R v WEM, 2013 ABQB 680

Court of Queen ’ s Bench of Alberta Citation: R v WEM, 2013 ABQB 680 Date: 20131122 Docket: 120834189Q2 Registry: Red Deer Between: Her Majesty the Queen Crown - and - WEM Defendant Restriction on Publication Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the complainant RB or the accused WEM may not be published, broadcast, or transmitted in any manner.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 , RSC 1985, c C-46, s 486.4. Accordingly, in these reasons, this Court will refer to the complainant, the accused and all witnesses through whom anyone might be able to identify the complainant or the accused by their respective initials. NOTE: This judgment is intended to comply with the restriction so that it may be published. _ ________________________________________ ______________ Reasons for Judgment

of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ I. Introduction [1] This is the case involving Her Majesty the Queen and WEM, who, in these reasons, I will refer to as “the accused.” TheCrown charged the accused that: (

a) between August 24, 2011, and August 25, 2011, he did for a sexual purpose directly touch RB with his penis contrary to s 151 ofthe Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code] and he sexually assaulted RB contrary to Criminal Code s 271; and (

b) on or between July 1, 2011, and July 6, 2011, he did for a sexual purpose directly touch RB with his penis contrary to CriminalCode s 151, he sexually assaulted RB contrary to Criminal Code s 271 and he did for a sexual purpose invite RB to touch hispenis contrary to Criminal Code s 152; and (

c) on or between April 1, 2001, and April 8, 2002, he sexually assaulted RB contrary to Criminal Code s 271. [2] The Crown requested this Court to dismiss the charges against the accused that relate to the incidents that allegedly tookplace between April 1, 2001, and April 8, 2002. This Court acceded to that request. [3] RB was born in June of 1998, so at the times of the various alleged offences RB was under the age of 16 years. [4] This Court starting hearing this matter on September 3, 2013 through to September 6, 2013, without a jury.

The trialcontinued on October 31, 2013 and November 1, 2013. [5] As with all cases under the Criminal Code, the question is whether the Crown has proven its case against the accusedbeyond a reasonable doubt, in this Court’s mind. The Supreme Court of Canada in R v Starr, 2000 SCC 40 at para 100, said this Courtcannot find the accused guilty on a balance of probabilities. If this Court is to find the accused guilty of the alleged offences, it must nothave any reasonable doubt about the accused’s guilt.

R v Lifchus, (SCC), [1997] SCJ 77 at paras 30, 31 and 39, tells usthat reasonable doubt must not be based on sympathy or prejudice. Nor must it be imaginary or frivolous. It must be based on reason andcommon sense, based on the evidence, or absence of evidence, this Court heard in the court room. However, that case goes on to statethat the Crown is not required to prove its case to absolute certainty. II. Testimony [6] So, what is the evidence on which this Court must base its decision? [7] The salient facts are that RB was 13 years old at the time of the 2011 alleged offences.

She was 15 years old at the time ofthe trial. The accused is RB’s stepfather. At the time of the alleged offences, RB lived with the accused, her mother KM, her sister JMand the family dog. [8] At the time of the alleged offences, RB used the surname of the accused, as KM was married to the accused. RB does notremember her biological father. A. RB [9] The July 2011 offences allegedly occurred at a campground near Rocky Mountain House in Alberta. The family used to owna trailer that they towed behind a truck.

On this particular occasion, the family went camping with 2 of RB’s uncles, an aunt, 3 cousinsand the cousins’ grandmother. The accused drove the truck that towed the trailer and KM drove separately in the family’s car. Thechildren were not in school at the time. RB was in grade 7 or 8. [10] They found a camping spot and set up the trailer. Thereafter, they went to meet with the other relatives, who had set up theirtrailers. The relatives’ trailer was close by the family’s trailer. They sat and talked by the river near the campground.

Thereafter, thechildren played and they had a campfire. [11] The trailer had separate rooms, with a set of bunk beds in the back and a queen-sized bed up the stairs in the front of thetrailer. RB and JM slept in the bunk beds in the back of the trailer and the accused and KM slept in the queen-sized bed at the front of thetrailer. The family dog slept in a kennel at the back of the trailer. No one else slept in the trailer, except for the family. [12] On the second or third day of the trip (RB does not remember), RB testified that the accused touched her vagina.

KM hadgone home, as she was feeling sick and JM was sleeping in the bunk bed at the back of the trailer, as JM was also feeling sick. Theaccused allegedly touched RB while she was in the queen-sized bed at the front of the trailer. Besides JM, no one else was in the trailerat that time.

[ 13 ] RB provided this Court with more details of the alleged occurrence. It was light outside at the time. She had been playing with her cousins outside when the accused told her to go into the trailer to take a nap. He did not say why. JM was already taking a nap, as she was sick. The accused was still sitting by the campfire when she went to take a nap. Once she arrived in the trailer, the accused came into the trailer and told her to take her clothes off. This is not how she usually sleeps and she thought it was a bit strange that the accused told her to take her clothes off.

She took her clothes off and went to the queen-sized bed, as the accused told her to take a nap in that bed. She went to sleep. [ 14 ] After she woke-up, the accused came into the room where she had been sleeping. He was wearing a t-shirt and jeans and she was wearing nothing. He took off his clothes and climbed into the bed. She did not see his naked body, but she heard him undressing. At this time, she was under the sheets and blanket that were on the queen-sized bed. She was facing away from him when he climbed under the sheets into bed.

He approached her from behind and she could feel his fingers as he was putting them inside her vagina. He did not say anything to her and she did not say anything to him at this time. Eventually, he said, “do you like this?” She said nothing in response. He then tried to put his penis in her vagina, which he tried “for a little bit.” He was not successful. She did not see his penis. He then tried to make her touch his penis by grabbing her wrist. She did not touch it. By this time she was on her back on the bed. The accused was still facing her. She eventually turned away from him.

She does not remember how it ended, but nothing else happened in the bed that day. The whole event lasted “about 2 minutes.” [ 15 ] After this, RB returned to the campfire, which was not far from the trailer. It was still light outside. Some of the other relatives were still at the campfire. Later, the accused joined them. She did not tell anyone because she did not know how to tell them. She eventually told KM, but she does not remember when. She did not tell anyone else. [ 16 ] They stayed for another night and then left. Nothing further happened on this trip.

She never spoke to the accused about what had happened. [ 17 ] The August 2011 alleged offences took place in the family’s home. The family lived in a 3-bedroom bi-level home, with JM and RB occupying separate bedrooms and the accused and KM occupying the other. All of the bedrooms were located on the upper floor of the home. The home was being painted at the time of the alleged offences, so RB and JM were sharing a bedroom. JM had a mattress in RB’s bedroom and there was a clothes hamper at the foot of JM’s mattress.

As well, at night, the family dog would stay in a kennel in the girls’ bedroom. [ 18 ] On RB’s bed there was a blanket, but no sheets. She would sleep under the blanket. On the night of August 24, 2011, at around midnight, RB was asleep, wearing a red t-shirt, panties and white socks. The accused entered her room wearing KM’s bathrobe. JM was asleep. The lights were off. The accused crawled under the blanket with her. She was facing him. He placed his hand under her panties and put his fingers in her vagina for “about 5 or 6 seconds.” He tried to put his penis in her vagina.

She turned so she that she “could kinda get away.” It worked. During the whole time, she said nothing and the accused said nothing. She then heard KM shuffling her feet down hall towards her room to check on the family dog. Since the accused had KM’s housecoat on, KM was naked. Before KM had come into RB’s bedroom, the accused got up and hid behind the bedroom door. When KM entered the bedroom, the accused stepped out and scared her.

KM said, “Oh jeez you scared me, I was checking on [the dog].” He also said that he was checking on the family dog, but RB testified that he was not. [ 19 ] After the accused left the bedroom, KM said to her that “if anything happened to please tell her.” She could tell that KM was worried. RB did not say anything to KM that night because she was tired and KM was naked. [ 20 ] The next morning at around 7:30 a.m., the accused came into RB’s bedroom again and “did sort of the same thing as he did the night before, but it was shorter.” He used his fingers to touch her vagina. She had no underwear on at this time.

Her underwear was on the side of her bed. She does not know how they got there, as she was still wearing everything else. The accused said nothing and she said nothing. JM was still sleeping. After he touched her, he said “wake up girls, it’s time to get up.” He then left the room. During this, she did not see or touch the accused’s penis. [ 21 ] While all this was happening, KM was at work. She started work at 6:00 a.m. [ 22 ] KM asked RB to bring her something from home, so RB walked to where KM worked. It was about an 8 or 9 minute walk. No one else went with her. She gave KM whatever it was that KM wanted.

KM then asked her if anything had happened that morning or the night before. Since there were children present at KM’s place of work, KM told her to go to the back and write down what had happened. She wrote that the accused had “touched her privates.” She did not provide specifics of the bedroom or camping incidents. RB does not know what happened to the note that she wrote. [ 23 ] After RB wrote this down, KM told her to walk home, but to wait a bit because KM was going to call RB’s grandmother. When RB was about halfway home, her grandmother came to pick her up.

They went to her grandmother’s house and then to the police station in Innisfail. They later went to Red Deer to do a “kit” (she did not remember what it was called), but they could not do it in Red Deer, so they went to the children’s hospital in Calgary. [ 24 ] RB also testified that there was another incident involving the accused when she was about 4 years old. She does not remember this incident, although something did happen. After the accused pressed her on this, she agreed that it weighed on her to a certain extent as she was growing up.

This was the incident that formed the subject-matter of the charges that this Court dismissed. [ 25 ] When the Crown’s counsel asked RB whether she knew what ejaculation was, RB testified that she knew a little about it. She said that the accused did not ejaculate during these incidents. [ 26 ] There were two themes that arose during RB’s cross-examination.

The first involved the following exchange that took place between RB and the investigating officer, Cst Methven, while he was interviewing her on August 25, 2011: Q: Ahh so you know everything’s fine but when I’m sleeping and someone would do that to me, I’m a deep sleeper, but someone would touch me like that I would wake up okay. Umm now you say this - this stuff all happened this morning. And you de-you told me

in great detail what happened. But then you said you - you told me that you were sleeping. A: Yeah. It all happened while I was sleeping. Q: So how would you know, if you were sleeping, that [the accused] your father came in and did this to you. Do you understand what I’m saying? A: Yeah. Q: ‘Cause you’re sleeping. A: Yeah. Also my grandparents, this is the real truth, umm I would also hear the door creak open when I was little. Umm my great grandma, she’s dead, umm she opened the door and my door creaked. And like. Q: Mm hm. A: I woke up because somebody poked me. And there was nobody there.

And then ever since umm my dad started touching me and stuff he, after he put on the oil for the doors to stop squeaking, I hear feet shuffling against the ahh ahh carpet. Q: Mm hm. A: And I’d be like starting to toss and turn. Q: So but if you were sleeping you wouldn’t know who was doing anything to you right. Right like I mean you’re sleeping. A: I can, I can still feel it though. Q: But how do you know it’s [the accused]? A: I’d be ahh half awake and half asleep.

Transcript of RB’s Statement taken on August 25, 2011, p 12, ll 1-30 [ 27 ] During cross-examination, RB testified that she was sleeping when the accused was allegedly touching her in the night of August 24, 2011. She said, however, that she had a “feeling” that the accused was doing these things to her.

She later testified that she might have been asleep when the accused touched her, both at the family home and in the trailer. [ 28 ] The other theme that arose during her cross-examination was that her statements to Cst Methven and testimony at the preliminary hearing of this matter were inconsistent with her testimony before this Court. The following are examples of these inconsistencies: 1. In her statements and the testimony she provided at the preliminary hearing she said that the accused had licked her in her vaginal area.

During her testimony before this Court she said that he touched her with his fingers, but said nothing about licking. 2. In her September 4, 2011 statement, she said after she and JM had woken up and went to the kitchen, the accused called her into his bedroom and he touched her again. She told this Court nothing about this additional event. 3. In her September 4, 2011 statement, she said that when the accused entered the bedroom on the morning of August 25, 2011, she was wearing her panties, and he pulled them off of her.

She told this Court that she was not wearing panties at the time the accused entered her room. She could not describe those panties. [ 29 ] As well, she testified during cross-examination that the accused touched her inappropriately in the trailer after they went to bed on the evening of the first incident. She was adamant when providing this testimony. B. Cst Andrew Cyril John Methven [ 30 ] Cst Andrew Cyril John Methven is the Royal Canadian Mounted Police (“RCMP”) officer who conducted the initial investigation, arrest, and gathering of exhibits, and he transported RB to the hospital.

In 2011, he was posted to the RCMP’s Innisfail

detachment. On August 25, 2011, he received a radio call at 8:12 a.m. and was asked to attend the Innisfail detachment. RB and KM were at the detachment. At 9:00 a.m., he took a statement from RB, which started his investigation. [ 31 ] Cst Methven has dealt with young persons in the past and noted that RB was “very matter-of-fact” in her reporting of the things that the accused had allegedly done to her. In other words, she was saying “adult things” that would offend adults, but RB did not show any signs that she was disturbed by what she was saying. She did not seem to care about what she was saying.

He did not note any physical injuries to RB. He spent about 90 minutes with her. [ 32 ] During cross-examination, Cst Methven stated that he had taken training on the use of leading questions and that he tried to stay away from them. He admitted, however, that during his interview with RB, he posed many leading questions. [ 33 ] He took a second statement from RB on September 4, 2011. During her initial statement, it appeared to Cst Methven that there was a possibility that the accused had done other things to RB before the most recent event, and Cst Methven wanted to follow-up on these.

RB had a similar “matter-of-fact demeanour” during the second interview. [ 34 ] After the initial interview, Cst Methven attended the family’s residence, where the alleged offences occurred. Before going, he got KM’s consent to enter the premises if there was no response to his knocking. She gave him a key to the family’s residence. When he attended the family’s residence, he knocked on the door a few times. There was no response, so he entered the premises. He found the accused sleeping on his bed with no clothes on.

Cst Methven allowed the accused to get dressed and verbally advised the accused that he was under arrest for sexual assault. Cst Methven then “ Chartered and cautioned” the accused. He said to the accused, “do you understand” and the accused responded by saying, “yup I heard that.” The accused said he wanted to call counsel. Cst Methven then handcuffed the accused and took him downstairs. During this time, the accused did not deny or admit to anything. Cst Methven turned the accused over to another RCMP officer.

This ended Cst Methven’s dealings with the accused that day. [ 35 ] Cst Methven took photographs of certain areas in the family’s home. Those photographs were entered as an exhibit in these proceedings. He also seized a number of items related to the alleged offences. These included the mattress on which RB was sleeping when the alleged offences occurred, the blanket that was on the mattress, a maroon t-shirt that RB was allegedly wearing, RB’s panties and the bathrobe that the accused had been wearing. Cst Methven seized the panties and the bathrobe from the clothes hamper located in RB’s bedroom.

They were located on the top of other clothes in the hamper. He did not take photographs of those items before he seized them and he did not have RB confirm that these were the panties she had worn on the night in question. KM and RB were present when he was seizing the items. RB was wearing the t-shirt at the time he seized it, so she went upstairs to change before he seized it. [ 36 ] After he seized the items, Cst Methven sent the forensic laboratory a form that listed all the items he had seized. The laboratory requested that he send certain of the items to them.

At this time, he sent them RB’s panties. [ 37 ] After Cst Methven seized the items, he accompanied RB, KM and RB’s grandmother to the Red Deer hospital. He drove his police vehicle and they followed him in their car. Because the Red Deer hospital did not have a physician who could do a paediatric sex assault kit, they all left for the Alberta Children’s Hospital in Calgary. Once they arrived, and after they had checked in, RB was examined by a few doctors to make sure a sexual assault examination could be undertaken. They determined that Dr Reynolds and a nurse could undertake it.

All the while, Cst Methven was with RB and her family. RB’s demeanour was similar to her demeanour when he interviewed her; she was not all that concerned. During this time, they did not talk about the matter, but just had “small talk.” When Dr Reynolds arrived, she asked RB for her consent. Dr Reynolds told Cst Methven to leave and that she would take care of the sexual assault kit. She would call him when they were done. [ 38 ] Cst Methven left and remained in his police vehicle until Dr Reynolds contacted him. He returned and seized the sex assault kit from Dr Reynolds.

Dr Reynolds also suggested to Cst Methven that he seize the shorts that RB was wearing. Dr Reynolds told Cst Methven that RB had no panties on under her shorts. Cst Methven sent these shorts to the forensic laboratory. [ 39 ] The sex assault kit consisted of identified plastic vials and swabs that he sent to the forensic laboratory. There were certain items in the sex assault kit that he did not send. Again, it was the laboratory that advised him what to send.

He kept a complete inventory of what he had, and had not, sent. [ 40 ] After he returned to the Innisfail detachment, Cst Methven processed the various exhibits he had seized, spoke with another RCMP officer about the charges and prepared a prosecutor’s information sheet. [ 41 ] On August 26, 2011, he spoke with KM to update her. On September 3, 2011, he interviewed JM. On September 4, 2011, he again interviewed RB and KM and on October 4, 2011, he re-interviewed JM. [ 42 ] He had not spoken to the accused since August 25, 2011.

On February 17, 2012, he attended Red Deer remand centre and obtained a DNA sample from the accused, with the accused’s consent. He sent the DNA sample to the forensic laboratory. This ended Cst Methven’s involvement with this matter. C. KM [ 43 ] KM is RB’s mother. She was married to the accused in January of 2000 and separated from him when the incidents that are the subject-matter of these proceedings arose. JM is the biological child of KM and the accused. RB is KM’s biological daughter and the accused’s stepdaughter. The accused acted in loco parentis to RB.

RB called the accused “Dad.” [ 44 ] The family moved into the family home in November of 2002. The accused, KM, JM and RB lived there until August 2011, when they moved out because of the incidents allegedly involving the accused. Thereafter, KM and the children stayed at women’s shelter for about 3 weeks and then moved in with KM’s mother. [ 45 ] KM is not working right now, although up to the Friday before this trial started, she was working as a babysitter for her sister’s children. In August 2011, she was working as a child care provider with an after-school programme. Her working hours were

from 6:30 a.m. to 2:00 p.m. Her place of work was about 1 block from the family’s home, which was walking distance. [ 46 ] KM confirmed that the diagram of the trailer that was entered as an exhibit in these proceedings was accurate. They bought it in May of 2011, and took it camping in July of 2011 to a campground near Rocky Mountain House, Alberta. KM confirmed the relatives who they met at the campground as those RB described. Because she had to work on Friday morning, the accused, RB, JM and the family dog went out earlier with the trailer, and she went out later, driving her car.

It was a long weekend, so she went back on Monday, so she could go to work on Tuesday. The accused, RB and JM stayed behind and came back on Tuesday . There was some confusion between the accused and KM, as to the days they arrived and left the campground. The accused said he and the girls left on Thursday and returned Monday, and that KM arrived later on Thursday and left Sunday. Nothing turns on this, as the alleged offences are said to have occurred after KM had left to go home. [ 47 ] The other trailers were about 20 yards away from theirs, but they could see everyone’s trailers.

RB and JM slept in bunk beds at the back of the trailer and KM and the accused stayed in the bed at the front of the trailer. [ 48 ] From May to August of 2011, RB and JM shared a bedroom, because the accused was painting the family home. The accused was working with an oil and gas servicing company. He worked out of town on a 15 days on and 6 days off rotation, although he had no set schedule. [ 49 ] On August 25, 2011, KM was working. Because she started at 6:30 a.m., she left house at about 6:15 a.m. She had gone to bed at about 10:00 p.m. Because the accused was switching his work

schedule from days to nights, he would not go to bed at night, but would stay up throughout the night. Despite this, KM and the accused had sexual relations before she went to sleep that night. They had sexual relations again in the morning before she went to work. KM testified that the accused had ejaculated in her mouth during their evening sexual activities, but had not during their morning activities. [ 50 ] After they had sexual relations on the night of August 24, 2011, the accused left the bed and she went to sleep. At around 10:30 p.m., KM was awoken by the family’s dog jumping on to her bed.

The accused was not in bed, as he was staying awake during the night, so took dog back to the girls’ bedroom, where RB and JM were sleeping. She was placing the dog in its kennel in the girls’ bedroom when she saw the accused behind the bedroom door, standing on RB’s mattress. He scared her so she said, “what the fuck are you doing here. You scared the hell out of me.” He said he was looking for the dog. KM responded by saying obviously the dog is not in there because she had him. The accused then went outside for a cigarette.

He was wearing KM’s housecoat and a t-shirt. [ 51 ] KM testified that that night “deviated from the normal night, because dog got out” of the girls’ bedroom. The girls’ bedroom door was open when she approached it. She thought that one of the girls had gotten up in the night and forgot to shut the door. RB and JM usually sleep with the bedroom door closed, so the dog would not get out of their bedroom. [ 52 ] RB was pretending to wake up. As RB’s mother, she knew when RB was pretending to wake up and when she was actually waking up. When KM asked RB whether anything had happened, RB said nothing had happened.

KM does not remember what RB was wearing, as she did not turn on a light. JM was sleeping throughout this whole matter. JM can be quite a heavy sleeper. [ 53 ] KM went back to bed and did not see the accused again until the next morning when they had sexual relations. They had no discussion about the incident of the night before. [ 54 ] The girls’ bedtime was 8:00 p.m. in 2011. When she went to work at around 6:15 a.m., everyone else would still be sleeping until about 7:00 a.m. to 7:15 a.m. If the accused was already up, she would not call the family home.

Otherwise, she would call the family home to wake everyone up. [ 55 ] There was a clothes hamper in the girls’ bedroom. The girls would use this clothes hamper when their clothes needed washing. KM would not put the girls’ clothes in the clothes hamper. The only time she would ever touch the girls’ clothing was to take it downstairs to do laundry. She was firm in her response that she would not put the girl’s clothes in the clothes hamper. There was no clothes hamper in the master bedroom, where KM and the accused slept.

If their clothes needed washing, they put their clothes in the laundry room in a pile on the floor. KM does the laundry. They would not use the clothes hamper that was located in RB’s bedroom. KM was adamant about this when the accused pressed her on this. [ 56 ] KM testified that it would not be unusual for the accused to be wearing her housecoat. If his was being washed, he would wear her housecoat. KM does not know how her bathrobe ended up in the clothes hamper. The last time she saw it was when the accused was wearing it as he went out for a cigarette on the night of the alleged incident.

As well, she has no idea how RB’s panties made their way into the clothes hamper. [ 57 ] On the morning of August 25, 2011, while she was at work, KM was having very bad heartburn. At around 7:00 a.m. she telephoned the family’s home and asked if someone would bring her some Tums, which are non-prescription heartburn medication. RB brought them to her place of work. While RB was there, KM took RB to the back of the area in which KM was working. KM had a “gut feeling” that something had happened the night before while the accused was in RB’s bedroom. KM asked RB whether anything had happened.

RB was upset and did not want to tell her. Finally, RB told her that something had happened; the accused had been touching her. The discussion lasted about 5 minutes. Despite RB’s testimony, KM said that she did not ask RB to write it down. [ 58 ] KM called the police. She then called her mother and asked her mother to pick up JM and RB. She then told RB to go home and that KM’s mother would pick them up. KM then locked the building where she was working and contacted a co-worker to ask if the co-worker would take over her work shift. She, along with her mother and the two girls, went to the police station.

After RB gave a statement to the police, they went to the hospital in Red Deer. They did not go anywhere else in between. Because there was no paediatric doctor who could deal with this, they had to go to the Alberta Children’s Hospital in Calgary. The physician at the Alberta Children’s Hospital gave RB a “morning after pill” and conducted “a bunch of tests.” [ 59 ] RB was wearing shorts and a t-shirt when they went to the hospital. These were the shorts that RB was wearing when she came to KM’s work place that morning. Her shorts were taken as evidence and she was given a pair of hospital pants to wear home.

Following this, KM, RB and JM returned to KM’s mother’s house and the next day, they went to the women’s shelter. KM has not seen the accused nor discussed this matter with him since that time. They are presently going through a divorce. [ 60 ] KM had a conversation with RB a year or so before the August 2011 alleged incident. RB had said something had happened. She had RB write it down, because RB was too scared to tell KM. RB provided KM with the specifics of the incident. KM talked to RB about this.

The accused then took RB aside and had a conversation with RB saying this would get him in a lot of trouble and he would have to kill himself. RB came back to KM, apologized and that she was lying. The accused then took RB’s note outside and burned it. [ 61 ] In 2002, there was a complaint by RB that the accused had done something to her. KM contacted the police. After investigating the matter, the police took no further action, as they lacked evidence to suggest that a sexual assault had taken place. KM was confident the accused had not sexually assaulted RB on that occasion.

At that time KM was suffering from post-partum depression. This alleged incident was not discussed again. [ 62 ] During cross-examination, KM testified that RB had never told her about the incident in which RB said that her great grandmother was poking her while she was sleeping. As well, KM had never seen the accused touch RB in an inappropriate way. D. Dr Melanie Leslie Dawn Green [ 63 ] The accused agreed to permit this Court to qualify Dr Melanie Leslie Dawn Green as an expert in the analysis and

interpretation of forensic DNA typing profiles and the application of the principles of statistics to the analysis of these profiles. As well, this Court qualified Dr Green as an expert in the

interpretation of the results obtained from the examination of the exhibits that the RCMP recovered in this case. [ 64 ] The RCMP currently employs Dr Green in the National Centre for Forensic Services in Edmonton as a forensic specialist and biology reporting scientist. She received her doctorate in microbiology and immunology from the University of Ottawa’s Faculty of Medicine in 2005, and has been with the RCMP since 2007. [ 65 ] Dr Green outlined for this Court the process through which the RCMP forensically-analyze an exhibit. This Court will not go through the detailed analysis that she provided.

Of importance, is that various scientists analyze the exhibit, and the samples are put through various tests so that Dr Green can analyze the results, and provide her conclusions based on those results. The exhibit is catalogued at the outset and it is then tracked as it goes through each stage of its analysis. Once the exhibit goes through these various stages, the scientists establish a DNA profile. Dr Green then conducts a statistical analysis of that DNA profile.

The exhibits are then returned to the investigator, and Dr Green prepares her report. [ 66 ] Each scientist who examines the exhibit or conducts an analysis of the exhibit is qualified and trained. They all receive proficiency testing throughout their careers. The analysis and testing methodology is rigorous and there are standards that they must meet throughout the process. [ 67 ] Dr Green prepared 3 reports for these proceedings. They were entered as exhibits. This Court will separate the findings from each report.

Report No. 1 issued on November 24, 2011 [ 68 ] Many of the exhibits that the forensic team examined did not reveal anything of interest from a biological perspective. Of primary interest was whether they could identify semen in or on an exhibit. When this Court refers to exhibits, it is not referring only to physical items like clothing, but also to the various biological materials that Dr Reynolds took from RB while RB was at the Alberta Children’s Hospital, such as blood tests and various swabs that Dr Reynolds took from in and around RB’s genital area.

Dr Reynolds took RB’s blood to allow for the exclusion of her DNA from the samples that the forensic team were examining. [ 69 ] The vulva, cervical and anal swabs did not reveal anything of interest. Dr Reynolds took one swab from RB’s right buttock (Exhibit No. PE 10 AA), which indicated that human semen was identified. Her vaginal swab (Exhibit No. PE 23) showed a “positive screening test for semen.” Dr Green warned that a “positive screening test for semen” does not necessarily indicate that there is semen present.

The “positive screening test for semen” arises from 2 separate tests that are designed to test for different components of semen. One is a prostate specific antigen test. The other is an acid phosphatase test. If one of these tests comes up positive, then this is enough to provide a “positive screening test for semen.” However, the initial testing can provide a “false positive” resulting from such things as vaginal secretions, vegetable extracts or contraceptive chemicals.

In fact, in her report, Dr Green provides the following caution, “A positive screening test for the presence of semen was obtained; however, the presence of semen was not confirmed.” As a result, the forensic team would undertake further testing to determine whether there are sperm cells in those samples. [ 70 ] As for the samples taken from RB’s right buttock (Exhibit No.

PE 10), the report says that the DNA profiling is of “mixed origin consistent with having originated from two individuals.” Assuming that one of the individuals is RB, “then a male minor component suitable for comparison is also present.” [ 71 ] Certain samples, the vulva, cervical, vaginal swabs, and the two swabs that Dr Reynolds took from RB’s right buttock, were submitted for DNA analysis. Report No. 2 issued on February 17, 2012 [ 72 ] This report provides Dr Green’s conclusions concerning RB’s panties (Exhibit No. PE 103) and the shorts (Exhibit No.

PE 105) that Cst Methven seized while RB was at the Alberta Children’s Hospital. Various areas of these garments were tested. All of the samples that the scientists tested, with the exception of a recovered hair, contained a “positive screening test for semen.” The report also contained the caution that, “A positive screening test for the presence of semen was obtained; however, the presence of semen was not confirmed.”

[ 73 ] The samples of the exhibits that showed DNA typing profile of mixed origin showed that the female component was RB. The male component was designated as “Male 1.” Male 1 is the same individual and has the same DNA profile in all of Dr Green’s reports. Male 1’s DNA profile was contained, in varying degrees, on the areas taken from each of the exhibits, except for one area of the shorts (Exhibit No. PE 105 AA).

As well, the DNA profile of Male 1 was contained in the swab taken from RB’s right buttock. [ 74 ] The areas of RB’s panties from which these samples were obtained are described as: Exhibit PE 103 AA: inside/outside back left near seam [103 AA] Exhibit PE 103 AB: inside/outside of middle back panel [103 AB] Exhibit PE 103 AC: inside of crotch [103 AC] Exhibit PE 103 AD: inside/outside of middle front panel [103 AD] [ 75 ] This report states the following with respect to the sample tested from 103 AA: The DNA typing profile obtained from exhibit PE 103 (underwear, area AA) is that of an unknown individual.

This profile has been personally designated as Male 1. The donor of the known sample, exhibit PE18 [RB], is not the source of this unknown profile.

In other words, unlike the other areas of the garments that the scientists examined, which had DNA typing profiles “of mixed origin consistent with having originated from two individuals,” This particular exhibit contained only the DNA typing profile of one individual, “Male 1.” [ 76 ] The importance of this finding is emphasized in the report when it said: The DNA typing profile obtained from exhibit PE 103 (underwear, area AA – Male 1) will be entered into the Crime Scene Index of the National DNA Data Bank of Canada. [ 77 ] The DNA typing profile which constituted the major component in 103 AB was that of Male 1.

Although the DNA typing profiles in 103 AC were of mixed origin and the major component matched RB’s DNA typing profile, “Due to the weaknesses of some components, no meaningful comparison can be made to the minor component.” In 103 AD, the DNA typing profile was of mixed origin and the male component matched Male 1’s DNA typing profile. [ 78 ] The areas of RB’s shorts from which these samples were obtained are described as: Exhibit PE 105 AA: inside/outside back left leg near pocket [105 AA] Exhibit PE 105 AB: inside/outside of mesh middle back panel area [105 AB] Exhibit PE 105 AC: inside/outside of mesh crotch area [105 AC] Exhibit PE 105 AD: inside/outside of mesh middle front panel area [103 AD] [ 79 ] No human DNA was detected in 105 AA.

The male components of the DNA typing profile contained in 105 AB, 105 AC and 105 AD matched the profile designated as Male 1, and the female components match those of RB. [ 80 ] A question arose as to why there were differences in the findings of Exhibit No. PE 10 AA and Exhibit No. PE 10 AB, which were the 2 swabs that Dr Reynolds took from RB’s right buttock. Dr Green explained that the forensic scientist takes a clipping from each swab. They then test those clippings. The Exhibit No. PE 10 AA clipping contained sperm cells and the Exhibit No. PE 10 AB clipping did not.

The one that contained sperm cells did not contain enough sperm cells for the scientists to obtain a complete DNA profile. This does not mean that Exhibit No. PE 10 AB did not contain sperm cells. It only means that the clipping that the forensic scientist examined did not contain sperm cells. Report No. 3 issued on April 4, 2012 [ 81 ] This report identifies Exhibit No. PE 300 as the accused’s blood sample. This report identifies Male 1’s DNA typing profile as matching the DNA typing profile of the accused. [ 82 ] This report states that in 3 of the 4 samples taken from RB’s panties (Exhibit No.

PE 103), with respect to the accused’s DNA typing profile found in this exhibit, “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 320 billion.” [ 83 ] With respect to the samples taken from RB’s shorts (Exhibit No. PE 105), this report states the same probability with respect to 105 AB. The probability reduces to 1 in 340 million in 105 AC and to 1 in 14 billion in 105 AD. [ 84 ] As for the swabs taken from RB’s right buttock (Exhibit No.

PE 10), the report states that the male minor component matches the DNA typing profile of the accused. The report goes on to state that “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 35 thousand.” [ 85 ] Dr Green advised this Court that the probabilities differ because DNA is matched based on genetic regions. The greater the number of regions that the scientist can match, the lower the probability that another person’s DNA typing profile will match the sample’s DNA typing profile.

For example, if the scientist identifies 6 regions, the probability of finding a person with the same DNA typing profile in those 6 regions is 1 in 35 thousand. If, on the other hand, the scientist identifies 9 regions, the probability of finding a person with the same DNA typing profile in those 9 regions is 1 in 320 billion.

[ 86 ] The reason for the importance of the one sample tested from RB right buttock (Exhibit No. PE 10 AA) is that the sample came from semen. The other sample that Dr Reynolds took from RB’s right buttock (Exhibit No. PE 10 AB), Dr Green referred to as a “mixture” which means that she cannot be certain that the tested biological material was semen. [ 87 ] Dr Green also determined that the sample that she tested from 103 AA, which was the inside/outside back left near seam of RB’s panties, was also semen.

While she was testifying, she said the following: My conclusion would be that the DNA typing profile which was obtained from semen, which was present on that exhibit, matched the DNA typing profile which was obtained from the know sample PE 300 obtained from [the accused]. Transcript of Proceedings, September 4, 2013, p 229, ll 33-36. [ 88 ] When the Crown’s counsel asked Dr Green whether there can be a transfer of DNA material between clothing in a clothes hamper, Dr Green responded by saying that it depends on the circumstances, but it was possible.

In her view, however, the results that the forensic team obtained from the samples that they were provided were not the result of materials touching each other in a clothes hamper or laundry basket. They received strong DNA typing profiles in this case. A simple touch does not give a strong profile. [ 89 ] As well, if materials containing DNA is on a person’s hands, it could transfer DNA material.

However, this type of material would not give the strong DNA typing profiles she saw in this case. [ 90 ] The accused asked Dr Green whether she was familiar with “touch DNA” which refers to a forensic method for analyzing DNA from skin cells that a person leaves when they touch something. Dr Green stated that she was familiar with this technique.

She said that it is difficult to form generalizations with respect to touch DNA; it depends on the material touched, the environment in which the item is touched and in which the item remains, the personal habits of the person touching the item (for example, does the person touch themselves often), the amount of friction in the touch and the amount of perspiration that the person is emitting. Once the DNA arrives on an item, the environment in which the item is located will determine how long the DNA will remain on the item. If item is dry, the DNA can remain for a long period.

The DNA, however, will degrade if the item is in a moist, warm environment. In the end, it is not always possible to detect DNA through touch. [ 91 ] There are different methods for testing touch DNA. It can be done through swabbing (which is the preferred method for hard items), cutting (which is the preferred method for soft items such as cloth), and scraping and tape-lift methods (which is also used for soft items).

As the DNA is transferred from item to item, the likelihood of DNA appearing on the item reduces. [ 92 ] During cross-examination, Dr Green acknowledged that the “positive screening tests for semen” can produce false positives. That is why the scientists undertake the follow-up tests to determine whether there are sperm cells in the sample. In the case of the exhibits on which the researchers found human semen, they viewed sperm cells with a microscope. Dr Green did not see sperm cells herself, but confirmed forcefully that all of the researchers are trained and abide by protocols.

If there is a positive screening test for semen the researchers always follow-up with a confirmation test. E. Dr Kathleen Anne Reynolds [ 93 ] Dr. Kathleen Anne Reynolds is a family physician who maintains a family practice in Calgary. In addition to her family practice, since 2006, she has been a physician with the Calgary Sexual Assault Response Team (“CSART”), which is a team of physicians and nurses who sees and examines patients of alleged sexual assault.

In this role, Dr Reynolds testified that she has seen over two hundred patients and has been qualified as an expert witness in matters before the Alberta Provincial Court and the Court of Queen’s Bench of Alberta. Although the patients she sees as a CSART physician range in age from infants to senior citizens, most of them are between fourteen years and twenty years of age. If the patient is an adult, she will see the patient at the Sheldon M Chumir Health Centre in Calgary.

If the patient is a child, she will see the patient at the Alberta Children’s Hospital in Calgary. [ 94 ] The accused agreed to permit this Court to qualify Dr Reynolds as an expert in sex assault examination, forensic evidence collection, and the

interpretation of injuries. After Dr Reynolds reviewed her curriculum vitae with this Court, which the Crown entered as an exhibit in these proceedings, this Court qualified her as an expert in those areas. [ 95 ] Dr Reynolds explained the procedure that CSART physicians undertake with each patient who is presented to them.

Although this Court will not go through the detail that Dr Reynolds provided to it, it feels that it must explain the procedure, as Dr Reynolds gathered the evidence that Cst Methven referred to as the “sex assault kit.” In fact, the evidence that Dr Reynolds gathered is the sex assault kit. [ 96 ] Dr Reynolds would ask the patient to undress and don a hospital gown. Dr Reynolds would do a “head-to-toe examination” by looking at the patient’s skin, and palpating the patient to see if there are any areas of tenderness.

During this overall examination, Dr Reynolds would use a “polilight”, which is an ultraviolet light that fluoresces things like body fluids, soaps, creams and other material that might be on the patient’s skin. If the “polilight” fluoresces anything, Dr Reynolds would take a swab of the material and send it to the forensic laboratory. [ 97 ] Dr Reynolds would then examine the patient’s external genitalia. She would start by observing this area with the naked eye.

After this, she would examine this area with an instrument called a colposcope, which provides the physician with a magnified light source and allows the physician to take a more detailed look at that area. The physician would be looking for cuts, abrasions, or tenderness. She would take swabs from that area. Dr Reynolds would apply toluidine blue, which is a blue dye that shows tears in the vaginal area that the physician cannot see with her naked eye. She would insert a speculum into the patient’s vagina and take swabs from the walls of the vagina and cervix for DNA and sexually-transmitted diseases.

Following that, she would put fluid in the vagina and aspirate drops on a slide to look for sperm, and would place the balance of the fluid into a container. She would comb the patient’s pubic hair for any evidence. Finally, she would observe the anal area with the naked eye and with the colposcope. She would also apply

toluidine blue to identify any trauma to that area. [ 98 ] On August 25, 2011, Dr Reynolds examined RB at the Alberta Children’s Hospital in Calgary. RB was 13 years old at that time. Dr Reynolds had a nurse present in the room with her. Following her examination, she generated a report, which was entered as an exhibit in these proceedings. She met with RB at 6:30 p.m. [ 99 ] Dr Reynolds noted that RB seemed “matter-of-fact” with respect to the incident and the process that Dr Reynolds was going through.

In other words, to Dr Reynolds, RB seemed casual and showed little emotion, which Dr Reynolds felt was abnormal, as she had not seen this in a child before. For example, RB did not flinch during the examination or try to close legs. When Dr Reynolds asked RB if she was okay, RB responded by saying “yeah, fine.” During her cross-examination, Dr Reynolds provided the following conclusion as a result of these observations: I concluded that she looked like she was disassociating from me and the exam.

Like, she was -- disassociation is a coping strategy that people who have been abused will use to distance themselves emotionally from something that is difficult. So you can become detached from something physical or emotional with disassociation. That being said, I’m not a psychiatrist, and a psychiatrist would probably be the one to make that diagnosis. Transcript of Proceedings, September 6, 2013 p 299, ll 7-12.

Although Dr Reynolds confirmed that she was not an expert on disassociation, she said that she is “trained to recognize symptoms of abuse and disassociation would be a symptom of abuse and that’s what it looked like to me”: Transcript of Proceedings, September 6, 2013 p 299, ll 24-25. [ 100 ] Dr Reynolds also said the following, with respect to the RB’s apparent apathy It set off alarm bells in me to see a young girl being so agreeable to such an intimate exam, that she had been touched in the past. She was comfortable with being touched, and that’s unusual when you’re 13.

Transcript of Proceedings, September 6, 2013 p 300, ll 3-5. [ 101 ] Dr Reynolds gave RB what is known as a “morning after pill” to prevent pregnancy. This Court will only summarize abnormalities that Dr Reynolds observed, as the other observations she made were not remarkable. Dr Reynolds found it odd that RB did not object to having Dr Reynolds insert a speculum into her vagina. Usually, Dr Reynolds said that she would have to coax the patient and talk the patient through it. [ 102 ] Dr Reynolds observed that RB’s labia majora and labia minora were mildly red.

Although this redness could be attributed to trauma, it could also be the result of infection or poor hygiene. [ 103 ] RB’s hymen was very red and swollen and the edges were irregular, which indicates that there might have been trauma to that area through, for example, digital or penile penetration or attempting to put an object in the vagina. In any event, the appearance of RB’s hymen was not normal. [ 104 ] The bottom of the opening of the vagina, which Dr Reynolds identified as the posterior fourchette, showed breaks or tears in the skin and redness.

This indicated to Dr Reynolds that there was trauma to that area, which is consistent with penetration or attempted penetration with a finger, penis or other object. It could also be consistent with some other type of trauma to that area. Based on what RB had told her, she did not feel that these were the result of any of those other types of trauma. [ 105 ] On RB’s right buttock, a couple of inches from RB’s anus, Dr Reynolds identified materials that fluoresced with the “polilight.” She took a swab of that material.

She could not comment on the material, but she sent it to the forensic examiners for their analysis. [ 106 ] Dr Reynolds looked at the vaginal aspirate and saw no sperm in the aspirate. [ 107 ] Dr Reynolds also seized RB’s shorts, as she felt that RB’s shorts might contain evidence. There was no notation in Dr Reynolds’ notes that RB was wearing underwear. [ 108 ] Dr Reynolds made a record of the swabs and other samples that she obtained from RB.

She placed all of the swabs, her notes and the record of the swabs and samples into a box and handed the box to Cst Methven, who was waiting outside the room. [ 109 ] During cross-examination, Dr Reynolds testified that she asked RB about her last menstrual period. RB responded by saying that it occurred two weeks previously.

From that, Dr Reynolds inferred that RB last used a tampon during that time, but not after. [ 110 ] As well, during cross-examination, Dr Reynolds said that she has “never” run into a case where a complainant thought she might have been abused, when it turns out that it was actually a dream or a nightmare. F. The Accused [ 111 ] The accused is currently 39 years old. He was born in England and arrived in Canada through the military. He was stationed in a military base in southern Alberta in the late 1990s, when he met KM. They married in January of 2000.

He moved to Canada in June of 2000 and is a permanent resident. When he moved to Canada, he, KM and RB lived with KM’s parents in small town east of Red Deer. In February of 2001, they moved to town just south of Red Deer. When he first met KM, RB was very young; about 3 months old. JM was born in August of 2001. [ 112 ] When he first moved to Canada, the accused was not working. His first employment was with BJ Services as a pump operator.

He and KM eventually purchased their home in the town where they were living in 2002. [ 113 ] At the time of the alleged charges, which this Court dismissed, KM confronted him with the allegations, although he was provided with no details concerning the allegations. He denied them. He also denies that he engaged in any inappropriate conduct with RB at that time. The police never interviewed him concerning these allegations and the department of child services was not involved at all. He was “shocked and mortified” by these allegations. The family never talked about this again.

During this period, KM had tried to commit suicide in a Walmart parking lot. [ 114 ] The accused does not know RB’s biological father. He understands that KM attempted to contact RB’s biological father about grand mal seizures that RB was allegedly suffering, but he does not know whether KM ever contacted RB’s biological father. This Court was provided no evidence that RB had ever suffered grand mal seizures. [ 115 ] The accused described the camping trip that occurred during the long weekend of July in 2011.

One of the reasons they went on this trip to that particular area was that he and KM’s relatives were looking for a hunting camp they would attend later that year. Numerous relatives were on this trip, occupying 3 trailers and a “horse cart” that 2 of the individuals used as sleeping quarters. All units were in same general area. [ 116 ] The accused, JM, RB and the family’s dog traveled to the area on the Thursday and KM arrived a day later because she had to work. The sleeping arrangements were as follows. On the Thursday night, the accused, JM, RB and the family’s dog slept in their trailer.

On Friday night and Saturday night the accused, KM, JM, RB, the family’s dog and 2 of their cousins slept in their trailer. On Sunday night, the accused, RB, JM and the family’s dog slept in the trailer. At all times, JM and RB slept in the back of the trailer on a lower bunk, with the family’s dog in the kennel, and the accused and KM (when she was there) slept in the front of the trailer on a queen-sized bed. [ 117 ] KM left at around noon on the Sunday, as she had to work the next day.

The accused, RB and JM left at around noon on the Monday. [ 118 ] The accused described the weekend as a “normal camping” trip. They would take walks, the children would play, and they would roast food over the campfire. They also brought out “quads” so various people would go out riding on the quads. [ 119 ] When RB testified, she mentioned that JM became sick. The accused said that JM never became sick. He also denied that KM returned home because she was sick. KM left because she had to work the next day. [ 120 ] The accused denies that RB went to take a nap on the second or third day of the camping trip.

As well, he denies that he went into the trailer and told RB to take off her clothes. He further denies that he took his clothes off, climbed into bed with her and touched her with any part of his body, or that he asked her to touch his body. In fact, he denies that there was ever a time when he went inside the trailer with RB during the course of the day.

He does not recall if either JM or RB went into the trailer to have a nap, but he testified that neither child was in the habit of taking naps during the day. [ 121 ] The girls’ bed time was usually around 8:00 p.m., but while they were camping, he would allow them to stay up until 9:00 p.m. or 10:00 p.m., as they did not have school the next day. While they were camping the adults would go to bed about midnight, although during the first and last nights, he stayed up until about 2:00 a.m., with the other adults.

They would get up at around 7:00 a.m. or 8:00 a.m. during that camping trip; everyone woke up at around the same time. They would have breakfast and then clean-up around the campsite. In other words, the girls were staying up later but still getting up at the same time. [ 122 ] The accused confirmed that because they kept their supplies in the trailer, the family members would be in and out of the trailer all day, getting food, bathing suits, toys and other things throughout the day. As well, the bathroom is in the inside of the trailer.

However, the only time that they would be in the trailer together was at night. When questioned further he said that it was “not possible that they were in the trailer at the same time.” [ 123 ] The accused does not remember anything unusual about RB that weekend. Everyone was just having a good time. [ 124 ] At the time of the alleged offences that occurred in August of 2011, the accused was working night shift. Accordingly, when he was making this transition, he would try to stay awake during the night. On the night of August 24, 2011, he arrived at home at around 6:30 p.m. to 7:00 p.m.

He had supper with KM, RB and JM and they watched television. The children then went to bed at around 8:00 p.m. He and KM then had sexual intercourse in the master bedroom at around 10:00 p.m. He ejaculated into her vagina. He then put on a white housecoat. After that, he returned to the downstairs area to watch television. KM went to sleep, as she had to work the next morning. [ 125 ] While he was downstairs, he heard small feet in the kitchen. He went upstairs to check to see if the family’s dog was wandering around, as the dog was not permitted to be out of his kennel in the night.

The dog was not in the kitchen. He continued to look around and saw that the girls’ bedroom door was open. He did not turn on any lights while he was looking for the dog. He went in to see if the dog was in his kennel. He did not see the dog in the kennel or on either girls’ bed. About “2 seconds later” KM brought the dog into the girls’ bedroom. As KM entered the bedroom, the accused went behind the door to get out of KM’s way. He does not know if KM was wearing anything at that time.

The girls remained sleeping the whole time under their blankets. [ 126 ] Because KM had returned the dog to the girls’ bedroom, he went outside for a cigarette and then returned downstairs to watch television. He remained downstairs until about 5:15 a.m., and then returned to the master bedroom. He woke KM up so that they could have sexual intercourse again. He removed the housecoat. He again ejaculated into her vagina. [ 127 ] After they finished with their sexual relations, he put on the housecoat, left the bedroom and returned downstairs to watch television. KM left the house at around 6:00 a.m.

At about 7:00 a.m., he went to the girls’ bedroom and told them that it was time for them to get up. He then went outside for another cigarette, while the girls dressed and ate breakfast. They would eat cereal, so there was no need for any preparation. He returned to the house. At around 8:00 a.m., KM’s mother arrived at the house to pick up the girls, as they

were going to spend the day at KM’s mother’s house. Later, he said that they were going to walk to their auntie’s place. He does not liketo have the girls around the house while he is on night shift, as he must sleep. He and KM’s mother went outside to have another cigaretteand chat about KM changing jobs. This lasted about 15 minutes. KM’s mother and the girls then left the house, so the accused went tobed. The accused does not recall that either of the girls left the house in the meantime, although he neither confirmed nor denied that thishappened.

He did state that he was awake from the time he woke the girls up until the time they left with KM’s mother. [128] At around 10:00 a.m., he was awakened by 3 police officers who were in his bedroom. He went back to sleep and theyimmediately woke him up again, and arrested him. He spent 11 months in custody. During that time, he consented to provide a DNAsample. [129] The accused denies that he entered the girls’ bedroom and touched RB’s vagina with his fingers or penis. He denies that he hidbehind the door.

He also denies that he touched her in the morning before he woke them up. [130] The accused has not had a vasectomy. [131] He and KM are currently going through a divorce. This has not been a smooth process. [132] After the preliminary inquiry, he was released from custody. His previous employment was not available to him. He has had noproblems with police since being released. III.

Analysis [133] From the foregoing recitation of the testimony of the various witnesses, one can see that this case turns on their credibility;primarily, the credibility of RB, KM and the accused. [134] RB was 13 years old at the time of the alleged incident and 15 years old at the time of the trial. We are faced with the situationof dealing with the credibility of a child; a far too common issue that criminal courts face.

The approach to assessing the credibility ofchild witnesses was outlined by the Supreme Court of Canada in R v B(G), (SCC), 1990 CarswellSask 20, [1990] 2SCR 30 at para 56, where the court said: ... [T]he judiciary should take a common sense approach when dealing with the testimony of young children and not impose the sameexacting standard on them as it does on adults. ... While children may not be able to recount precise details and communicate the whenand where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. ...

Thecredibility of every witness who testifies before the courts must, of course, be carefully assessed, but the standard of the "reasonableadult" is not necessarily appropriate in assessing the credibility of young children. [135] This approach, however, does not allow courts simply to accept the child’s testimony without subjecting the testimony torigorous analysis. The court must assess the credibility of every witness, whatever their age, by reference to criteria appropriate to hermental development, understanding and ability to communicate: R v (WR), (SCC), [1992] SCJ No 56, [1992] 2 SCR122 at paras 25-26.

However, this court cannot make automatic assumptions of unreliability based on a witness’s age, or the nature of thecomplaint. There must be an evidentiary basis on which it would be reasonable to infer that the witness's evidence is, or may be,unreliable: R v K(V). (BC CA), [1991] CarswellBC 418 at para 37, 68 CCC (3d) 18 (CA). [136] These very important principles that this Court must apply in this case must be viewed through the lens of the most fundamentalof all the principles; the burden of proving guilt beyond a reasonable doubt remains on the Crown.

As stated by the Ontario Court ofAppeal in a case such as this, “the burden of establishing that a crime has been committed and that the appellant is the perpetrator restson the testimony of one young witness,” R v S(W), (ON CA), 1994 CarswellOnt 63, 90 CCC (3d) 370 at para 15(CA) (emphasis original). In other words, we must be careful not to be too eager to accept the evidence of children, such that we shift theburden of proof to accused persons to disprove their guilt, K(

V) at para 57. [137] The accused testified in his own defence. In circumstances where an accused has testified, the Supreme Court of Canadaestablished in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [W(D)], the way in which courts must analyze theaccused’s testimony, as against other evidence that the parties have presented. A W(

D) analysis has three steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. W(

D) at para 11. [138] For this Court to do a proper W(

D) analysis, it cannot simply say that it believes RB’s testimony over that of the accused. ThisCourt must first review and weigh the accused’s testimony on its own merits. A choice to reject that testimony must be justified. Then,this Court must weigh his testimony in the context of the entire case, including the testimony of other witnesses: R v Turmel, 2004BCCA 555 at para 11, 203 BCAC 236.

See also R v REM, 2008 SCC 51; R v Sheppard, 2002 SCC 26, [2008] 3 SCR 3; R v L(CJ),2004 MBCA 126, 190 ManR (2d) 177; R v CLY, 2008 SCC 2 at para 7, [2008] 1 SCR 5; R v Dinardo, 2008 SCC 24 at para 23, [2008] 1SCR 788. [139] Counsel in this case said that this Court must decide this issue on the basis of credibility. A trier of fact’s evaluation of awitness’s credibility and reliability is one of the more difficult tasks that it faces. See e.g. White v R, (SCC), 1947CarswellOnt 8 paras 8-10, [1947] SCR 268.

[ 140 ] The multifactorial and contextual approach required to test witness credibility and reliability was offered by Brown J in R v Jurado , 2007 ONCJ 44 at para 19 , 73 WCB (2d) 93: ... I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity.

I must consider the witness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. These are to be expected. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole.

I am able to accept some, all, or none of a witness's evidence. [ 141 ] The fact a witness may have a motive to lie so as to avoid criminal sanction is a factor of restricted weight. Rather, the finder of fact must have regard to all relevant factors when it assesses a witness’s credibility: R v Laboucan , 2010 SCC 12 , 253 CCC (3d) 129. [ 142 ] The first step in a W(

D) analysis requires this Court to assess the accused’s credibility and the reliability of his evidence. Subject to what follows, as a general comment, this Court neither believes nor disbelieves the accused. W(

D) says “if you believe the evidence of the accused, obviously you must acquit.” Because this Court neither believes nor disbelieves the accused, it must move on to the next step in the W(

D) analysis. [ 143 ] This Court has a concern with the accused’s credibility for a couple of reasons. First, his testimony regarding whether there was a possibility that he might have been in the trailer at any time during the July 2011 long weekend when RB was in the trailer is simply not believable. He conceded that the trailer contained the family’s food, the girls’ toys and the bathroom. How is it possible that at some time during the entire weekend, he and RB could not be in the trailer together at some time or another?

This was self-serving and was not believable. [ 144 ] The other portion of his testimony that was not believable was how he found himself behind the door of the girls’ bedroom. He said it was so that he could get out of KM’s way as she entered the bedroom. When one looks at the diagram that he drew of the bedroom, which was entered as an exhibit in these proceedings, there was plenty of room in the girls’ bedroom where he could have avoided KM as she was entering the bedroom. There was no need for him to stand behind the door on RB’s mattress. [ 145 ] The second step in the W(

D) analysis is “if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.” This Court is not left in reasonable doubt by virtue of the accused’s testimony, for the reasons it has just provided. There are portions that are simply not believable. As well, at some points, his testimony lacked consistency. For example, at one point, he said that the children were going to go to their auntie’s place to spend the day. Later, he said they were going to go to KM’s mother’s place. [ 146 ] The final step in the W(

D) analysis is “even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” It is at this stage that this Court must examine all of the evidence and determine what it accepts, and what it does not accept. [ 147 ] The accused raised many “red flags” that he argues would go to the credibility and reliability of RB’s testimony.

Because they are many, this Court will deal with each. [ 148 ] The accused pointed out inconsistencies between the statement that RB provided to Cst Methven and the testimony she provided during cross-examination. For example, RB told Cst Methven that in addition to touching her vaginal area, he was licking her. As well, in her testimony that she gave at the preliminary inquiry, she testified that the accused had licked her vaginal area.

She did not testify during the trial that the accused had licked her in that area of her body. [ 149 ] In the statement that she gave to Cst Methven, she told him that in the morning of August 24, 2011, when the accused entered the girls’ bedroom, she was wearing her red t-shirt and her underwear. During the trial, she testified that she had no underwear on at this time and her underwear was on the side of her bed. She does not know how her underwear got there, as she was still wearing everything else. She also told Cst Methven that the accused had put his penis inside of her.

While she was testifying she said that the accused had tried to put his penis inside her. [ 150 ] The accused also argues that the questions that Cst Methven had posed to RB during his interviews with her were leading.

Accordingly, this might have tainted everything else that RB said during her interview, and, in fact, it might have tainted the entire investigation. [ 151 ] The accused also argues that this might have been a vivid dream that RB was having, relying on the testimony to which this Court has referred involving RB’s great grandmother. [ 152 ] At one point during the accused’s cross-examination of RB, RB appeared less receptive to questions posed by the accused’s counsel. She would say that she did not remember or she appeared to capitulate to whatever he was asking her.

This Court was provided with no expert evidence on why children respond to questions in the way they respond. For example, did RB respond to the accused’s counsel at the preliminary inquiry and the trial because RB felt that this is what the accused’s counsel wanted to hear? Did she ever consider whether she had her panties on or off in the morning? Did she wake up with her panties on and eventually end up with them off? [ 153 ] As for the accused licking her, this may or may not have happened. Obviously, this Court will never know. She said the accused had been licking her when Cst Methven broached the issue.

She repeated this again at the preliminary inquiry. She denied this during the trial. Is the testimony that she provided soon after the events more reliable than the testimony that she provided to this Court? It seems likely RB did not even remember this exchange at the preliminary inquiry or that she had said this to Cst Methven. When the accused’s counsel was questioning her credibility, RB was caught in a box with no escape; she either lied at the preliminary inquiry and to Cst Methven, or during the trial. There was no way out for RB here. When taken in context, this Court finds that RB did not lie to Cst

Methven or during the preliminary inquiry. She was simply relaying what she thought had happened. In the end, whether the accusedwas licking her in the vaginal area is not of great significance to these proceedings. [154] This Court will address the “dream issue” later in these reasons. [155] This Court recognizes that RB’s testimony reveals certain inconsistencies. The Supreme Court of Canada in B(

G) at para 56said, while recognizing that courts must carefully assess the credibility of child witnesses, “a flaw, such as a contradiction, in a child’stestimony should not be given the same effect as a similar flaw in the testimony of an adult.” As well, the Supreme Court of Canada inW(

R) at para 29, recognized that some inconsistencies are minor and some are more significant.

As well, it said that “many of theinconsistencies may be explained by reference to the fact that a young child might not be paying particular attention” to certain details.Thus, as the British Columbia Court of Appeal pointed out in R v Horton, 1999 BCCA 150, 133 CCC (3d) 340 at para 20a: ... [W]hen it comes to assessing the credibility of children, the trier of fact should first assess the intelligence, maturity, experience andcultural background of the child, and then decide whether any of the alleged inconsistencies or inaccuracies in the evidence are ofsignificance given the witness's background that is before the court.

The mere fact that the witness is a child does not mean thatinconsistencies or inaccuracies lose their significance. Similarly, the Supreme Court of Canada said in R v F(C), (SCC), 1997 CarswellOnt 4448, 120 CCC (3d) 225 at para48, “A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth.” [156] RB was 13 years old at the time of the alleged incidents. At the time when she provided her testimony to this Court, she was 15years old. She was well-spoken and intelligent, from what this Court could gather.

The accused argues that she is not a “child” and is“almost an adult.” In fact, the Canada Evidence Act, RSC 1985, c C-5, s 16.1, deals with persons “under fourteen years of age” when itis dealing with the issue of capacity. Thus, this Court did not have to deal with this issue.

However, it must be remembered that theaccused is charged with offences under Criminal Code ss 151 and 152, which deal with offences committed against a person under theage of 16 years, and, pursuant to Criminal Code s 150.1(1), “it is not a defence that the complainant consented to the activity that formsthe subject-matter of the charge.” Thus, Parliament does not see a person under 16 years to be “almost an adult.” In the eyes ofParliament, individuals under 16 years are still children.

When one layers on to this the fact that RB was 13 years at the time of thealleged offences, this reduces her “almost adulthood” even more. [157] In addition to looking at the characteristics of the witness, this Court must also look at the inconsistencies themselves and thenature of them.

As the British Columbia Court of Appeal stated in R v B(RW),1993 CarswellBC 943 at para 29, 19 WCB (2d) 260 (CA): While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may becomequite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness' evidence.

There is no rule as towhen, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistenciesin order to assess whether the witness' evidence is reliable. [158] Whether the accused put his penis inside of her or tried to put his penis inside of her in the case of a 13 year old person is adistinction without a difference.

This Court was not provided with any evidence concerning RB sexual experience, but it is not stretchingone’s imagination that a 13 year old person might not know the difference between attempted insertion of a penis into her vagina and fullinsertion. [159] The inconsistencies concerning whether the accused licked her, whether her panties were on, and whether the accused tried toinsert his penis into her or actually inserted it at the time during which the alleged offence occurred are, in this Court’s mind, triflingcompared with whether a sexual assault had taken place.

She was adamant that the accused had touched her genital area. [160] But this does not fully deal with the third step of the W(

D) analysis. This Court cannot simply accept RB’s testimony or notaccept the accused’s testimony. It must analyze the other evidence that the parties presented to it and determine whether to accept thatevidence. [161] The accused points out that there were inconsistencies in KM’s narrative, when compared with RB’s testimony and theaccused’s testimony. For example, as to what happened when RB came to KM’s place of work on the morning of August 25, 2011, KMsaid that she did not have RB write down the details of the incident, whereas RB testified that KM told her to write it down.

As well, theaccused testified that the parties had sexual intercourse on the night of August 24, 2011, and again, in the morning of August 25, 2011.He ejaculated into KM’s vagina both times. KM testified that the accused ejaculated into her mouth during night-time event and that hedid not ejaculate in the morning. [162] As to whether RB wrote this down or did not write it down is not a matter of great significance. In fact, on a previous occasion,RB had written down what the accused had allegedly done to her and the accused burned that piece of paper.

It is not inconceivable thatRB confused the earlier writing with the writing of what allegedly happened in August of 2011. Further, the sexual activities betweenKM and the accused are not of significant importance to these proceedings. The accused is not on trial for anything he had done to KM. [163] RB, KM and the accused relate similar stories of what had happened on the night of August 24, 2011, except, of course, forwhat had happened in the girls’ bedroom before KM arrived. All of them state that the accused entered the girls’ bedroom. KM cameshuffling up to the girls’ bedroom with the family’s dog.

KM entered the bedroom, the accused was behind the bedroom door. KM wasstartled by his being there. KM and the accused had a very short discussion and the accused left the girls’ bedroom to have a cigarette.The accused testified that he entered the girls’ bedroom looking for the family’s dog and as KM was approaching the bedroom, hestepped behind the door to get out of KM’s way as she entered the bedroom. RB testified that before KM had come into the bedr

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