R v JAB, 2016 ABQB 362

Court of Queen ’ s Bench of Alberta Citation: R v JAB, 2016 ABQB 362 Date: 20160629 Docket: 141038109Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - JAB Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ This is an edited version of a Judgment delivered orally. [ 1 ] The Accused faces a 3-count indictment, as amended by consent at the commencement of trial, that he between the 10 th day

of January 2006 and the 19th day of October, 2012, both dates inclusive, at or near Edmonton, Alberta, ... did unlawfully commit a sexual assault upon [the Complainant], contrary to

section 271 of the Criminal Code of Canada. ... did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of [theComplainant], a person under the age of fourteen years, contrary to

section 151 of the Criminal Code of Canada. ... did, for a sexual purpose, unlawfully invite, counsel, or incite [the Complainant], a person under the age of sixteen years to touch,directly or indirectly, with a part of the body or with an object, the body of [the Accused], contrary to

section 152 of the Criminal Codeof Canada. [2] The Complainant was born in 2002.

She is now 13. [3] During the period covered by the indictment, the Complainant was living with the Accused’s family in a home in Edmonton.The Complainant, along with her elder brother, had been apprehended from her biological family by Child and Family Services and hadbeen placed in the foster care of the Accused and his wife in 2006. [4] There were 10 people living in the Accused’s home – the Accused and his wife; their two daughters RB (born 1988) and BB(born 1993); three little girls – the Complainant, a younger girl JC, and the Accused’s adopted daughter SB; and three foster boys – DB,JF, and the Complainant’s brother.

The Accused and his wife were caring for five foster children. [5] The house in which the events were alleged to occur had a main floor, a second story, and a basement. The basement wasused for storage and as a children’s play area. Nothing occurred in the basement. The second story had 5 bedrooms, for all of theoccupants of the home. The main floor had the kitchen and, three steps down, the family room. The main floor area was open. Thefamily room contained a TV. There was a computer in the kitchen. [6] The Complainant was interviewed for investigatory purposes on April 24, 2014 when she was 11.

The interview was videorecorded. The recording of the interview was admitted at trial under s. 715.1 of the Criminal Code without objection. The Complainanttestified at trial as well. [7] The Accused testified. He denied that he had any sexual contact with the Complainant as alleged or at all.

Witnesses werecalled to support the Accused’s position. [8] If, on consideration of all of the evidence, the Accused’s testimony were believed or raised a reasonable doubt or even if theAccused’s testimony did not raise a reasonable doubt but a reasonable doubt emerged from the evidence, he, of course, must be acquitted.If, on consideration of all of the evidence, the Complainant’s evidence were accepted and no reasonable doubts arose respecting hertestimony, whether based on the Accused’s testimony or any other evidence in the case, the Accused must be convicted.

There was nosuggestion that the acts described by the Complainant would not, at law, constitute the alleged sexual offences. [9] This case, then, turns on the assessment of the evidence at trial. I will (

A) review the applicable legal principles before (B)turning to an assessment of the evidence. A. LEGAL PRINCIPLES 1. Proof Beyond a Reasonable Doubt [10] I must remind myself before embarking on an assessment of the evidence and the application of the law to the evidence thatunder s. 11(

d) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be presumedinnocent. The presumption of innocence has two main features. First, the prosecution has the burden of proving the guilt of the accusedand the accused does not have the burden of proving his or her innocence. Second, the prosecution must prove guilt beyond a reasonabledoubt. The requirement that the Crown prove its case “beyond a reasonable doubt” entails that the evidence relied on by the prosecutionmust leave no reasonable inference, no reasonable possibility, that the accused is innocent.

The standard is not one beyond “any” doubt –it is not a standard of absolute certainty – but the standard is one that excludes all “reasonable” doubts about innocence, doubts that arenot mere speculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR320, Cory J at para 31. [11] Some aspects of the Crown’s burden of proving its case beyond a reasonable doubt must be borne in mind. [12] When deciding whether the Crown has proven its case beyond a reasonable doubt, the evidence must be considered as awhole: R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 – 362.

With some exceptions, the assessment of evidencerelating to particular issues or the evidence of particular witnesses should not be isolated from the assessment of all of the evidence in thecase: Morin at 354. [13] A reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36. [14] All, some, or none of the evidence of a particular witness may be accepted: R v JHS, [2008] 2 SCR 152, 2008 SCC 30, BinnieJ at para 10. [15] If credibility is an important issue in a case, the reasonable doubt standard must be applied to credibility: R v W(D), (SCC), [1991] 1 SCR 742, Cory J at 757.

This is an application of the proof beyond a reasonable doubt standard. A reasonabledoubt may arise from factors relating to the sincerity or reliability of the testimony of Crown witnesses, undermining the Crown case. Areasonable doubt may arise from factors relating to the sincerity or reliability of an accused, preventing his or her narrative from being

wholly rejected. Of course, a reasonable doubt may emerge from other evidential sources in the trial as well. And of course, an accusedmay be believed. His or her evidence may be accepted not only as raising a reasonable doubt, but as being true or likely true. We reachthe

summary of the conclusions a trier of fact might reach following its assessment of all of the evidence in the case provided by JusticeCory in W(

D) at 758: 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. [16] Another step in the exposition of possible findings was approved in JHS. This step follows the second W(

D) step: “If, after acareful consideration of all the evidence, you are unable to decide whom to believe, you must acquit:” JHS at para 12. This stepconfirms the reasoning of Justice Martin in R v Nimchuk, (ON CA), 1977 CarswellOnt 980, 33 CCC (2d) 209 (OntCA) at para 7 (CarswellOnt): In our view, the trial judge in concluding that in order to acquit the appellant he would have to find that Mrs. Vanka was “framing him”,in effect, placed the burden of proof upon the appellant.

The trial judge appeared to think that he was confronted with a choice betweentwo alternatives, either accepting the evidence of the accused, and finding that Mrs. Vanka framed him, or accepting the evidence ofMrs. Vanka, which required a conviction. There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of theconflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal [emphasis added].

In R v Hogg, 2013 PECA 11, affd 2014 SCC 18 Justice McQuaid provided a similar explanation at para 134: [134] The third conclusion might result in there being a conflict in the evidence of the Crown and the evidence of the accused whichthe trial judge finds difficult to resolve. In other words, the trial judge is not sure at the end of the trial where the truth lies. For example,the trial judge might not believe the evidence of the accused while at the same time harboring some concerns about the evidence of theCrown where it conflicts with the evidence of the accused.

If the trial judge cannot resolve the conflict in the evidence, the trial judgemust acquit because all the evidence, including that of the accused, has obviously raised a reasonable doubt as to the guilt of the accused. [17] As for the third step of W(D), Justice McQuaid commented as follows in Hogg at para 133: [133] …. A complete rejection of the evidence of the accused does not mean the guilt of the accused is established.

The trial judgemust look to the remainder of the evidence he or she does believe in order to be satisfied the Crown has discharged the burden of provingthe elements of the offence beyond a reasonable doubt. If this evidence does not so prove, the trial judge would be left with a reasonabledoubt and an acquittal would have to be entered. See also paras 143 – 144. [18] In this case, credibility is important. The Complainant testified that the sexual offences occurred. The Accused denied that theevents occurred.

What should be taken into account in determining the weight of the witnesses’ evidence, that is, in assessing credibility,encompassing sincerity and reliability? 2. Assessing Credibility [19] As a first step, I recognize that I must apply the same standards of assessment to the evidence of the Complainant and theAccused (keeping in mind that the Crown bears the burden of proof and the Accused need only a raise a reasonable doubt respecting anelement of a charged offence to secure an acquittal).

I should not impose an elevated or more scrupulous standard to the testimony of theComplainant as a Crown witness or to the testimony of the Accused as an accused. I should not be more forgiving of inconsistencies orimprobabilities for one witness as opposed to the other: R v Howe, (ON CA) 192 CCC (3d) 480; [2005] OJ No 39(QL), Doherty JA at paras 59 – 64 ; R v Norman, (ON CA), 87 CCC (3d) 153, [1993] OJ No 2802 (QL),Finlayson JA at 24 – 25 . [20] A good

summary of the proper approach to credibility assessment is provided by Justice Ferguson at paragraph 78 of R vStorey, 2010 NBQB 80: No longer are judges encouraged to consider demeanour evidence to be a determining or even central tool in credibility assessment. R. v.R.G.L., (ON CA), [2004] O.J. No. 1944 (O.C.A.); R. v. F.(S.), (2007), 2007 PESCAD 17 , 223 C.C.C. (3d)1 (P.E.I.S.C.A.D.) and also R. v. T.E., 2007 ONCA 891 , [2007] O.J. No. 4952 (Ont. C.A.).

Rather, the proper approach is toconsider the evidence of a particular witness against the backdrop of the rest of the evidence led or other evidence tendered, searchingfor connectors that may not necessarily rise to the level of legal corroboration between witnesses, the other evidence tendered or acombination of the two in deciding what worth should be attributed to it.

In the final analysis it becomes a matter of determining theveracity of the evidence utilizing the age old tools of logic, reason and common sense in measuring the probability, if it is deducible fromthe evidence, that the witness or witnesses’ honesty on the central issue or issues is assailable. [21] Justice Ryan added the following in R v Sue, 2011 BCCA 91 at paras 46 and 47: [46] There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility.

As stated byO’Halloran J.A. in the frequently cited case from this Court, Faryna v Chorny, (BC CA), [1952] 2 D.L.R. 354 at[para] ... 11: .... [11] The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an

examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to betelling the truth,” is to come to a conclusion on consideration of only half the problem.

In truth it may easily be self-direction of adangerous kind .... [47] Doubtless, a skilled liar or a good actor can easily feign sincerity. But it is also the case that most people of average intelligencecan tailor a story to fit the circumstances if they put their minds to it.

Thus, a trier of fact will test a story for both its logic and, with theappropriate cautions, the manner in which it was told. [22] Further, Justice Bennett reminded us in R v Twohey, 2009 BCCA 428 at para 18 – if we need reminding – that [18] Trial judges are not expected to leave their common sense at the door when they enter a courtroom. See also R v Cochrane, 2014 ABQB 180, Tilleman J at paras 16 – 17. 3.

Assessing Credibility of Children [23] The Complainant was very young (between 7 and 9) when the events were alleged to have happened, very young (11) whenthe s. 715.1 recording was made, and very young when she testified (13). Principles respecting the assessment of the credibility of childwitnesses are therefore engaged. The Complainant’s evidence cannot be assessed as if she were an adult. [24] In R v W(R), (SCC), [1992] 2 S.C.R. 122 [RW], McLachlin J, as she then was, provided guidance respectingthe assessment of children’s testimony at 132 - 134: ....

The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, foundat common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with specialcaution. Thus, for example, the requirement that a child's evidence be corroborated has been removed .... The repeal of provisionscreating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child’s evidencewith caution where such caution is merited in the circumstances of the case.

But it does revoke the assumption formerly applied to allevidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if a court proceeds todiscount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, liketime and place, may be missing from their recollection. Wilson J. recognized this in R. v.

B. (G.), (SCC), [1990] 2S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of thecomplainant, she said that ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concernis well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. Inrecent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of youngchildren. As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence ofchildren should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty ofthe accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt,whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from theperspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesseswhich characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult”or “child” standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this.

In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. See also R v ADG, 2015 ABCA 149 at para 38 (“Children are also prone to forget details with the passage of time”).

[ 25 ] Justice McLachlin also referred to “the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed:” at 136. See also ADG at paras 32 and 33 . [ 26 ] The common sense approach to the evidence of children does not entail that children’s evidence is presumptively true.

The approach cannot entail a shifting of the burden of proof to an accused to disprove guilt: R v QEA , 2015 ABCA 315 at para 14 . [ 27 ] Furthermore, while inconsistencies respecting “peripheral” matters, such as date, time, and location should be “considered in the context of the age of the witness at the time of the events to which she is testifying,” significant inconsistencies or inaccuracies may undermine the credibility or reliability of a child’s evidence: QEA at para 15 ; R v Horton , 1999 BCCA 150 at para 21 : when it comes to assessing the credibility of children, the trier of fact should first assess the intelligence, maturity, experience and cultural background of the child, and then decide whether any of the alleged inconsistencies or inaccuracies in the evidence are of significance given the witness’s background that is before the court.

The mere fact that the witness is a child does not mean that inconsistencies or inaccuracies lose their significance. All of this, of course, must be weighed in light of the evidence of the accused and his or her witnesses. See also R v DJG , 2012 ABCA 336 at para 22 . B. THE EVIDENCE [ 28 ] The evidence must be considered as a whole, as a totality. Nonetheless, it is impossible to consider all evidence simultaneously. The evidence must be thought through, keeping in mind the links to other evidence and to context provided by other evidence.

The Supreme Court has confirmed that “[t]he order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration:” R v Vuradin , 2013 SCC 38 , Karakatsanis J at para 21; see R v CE , 2015 ABCA 321 at para 12 . [ 29 ] Since the Crown’s case is founded on the evidence of the Complainant, I shall commence my assessment with her evidence. 1. Evidence of the Complainant [ 30 ] I will (

a) describe the Complainant’s allegations, (

b) identify factors I have not taken into account in assessing her evidence, and (

c) discuss factors that I have taken into account in assessing her evidence. (

a) Complainant’s allegations [ 31 ] The Complainant alleged in both the recorded evidence and in her testimony that the sexual offences occurred in two locations – her bedroom and the family room. The Complainant could not recall when the sexual conduct began: it was “a long time ago.” The last time was “about a year ago” (i.e., from the recording, in about 2013).

In the recording, she indicated that the conduct occurred when she was between the ages of 7 to 9. [ 32 ] In answer to the Crown’s question at trial, Do you remember what you told the lady on the video? the Complainant replied, “Not really.” The Crown asked how her memory was at the time of the video. She said “not too good,” but confirmed that her memory then was better than it was today. She confirmed that she was telling the truth in the video. [ 33 ] In her testimony, the Complainant said that she hadn’t known that the conduct was wrong at the time it happened. When she learned it was wrong wasn’t clear.

She referred to having learned this between grades 1 to 3, but also to having learned this towards the end of the period covered by the indictment. In the circumstances, the timing of disclosure was not significant. (

i) bedroom [ 34 ] The Complainant shared a room with two other younger girls. The Complainant and SB, the Accused’s adopted daughter, shared a bunk bed. The Complainant usually slept in the top bunk. JC slept in a separate bed. This bedroom was one of five bedrooms on the second floor of the Edmonton home. The Accused and his wife’s bedroom was nearby. [ 35 ] The Complainant’s evidence was that all of the conduct occurred when she was on the bottom bunk. She told the Crown that she did not remember how she got down to the lower bunk.

She stated that sometimes SB would not sleep in the room but with the Accused and his wife. In answer to a Crown question, she did not know how many times in a week SB would not sleep in her room. She also stated that sometimes she and SB would “switch it up” or “change it out” for a little bit, so the Complainant slept on the bottom bunk. When the events occurred, JC, at least, was in the room sleeping on her separate bed. When questioned by the Crown, the Complainant indicated that she didn’t think she was ever in the bedroom by herself, but at times only one of the two other girls was in the bedroom.

In cross-examination she confirmed that the other two girls were not always in the room, but were the majority of the time. [ 36 ] According to the Complainant, the Accused would come in late in the evening, when JC was sleeping. [ 37 ] She recalled that the Accused’s conduct involved touching her vagina and chest; he put his fingers in her. He touched her “butt”. The Accused tried to put his penis in her mouth. That did not occur although he did cause her to put her hand on his penis. She recalled being on top of the Accused on the lower bunk bed.

He was trying to put his penis in her mouth and trying to make her touch it. He put his tongue on her vagina. He caused her to touch his penis. She did not remember how “this would end.” This conduct happened

“more than once” but she didn’t know how often. [ 38 ] In cross-examination, the Complainant confirmed that she had no idea how she came to be on the bottom bunk. Neither did she know how it was that she came to be on top of the Accused. [ 39 ] She said that she didn’t understand – I understood her to mean that she didn’t understand or appreciate the nature and significance of what was happening - and that she didn’t want to wake people up. [ 40 ] In answer to a Crown question, she said that the door to her room was usually open and the door to the room of the Accused and his wife was usually open.

She confirmed both points in cross-examination, as well as that the Accused and his wife’s bedroom was close to hers. (ii) family room [ 41 ] The Complainant confirmed in her testimony that her bedtime was 7:30 pm. [ 42 ] The Complainant stated that she would get up at night, to get a drink for example. She would go to the family room, where the Accused was alone watching TV. In chief, she said that she did not know the time that she would go down. It was dark. No one else was up. She would go down to say goodnight to the Accused. He’d hug her then touch her vagina and chest. He caused her to touch his penis.

He gave her at least one long kiss on the lips. She told the Crown that she did not know what time this was, but it was dark. [ 43 ] In cross-examination, the Complainant confirmed that a rule of the home was that when children were put to bed, they were to stay there, unless, for example, they had to use the washroom. They were not free to walk around the house. The Complainant confirmed that the Accused would tuck her in and say goodnight when it was her bedtime. In answer to the follow-up question, So why go down to family room to see him?

She said, I don’t know. [ 44 ] The Complainant did not provide any evidence to the effect that when the family room incidents occurred, she and the Accused were alone in the house or that other adults were not present, at least in their rooms. Other adults were in their bedrooms, but only the Accused was awake. In particular, the Complainant stated that the accused’s wife was at home when the events – both in the family room and the bedroom – occurred . [ 45 ] The Complainant was cross-examined respecting her testimony in the preliminary inquiry in June 2015.

In the preliminary inquiry she had testified that she had gone downstairs to say goodnight to the Accused and had thereafter been assaulted at around 7 p.m. or bedtime. In cross-examination she said that she did not remember saying this, but didn’t deny saying this. (

b) factors not taken into account in assessing credibility [ 46 ] In assessing the Complainant’s credibility, I have not taken into account the following matters. Except where otherwise indicated, defence counsel (in my view very properly) did not invite me to take these matters into account. (

i) demeanour [ 47 ] I did not take into account in the credibility assessment the demeanour of the Complainant, in the sense of her outward physical appearance, hand gestures, body movements, tone or volume of voice, or apparent distraction by objects in the interview room during the s. 715.1 interview. As the authorities referred to above indicate, relying on demeanour to assess the credibility of adult witnesses is dangerous. It is far more dangerous when assessing a person attesting to a sexual offence.

As the Court of Appeal stated in ADG at para 33 , “[n]o inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided ‘without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma,’” citing R v Shearing , [2002] 3 S.C.R. 33, 2002 SCC 58 , Binnie J at para 121.

It is even more dangerous to rely on demeanour to assess credibility when assessing the evidence of a very young witness who is describing alleged sexual offences that occurred when she was even younger. (ii) date and time [ 48 ] The indictment covers a period of over 6 years and the Complainant could not specify dates and times of events. To have expected this of her at her young age or ages would be unfair and improper. As defence counsel correctly observed, while date and time may be important to adults, they may not be to children.

Date and time are merely peripheral matters. (iii) lack of corroboration [ 49 ] Justice McLachlin emphasized in RW that the evidence of children is no longer regarded as inherently unreliable and therefore to be treated with special caution, hence the elimination of the requirement that a child's evidence be corroborated. In this case, we have the Complainant’s account of events. Not to respect that evidence as a trier of fact would an uncorroborated account of an adult witness would prevent the Complainant and similarly situated children from having their claims fairly adjudicated.

Simply telling what happened may be the only and the best evidence that the Complainant and other children may have. [ 50 ] Nonetheless, the elimination of the corroboration requirement does not entail the presumptive accuracy of children’s evidence. Rather, the absence of corroboration, by itself, is not a reason to discount or reduce the weight of the evidence. As Justice McLachlin confirmed, a child’s evidence must still be considered in light of all the evidence in the case.

(iv) timing of disclosure [51] Defence counsel did not submit that an adverse inference should be drawn based on the timing of disclosure. This issue wasfairly and properly left unmentioned, since the Complainant’s evidence was (at least at one point) that she didn’t learn that the conductwas wrong until some years after the events took place; and, as the Court of Appeal stated in ADG at para 33, “[f]indings of credibilityshould not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and thedisclosure of a hypothetical ‘objectively reasonable’ victim.” (

v) motive [52] Early in the Complainant’s cross-examination, a document was entered as an Exhibit. It was a picture drawn by theComplainant. It represented the Complainant crying because she was moved away from her family. She confirmed in her evidence thatshe had wanted to live with her mother and father.

She also confirmed that she was unhappy with her Social Worker because he wouldnot support her wish to move home when she was placed with the Accused and his wife. [53] Defence counsel did not argue in final submissions that because the Complainant wanted to go home, she concocted theallegations against the Accused.

The Exhibit was not referred to in final submissions. [54] A desire to go home could have had some marginal probative value on the issue of fabrication, in the sense that fabricationcould be somewhat more likely if a complainant had such a desire than if the complainant did not, but the probative value of the evidenceof desire to go home would be very low. It would be entirely natural for a young person in the position of the Complainant to want to gohome.

There is nothing sinister in that; nothing that typically or, to any degree of reasonable probability, inclines to falsehood. [55] In the absence of any other evidence tying the desire to go home to an intention to fabricate, defence counsel quite properlyrefrained from referring to this evidence in final argument and I did not take it into account. [56] Defence counsel, however, urged consideration of two further factors, which I also did not take into account. (vi) inconsistent conduct or attitudes [57] The Complainant wanted to return to her parents. That is clear.

Yet she also testified that she enjoyed living with theAccused’s family. She denied saying to the Accused’s elder daughters that she did not want to live there. She liked and trusted theAccused’s wife. She felt close to her. She was a “very nice lady.” She thought of her as a “second mom.” She liked living with her fosterbrothers and sisters and felt sad and guilty for leaving without saying goodbye. How did she feel about the Accused?

She told the Crownthat “he was nice and caring – except that he did that stuff.” She did not talk to him about “small things”, as she was closer to theAccused’s wife. [58] Defence counsel did refer to the “conflicts” that might have been in the Complainant’s mind, as to whether she wanted toremain or leave. Counsel rightly did not press the inference that the conflicts gave rise to a motive to fabricate.

Indeed, counsel was quiteright to argue that the defence was under no obligation whatsoever to unearth or provide evidence of any motive to fabricate on the partof a complainant: R v Kusk (1999), 1999 ABCA 49 , 132 CCC (3d) 559 (Alta CA) at 562 – 563. The accused bears no burdenof proof on this point or on any other point relevant to this litigation. [59] I am sure that the Complainant did have both sets of feelings, but I detect no contradiction in her attitudes. She could likebeing with the Accused’s family while still wanting to go home. The Accused’s family was a second-best situation.

A very young girlcould appreciate the home provided by the the Accused’s family while remaining committed to her parents. In any event, the attitudesand any tension between them do not give rise to a reasonable inference of fabrication. (vii) difficulties with memory [60] At trial, the Complainant remembered making the video interview, but, in answer to a Crown question, confirmed that she“didn’t really” remember what she told the interviewer. She had forgotten details of what was described in the video. [61] Defence counsel pointed out that the video had been made only about 2 years earlier.

In the video, the Complainant wasdescribing events that took place 2 to 8 years earlier still. If the Complainant could not, at the time of trial, remember what she said 2years ago, then how when she made the video could she remember what had occurred 2 to 8 years ago? In Defence counsel’ssubmission, it would be dangerous and unsettling to rely on the Complainant’s recollections as proof beyond a reasonable doubt. [62] The lack of present memory by itself cannot be a negative factor since that is why s. 715.1 exists.

In R v F(CC), (SCC), [1997] 3 S.C.R. 1183 at paras 37 and 41, Justice Cory preferred the Alberta approach to s. 715.1 in R v Meddoui (1990), (AB CA), 61 CCC (3d) 345 (Alta CA) in contrast to the Ontario approach in R v Toten (1993), (ON CA), 83 CCC (3d) 5: 37 In Meddoui, it was found that s. 715.1 modified the rule concerning past recollection recorded which required that the witnesshave no present memory of the events described in the record before it could be admitted for the truth of its contents. This rule wasdeveloped to prevent the admission of prior consistent statements which were deemed irrelevant.

Section 715.1 was found to be anexception to the rule. Further it was recognized that a very early account can be of more probative value than present testimony,particularly if the present memory is faulty or it is difficult for the witness to articulate it in court. It was held that a present assurance ofpast honesty would be a sufficient indication of trustworthiness to warrant the admission of the statement. 41 The test set out in Toten would prevent a child who has little, or no memory of the events from “adopting” the video and it wouldtherefore be inadmissible under s. 715.1. However, it is precisely in this situation that the video is most needed. Children, particularly

younger ones, are prone to forget details of an event with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child’s viva voce testimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time between the initial complaint and the date of trial is lengthy.

If effect is to be given to the aims of s. 715.1 of enhancing the truth-seeking role of the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result of their involvement in the criminal process, then the videotape should generally be admitted. [ 63 ] Like absence of corroboration, lack of present memory is not, by itself, a negative factor that automatically reduces the weight of the evidence of a complainant who has provided a s. 715.1 statement.

Again, that does not entail that the s. 715.1 evidence is presumptively true or that the evidence cannot be tested against other evidence in the case. [ 64 ] There was no clear link between the present lack of memory of what was said in the interview, and the past memory of what occurred that the Complainant demonstrated or purportedly demonstrated in the s. 715.1 interview. That is, I am not sure that I can infer from the present lack of memory to an earlier lack of memory.

Rather than rely on what might be speculative inferences about memory, particularly the developing memory of a child, I will assess the narrative that she provided in the recording and her viva voce evidence. My concern will be with assessing the strengths and weaknesses of her narrative, not with her memory itself. (

c) factors taken into account in assessing credibility of the Complainant (

i) factors personal to the Complainant [ 65 ] As urged by Horton , I have considered, to the extent that these matters are in evidence, the intelligence, maturity, experience and cultural background of the Complainant. On the one hand, I find that the Complainant was intelligent and, although soft-spoken, reasonably articulate. She was young, speaking about very troubling issues. I was aware of nothing relating to her mental capacities or personality that would diminish or undermine either her credibility or reliability.

On the other hand, I was pointed to no evidence relating to her intelligence, maturity, experience and cultural background that might provide explanations for any inconsistencies, gaps, or incongruities in her evidence. (ii) the Complainant as a witness [ 66 ] As observed by the Crown, the Complainant was a fair witness. She was not argumentative or evasive. She did not exaggerate her memory, often admitting that she could not remember or that she didn’t know.

In cross-examination, the Complainant made reasonable concessions – e.g. respecting the layout of the home and the other occupants of the home, including their number and names. Nothing in her deportment as a witness undermined her credibility or reliability. (iii) the bedroom incidents [ 67 ] The defence contended that the Complainant’s narrative respecting the incidents in her bedroom had internal weaknesses and was inconsistent with external evidence respecting the household – without taking into account the evidence of the Accused (with one exception). (

A) internal weaknesses [ 68 ] The internal weaknesses concerned the Complainant’s account of events in her bedroom. While she ordinarily occupied the top bunk, she could not say in any instance how it came to pass that she was in the lower bunk; neither, it should be observed, did she account for the whereabouts of SB who typically occupied the lower bunk. She could not say how it was that she came to be on top of the Accused. She could not say how it was that the events stopped. [ 69 ] Defence counsel did not challenge the Complainant on peripheral issues such as date and time.

In his submission, however, these gaps in the narrative were significant. The account was incomplete. The Complainant could not properly account for what happened. The details are not inconsequential.

She provided evidence as to where she was – she remembered that, but she did not provide evidence about how she ended up there; she provided evidence – a significant and telling detail – that she was on top of the Accused, but she did not provide evidence about how that occurred; she did was able to recall the incidents - but not the conclusion of the incidents. [ 70 ] The gaps in the narrative diminish do the reliability of the Complainant’s evidence and her credibility. She provided an unfinished narrative. (

B) external evidence [ 71 ] Significantly, the Complainant’s testimony respecting SB sleeping with the Accused and his wife (thereby supporting the Complainant’s narrative of sleeping on the bottom bunk) was contradicted by the testimony of the Accused and his wife (GB).

The Accused denied that SB ever slept in his and his wife’s bed, at least after she ceased to sleep in a crib. (She had joined the Accused’s family when she was very young.) GB stated clearly that the children “never” slept in her and her husband’s bedroom. [ 72 ] Much more significantly, the defence called GB and the Accused’s daughters RB and BB. Each was a strong witness. None were argumentative or evasive. None embellished or made claims beyond what they could reasonably have observed or remembered. Each made reasonable concessions in the course of cross-examination.

None were shaken in any of the observations they provided. [ 73 ] All three of these witnesses were in close relationships with the Accused. That is not a basis for discounting their evidence.

The mere fact of being a spouse or daughter does not, by itself, undermine credibility or reliability. As Justice Charron warned in R vLaboucan, 2010 SCC 12, [2010] 1 SCR 397 at para 11, [11] …. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going tocredibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on thebasis of the witness’ relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessingcredibility.

Further, “[i]t should not be assumed that this witness will be untruthful by reason of this relationship:” R v Murray (1997), (ON CA), 115 CCC (3d) 225; , Charron J at 8 . [74] The witnesses were not like members of a criminal organization who would be willing to twist evidence to suit the needs of anassociate. There was no evidence whatsoever that for these witnesses, family trumped truth. There was no evidence of motive tofabricate. BB testified, and I find accurately, that had she observed anything improper, she would have testified to it.

In my opinion, thereis at least a reasonable probability that if any of the witnesses had seen anything improper, they would have testified to it. In my view, thewitnesses adhered to their oaths. [75] Further, discounting the testimony of the family members just because of their relationship with the Accused would beseriously unfair. It would deprive the Accused of his right to make full answer and defence, protected under s. 7 of the Charter.

Whatother independent evidence could he call except that of others who were at the location at the times when the offences were alleged tohave been committed? [76] The general features of their evidence relevant to the Complainant’s bedroom claims were as follows: [77] All of the family members’ bedrooms were on the upper floor. RB and BB each had their own room. The three boys were inanother room. The three young girls were in one room. The master bedroom, where the Accused and GB slept, was near to the younggirls’ room, some 7 – 12 feet away.

The doors of the master bedroom and the girls’ bedroom were kept open at night. The masterbedroom configuration permitted a person in the master bedroom to see, at least partially, into the girls’ bedroom. [78] There was no evidence that GB was away from home during any evenings. Neither was there evidence that BB was awayduring the period in question. RB moved out in 2011, but was at home for the remaining period covered by the indictment. BB and RBdid go out in the evenings, but followed house rules and were home by about 11 p.m. each night. [79] GB suffered from insomnia and was up frequently in the evenings.

She was also a light sleeper. [80] RB and BB went to sleep very late, after midnight, by 1 or 2 a.m. While they had televisions in their rooms which they couldwatch, they did circulate downstairs to the family room area. [81] The evidence of all three witnesses was that the Accused went upstairs to sleep regularly at about 10:30 pm, sometimes afterhaving first fallen asleep in front of the TV in the family room. This was his habit. As BB put it, he was a man of pattern.

From evidenceof habit, conduct consistent with that habit can be inferred: R v Watson (1996) (ON CA), 108 CCC (3d) 310 (Ont.CA) at para 36 (CarswellOnt) (“Where a person’s conduct in given circumstances is in issue, evidence that the person repeatedly actedin a certain way when those circumstances arose in the past has been received as circumstantial evidence that the person acted inconformity with past practice on the occasion in question”).

On the evidence, the Accused was a sound sleeper, not given to wanderingin the house at night. [82] None of these witnesses saw or heard any improper activity between the Accused and the Complainant. None saw or heardthe Accused in the girls’ room late at night after the children had already been tucked in for the evening. None saw or heard the Accusedwandering in the house at night, whether near the girls’ room or elsewhere.

None saw doors closed when they should have been open.None saw activities that might circumstantially have supported improper activities. [83] As stated in Faryna v Chorney at para 11, “[t]he test [for credibility] must reasonably subject his story to an examination ofits consistency with the probabilities that surround the currently existing conditions.” Common sense probabilities and – in the absenceof any evidence urging us elsewhere – ordinary human conduct support two inferences. [84] First, the alleged offences took place nearly in plain sight – certainly within the sight lines of the master bedroom.

Given thenumbers of adults up late and the sleeping habits of GB, it is not reasonable to infer that the Accused would have taken the chance toengage in the alleged conduct. The probability of detection deters improper conduct. Ease of detection is some circumstantial evidencethat claimed conduct did not occur. There was no evidence that could support the inference that the Accused was somehow emboldenedby circumstances within his family that permitted him to proceed regardless of what they might see.

Consider, in contrast, R v B(FF), (SCC), [1993] 1 SCR 697, Iacobucci J at 732 – 733. [85] Second, and more importantly, ordinary probabilities strongly support the inference that if there had been anything improperto be seen or even any circumstantial evidence of improper conduct, it would have been seen. There were, in effect, three independentmonitors.

None saw any conduct consistent with or supportive of the Complainant’s allegations. [86] To employ Occam’s razor, the simplest explanation for the failure of the witnesses to observe improper conduct on the part ofthe Accused or circumstantial evidence of improper conduct was that it didn’t happen. [87] Each of the witnesses conceded and the Crown submitted based on these concessions that it was possible that improper orcircumstantially-related conduct had occurred but that they did not observe it or did not remember having observed it.

The witnessescould not be sure that on each of the over 2,000 days (6 years) covered by the indictment, there were not a few evenings when somethingoccurred that they missed or that they did not recall, not having appreciated the significance of it at the time.

[ 88 ] There is a certain unfairness to the indictment. Some 6 years of the Accused’s life, over 2,000 days, are on trial. The Complainant – and no criticism is suggested – could not specify particular dates and times within that span. What else could the Accused do but provide the evidence he has? What other type of evidence could possibly be available to someone in the position of the Accused? [ 89 ] Regardless, the Crown’s position is based on a misstep. It is surely true that it is possible that the Accused committed the offences, despite the crowded nature of the upper floor.

It is possible that he somehow evaded detection. Anything is possible. That, however, is not the issue. The issue is not whether he possibly committed the offences but whether it is not reasonably possible that he did not commit the offences. The issue is whether the Accused committed the offences alleged, beyond a reasonable doubt.

Normal probabilities, common human experience, and common sense can support reasonable doubts. (iv) the family room incidents [ 90 ] The defence contended that the Complainant’s narrative respecting the incidents in the family room were inconsistent with other evidence she had provided, involved claims substantially inconsistent with claims the Complainant made in the preliminary inquiry, and were inconsistent with the external evidence respecting the household – again without, at this point, taking into account the evidence of the Accused. (

A) inconsistencies with other evidence [ 91 ] The family room incidents were premised on the Complainant, with some frequency, having gone downstairs after having been put to bed. She went downstairs, she claimed, to say goodnight to the Accused. There were two difficulties with this narrative. [ 92 ] First, the Complainant agreed the bedtime for her was 7:30 p.m. The Complainant agreed that she was expected to go to bed on time and to stay in bed, unless she had to go to the washroom. She was not free to walk around the house. In my opinion, this was a strict house rule.

It had to be because of the number of young children in the house. A lax approach to bedtime would have made evenings and the following mornings extremely difficult. [ 93 ] That being said, GB did recall having seen the Complainant out of her room when she should have been in bed. She was found not in the family room, though, but at the stair rail, trying to watch TV. This did occur often. GB knew because she took the Complainant back to bed. [ 94 ] More importantly, the Complainant’s claimed reason for going downstairs was to say goodnight to the Accused.

The Accused, however, had the job of putting tucking in the children and saying a prayer with them at their 7:30 p.m. bedtime. When defence counsel pointed this out to the Complainant and asked why she went down to the family room to see him, the Complainant said “I don’t know.” She appeared to agree with the statement that she had no reason to go to the family room (in answer to that statement, she said “Yes”). (

B) prior inconsistent statements [ 95 ] In her testimony in the preliminary inquiry, the Complainant had stated that she had gone downstairs at about 7 p.m., her bedtime. At trial, though, her evidence was that she went downstairs later, when the other adults were in their bedrooms and only the Accused was awake. [ 96 ] While children cannot be held to the same standards as adults respecting time, there is a significant difference between bedtime (and nothing is made of the difference between 7 and 7:30 p.m.) and later when all others are asleep.

This conflict between the Complainant’s preliminary inquiry evidence and her trial evidence undermines the weight of her evidence. She moved from a narrative that did not fit with other evidence to a narrative that could more easily fit with other evidence in this case. (

C) inconsistencies with external evidence [ 97 ] Once again, the Complainant’s narrative collides with the evidence of GB, RB, and BB, as described above. The family room was part of an open area. RB and BB were in and about that area until very late. They would use the computer in the kitchen. GB had insomnia and would come out of her room. The probabilities are that if there were relevant events to be seen, they would have been seen. Nothing relevant was seen. 2.

The Accused’s Evidence [ 98 ] The final layer of evidence to be taken into account to complete the assessment of the totality of the evidence is the testimony of the Accused. [ 99 ] On the level of principle, I confirm that an accused has a constitutional right to testify in his or her own defence. That right would be rendered a snare and a delusion if a trier of fact were to count against the accused’s credibility his or her presumed “motive to lie” to avoid conviction. Indeed, relying on such a presumption would be in effect to presume guilt.

Justice Charron wrote the following in Laboucan at para 12 : [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the

face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.)(1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger inconsidering the accused’s motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated asfollows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest inthe outcome dictates that course of action.

This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have totestify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to beacquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth inhis evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie.

The explanation for a lie,however, cannot be turned into an assumption that one will occur. [Emphasis added.] [100] The Crown suggested in cross-examination that the Accused had a motive to lie because of certain consequences of convictionthat could affect the Accused’s immigration status. The Accused denied knowing what those consequences would be and said,regardless, “I’m innocent.” The Crown would be entitled to introduce evidence supporting the inference that the Accused was lying.

Butas Laboucan indicates, the mere prospects of potential adverse consequences faced by an accused, whether those of the criminal justicesystem or the immigration system, do not support an inference of fabrication. [101] The Accused denied having committed the offences or having engaged in any inappropriate conduct with the Complainant.Given the nature of the allegations, his denial, coupled with the evidence of GB, RB, and BB is only sort of evidence he could provide.He had opportunity – the child was in his house. He could not eliminate the possibility that he committed the offence.

Anything ispossible, and he could not, for example, have an alibi for each of the over 2,000 days in question. [102] The Accused confirmed the 7:30 p.m. bedtime routine with the children and his job of tucking in the children and saying prayerswith them. He confirmed that the rules were strict and that the children were expected to remain in bed. [103] He confirmed that he went to bed around 9:30 or 10:00 p.m. When he went to bed, GB was still awake.

She made lunches forthe children and herself and did work around the house. [104] He confirmed that RB and BB were frequently up until 1 or 2 a.m. and that they were home between 10 and 11 p.m. onevenings when they went out. [105] The Accused’s testimony was consistent with the testimony of GB, RB, and BB. [106] The Accused was not shaken in cross-examination. His evidence had no internal inconsistencies. He did concede that he couldsometimes have acted out of routine. He might, for example, have stayed up later to 11 p.m. or 12 a.m. to watch a hockey game. He wasnot argumentative or evasive.

He was not angry, although real or feigned anger would not have been surprising given the nature of theallegations. He did not exaggerate his evidence. His evidence was not inconsistent with any external evidence. His testimony was, in thecommon phrase, given in an “open and forthright manner.” [107] It is true that “the Supreme Court of Canada has categorically rejected the proposition that an accused is entitled to independentreasons explaining why the accused was disbelieved:” R v Gordon, 2015 ABCA 341 at para 15.

Nonetheless, “[u]ltimately a trial judgeor jury does have to make intellectually valid choices amongst competing evidence. The concern of the law is whether in its reasoningprocess the trial judge or jury loses sight of the presumption of innocence and the Crown’s burden of proof:” R v Cunningham, 2014ABCA 329 at para 16. I have no intellectually valid reason for rejecting the Accused’s evidence.

CONCLUSION [108] Based on my assessment of all of the evidence in the case, given particularly the weaknesses of the Complainant’s evidencereviewed above, the strong probabilities arising from the evidence of GB, RB, and BB that if the Accused had done anything improperwith the Complainant it would have been observed or at least conduct circumstantially linked to improper conduct would have beenobserved, and the Accused’s denial of wrongdoing unshaken on any rational ground, I find not only that I have a reasonable doubt as tothe Accused’s guilt respecting the charges against him, but I believe his testimony.

I believe he did not do what it was alleged he hasdone. [109] Mr. [J.A.B.], please stand. Sir, I find you not guilty on all counts in the indictment. You are acquitted of all the charges againstyou. Heard on the 13th day of June, 2016 to the 16th day of June, 2016. Delivered at the City of Edmonton, Alberta the 16th day of June, 2016 Dated at the City of Edmonton, Alberta this 29th day of June, 2016.

W. N. Renke J.C.Q.B.A. Walter Devenz Alberta Crown Prosecution Service for the Crown Robert Shaigec Dawson, Duckett, Shaigec & Garcia for the Accused