R v ADG, 2013 ABQB 724

Court of Queen’s Bench of Alberta Citation: R v ADG, 2013 ABQB 724 Date: 20131206 Docket: 111281614Q1 Registry: Calgary Between: Her Majesty the Queen - and - ADG Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant JDG must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta i dentifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] This is the case involving Her Majesty the Queen and ADG, who, in these reasons, I will refer to as “the accused.” The Crown charged the accused that he: (

a) between January 1, 2001, and December 31, 2003, at or near Cochrane, Alberta did, for a sexual purpose, touch, directly or indirectly, with a part of the body or with an object, part of the body of JDG, a person under the age of fourteen years, contrary to s 151 of the Criminal Code of Canada , RSC 1985, c C-46 [ Criminal Code ] and he, during the same time periods, commit a sexual assault on JDG contrary to Criminal Code s 271; and (

b) between January 1, 2001, and December 31, 2008, at or near Cochrane, Alberta, being in a position of trust or authority towards TF, a young person, did for a sexual purpose, touch, directly or indirectly, the body of TF, a young person, with a part of his

body, contrary to Criminal Code s 153(1)(

a) and he, during the same time periods, did commit a sexual assault on TF, contrary toCriminal Code s 271; and (

c) between January 4, 2004, and October 6, 2006, at or near Cochrane, Alberta, being in a position of trust or authority towardsKF, a young person, did for a sexual purpose, touch, directly or indirectly, the body of KF, a young person, with a part of his body,contrary to Criminal Code s 153(1)(

a) and he, during the same time periods, did commit a sexual assault on KF, contrary to CriminalCode s 271. [2] All of the charges are contained in a 6-count indictment dated January 15, 2013. [3] This Court heard this matter on November 4, 2013, through to November 7, 2013, without a jury. [4] As with all cases under the Criminal Code, the question is whether the Crown has proven its case against the accusedbeyond a reasonable doubt. The Supreme Court of Canada in R v Starr, 2000 SCC 40 at para 100, said this Court cannot find the accusedguilty on a balance of probabilities.

If this Court is to find the accused guilty of the alleged offences, it must not have any reasonabledoubt about the accused’s guilt. R v Lifchus, (SCC), [1997] SCJ 77 at paras 30, 31 and 39, tells us that reasonabledoubt must not be based on sympathy or prejudice. Nor must it be imaginary or frivolous. It must be based on reason and common sense,based on the evidence, or absence of evidence, this Court heard in the court room. However, that case goes on to state that the Crown isnot required to prove its case to absolute certainty. II.

Testimony [5] Before the complainants gave their testimony, this Court inquired of them whether they wanted this Court to make an orderthat would ban the publication of any information that might identify them pursuant to Criminal Code s 486.4(2). That

section reads: 486.4

(2) In proceedings in respect of the offences referred to in paragraph (1)(

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

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

b) on application made by the complainant, the prosecutor or any such witness, make the order. [6] None of the complainants nor the prosecutor made such an application and all the complainants adamantly refused to havethis Court make such an order. [7] The salient facts are that JDG (JDG) is the accused’s biological daughter. TF (TF) and TF (KF) are the daughters of LMF(LMF), a woman with whom the accused had a romantic relationship. The accused lived with LMF, TF and KF for a time.

During thattime, TF described the accused as a “father figure.” [8] LMF, TF and KF lived in a number of places during the time in question. When LMF and the accused were in a romanticrelationship, LMF, TF and KF lived with the accused at the G[...] Valley Ranch, which is located near Cochrane, Alberta (GVR).Thereafter, they, along with the accused, moved to a house in Cochrane in the Sunterra area (Sunterra House). Around that time, LMFand the accused had a son, CG.

LMF, TF, KF and CG, then moved to a condominium near the ice rink in Cochrane (Ice Rink House).The accused did not move into the Ice Rink House with them, but stayed there from time to time. LMF, TF, KF and CG then moved to ahouse on Horse Creek Road (Horse Creek Road House). Again, the accused did not move into the Horse Creek Road House with them,but he spent nights with them occasionally. Finally, LMF, TF and CG moved to a farm house by Symons Valley. By that time, KF hadmoved in with her father, JF (JF). A. TF [9] TF is currently 18 years old. She is not presently attending school, but she works.

Her parents are LMF and JF. She currentlylives in Airdrie, Alberta with JF, and has been since the summer of 2012. [10] TF has known the accused since LMF began to have a romantic relationship with him. She said this occurred when she wasabout 5 or 6 years of age. This is around the time that they moved in to the GVR. She described the GVR as a “dude ranch” where therewere many horses. They lived at GVR for “a couple of years.” [11] They all moved to the Sunterra House. TF could not recall how long they lived in the Sunterra House, but thought it was forabout 1 year to 18 months.

They then moved into the Ice Rink House, where they lived for 2 to 3 years and then to the Horse CreekRoad House where they lived for about 2 to 3 years. [12] The incidents between the accused and TF began while they lived in the GVR. She was about 6 years old at the time. Theaccused was watching a movie with TF, KF and the accused’s biological children, JDG and HG in the basement of the house. They were

laying on a bed under the covers, with JDG and HG in the front, TF was on her side, the accused was right behind her and KF was behind the accused. At one point, TF reached behind her and started to rub KF’s foot. She found out that it was the accused’s erect penis. During this time, the accused was stroking her side and hips and put his hand between her legs, but did not touch her vaginal area. She did not recall whether the accused said anything to her while she was doing this, or afterwards. After she discovered what she had been doing, she felt confused.

She was not sure what was happening. [ 13 ] The next time anything happened was when she accompanied the accused to what she described as the “peat moss fields.” The peat moss fields were located on the GVR property. The accused would work in the peat moss fields with a track-hoe and she would go with him. As there was only one seat in the track-hoe, she would sit in the driver’s seat in front of the accused between his legs and he would grind against her with an erect penis. This happened on more than one occasion. [ 14 ] The accused would haul the peat moss to various places with a semi-trailer truck.

TF would occasionally go along for the ride. She could not recall how old she was at the time. She described the trucks as being very dirty and she wanted to clean them. While she was in the truck, the accused would take out his penis and ask her to touch it and look at it. She put it in her mouth more than a couple of times, with the accused’s hands in her hair. On one occasion, the accused ejaculated, as TF recalls that she had to clean off her hands. She did not recall her age at that time and did not recall whether the accused was saying anything to her before it was happening.

She thought it was a game and that she was to remain “hush hush.” One time while she was cleaning out the truck, she found pornographic magazines under the mattress in the sleeper unit. She did not tell anyone about this. Beyond this, she could recall very little about these trips. [ 15 ] The accused used to work at his sister’s farm in the house and the barn. She occasionally went with him. She could not recall where this property was located. There was a bedroom in the house. There was little furniture in the bedroom, except a bed.

She also recalled that there was an arcade Pac-Man machine in the house on which she would play. It was in a room other than the bedroom. She did not think anyone lived in that house because it was essentially empty. After he finished his work, he would come in and kiss her and touch her over her clothes. This happened on more than one occasion. [ 16 ] After they moved into the Sunterra House, when she was about 7 or 8 years old, the accused would come into TF’s room to tuck her into bed. He would touch her vaginal area under her panties, say goodnight to her and then leave.

This happened “3 or 4 times, if not more.” Again, she was not sure if he said anything before, after or during this. She felt confused and by then, she knew it was wrong. She thought that they had rented the Sunterra House, but she was not sure. [ 17 ] As well, in the Sunterra House, while LMF was away, she would have a bath and the accused would join her and touch her breasts. She was sure that he touched her between her legs. They were both in the bathtub naked. This happened on more than one occasion.

He would joke about this when LMF was away and say, “let’s have a bath together.” To her, it was like a game, although it did not feel normal to her while it was happening. [ 18 ] In Sunterra House, things progressed to the point that when no one was home, the accused would undress her or she would undress herself at his request. She would then lie on the bed that was in the master bedroom and he would use his tongue on her vaginal area. This occurred more than a couple of times. Although he had indicated to her that this was going to happen, he was not violent or threatening.

This would take anywhere between ½ hour to an hour. [ 19 ] The basement in the Sunterra House was unfinished. The accused was working on the basement. There was a couch in the basement and when TF was in the basement and no one was home, the accused would pull out a purple metal vibrator and ask her to masturbate using the vibrator. She would be naked from waist down. This happened on more than one occasion. She recalls one time when someone came home. She had to put her pants on and give him back the vibrator. One time he asked her to place the vibrator in her vagina.

She refused and continued to apply it to her vaginal area. He would be watching her the whole time. She could not recall the colour of the couch or if there was anything else in the basement. [ 20 ] The accused did not live with LMF, TF, KF and CG in the Ice Rink House. He did, however, have a house near the Ice Rink House (the B Residence). The B Residence belonged to one of the accused’s other family members. On one or two occasions, when she was between 9 and 11 years old, TF was at the B Residence. Only TF and the accused were in B Residence at that time.

She does not recall why she was there with the accused. They would lie on the accused’s bed and he would put on pornographic videos, which they would watch. He would ask her what she thought and if she had any questions about what the actors were doing. She does not believe that they were wearing any clothes. The accused kept the pornographic videos under his mattress or in his closet. [ 21 ] One time while only he and TF were at the B Residence, he told her that he wanted to try something. He told her take off her clothes and lie on the couch in the living room.

He went to the kitchen and returned with some pudding, which he put on her nipples and stomach. He tried to lick it off. [ 22 ] The last event happened in the Horse Creek Road House. TF and the accused were babysitting CG. They were all playing around, giving piggyback rides. They then started play wrestling and things got a bit “touchy, feely.” When CG went to sleep TF went downstairs to put in the laundry. The accused followed her. He told her that he wanted to try something. He was touching her and kissing her. He eventually pulled her pants down and turned her up against washer.

He undid his pants, pulled out his erect penis and tried to put it in her anus. She told him to stop because it hurt a lot. She was bleeding a little. He stopped and they went back to babysitting. They “pretended like it never happened.” She was 12 to 14 years old at the time. She felt dirty and scared. She was not sure what was happening. [ 23 ] TF describes herself as being ashamed, dirty, used, and disgusted by the whole thing. She has lost whatever self-confidence that she ever had.

She did not want any of these events to happen. [ 24 ] TF did not tell LMF anything while this was happening, as LMF “is the last person she wanted to know.” It would hurt her and it would ruin her and CG’s life. TF wanted it to be kept a secret. She did not want to tell anyone. [ 25 ] TF and KF were at LMF’s house in the fall of 2009, with a couple of their friends having a sleepover. At that time, TF was

living with LMF in that house. KF was not living there, as she was living with JF. When they were sitting in the hot tub, one KF’s friends told KF that she should tell TF what had happened to her. Their friends left the hot tub to give them privacy and KF told her that the accused had touched and licked her private parts. KF provided no other details to TF. TF told KF that the accused had molested her a couple of times, as well. TF told KF that KF should tell their father, but TF did not want to become involved. TF also told KF that she should get some help.

KF was in tears and told TF that everyone was urging her to tell somebody. [ 26 ] KF eventually told JF during the summer of 2010. JF asked TF whether she had gone through the same thing, and she admitted that she had. She did not tell JF any of the details that she had told this Court. JF arranged for the girls to provide statements to the Royal Canadian Mounted Police (RCMP), which they provided in October of 2010. TF gave the RCMP a further statement in May of 2011. TF did not use anything as aids for her to remember these events.

She was unsure whether she reviewed her first statement before giving her second statement. KF and TF gave their statements to the police separately. [ 27 ] In October of 2010, TF had spoken with a male police officer. She gave her second statement to a female police officer, which TF had requested. She said that it was “hard to talk about these things to a stranger, especially to a guy.” She felt more comfortable with the female officer in that she could “open up and say a lot more.” She provided the female officer with many of the details.

In her first statement, she told the RCMP officer the truth, but she did not tell him “the whole truth.” She held back what she described as “the most embarrassing” details. TF testified that she realized that she needed to tell everything, so she asked if she could provide her second statement. She also believed that even with everything that KF and TF had told the police, it would not amount to anything.

It would “hinder what they wanted to accomplish.” When questioned what she meant by this, she said she wanted the accused “to realize that he did all this and that he should not do it ever again.” [ 28 ] She testified during cross-examination that she did not speak with anyone about this until she spoke with KF in the hot tub. She has not spoken to KF about this since that time, and has never provided anyone with the details until she provided the RCMP officer with her second statement.

She did not speak with anyone, including KF, about this matter between the time of her first and second statements that she provided to the RCMP officer. She was adamant when the accused asked her whether she was making up the details. Her words were “absolutely not.” [ 29 ] Before coming to court, she had not spoken with KF about the evidence they would be providing. As well, she had not spoken to KF about these things before the preliminary inquiry. [ 30 ] She testified that these things had happened. She was not dreaming and she had not come up with a plan to get back at the accused for anything.

In fact, aside from these incidents, the accused was a great father figure. He treated them like his children and was fun to be around. He was always smiling. [ 31 ] TF testified that LMF’s work life was hectic and that LMF was a “workaholic.” [ 32 ] Although JF was a truck driver when they lived in British Columbia, he did not drive truck when he came to Alberta. TF, LMF and KF lived with JF in British Columbia until she was about 3 years old. Her parents split up when she was about 4 or 5 years old. JF came to Alberta when she was about 10 years old. B. KF [ 33 ] KF is currently 17 years old.

She attends high school, and is currently in grade 12. Her biological parents are LMF and JF. She currently lives in Airdrie, Alberta with JF. [ 34 ] She has known the accused “since she was little,” as she met him when LMF was in a relationship with him. She does not recall when she first met him. [ 35 ] She remembers the accused living with LMF, TF and her in a residence at the GVR. She does not recall how old she was when they moved into that residence. She does remember that the GVR had a barn with horses and that she would go horseback riding.

The only thing she remembers about the house is that “it had a driveway.” [ 36 ] KF remembers moving to a condominium in Cochrane with LMF, TF and CG. It appears to this Court that this was the Ice Rink House The accused did not move with them, but she remembers that he spent nights at the Ice Rink House and visited them. She does not recall whether this was immediately after the GVR or later. She also remembers that there were 5 or 6 houses attached to the Ice Rink House and she thinks she had her own bedroom. [ 37 ] Thereafter, they moved to a farm that had a barn, some land and house with a big deck.

It appears to this Court that this was the Horse Creek Road House. There were chairs on the deck, but little else. There was no hot tub on the deck. The Horse Creek Road House was outside of Cochrane, but she does not remember the name of the road on which it was located. She lived there with LMF, TF and CG. The accused did not live with them. In fact, the only time that KF remembers the accused living with them was at the GVR. [ 38 ] While they were living at the Horse Creek Road House, KF eventually moved in with JF, who lived in Airdrie.

This occurred during the “summer before grade 5.” KF had not skipped any grades. [ 39 ] In October of 2010, KF spoke with the RCMP about things that had happened between the accused and her. She gave the RCMP a statement. She reported that when they were living on the farm, LMF would go to work and the accused would babysit her. She recalls the accused taking her to his sister’s house when she was about 8 or 9 years old, as he was doing work on the house. She could recall the name of the sister. The accused’s sister’s house was a farm.

KF does not recall the size of the house, although it was smaller than the house in which they stayed at the GVR. The house itself was unfinished on the inside. This is what the accused was working on. She does recall that there was a Pac-Man game in the house that she used to use. The Pac-Man game was located in the hallway just before the bedroom. No one else went with them and no one was in the house. There was no furniture that would allow someone to live in the house.

[ 40 ] KF would go and watch television in a bedroom. There was a bed and a stand with a television on the stand in the bedroom. The accused came into the bedroom and “molested” her. The molesting lasted about 10 to 15 minutes. She described the “molesting” as the accused licking her vagina. She could not remember the details of how it happened, what she was wearing, what he was wearing or whether he said anything. She does recall that she was lying on the bed, and the positioning of their respective bodies. She does not recall what happened after he molested her.

The accused had taken her to this property on more than one occasion, but this did not happen each time. In fact, she does not recall this happening more than once. She did not tell anyone. KF does not recall how she felt while this was happening to her. Today, she is upset that it had happened. [ 41 ] KF recalled that this happened before she moved in with JF during the summer of 2005. This is why she identifies her age as being 8 or 9 years old. This event had an impact on her decision to move in with JF.

Before this, she had no desire to move in with JF. [ 42 ] KF also recounted another incident that happened once or, perhaps, twice in LMF’s bedroom at the Horse Creek Road House. KF cannot remember the details, but remembers that it did happen. The accused was babysitting her while LMF was out. KF does not remember whether anyone else was in the house. Again, the accused molested her by touching and licking her vagina. She recalls this happening during the day, but does not recall how long it lasted. She does not recall whether the accused said anything to her, or their body positioning.

This occurred after the incident at the accused’s sister’s house, although KF does not remember how long after. She was, again, about 8 or 9 years old. She does not remember how she felt. [ 43 ] The first person who KF told was her cousin. She does not remember precisely when she told her cousin, except that the accused touched her. This was about a year before she went to the RCMP. She also told her friend that her “brother’s Dad had touched her.” This was a couple of months after she had told her cousin.

She then told TF, although she does not remember exactly what she told TF, except that the accused “had touched her.” This was about the same time that she had told her friend. She told TF this in the winter of 2009, when they were at LMF’s house sitting in a hot tub. TF told her that it has happened to her too, but KF does not remember whether TF said anything else. TF did ask KF not to tell JF that it had happened to her as well. [ 44 ] “A long time after this,” KF told JF what had happened to her. She did not provide him with any of the details. He said it would be best to tell the RCMP.

KF said they went to the RCMP a month afterwards, but she does not recall exactly when. [ 45 ] The accused would babysit her alone when LMF was working. She does not recall if he babysat her and TF together. She does not recall if there were times when the accused babysat TF alone. She describes the rest of her relationship with the accused as him acting like a stepfather. He was around a lot. She got along with him “pretty well,” but she does not remember what they did together.

Today, she is disappointed that this happened to her at such a young age. [ 46 ] TF has not told KF any of the details of what had happened to her. They did not discuss any of their evidence before the trial or before the preliminary inquiry. She denies that they had come up with a plan to make up these allegations against the accused. [ 47 ] KF has seen a therapist a couple of times, but she stopped. Her behaviour with her family changed after the incident involving the accused. She got into a lot of fights with LMF and with TF.

She blamed LMF for what had happened, although she did not tell LMF what had happened. In fact, LMF would not have known why KF was angry. C. LMF [ 48 ] LMF is the biological mother of TF and KF. JF is their biological father. LMF also has a son, CG, whose biological father is the accused. [ 49 ] LMF met the accused in the summer of 2001. LMF, the accused, TF and KF moved into the GVR in January of 2002. TF was 6 years old at that time and KF was 5 years old. [ 50 ] The GVR was the G’s family ranch and business. The house in which they lived was a bungalow with unfinished basement.

It had 3 bedrooms, a living room and a kitchen. TF and KF shared a bedroom which had a bunk bed. The basement had a wood floor with carpet. LMF does not believe that there was a television in the basement. As well, she does not recall whether there was a bed in the basement. JDG and HG would stay with them every second weekend. [ 51 ] Among the GVR’s other businesses was the peat moss operation. LMF helped with peat moss operation in early months of her living there doing marketing and paperwork. The business involved the extraction of the peat moss with a track-hoe.

The track-hoe would then load the peat moss on to trailers attached to the semi-trailer trucks, which would take the peat moss to various distribution areas, such as Medicine Hat and Olds. A track-hoe is a big back hoe with shovel. It has tracks, not wheels. It was common for the accused to work many hours in the peat moss field. [ 52 ] LMF said that it was common and unquestioned that the accused would spend time with TF on the GVR property.

She also said that it was “possible” that the accused would take TF out with him to operate the track-hoe, as it “was fun for the kids to do this.” She could not, however, point to any particular time when this happened. [ 53 ] The accused and other drivers would deliver the peat moss to the various locations. They would use the semi-trailer trucks. It was not uncommon for the accused to make these trips. At times, TF would go with the accused. As well, there could have been times when he took TF and KF, as there were toys in the sleeper unit that was attached to the semi-trailer truck.

Sometimes, all 4 of them went on a trip to deliver the peat moss. [ 54 ] LMF testified during cross-examination that she went on a peat moss delivery with the accused, when they stayed overnight in the sleeper. This was before 2003. She also said that the accused would do some of the deliveries late at night, which would have required him to stay overnight and return the next morning. During the course of a year, he would take 30 or more trips. In 2002, she testified that he took at least 30 trips. [ 55 ] LMF does not recall specific dates on which the accused took TF with him.

However, she said that TF and KF would be

excited to go with the accused, as JF was a truck driver at one time. When JF was driving these trucks, he would take the children with him. [ 56 ] The accused, LMF, TF and KF moved out of the GVR on July 1, 2003. They moved into the Sunterra House. LMF describes the Sunterra House as being a large 3-bedroom home, with a great room over garage, a total of 3 living rooms, a partially-finished basement and 3 bathrooms. They bought new furniture for the Sunterra House. Although she says that they bought it together, it was registered in the accused’s name, and he signed the mortgage.

The basement had vaulted ceilings, a theatre room with a couch, a drop down television screen and sound system. LMF was not “100% certain” if TF and KF had their own bedrooms. [ 57 ] During this time, LMF was no longer involved in the peat moss business. She got involved in another business not far from the GVR. This business took up a lot of her time. As well, she did volunteer work. Her work

schedule during this period was that she would work 5 days a week; she rarely worked late. Typically, the accused would babysit TF and KF if she was away. She stated that the accused would from time to time be alone with TF and KF, or one of them. She also had other babysitters, who were their neighbours. During this time, TF was 8 years old and KF was 6 years old, turning 7. [ 58 ] During this time, because of their schedules, it was typical for one parent to take care of the children. TF and KF had various activities, such as skating, gymnastics, soccer, and ballet. Both went to ballet at the same time.

TF figure skated and KF did gymnastics and karate. Both played soccer and both skied. They were always in activities of some sort. Because JF had moved away, LMF “was responsible for everything.” She and the accused would ensure that the girls were taken to their activities. At times, one would take care of one child and the other would take care of the other. [ 59 ] Although LMF and the accused were engaged to be married in March of 2003, their relationship ended in October of 2003. When she and the accused separated, LMF was 3 months pregnant with CG. LMF, TF and KF moved into the Ice Rink House.

The Ice Rink House was a condominium that backed on to a skating rink. During this time, the accused continued to live in the Sunterra House until its sale in March of 2004. He then moved into the B Residence in March or April 2004. The accused did move some of his things into LMF’s basement of the Ice Rink House, and he would stay at the Ice Rink House once in a while. He did not move his things into the basement of the Ice Rink House in a “living capacity;” only a “storage capacity.” The B Residence was “near the police station.” LMF would rarely go to the B Residence.

She described it as an older 1950s style bungalow, with an unfinished basement. It had 2 bedrooms and a bathroom. [ 60 ] While she lived in the Ice Rink House, LMF worked straight through until CG was born in May of 2004. She then took 1 year off for maternity leave. During this time, she started doing volunteer work, which did not take her away too much. The accused would look after TF and KF while they lived in the Ice Rink House, but his looking after them became much more common after CG was born, when LMF and the accused were getting along.

The accused might have taken the girls to the B Residence, but not frequently. [ 61 ] LMF, TF, KF and CG moved to the Horse Creek Road House in June of 2010. The accused did not live there, but stayed there frequently. The Horse Creek Road House was located on a quarter-section. It was a 3-bedroom bungalow, with 2 bathrooms and an unfinished basement. In the basement was the laundry room and TF’s bedroom. The laundry room was in the unfinished portion of the basement. LMF was not working right away, but she was doing volunteer work, which took her out of town on overnight trips 3 or 4 times per year.

She would have meetings in the evenings once a week for 3 to 4 hours. TF and KF were still involved in their activities while they lived on this property. The accused looked after TF and KF during this time and he would have been alone with one or the other from time to time. When LMF and the accused were getting along, the accused would look after CG by himself, along with the girls. After KF moved in with JF, the accused would look after TF. [ 62 ] The accused has 2 sisters, CG and LG. LG owns property near the GVR and the accused typically did work on this property.

This would have been after he stopped his employment with the GVR in April of 2003, as he had no other employment. LMF testified that the accused possibly took either TF or KF to this property when he was working on it. During this time, it was common for him to babysit the girls. LMF trusted him. LMF recalls the accused taking the children to LG’s place on at least two occasions. It was fun for children to go with him, and “it would have been natural” for the accused to take the children. [ 63 ] LMF noticed an “unexplained change” in KF’s behaviour when they moved into the Horse Creek Road House.

This occurred in about November of 2004, when KF was about 8 years old. KF became anxious, difficult and angry. Her school started to slip. Before that, KF was a “super happy” person. Eventually, KF chose to live with JF in the summer of 2006. [ 64 ] LMF did not suspect anything untoward happening between the accused and the girls. She had no difficulty with the accused spending time with the girls or with CG. [ 65 ] LMF became aware of the allegations that are before this Court when she was driving back from Red Deer. JF telephoned her and told her to come into his house when she arrived to pick up TF.

This was on September 30, 2010. He was in the kitchen and the girls were in their bedroom. He told her that the accused had molested their girls. He told her that the girls did not disclose much to him. LMF has never been told the details. [ 66 ] There have been about 20 access order involving CG, the latest of which was granted in 2012. Before October of 2010, the date on which the accused was arrested for the charges that are before this Court, there was nothing preventing the accused from having access to CG, and LMF was encouraging such contact.

The parties were attending mediation to finalize the parenting agreement. [ 67 ] LMF provided this Court with a chronology of where and when she, TF and KF lived in the various places, and the girls’ ages during those times. This chronology was entered as an exhibit for identification in these proceedings, with no objection from the accused. [ 68 ] The accused pointed out, and LMF admits, that she and the accused are involved in a very acrimonious separation and custody battle involving CG. D. JDG

[ 69 ] JDG is the accused’s biological daughter. Her mother is DKG. On the date of the trial, JDG was 17 years old. She is currently a high school student. [ 70 ] In October of 2010, DKG took JDG to the RCMP detachment in Cochrane. JDG did not know why they were going. She gave the RCMP a statement at that time. In October 2011, she went again to the RCMP detachment. This time, she provided the RCMP with a statement concerning something that the accused, her father, had allegedly done to her. [ 71 ] When she was about 5 years old the accused would lie down behind her when she went to bed.

He would rub her back and then grope her crotch area, over her pyjamas. This happened about 3 times and, generally, he would do the same things to her. She does not remember whether he would say anything to her. It happened in a house, but she does not recall which house. She did recall, however, that it occurred at the accused’s house and not her mother’s house. [ 72 ] When she first went to the RCMP detachment in October of 2010, she was not sure why they were going. She did not know that the accused had been arrested, although she found out later that night.

Besides, she had not yet come to terms with what the accused had done to her. She learned later that the accused had been taken away, presumably, because of the alleged incident involving TF and KF, so, JDG was “not afraid of the consequences of telling the truth anymore.” As a result, she told the RCMP about these incidents in October of 2011. Before this, she had not told anyone about this; not even DKG, her mother. [ 73 ] JDG knew TF and KF. When they were young, they would see each other every second weekend of the month when the accused would have access to JDG and her sister, HG.

After the accused and LMF broke up, JDG would see TF and KF “once every 3 or 4 months.” [ 74 ] After she went to the RCMP detachment in October of 2010, she talked with TF and KF over Facebook for about a month. She did not see them otherwise or would have no other contact. They did not talk about what had happened. Eventually, LMF decided JDG should not talk to TF or KF anymore because of what was going on with the accused. After October 2011, JDG accidently ran into TF. However, they had no conversations about the case that is before this Court. They did not see each other before the preliminary inquiry.

Since the preliminary inquiry, she has seen TF and/or KF 10 or 12 times. They would never talk about this case or what had happened involving the accused or any of them. [ 75 ] Because of a no contact order, JDG has not seen the accused since September 2010. E. DKG [ 76 ] DKG was married to the accused in January of 1996, and she has 2 children with him, JDG and HG. They separated in 1999. [ 77 ] JDG was born in July of 1996, when they were living on an acreage.

When JDG was between the ages of 4 years old and 6 years old, DKG, JDG, HG and an individual with whom DKG was in a relationship lived in a house in Cochrane. This was the house in which they were living when JDG started kindergarten. The accused was still on the acreage, although he might have moved to the GVR by this time. [ 78 ] During this time, the accused had access to JDG and HG every weekend. This would have been when JDG was about 5 years old. The accused would come to pick them up from her residence.

They would sleep over at the accused’s place over the weekend. [ 79 ] DKG noticed changes in JDG’s behaviour when JDG was about 5 years old. DKG observed that JDG was “having trouble with people’s boundaries,” meaning that JDG was “very clingy and wanted to hug people.” JDG wanted to be close to people. DKG was concerned, so she placed JDG in counselling. [ 80 ] JDG had never told DKG about the allegations involving the accused. The RCMP were the first to tell her. F. Gary Wayne Fedrau [ 81 ] Gary Wayne Fedrau is a corporal with the RCMP.

In October of 2010, Cpl Fedrau was involved in the investigation of the case that is before this Court. The Cochrane RCMP detachment received a call from the Airdrie RCMP detachment advising that it had received a complaint involving an alleged sexual assault. Because the alleged sexual assault had taken place in Cochrane, the Cochrane RCMP detachment would undertake the investigation. [ 82 ] The Cochrane RCMP obtained the file from the Airdrie RCMP. Another RCMP officer started the investigation, by making telephone calls and obtaining statements.

When Cpl Fedrau came into the detachment on October 4, 2010, he confirmed that he had the necessary grounds to arrest the accused on the grounds that he had committed a sexual assault on TF and KF. [ 83 ] Shortly after 23:30 hours on October 4, 2010, Cpl Fedrau drove to the accused’s residence to see if the accused was home. Cpl Fedrau pulled up to house at 23:48 hours. He noted that there was a vehicle in the driveway and there were lights on in residence. He knocked on the door and a person who identified himself as the accused answered the door. Cpl Fedrau told the accused the reason he was there.

Specifically, he told the accused at 23:52 hours, of the allegations and that the accused “was under arrest for the sexual assault of TF.” Cpl Fedrau then said, “and on KF as well.” Cpl Fedrau testified that when he had told the accused that he was under arrest for sexually assaulting TF, the accused exhibited no reaction, but when the officer added KF’s name, the accused had a shocked look on his face, he “twitched” and said “not on KF.” [ 84 ] Cpl Fedrau then provided this Court with the procedure he used in arresting and detaining the accused.

He read the accused his Charter rights, allowed him to shut off lights in the house and retrieve certain items from his house, asked the accused for identification, searched him and placed him in the police vehicle. The accused, while he was testifying, confirmed this process. [ 85 ] Cpl Fedrau testified that the accused was cooperative throughout the officer’s dealings with the accused. In fact, Cpl Fedrau

did not see a need to handcuff the accused while he was being transported to the detachment. [ 86 ] Cpl Fedrau applied no physical force on the accused, he did not utter any threats, promised the accused nothing and offered the accused no favours. Nor did any other police officer. The accused made no complaint of any threat or assault.

Cpl Fedrau conceded that once he placed the accused under arrest at the front door of his house, the accused was detained and was not free to leave. [ 87 ] While the accused was in the telephone room which allowed him to contact legal counsel, Cpl Fedrau started preparing his typed general report about his dealing with the accused. This was about 30 minutes after he had arrested the accused. [ 88 ] During cross-examination, Cpl Fedrau testified that he would make his handwritten notes while, or very soon after, an event that was taking place.

His notes say that he arrested the accused “for sexual assault of T and K F.” Despite this, he testified that he separated the “arrest” for each of the girls because he “forgot about the second one.” There was a brief second between the two. Cpl Fedrau did not record the accused’s response in the note book. However, he recorded “not on KF” in his typed report. Cpl Fedrau did record certain of the accused’s responses verbatim in his note book; but not this one. G. ADG [ 89 ] The accused testified. He “absolutely” denies the allegations that TF, KF and JDG are making.

He says that the allegations are “not true.” [ 90 ] The accused acknowledges that TF and KF were involved in numerous activities. He would pick TF up occasionally, but would thereafter meet up with LMF. He did not have time to look after either TF or KF. He did not prepare dinner or drive either of them by themselves anywhere. While at the GVR he was never alone with either or both of them.

He would go horse back riding with them and LMF, but he was never alone with the girls. [ 91 ] The accused confirmed much of Cpl Fedrau’s testimony from the time Cpl Fedrau arrived at the accused’s house to Cpl Fedrau’s placing the accused in the cells at the Cochrane RCMP detachment. [ 92 ] The accused described Cpl Fedrau as being rather soft-spoken. He told the accused that he is “under arrest for sexual assault on KF.” That was all the accused heard. He was shocked and stunned and said “no way, not KF” or not “KF” (the accused does not recall whether he used KF’s first name or her first name and surname).

When asked why he used just KF’s name, he responded by saying that her name was the only name he heard and he was shocked. He said that he could not recall whether he used KF’s first name or first name and surname was because he was stunned that he was being arrested in the first place. [ 93 ] Since date of arrest, the accused has not had any type of access to any of his 3 children, being JDG, HG or CG. Before October of 2010, he and LMF were involved in a civil suit, as he was trying to reinstate the access he had with CG.

That lawsuit ended with his arrest. [ 94 ] Because of the number of incidents it is best to break them down by complainant and event. In the case of TF, this Court will further break the accused’s testimony chronologically into the various incidents that TF alleged happened to her. 1. TF Movie Incident [ 95 ] This was the incident in which TF testified that that the accused, TF, KF, JDG and HG were downstairs in the basement of the GVR, lying on a bed watching a movie, when she reached back and thought she was touching KF’s foot, when in fact it was the accused’s erect penis.

The accused denies that this happened. In fact, he denies all of the facts that TF provided. There was no bed or television in the basement at the GVR, and, in fact, there was no room in the GVR that contained these items. Besides, he had never watched a movie with all four of these children. [ 96 ] At the time of the alleged movie incident TF was between 6 and 8 years old and KF was between 5 and 6 years old. Incident in the Peat Moss Field [ 97 ] Collecting and delivering peat moss from the GVR is a “big operation.” Peat moss is found in the wetlands on the GVR.

The accused describes the peat moss operation much like “open-pit mining” in the sense that the top layer is taken off and “pushed up” with heavy machinery. A track-hoe then scoops the peat moss on to a conveyor where it is screened. Once the peat moss is screened the track-hoe loads it into hauling trucks for hauling to customers. Peat moss is not easy to work with because it is soft and the area where it is located is wet. It is easy for the heavy machinery to get stuck. There were 4 people working in the area Monday through Friday on the machinery that is pushing-up and scooping the peat moss.

All of this happened during the day, not at night. It was common for the accused to operate the track-hoe. [ 98 ] The accused worked at the GVR from 1996, through to the end of April 2003. This was full-time employment. Because he worked at the GVR, LMF would have had knowledge of the basic operations of the business. [ 99 ] When asked whether TF would accompany the accused to the peat moss site and sit with him in the track-hoe, the accused said “absolutely not.” The area is too dangerous. It is not a “kid friendly” place.

There were all sorts of heavy equipment working, third- party trucks coming in to collect the peat moss, and a grader operating to maintain the roads. He denies that he ever took either TF or KF out to show them the heavy equipment, and he never let them go inside the heavy machinery. He did not think that they had an interest in the heavy machinery. He “absolutely denies” that the alleged incident involving TF ever happened. [ 100 ] As for the track-hoe, the accused testified that there is no room for a passenger on a person’s lap.

The tracks are operated with the operator’s feet and the hoe, or scoop, is operated by levers that the operator holds in their hands. The track-hoe would always be

moving back and forth to stay afloat. The accused produced a photograph of a track-hoe with an operator in the driver’s seat. The photograph was entered as an exhibit. [ 101 ] The accused also produced photographs of the peat moss operation, which identified, among other things, semi-trailer trucks with attached peat moss trailers. The semi-trailer trucks were regular day cabs without sleepers. At that time, the peat moss operation had 2 semi-trailer trucks, neither of which had sleepers.

Peat Moss Truck Incident [ 102 ] The accused did not ever take TF to Olds, although Olds was a delivery site for the peat moss. He states emphatically that the incidents that TF described were “a complete fabrication.” In fact, he never took her anywhere in the truck. They could not drop off the peat moss at night; it had to be dropped off during the day.

The accused denies that LMF accompanied him to Olds in a peat moss truck with a sleeper unit. [ 103 ] Although LMF testified that he drove the peat moss truck in 2002, he did not get his class 1 driver’s license until March 7, 2003, and he produced documentary evidence to that effect. All of the peat moss trucks required that the driver have a class 1 driver’s license. He drove the peat moss trucks from the time he obtained his class 1 driver’s license until April 30, 2003. He denies that he ever drove the peat moss trucks without a class 1 driver’s license.

He did drive grain trucks, which did not require a class 1 driver’s license. [ 104 ] He did one delivery to Crossfield, 8 to Springbank and 1 to Medicine Hat. The trip to Medicine Hat was about an 8-hour trip, but he did not spend the night there. On April 30, 2003, he left the employ of the GVR. He had had a dispute with the boss; his father. He did not drive the peat moss trucks after that time. [ 105 ] He denies that he ever took LMF on a trip with him to Olds. He did, however, take her with him on a trip to Crossfield.

He was positive that this unit did not have a sleeper. [ 106 ] The peat moss operation had a number of drivers. The four employees could all drive the peat moss trucks. He made only 10 deliveries. [ 107 ] The GVR owned sleeper trucks before he worked there. While he worked with the GVR, it owned about 3 semi-trailer trucks with sleeper units. However, the peat moss operation never had a sleeper unit. All the peat moss trucks had day cabs, without sleeper units.

He acknowledged, however, that the sleeper units could pull the peat moss trailers. [ 108 ] The accused testified that the peat moss trucks were never dirty inside. The driver’s were responsible for keeping the trucks tidy. The only sign of dirtiness in the trucks was dirt on the floors where the drivers would enter and exit the vehicle. Incidents at the Accused’s Sister’s Property [ 109 ] The accused has 2 sisters; LG and another sister who lives in Calgary. LG had a house and barn northwest of Cochrane on an acreage.

It is this house on which the accused was doing renovation work. [ 110 ] After the accused left the employ of GVR, he went to work in general construction. He was a private contractor. His hours were set by the customer, although he could manipulate his own schedule. He did not answer to anyone except the customer, or account to anyone as to his whereabouts. He would get business through “word of mouth.” Sometimes he would be busy, other times he would not be busy. It was slow when he began his business, but it picked up summer of 2003.

He considered himself to be busy when he was working about 60 hours per week. [ 111 ] The accused never took either TF or KF to his sister’s house by themselves. He was there with TF, KF, JDG and HG at one time for an Easter egg hunt. He does not ever recall TF stepping on a nail, while she was in this house. [ 112 ] He denies that he ever touched TF over her clothes at this or any location. [ 113 ] He acknowledges that his sister’s house has a Pac-Man game inside of it. However, there was no bedroom that had a television or a bed in it while he was doing the renovations.

Before that, his sister’s bedroom had a television set in it. The girls, however, would not be in that bedroom because it belonged to his sister. [ 114 ] Because the accused was doing renovations on LG’s house, the house was in a state of disarray. The main floor was disassembled in the sense that it had no drywall, no lighting and the like. There was no furniture in this house. He would work on the renovations during the day. He would never go there at night, as there was no ceiling and there were no lights. His sister was there during the day, as she was directing the project.

Incidents in the Sunterra House [ 115 ] The Sunterra House is located in Cochrane. The accused owned this house and he lived there from August 7, 2003, until March 1, 2004. He bought all the furniture in that house. LMF, TF and KF lived with him in the Sunterra House. The accused and LMF moved into the Sunterra House in August of 2003, and TF and KF moved into the Sunterra House in September of 2003, as they were with JF before that. The accused lived with LMF, TF and KF in the Sunterra House for about a month and a half, as they moved out in October of 2003. They moved into the Ice Rink House.

They were in the Ice Rink House until February of 2005, at which time they moved into the Horse Creek Road House. [ 116 ] He states that he was never alone with TF and KF or either of them while at the Sunterra House. While he was with LMF there was never an occasion when LMF was late or out of town. He denies that he ever tucked TF into bed. This was LMF’s responsibility. The girls would go to bed at a specific time, LMF would read them a story or talk to them and then turn off the lights. The accused never went into their bedrooms once they were in bed. TF and KF shared a bedroom and slept in bunk beds.

They would go to bed at the same

time. [ 117 ] He and TF never had a bath together and he never gave TF a bath. The accused does not take baths, as he said, “I don’t like sitting in my own filth.” When they were younger, LMF would bathe TF and KF. In fact, LMF would take care of all of their hygiene needs. He never even joked with TF that they should take a bath together. [ 118 ] The accused denies that he was ever on the bed naked with TF where he licked her. In fact, there was never a time when he was home alone with her. He did contracting work during the day, so he was not home.

TF and KF were in school. [ 119 ] The basement of the Sunterra House was unfinished. A portion of it was insulated and framed, but the rest of it had no interior framing and it was not developed. There was no theatre in the basement, or no bathrooms and there certainly was not a big television in the basement. There was a big screen television in the Horse Creek Road House. The purple vibrator incident never happened and he had never seen a purple vibrator. Horse Creek Road House Incident [ 120 ] The alleged incident in the laundry room of the Horse Creek Road House never happened.

TF’s description of the set up of the laundry area was accurate, but he never babysat TF at the Horse Creek Road House by herself. [ 121 ] LMF, TF, KF and CG moved into the Horse Creek Road House in 2005. He was there for 6 months, from February 2005, to July of 2005, but he and LMF were not getting along. While they lived in the Horse Creek Road House, he was working in Red Deer, so there was not a lot of time. He was in Red Deer 2 to 3 weeks during the month. He moved back into the B Residence. He lived there for about 5 years. During this time, he did not help LMF with any of the girls’ activities.

He would occasionally pick TF up from pony club, but he would have CG with him. After that, he would go to Horse Creek Road House to visit CG. There was never a time when only he and TF would be there. LMF was on maternity leave at that time, so she would be with them. LMF, TF, KF and CG remained there until 2010. Ice Rink House [ 122 ] The accused never lived in the Ice Rink House, although he stored some of his items at the Ice Rink House. The accused acknowledged that he babysat CG from time to time, but he never babysat CG and the girls. Further, he never babysat CG at the Ice Rink House.

He never found himself alone with either of the girls at any time. [ 123 ] He lived in the B Residence during that time. He denies that he and TF were ever in his house lying in the bed watching pornographic videos. He did not have a bed in the B Residence. Nor was there a mattress. He had a couch and a wing-back chair, and he slept on the couch and he had no pornographic videos. TF was never with him at the B Residence by herself and there was nothing under the couch. [ 124 ] Furthermore, the pudding incident never happened. 2.

KF [ 125 ] The accused denies that he ever took KF to LG’s house by herself, and he never had KF in that house when no one else was around. There was no bed and no television on the main floor of that house. Everything had been taken from the main floor to the basement, because he was doing renovations. [ 126 ] He never babysat TF and KF at the Horse Creek Road House. He denies that he ever sexually assaulted KF “anywhere, anytime.” 3. JDG [ 127 ] The accused denies that he touched JDG in the way that she alleges.

He acknowledges that he would have overnight access visits with JDG and HG on weekends, and that they would sleep in his bed occasionally. He would read them stories and they would go to sleep. He denies, however, that he ever touched JDG or HG inappropriately. [ 128 ] He testified that the only things that he and DKG communicated about were access and money. He said “they did okay” and that “we communicated.” H. CFG [ 129 ] CFG (“CFG”) is the accused’s sister. She lived in the B Residence with the accused. She moved into the B Residence around the end of June 2005, and moved out on October 1, 2009.

She described the B Residence as an older bungalow that was built in the 1940s. It was not a very big house, with one-story and an undeveloped basement. It had 2 bedrooms. Her bedroom was in the southwest corner and there was another bedroom in the northwest corner of the house, which bunk beds for JDG and HG to use when they were visiting the accused. The accused slept on the couch in the living room. There was a television in the living room, but there were no televisions in the bed rooms.

She did not bring a television with her. [ 130 ] While the accused lived in the B Residence, he would have JDG and HG during the weekends. TF and KF would visit the B Residence occasionally, along with CG. There were many times when all of the children would be there together. When JDG and HG were visiting, CFG would interact with them. She would draw or colour with them, go to movies and have wiener roasts. The only time she saw TF and KF was when LMF was with them. [ 131 ] When she first moved into the B Residence in 2005, the accused was not there much. He was frequently at LMF’s residence.

[132] When JDG was about 5 years of age, CFG noticed certain changes in JDG’s behaviour when the accused dropped her off atDKG’s house. At that time, DKG was living with her partner. JDG would become agitated. She did not want to go back to DKG’s house.Before that, there was never an issue; only when DKG’s partner was there. When questioned further, CFG confirmed that JDG nevertold her why she did not want to return to DKG’s house. She just did not want to return. [133] The accused’s other sister, LG was living on an acreage outside of Cochrane. CFG would go to LG’s house, because she had ahorse on LG’s property.

CFG went there frequently. The acreage was located in the same valley as the GVR and was on the way to theGVR. [134] CFG is familiar with the GVR’s peat moss operation and, in particular, she is familiar with the equipment that is used in thatoperation. She would see the peat moss trucks on the roads. She described them as big Mack dump trucks, attached to which were longboxes with canvas over top. The trucks were 2-door cabs, which did not have sleeper units. She would know what a sleeper unit lookedlike.

She was shown a picture of the peat moss operation and identified the trucks with 2-door cabs as the peat moss trucks. She was alsoshown a picture of a unit with a sleeper unit attached and identified it as such. She did not believe that GVR had any trucks with sleeperunits, although she conceded that she had no involvement with the GVR’s truck operations. III.

Analysis [135] From the foregoing recitation of the testimony of the various witnesses, one can see that this case turns on the credibility of thewitnesses, primarily, the credibility of TF, KF, JDG and the accused. [136] All of the alleged complainants were young at the time of the alleged incidents. Thus, we are faced with the situation of dealingwith the credibility of a child; a far too common issue that criminal courts face. This Court addressed the issues concerning the credibility of young complainants in R v CLJ, 2010 ABQB 90, 20 Alta LR (5th) 222 [CLJ].

The findings of this Court were upheld by the AlbertaCourt of Appeal in R v CLJ, 2011 ABCA 176 [CLJ-CA].

Because of the importance of the principles on which this Court relied in thatcase, those principles bear repeating here. [137] The Supreme Court of Canada outlined the approach trial courts must take when assessing the credibility of child witnesses inR v B(G), (SCC), 1990 CarswellSask 20, [1990] 2 SCR 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. [138] As this Court noted in CLJ, this approach does not allow courts simply to accept the child’s testimony without subjecting thetestimony to rigorous analysis.

In R v (WR), (SCC), [1992] SCJ No 56, [1992] 2 SCR 122 at paras 25-26, the SupremeCourt of Canada said: Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundationfor a verdict of guilt, whether the complainant be an adult or a child. ...

Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate. [Emphasis added]. [139] On the other hand, as stated in R v K(V), (BC CA), [1991] CarswellBC 418, 68 CCC (3d) 18 (CA) [K(V)],the British Columbia Court of Appeal said at para 37: The focus of the new discretion, which has replaced the old common law rules of practice, is the potential for the witness' evidence to beunreliable.

No automatic assumptions of unreliability arise because of age, or the nature of the complaint. There must be an evidentiarybasis upon which it would be reasonable to infer that the witness' evidence is, or may be, unreliable. [Emphasis added]. [140] 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.

The case with which this Court isdealing is not unlike R v S(W), (ON CA), 1994 CarswellOnt 63, 90 CCC (3d) 370 (CA), where the Ontario Court ofAppeal said at para 15, “the burden of establishing that a crime has been committed and that the appellant is the perpetrator rests on thetestimony of one young witness.” [Emphasis original]. In such a case, this Court must be careful not to be too eager to accept theevidence of children, such that it shifts the burden of proof to the accused to disprove his guilt, K(

V) at para 57. [141] In this case, the accused testified in his 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. [142] The W(

D) analysis is necessary to ensure that the burden of proving an accused’s guilt beyond a reasonable doubt remains withthe Crown, and is not inappropriately shifted to the accused. The Supreme Court of Canada emphasized this in R v JHS, 2008 SCC 30 at

para 13, [2008] 2 SCR 152 [JHS], where it said: W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance.... [Emphasis in original.] [143] Although a W(

D) analysis may seem relatively simple, application of this test has been the subject of much appellate review,commentary, and criticism. Why? Cases commonly deal with conflicting testimony between the accused and other witnesses, especiallyin crimes of opportunity. Often there are no other available witnesses, so the credibility of the parties is the crucial, if not the ultimate,issue for a trier of fact. [144] This Court simply cannot say, for example, that it believes the complainants’ testimony over that of the accused. This Courtmust first review and weigh the accused’s testimony on its own merits.

A choice to reject that testimony must be justified. Then, thisCourt must weigh his testimony in the context of the entire case, including the testimony of other witnesses. As stated in R v Turmel,2004 BCCA 555 at para 11, 203 BCAC 236: The error lay in the trial judge's direct progression from a finding that the complainant was to be believed, to the conviction of theaccused. This logical jump does not satisfy the fundamental question required to be asked and answered by the finder of fact: does theevidence as a whole satisfy one as to the guilt of the accused beyond a reasonable doubt?

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 vChittick, 2004 NSCA 135 at paras 21-25, 228 NSR (2d) 81. [145] In R v CLY, 2008 SCC 2 at para 7, [2008] 1 SCR 5, Abella J reinforced that a W(

D) analysis is, at a fundamental level,evaluated on a functional rather than a formal basis, when she said: The key is whether the correct burden and standard of proof were applied, not what words were used in applying them ... Its purpose wasto ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and theCrown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt.

See also R v Dinardo, 2008 SCC 24 at para 23, [2008] 1 SCR 788. [146] Counsel in this case said that this Court must decide this issue on the basis of credibility. The multifactoral and contextualapproach 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 reportevidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity.

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

Iam able to accept some, all, or none of a witness's evidence. [147] 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 offact must have regard to all relevant factors when it assesses a witness’s credibility: R v Laboucan, 2010 SCC 12, 253 CCC (3d) 129. [148] The first step in a W(

D) analysis requires this Court to assess the accused’s credibility and the reliability of his evidence. Itshould be noted, however, that this Court cannot examine the accused’s evidence in isolation. It must examine the accused’s evidence inthe context of other evidence that conflicts with the accused’s evidence. As Feldman JA explained in R v Hoohing, 2007 ONCA 577, 74WCB (2d) 676 at para 15 (Ont CA): [The trial judge] also properly told the jury that they were to weigh the evidence cumulatively and not in isolation.

A jury does notconsider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongsof the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether it leaves them witha reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused inthe context of all the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at para. 5.

The evidenceof any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, orcasts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or in the case of anaccused, may no longer raise a reasonable doubt. [149] Subject to what follows, as a general comment, this Court neither believes nor disbelieves the accused. W(

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

D) analysis. [150] This Court has a concern with the accused’s credibility for a couple of reasons. First, his testimony as to whether he was everalone with either TF or KF, or ever picked them up from their activities without LMF or CG is simply not believable. LMF, the accused,TF, KF and CG were a family. The children were involved in many different activities and LMF and the accused were working. This wasa busy family that, at times, were likely going in many different directions at the same time.

The absolute statement on the accused’s partthat he was never alone with either TF or KF was self-serving and not believable. [151] Another example of why this Court has concern with the accused’s testimony was because of his denial that he ever took LMFon a trip with him to Olds. This led this Court to believe that he had never taken LMF on a peat moss delivery trip with him. It was notuntil he was cross-examined concerning a trip on which LMF accompanied him to Crossfield. Why he did not clarify this at the outset,

and the manner in which this exchange took place between the accused and counsel, causes this Court to question the accused’s veracity. [152] As a result, this Court must move on to the second step in the W(

D) analysis. The second step in the W(

D) analysis is if thisCourt does not believe the accused’s testimony, but it is left in reasonable doubt by that testimony, it must acquit the accused. In thiscase, the second step is the most critical, so this Court will spend most of its time with it. The second step seems counterintuitive, in thesense that if this Court does not believe the accused’s testimony, but it is left in reasonable doubt by it, it must acquit the accused. Howcan a court be left in reasonable doubt when it does not believe the accused?

The Supreme Court of Canada added clarification to thisconundrum in JHS at paras 10-13 when it said: The precise formulation of the W. (D.) questions has been criticized. … As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidencemay nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt,even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused'stestimony or not.

In either circumstance the accused is entitled to an acquittal. The third question, again, is taken by some critics as failing to contemplate a jury's acceptance of inculpatory bits of the evidence of anaccused but not the exculpatory elements. In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additionalinstruction: [154] I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a carefulconsideration of all the evidence, you are unable to decide whom to believe, you must acquit".

In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author neverclaimed for them. W. (D.) 's message that it must be made crystal clear to the jury that the burden never shifts from the Crown to proveevery element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph ofform over substance. [Italicized emphasis in original, underlined italics added]. [153] This Court is not left in reasonable doubt by virtue of the accused’s testimony, for the reasons it has just provided.

However, itmust consider all of the evidence, including that of the accused. For example, the suggestion that he might have taken TF out to the peatmoss field and that she sat between his legs while he was operating the track-hoe was implausible. When one looks at how the track-hoeoperated, it is difficult to see how a person could sit between the legs of another when the operation of the track-hoe required footmovements and hand movements. To have someone else in the cab would be awkward; and dangerous. This is not to say that this Courtdisbelieves TF when she described what had happened.

Perhaps it was not the track-hoe at all, but one of the caterpillars that were on thepeat moss site.

This possibility was not explored to any great extent, and it would be speculation on this Court’s part to find that as a fact.However, even if that were the case, it does not derogate from the fact that, based on this Court’s review at the photographs of the peatmoss operation, that area is not a playground and it could be dangerous to have children in that area. [154] In CLJ-CA, the Alberta Court of Appeal noted at para 15 this Court’s finding that the “medical evidence is highly suggestive ofa sexual assault.” In this Case, there is no medical evidence that would assist this Court in finding whether a sexual assault occurred asagainst any of the complainants.

Medical evidence is rarely presented in the cases involving historical sexual assaults. Perhaps the bestexample of medical evidence might have been following the alleged anal penetration of TF by the accused, inasmuch as TF testified thatthere might have been some bleeding. However, none was presented. [155] This Court also has concern with the reason why TF went to the RCMP to provide her second statement. Recall that sheprovided the second statement about 7 months after she had provided the first. She provided more details to the female RCMP officerthan she had to the male RCMP officer.

Although this is understandable, this Court had a concern when TF testified that without hersecond statement it would “hinder what they wanted to accomplish.” Counsel did not pursue this comment. Who was “they”? Whatexactly did they want to “accomplish.” Was that more important than the truth? [156] At the time of the alleged incidents that occurred at the B Residence, the set up of the house was not as TF and KF haddescribed it, with a bed and television in a bedroom. At that time, the accused was sleeping in the living room on a couch. CFGconfirmed this.

The Crown’s counsel argues that the events might have taken place on the couch. However, this line of questioning wasnot pursued. [157] The Supreme Court of Canada in B(

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

R) at para 29, recognized that some inconsistencies are minor andsome are more significant. As well, it said that “many of the inconsistencies may be explained by reference to the fact that a young childmight 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.” [158] All of the complainants were young when these alleged events occurred, although the last alleged event involving TF occurred

when she was 12 or 14 years old. All of them were well-spoken and intelligent, from what this Court could gather. At the time of the alleged events, all of the complainants were children. [ 159 ] 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 become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness' evidence.

There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness' evidence is reliable. [ 160 ] There were inconsistencies with some of the evidence of the complainants, such as their description of the places where the alleged events occurred, and how they occurred. This Court is not so much concerned with these details, but is more concerned with whether the alleged events happened. The accused has explained some of these inconsistencies.

What is of more concern to this Court is some of the more innocuous things that the complainants could not remember, such as when they lived at certain places. Granted, these children moved around several times, but all of them found it difficult to temporally place themselves in specific places, even when asked to put the events into a context, such as where they were going to school at the time. [ 161 ] This Court has a concern that neither LMF nor DKG noted anything that might have caused them concern over the behaviour of their daughters.

Certainly, DKG did note behavioural problems with JDG, but she was not able to attribute these problems to anything in particular. Although she did place JDG in counselling, she was not able to provide this Court with the results of those counselling sessions. CFG did notice JDG’s behavioural changes, as well. Interestingly, CFG observed that JDG’s behaviour occurred, not when she was around the accused, but when the accused was returning JDG to DKG. [ 162 ] As well, LMF noted that KF had become depressed and combative.

She did not seek an explanation or discuss this with KF. [ 163 ] With the alleged number of sexual assaults that the accused allegedly committed over a period of time, one would have thought that any one of the complainants might have mentioned the incidents to someone in passing. None of them testified that the accused threatened them if they said anything. Nor did any of them testify that the accused said not to tell anyone. Accordingly, one might have reasonably thought that something might have come out.

If they thought it was a game (or playing), or if they were confused, or if they were uncomfortable, one would have thought they might have mentioned this to their mothers or some other care giver. They said absolutely nothing to anyone while these events were allegedly happening. [ 164 ] This Court must address the discussion between the accused and Cpl Fedrau. The accused described Cpl Fedrau as being rather soft-spoken. This Court also noted that. The accused also only heard that he was under arrest for the sexual assault of KF.

Cpl Fedrau testified that he first told the accused that he was under arrest for the accused’s sexual assault of TF and a few seconds later for the sexual assault of “KF as well.” His notes merely stated that he arrested the accused “for sexual assault of T and K F,” but they

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