction in that regard. Mr. BL then asked Ms.

AK how she was doing indicating that he had noticed she was a little stressed with all of the guests in the house, especially since two of them did not speak to each other. Ms. AK said she was fine, that she just wanted to talk to him about what KM had said, to tell him he could not fix KM ’ s penis, and to instruct that KM was not to shower in Mr. Lowe ’ s suite anymore. [ 21 ] Ms. AK further testified that she continued to be concerned after her conversation with Mr. BL. She went to tuck KM into bed. She told KM that it is very important that he not show his penis to anyone.

She asked him if there was anything else he would like to tell her. KM said he did not want her to be mad. She said she would not be mad. Then he said he did not want Uncle to be mad and she told him Uncle would not be mad. KM asked if she would tell anyone and she told him she wouldn ’ t. Then, Ms. AK testified, KM said, “ Sometimes Uncle massages my penis like J taught me. ” (J is KM ’ s cousin. He is a few years older than KM.) Ms. AK testified that KM demonstrated by stroking two fingers of one hand with the thumb and forefinger of the other hand. Ms. AK asked how often Mr. BL had done this.

KM said two or three times. Ms. AK asked if that was all that had happened and KM said yes. KM asked her not to tell anybody because Mr. BL said it was a secret. She responded that she would probably have to tell Mr. WN because it was a pretty big secret and because it is not right that people touch your penis. She thanked KM for telling her. [ 22 ] Ms. AK testified that she then went to the living room where Mr. WN was sitting with his father. She told them what KM

had said. WN was shocked. Mr. WN senior said that they should talk to Mr. BL. So WN and Ms. AK returned to the basement suite. By this time it was about 8:30 p.m. [ 23 ] Ms. AK told Mr. BL that KM had told her that Mr. BL had been massaging his penis. She asked Mr. BL if he could explain why KM would be saying these things. She said she did not think her son would lie about something like this. Mr. BL said he agreed that KM is not a liar. But, he said he did not know why KM would be saying these things.

He said sometimes they would sit together in the large chair in his living room and he would massage KM ’ s back. Ms. AK said she would take KM out for breakfast in the morning to talk about the matter further, because she wanted to know where what he told her was coming from. [ 24 ] WN ’ s evidence concerning this conversation was consistent with that of Ms. AK. He testified that when Ms. AK told Mr. BL what KM had disclosed to her, he denied it. He said he might have rubbed KM ’ s tummy when he wasn ’ t feeling well. Mr. WN testified that he remembers saying to Mr. BL that he, Mr. WN, wanted answers. Mr.

BL continued to deny. Mr. WN indicated that they would discuss the matter further the next day. [ 25 ] Ms. AK and Mr. WN left Mr. BL. Shortly after that Ms. AK and Mr. WN went to bed. KM was sleeping on the floor in their room because Mr. WN ’ s sister was using his room. [ 26 ] Around midnight Ms. AK and Mr. WN heard someone knock on their bedroom door. It was Mr. BL. He asked if he could talk to them. They got up and went into the hallway outside the bedroom. [ 27 ] Ms. AK testified that Mr. BL was shaking. He said, “ I don ’ t want you to call KM a liar tomorrow. I ’ m guilty.

I ’ m guilty of inappropriate touching. ” Ms. AK asked if he was guilty of the three incidents that KM had told her about. He said, “ I ’ m just saying I ’ m guilty. I can apologize to KM if you want me to. I ’ m sorry. ” Mr. WN said that the situation was bigger than an apology. He said Mr. BL would have to leave the house. Ms. AK thanked Mr. BL for coming and telling her. Mr. BL went back to his suite. [ 28 ] Mr. WN ’ s evidence concerning the midnight conversation was consistent with Ms. AK ’ . He testified that having asked Ms. AK and Mr. WN to come into the hallway to talk with him, Mr.

BL said that he was guilty. Mr. WN asked, “ Guilty of what? ” Mr. BL said, “ I ’ m guilty of inappropriate behaviour. ” Mr. WN asked, “ What behaviour? ” Mr. BL responded, “ Touching. ” Mr. WN asked him to elaborate. Mr. BL declined to do so. Mr. BL said he was not saying that what KM had said was true. But he also said, “ I ’ m not going to call the kid a liar. ” Mr. WN told Mr. BL that he would have to get out of the house the next day. Mr. BL calmly responded, “ Fine. ” and left. [ 29 ] Mr. WN testified that he was 100% sure that Mr.

BL used the words “ inappropriate behaviour ” and “ touching ” in the exchange. [ 30 ] The next morning Ms. AK took KM to McDonald ’ s for breakfast. KM told Ms. AK that maybe Mr. BL had not massaged his penis only two or three times. He said maybe it happened more times than that. Maybe eight or ten times. [ 31 ] WN went to work early that morning but returned home when he was unable to concentrate on his work. He told his mother what had happened the night before. He went to the basement and asked Mr. BL why he was still in the house and confirmed that he wanted Mr. BL to leave. He asked Mr.

BL why he would do such a thing and Mr. BL responded, “ I made a mistake. It just got out of hand. Dumb. Dumb. ” He said he would leave. [ 32 ] Mr. WN testified that he eavesdropped on a conversation between Mr. WN senior and Mr. BL and another between his mother and Mr. BL. In both instances he heard Mr. BL say, “ I made a mistake. It just got out of hand. Dumb. Dumb. ” [ 33 ] Mr. BL left the home shortly thereafter. He had not seen Mr. WN or Ms. AK between that day and the trial.

[ 34 ] Ms. AK testified that she and KM had further conversations about this matter that week. These occurred while Ms. AK was driving KM to or from school. He would say something about the matter and she would respond by asking him how he was feeling and he would tell her more. This continued for a few days. [ 35 ] During one of these conversations KM told her about oral/genital contact between Mr. BL and KM. She testified that on the way home from school on the Tuesday, March 23, KM said that he had something else to say but he was concerned that she would be mad. She said she would not be mad.

He said that Uncle had kissed his penis. He said he did not like it because Uncle ’ s teeth rubbed on his penis. He said it happened once. [ 36 ] Ms. AK made a doctor ’ s appointment for KM. She reported to the doctor what KM had disclosed. The doctor called the appropriate authorities. On Wednesday, March 24, 2010, a crisis unit worker with Children ’ s Services contacted Ms. AK. She took a statement from Ms. AK by telephone and forwarded it to the police. [ 37 ] A police officer assigned to the Edmonton Police Service Zebra Unit contacted Ms. AK on March 31, 2010 to arrange for KM to be interviewed. Ms.

AK and Mr. WN had been married on March 27, 2010 and were about to leave on a short honeymoon. KM ’ s interview was arranged for April 7, 2010. The interview was video recorded. Evidence of KM [ 38 ] KM testified via closed circuit video connection from a room near the courtroom in which the trial was held. He is now 9 years old and will be 10 in about two months. He recalled having been interviewed by the police officer on April 7, 2010. He watched as the video recording of that interview was played in the trial.

He was 8 years old at the time of the video interview. [ 39 ] In the video interview, KM told the interviewer that Mr. BL had touched his penis with his hands and with his lips. He said Mr. BL had massaged his unclothed back, his bum, his tummy, and “ his wiener ” . KM had removed his clothes covering those parts of his body. The massaging had occurred in Mr. BL ’ s basement suite, on the chair, or a couch, or a bed, or the floor, and once in Mr. BL ’ s trailer, on the bed. KM told the interviewer that the one time Mr. BL kissed his penis, KM was on the floor. KM told him to stop.

He said that when the massaging happened on the bed, Mr. BL would massage him and kiss his bum. He said Mr. BL would stick his hands down KM ’ s pants for no reason. [ 40 ] KM told the interviewer that Mr. BL was clothed during these incidents. He said, however, there was one time when he saw Mr. BL unclothed. Here is the exchange between the interviewer and KM in that regard as it appears in a transcript of the interview which is in evidence. Q. And where would B ’ s clothes be? A. Up. Q. Up? A. Yeah. Q. Okay. Was there ever a time they were something different? A. Yeah, when I dared him.

I wanted to call him a chicken, but he did it.

Q. Okay. So tell me about that. A. I just dared him. Q. What did you dare him to do? A. To take off his clothes. I just wanted to call him chicken. (INDISCERNIBLE) Q. Okay. But he did it? A. Yeah. Q. Okay. And what happened after that? A. He pulled them right back up. Q. Okay. Now, where did that happen? A. He was – he – he was standing up. (INDISCERNIBLE) Q. Okay. And what room were you in? A. The room with all the – the things I said on the brown chair, sitting on the brown chair. He was (INDISCERNIBLE) in front of me somewhere. Q. Okay.

So you were sitting on the brown chair, and he was standing in front of you? A. Yeah. Q. Okay. Okay. So when he pulled his pants down, what did you see? A. His wiener. Q. His wiener? Okay. So you saw his wiener that one time? A. Yeah, and I – and I – and I – and I put the pillow over my eyes. Q. Okay. Can you tell me about another time you saw his wiener?

A. I never saw his wiener ever again. KM went on to refer to an occasion when he saw Mr. BL ’ s penis once when Mr. BL was taking a shower and KM entered the shower room to ask him a question. [ 41 ] KM told the interviewer that Mr. BL told him that the massaging was a secret between KM and Mr. BL. When asked if Mr. BL ever said what would happen if KM broke the secret, KM answered, “ No. ” [ 42 ] The interviewer asked KM, “ If I talk to [BL], what do you think he ’ ll say? ” KM said, “ I don ’ t know. Probably the same thing. ” He then asked if the interviewer was going to talk to Mr. BL.

When she said she was, KM asked, “ But what if he lies? ” The interviewer answered, “ Then we ’ ll talk to him some more. ” When asked what he thought about her talking to Mr. BL, KM said, “ I don ’ t know. My mom didn ’ t tell me that. ” [ 43 ] Toward the end of the interview, after the interviewer had left KM alone for a short time having explained to him that she was going to ask her partner if there was anything she had forgotten to ask KM, the interviewer asked KM if there was anything he had not told her. KM said that sometimes he asked Mr. BL to “ do it ” meaning, to massage him.

An incident of massaging would end with Mr. BL saying, “ That ’ s enough. ” and KM would say, “ Do it again. ” He also said that he had dared Mr. BL to kiss his bum and his “ weiner ” . [ 44 ] In his testimony at trial, immediately after watching the video, KM confirmed that what he said in the video interview was the truth. [ 45 ] Prior to the completion of KM ’ s examination in chief, Mr.

MacDonald applied under s. 276 of the Criminal Code for leave to introduce evidence of prior sexual activity in which KM had engaged on the basis that it was relevant to counter the inference that KM would not have a source of knowledge about the kinds of sexual activity in which it is alleged Mr. BL engaged with KM except by reason of that activity having occurred. The application was not contested. Mr. BL testified in relation to it. I ruled that the evidence was admissible.

Though the evidence of the witnesses was not consistent with regard to some specifics of this prior sexual activity, I find the evidence is sufficient to dispel the inference that KM would not have had knowledge of the types of sexual activity which give rise to these charges but for the occurrence of the sexual activity alleged. I do not draw that inference. [ 46 ] After that ruling, KM ’ s examination in chief continued. He testified that the daring game he had played with Mr. BL, which involved him daring Mr.

BL to kiss his penis, bum and take off his clothes, was a game he had learned from his older cousin who lives near Calgary. He also testified that his cousin had taught him how to massage his penis and how to kiss a penis. He said his cousin had shown him that rubbing the penis caused it to get hard. He testified in chief that his cousin had shown him these things when he, KM, was 6 or 5 years old. In cross he said it was when he was 4 or 5. [ 47 ] He and his cousin had kissed each other ’ s penises in the context of the daring game. It was a simple kiss. But, he testified, when Mr.

BL kissed his penis, his penis was in Mr. BL ’ s mouth. He testified that it felt wrong, that it hurt, that Mr. BL “ kind of bit it ” , and that he told Mr. BL to stop. He confirmed that this happened only once. He said Mr. BL had massaged his penis 10 or 15 times. He said that Mr. BL would kiss him on the lips but not when his mom or Mr. WN were present. Evidence of BL [ 48 ] Mr. BL testified that when KM stayed over at his place, a reasonably frequent occurrence, the pre-bed routine would often include KM having a shower. He would remind KM to wash his penis.

He testified that he noticed in the course of this routine that the foreskin of KM ’ s penis did not completely retract. He told KM that he had to pull the skin back when he washed it. KM told him that no-one else had ever told him that. Mr. BL testified that he asked Ms. AK whether she had consulted with a doctor about KM possibly being circumcised. Her reaction was dismissive. [ 49 ] On a later occasion Ms. AK mentioned that she intended to consult with a doctor about circumcision for KM. Mr.

BL testified that in this conversation it was mentioned that if the foreskin was consistently pulled back during cleaning the condition might

be remedied. [ 50 ] Mr. BL denied ever massaging KM ’ s penis, kissing his bum, kissing his penis, putting his penis in his mouth, or exposing his own genitals to KM. [ 51 ] Mr. BL acknowledged that KM had gone with him once when he went to check his stored motorhome. KM had gone in the motorhome and jumped and laid on the bed. Mr. BL denied that he massaged KM on that occasion or that he was ever unclothed during that visit to the motorhome. [ 52 ] Mr. BL testified that occasionally KM would ask him to rub his back and Mr. BL would do so. [ 53 ] Mr. BL testified that when KM had a shower at Mr. BL ’ s suite, Mr.

BL would dry him off afterward. He said he did this because he had observed that Ms. AK did so when she supervised KM ’ s shower. He never discussed this aspect of the shower routine with Ms. AK. [ 54 ] Mr. BL testified that in late October or early November 2009, he and KM were sitting together in a large chair in his basement suite. KM said he wanted to play a game that involved daring and kissing. KM would dare Mr. BL to kiss a part of his body, failing which KM would call Mr. BL, “ chicken ” . The series of body parts Mr.

BL was dared to kiss progressed from his head, to his shoulder (KM having removed his shirt to facilitate the kiss), to his bum (KM having pulled down his pants). Mr. BL kissed as he had been dared. When dared to kiss KM ’ s bum, he kissed the boy ’ s hip. The game concluded when KM pulled down his pants and held his penis and dared Mr. BL to kiss it. KM pushed his penis towards Mr. BL ’ s face. Mr. BL responded that he would not kiss it. He told KM to get dressed. He was shocked by the dare KM had presented. He asked where KM had learned the game. KM told him his cousins had taught him it. [ 55 ] Mr.

BL testified that he asked Ms. AK if she was aware of the kissing game KM had been playing with his Calgary cousins. She responded that she knew. That the boys had slept together in the same bed when KM had visited them in Calgary. Mr. WN was present when this conversation occurred. Mr. BL testified that he did not tell Ms. AK that KM had dared him to kiss his bum and his penis. [ 56 ] Mr. BL testified that when KM stayed over at his suite, he would sometimes have a shower, and Mr. BL would supervise. He would remind KM to wash his penis.

He would dry KM off after the shower either in the shower room or in the bedroom. [ 57 ] Mr. BL testified that on one occasion after he had dried KM off while KM was on the bed, KM jumped on Mr. BL ’ s back. Mr. BL fell over sideways. KM sat on his chest and said, “ Can I pee on you? Can I put my penis in your mouth? ” Mr. BL said, “ No you can ’ t. ” He went away and came back shortly after. He then dressed KM. Mr. BL testified that he did not bring that incident to Ms. AK ’ s attention. He testified doing so slipped his mind. [ 58 ] Mr.

BL testified that on a third occasion, when it was time for KM ’ s shower, KM threw off his clothes and ran to the bathroom. He stood naked in the door frame and made a “ humping ” motion against the door frame. Mr. BL said, “ That ’ s enough. ” KM ran to the bedroom and made the “ humping ” motion against the bed. Mr. BL told him that it was not appropriate to do such things. [ 59 ] Mr. BL testified that on one occasion after a shower KM advised Mr. BL that he was going to have sex when he was 13. He said that his mother had told him she had had sex when she was 16. Mr.

BL said he should not talk about such things. He testified he told Ms. AK of this incident. Her response was, again, dismissive. [ 60 ] Mr. BL testified that on several occasions he observed KM touching his penis under his pajamas. He asked what he was doing. KM said that his penis gets hard and he pushes it out of the way. Mr. BL told him not do that. He did not report these incidents to Ms. AK.

[ 61 ] Mr. BL testified that on Sunday, March 21, 2010 at about 7:30 p.m. Ms. AK came to talk to him in his suite. She told him that KM said he had been helping KM with his penis. Mr. BL testified he could tell that Ms. AK was under stress. He told her that there was nothing to be concerned about. He told her she had enough to worry about (a house full of guests and an upcoming wedding) and suggested they talk about it later. He testified that he was not clear as to why she was concerned about him instructing KM about how to clean his penis. He perceived that she was upset. [ 62 ] At about 9:00 or 9:30 p.m. Ms.

AK returned with Mr. WN. They said, “ What ’ s been going on with you and KM. ” He said, “ I don ’ t understand what you are asking me. ” They said, “ KM says you have been massaging his penis. ” or words to that effect. He said, “ No. What is this? I don ’ t understand what you are asking me. ” [ 63 ] Later in cross-examination Mr. BL testified that the claim that he had been massaging KM ’ s penis was not made in that conversation. Rather he said, Ms. AK and Mr. WN said, “ What ’ s been going on with you and KM. Is there anything you want to tell us. ” He said he did not recall their exact words.

He said he didn ’ t understand what it was they were trying to imply. [ 64 ] Mr. BL testified that his understanding was that they would have another talk later. Ms. AK and Mr. WN were showing concern. They were not irate, though Mr. WN was more emotional than Ms. AK. They were puzzled and confused as was he. He does not recall Mr. WN saying “ I want answers ” or “ this is not going away ” as Mr. WN testified. He testified that Ms. AK said she would take KM out for breakfast and talk to him about the matter. [ 65 ] Mr.

BL testified that for the next few hours he was distressed and thought about what he could do to make them and himself feel better. He testified that he did not understand at that point that he was being accused of sexual assault. [ 66 ] Mr. BL testified that at about midnight he went to Ms. AK ’ s and Mr. WN ’ s bedroom and asked them to talk to him. He told them, “ I ’ m not happy about what you ’ ve been asking me. I don ’ t want you to blame KM. I don ’ t want KM to feel guilty.

If anyone should feel guilty possibly it ’ s myself for not being upfront about informing AK about all the things KM had done. ” He denied that in that conversation he said, “ I am guilty of inappropriate behaviour ” or “ I am guilty of inappropriate touching ” as both Ms. AK and Mr. WN testified. He also disputed the other particulars of the conversation which Ms. AK and Mr. WN described in their evidence, except that he acknowledged saying, “ I don ’ t want you calling KM a liar. ” and he acknowledged there was reference to his having to move out of the house. [ 67 ] The next morning Mr.

WN came to the basement before he left for work and told Mr. BL it was time for him to get out. Mr. BL, though annoyed, said he would leave that day. He acknowledged having conversations with Mr. WN ’ s father and mother when Mr. WN was in the house, but denied that he said the things in those conversations that Mr. WN said he overheard. [ 68 ] In cross-examination Mr.

BL acknowledged that for many years he volunteered as a boys ’ s soccer coach and that he was aware through that experience of the need for those who work with children to take special care to protect themselves from the possibility of false accusations being made. [ 69 ] He also testified in cross-examination that when he initiated the midnight conversation, and even when he left the house the next day, he was not clear what he was being accused of. He assumed the accusation was that he had done something of a sexual nature.

He speculated to himself that maybe they were accusing him of touching KM ’ s penis but they had not expressly done so. He acknowledged saying in the midnight conversation that he did not want KM to be accused of lying. He was unable to explain why he thought that was a possibility if he did not know what he was being accused of. [ 70 ] He acknowledged in cross-examination that he did not tell Ms. AK about the two occasions when KM had exposed his penis and asked Mr. BL to kiss it.

He did ask her if she knew about the kissing game KM had learned from his cousin and may have said that KM invited him to play it, but did not inform her of the exposure and invitation. His only explanation for not doing so was that Ms. AK indicated she knew about the game and displayed a dismissive attitude to that subject. [ 71 ] On the night of March 21, 2010, though he assumed he was being falsely accused of sexual misconduct involving KM, he did not refer to these incidents in his conversation with Ms. AK and Mr. WN. The possibility that they were the foundation of the

accusations he assumed were being made against him did not occur to him even in the several hours he thought about what he should do before the midnight conversation. It did not occur to him that those incidents might be the source of the concern and that he should tell Ms. AK and Mr. WN exactly what had happened in them. [ 72 ] He did not sleep much after the midnight conversation. He continued to think about the matter. He testified originally in cross-examination that the incidents where KM invited him to kiss his penis might possibly have occurred to him during the night.

Shortly after so testifying he could not recall having given that answer and testified that it was probably another day or two before it suddenly occurred to him that those incidents might be related to the reason for his being asked to leave the house. But even then he did not tell Mr. WN or Ms. AK about them. His explanation for not doing so was that he was still at this point uncertain of what he was being accused of, and that he was afraid of the possibility of violent behaviour on Mr. WN ’ s part. He knew Mr. WN to have a temper. His concern was amplified because Mr. WN was a gun collector. [ 73 ] Mr.

BL acknowledged in cross-examination that he perceived that KM loved and adored him, that he, Mr. BL, was generous and kind to KM, and that there was never any friction between them. Assessment of Mr. BL ’ s Evidence [ 74 ] Mr. BL testified that he did not massage or kiss KM ’ s penis or expose his genitals to KM ’ s view. If I believe Mr. BL’s testimony in that regard or if it leaves me with a reasonable doubt, I must find Mr. BL not guilty. Even if I am not left with a reasonable doubt by Mr. BL’s testimony, I must ask myself whether I am convinced beyond a reasonable doubt of Mr.

BL’s guilt by the evidence I do believe. [ 75 ] If after careful consideration of all of the evidence I am unable to decide whom to believe, I must find Mr. BL not guilty. I may convict Mr. BL of any of the charged offences only if I am satisfied that the Crown has proved each and every element of that offence beyond a reasonable doubt. If after considering all of the evidence I am not sure that Mr. BL committed one of the offences charged, I must find him not guilty of that offence. [ 76 ] The evidence concerning the conversations involving Ms. AK, Mr. WN and Mr.

BL on the night of March 21, 2010 are an important element in the assessment of Mr. BL ’ s credibility. Ms. AK and Mr. WN testified that in the “ basement suite conversation ” they told Mr. BL that KM said he had massaged KM ’ s penis. They further testified that in the “ midnight conversation ” having been so accused, Mr. BL admitted to them that he was guilty of inappropriate touching. [ 77 ] It is obviously significant to the ultimate question in this case if Mr. BL admitted guilt in that context. But the conversations are also important to the assessment of Mr.

BL ’ s credibility. [ 78 ] If his denial that he admitted guilt and inappropriate touching to Ms. AK and Mr. WN is not credible, the credibility of his direct denial of having massaged and kissed KM ’ s penis and having exposed his own genitals to KM ’ s view is very substantially damaged. [ 79 ] I find Mr. BL ’ s evidence of the content of the midnight conversation not credible. As noted, Mr. BL ’ s evidence in chief regarding what Ms. AK and Mr. WN said when they spoke to him earlier that evening in the basement suite is starkly different from his evidence in cross-examination.

In chief he testified that they told him that KM had said that Mr. BL had been massaging his penis and he denied doing so. In cross-examination he said they made no specific accusation. They merely asked what had been going on between him and KM and whether he had anything to tell them. I had the impression that by the time he was being cross-examined he had realized that he could not credibly maintain that the midnight conversation had not addressed the offensive conduct specifically if the earlier conversation had. He could not credibly deny that the midnight conversation proceeded as Ms. AK and Mr.

WN had testified. [ 80 ] Mr. BL acknowledges that during the course of the midnight conversation there was reference to his having to leave the house. It is not credible that the series of conversations he had with Mr. WN and Ms. AK that evening would end that way if they had only the content which he testified they had - no specific allegations and no admission of guilt.

[ 81 ] I do not believe Mr. BL ’ s account of the midnight conversation. His testimony amounted to a failed attempt to reconcile elements of the testimony of the other witnesses to a narrative inconsistent with his guilt. His credibility was severely compromised by his attempt and the testimony it produced. [ 82 ] Mr. BL ’ s credibility was also severely damaged by his evidence concerning his reaction to KM ’ s provocative conduct in the months preceding March 21, 2010. Mr. BL sought to portray himself in his evidence as a responsible guardian of KM ’ s best interests.

When KM asked questions concerning sex, he answered in a responsible way being careful not to cause KM distress for having been curious. When KM behaved in an unacceptably sexually provocative way he chastised him, again in a careful way apparently intended not to cause KM excessive distress. He testified to several times when he was careful to advise Ms. AK that KM had done something she should know about. [ 83 ] This portrait is wholly inconsistent with his participation in KM ’ s “ daring/kissing ” game. If the portrait is accurate, it does not make sense that Mr.

BL would participate in and permit that game to progress as far as he testified it did and not recognize well before it got there where the game was heading and stop it. And it does not make sense that Mr. BL would not have been very careful to inform Ms. AK of KM ’ s twice made dare that he kiss KM ’ s penis and of KM ’ s exposure of his penis to Mr. BL in the context of those dares. [ 84 ] Mr. BL ’ s explanation that he did not tell Ms. AK of the first incident because she was dismissive when he asked if she knew that KM had engaged in that type of conduct with his cousins deserves little credit.

His explanation that he did not tell her of the second incident where KM, naked, sat on his chest and asked if he could pee on Mr. BL and if Mr. BL would kiss his penis, because it slipped his mind, deserves less. [ 85 ] If those incidents ended as Mr. BL testified, with his chastising KM, or if they were the only such incidents that occurred, I cannot credit that Mr. BL neither thought of them when he perceived he was being accused of something sexually untoward in relation to KM, nor told Ms. AK and Mr. WN what had happened and how it actually ended.

That he did not do so severely damages the credibility of his evidence that he did not touch KM as KM testified he did. [ 86 ] Mr. BL ’ s credibility was also severely damaged by significant internal inconsistencies. As noted, he directly contradicted himself on an important point as to the content of the basement suite conversation that preceded the midnight conversation. And he denied the contradiction. There was also a significant contradiction between his evidence on cross-examination during the s. 276 application voir dire and his cross-examination in the trial proper.

This was as to his explanation for not telling Ms. AK of the second occasion when KM invited him to kiss his penis. [ 87 ] Having carefully considered Mr. BL ’ s evidence that he did not massage or kiss KM ’ s penis or expose his genitals to KM ’ s view, in the context of all of the evidence, I find that I do not believe it and that it does not leave me with a reasonable doubt. Am I convinced beyond a reasonable doubt of Mr. BL ’ s guilt by the evidence I do believe? [ 88 ] I found KM ’ s evidence credible. I was impressed by his candor, both in the video statement and at trial.

He made no attempt to hide the fact that he had invited Mr. BL to engage in the sexual touching he described. He did not deny or minimize his participation in sexual games with his cousins. He described what happened in simple terms reasonably appropriate to a child of his age and experience. He did not give his evidence in a manner that attached blame in respect of what happened - he simply told what happened.

In my view evidence concerning instances of his having lied about having finished his homework or having made his bed had no effect whatsoever on the credibility of his evidence concerning the events that resulted in the charges. The evidence did not disclose any possible motive for him to wish Mr. BL harm, indeed just the opposite. He was not shaken in cross-examination. I believe his evidence without qualification. [ 89 ] I similarly found both Ms. AK and Mr. WN to be credible witnesses. I find no foundation for suggestions made in Mr.

BL ’ s evidence and the submissions of his counsel that they may have had motivation to fabricate or exaggerate their evidence. The evidence establishes that neither had any wish to harm Mr. BL. The distress that the discovery of what had been going on just six days before their wedding and the resulting destruction of what had been a valued family tie, was, I am certain, something they would have avoided if they could have.

[ 90 ] Of course the credibility of Ms. AK and Mr. WN is of significance only as it relates to their evidence concerning the admissions they testified Mr. BL made to them that night. Their evidence about what KM told them and their belief of it cannot be used in the determination of whether the Crown has proved beyond a reasonable doubt that those events occurred.

a) Count 3 - exposure of genital organs for a sexual purpose [ 91 ] It will be convenient to consider Count 3 of the indictment first. I believe KM ’ s evidence concerning this count. It is quoted in its entirety in paragraph [40] above. The Crown has proved beyond a reasonable doubt that Mr. BL exposed his genital organs to KM ’ s view. [ 92 ] It is an essential element of the offence charged in Count 3 that the exposure of the genital organs have been for a sexual purpose. In my view, the evidence I believe does not prove that element of the offence beyond a reasonable doubt.

The exposure occurred in the context of a childish “ dare ” game. KM ’ s evidence mentioned the dare game but it was not clear in his evidence that the several incidents of Mr. BL massaging his penis or the one incident of Mr. BL kissing of his penis occurred in the context of the dare game. The evidence I believe does not clearly link the exposure incident temporally or otherwise with Mr. BL ’ s massaging or kissing of KM ’ s penis. The circumstances and nature of the exposure do not clearly demonstrate that the exposure was for a sexual purpose.

It is possible that it was, but it is not proved beyond a reasonable doubt that it was. [ 93 ] I conclude that the Crown has not proved all of the elements of Count 3 beyond a reasonable doubt. I find Mr. BL not guilty of Count 3.

b) Counts 1, 2, 4, and 5 [ 94 ] I believe KM ’ s evidence that Mr. BL massaged KM ’ s penis on many occasions and that he took KM ’ s penis in his mouth on one occasion. [ 95 ] The massaging of KM ’ s penis constitutes sexual assault. So too does Mr. BL ’ s taking of KM ’ s penis into his mouth. In both instances all of the elements of sexual assault relevant in the circumstances are proved beyond a reasonable doubt: - that Mr. BL put himself in physical contact with KM ’ s body, that is, that he applied force, albeit gentle force. - that Mr. BL did so intentionally. - that Mr.

BL did so in circumstances of a sexual nature. [ 96 ] Mr. BL ’ s same acts constitute sexual touching contrary to s. 151 of the Criminal Code . The elements of that offence are proved beyond a reasonable doubt by the Crown ’ s evidence concerning both the massaging of KM ’ s penis and the taking of KM ’ s penis into Mr. BL ’ s mouth: - that KM was under the age of 16 years. - that Mr. BL intentionally touched KM ’ s penis in both instances. - that the touching was for a sexual purpose.

I conclude that the third element, that the touching was for a sexual purpose, has been proven beyond a reasonable doubt from the nature and circumstances of the touching - in particular the part of KM ’ s body that was touched. That KM invited Mr. BL to massage and kiss his penis is of no legal significance. It is not a defence that a person under the age of 16 consented to the activity which is the subject- matter of the charge (s. 150.1(1)).

[ 97 ] All of the elements of both offences have been proved beyond a reasonable doubt. [ 98 ] Mr. BL is guilty of Count 1 and Count 2 in relation to the massaging of KM ’ s penis and of Count 4 and Count 5 in relation to the taking of KM ’ s penis into his mouth. Heard on the 2 nd day of May 2011. Dated at the City of Edmonton, Alberta this 3 rd day of June 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Mark Huyser-Wierenga for the Crown Kirk MacDonald for the Accused