R v MLC, 2019 ABQB 951

Court of Queen’s Bench of Alberta Citation: R v MLC, 2019 ABQB 951 Date: 20191212 Docket: 141194472Q1 Registry: Peace River Between: Her Majesty the Queen Crown - and - MLC 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.A. Jerke _______________________________________________________

Introduction [ 1 ] Mr. C was charged with four counts in relation to his granddaughter, SG: Count 1: sexual interference contrary to s 151 of the Criminal Code between March 4, 2006 and September 22, 2014; Count 2: invitation to sexual touching contrary to s 152 of the Criminal Code between March 4, 2006 and September 22, 2014; Count 3: incest contrary to s 155 of the Criminal Code between July 1, 2014 and October 10, 2014; and Count 4: sexual assault contrary to s 271 of the Criminal Code between July 1, 2014 and October 10, 2014. [ 2 ] This matter has a lengthy history.

There was a preliminary inquiry and three previous trials. In the previous trial, Mr. C was acquitted of Count 2, and convicted on Counts 1, 3 and 4. He appealed the convictions; the Crown did not appeal the acquittal. Thus, at issue here is counts 1, 3, and 4: sexual interference, sexual assault, and incest. [ 3 ] As a result of there being three previous trials, there was a large volume of previous testimony that was used to question the witnesses about inconsistent statements. Mr. C testified at all four trials, as did SG.

The witnesses Overview [ 4 ] SG was born on March 4, 2001, and was five years old at the time of the earliest alleged incidents of sexual interference and 13 years old at the time of the final incident. SG testified that from the time of her earliest memories, Mr. C engaged in sexual activities with her, including sexual intercourse, and sexual touching.

She testified to three time periods in which her grandfather engaged in sexual activity with her: the time period when she and her mother lived with him and his partner (Early Childhood), a specific incident of sexual intercourse at his home during Treaty Days in 2014, and a specific incident of sexual contact at his home in 2014 just before she moved out of that home (the Last Complaint). [ 5 ] Mr. C testified, and denied any sexual contact or activities with SG of any kind. [ 6 ] Sam G is SG’s mother and Mr. C is Sam G’s father. Sam G and SG lived with Mr.

C and his then-partner, V, when SG was about five years old. They moved into their own home when SG was seven years old, but in September or October 2014, SG returned to live with Mr. C and his new partner, CT to be closer to the school bus. She moved out of Mr. C’s home shortly after, early in October, 2014. [ 7 ] Two of SG’s great-aunts, Mr. C’s sisters, also testified, MS and FE. [ 8 ] As well, CT, Mr. C’s common law partner from 2012-15, testified.

General assessments of credibility and reliability of the witnesses [ 9 ] Here, I make some general statements about my assessment of the witnesses’ credibility and reliability. Later, as I discuss their evidence in detail, I will address the specific issues of credibility and reliability. Sam G [ 10 ] Sam G is Mr. C’s daughter and SG’s mother. My evaluation is that when considering Sam G’s evidence, I must use some caution as to the weight to be attached to it. She is not truly independent: this is an intra-family dispute. MS [ 11 ] MS is Mr. C’s younger sister. She gave evidence about the severity of Mr.

C’s injury to his right arm (an issue raised by the Defence) which seemed to be overstated given the other evidence presented at trial. I therefore have some concerns about her reliability. FE [ 12 ] FE is Mr. C’s sister, and I have some concerns about her independence. Mr. C is her brother, and it was apparent that she is very fond of him. She attended the November, 2018 trial and heard at least part of the evidence of Sam G and SG. She did not, however, testify at that trial. She did testify at the third trial and this one.

No inconsistencies in her evidence were identified over those two occasions, and no issues were raised as to her previous truthfulness or prior convictions. [ 13 ] FE appeared somewhat aggressive to counsel during cross-examination, especially when counsel specifically suggested she was lying, for example, when counsel suggested: ‘That’s a number you’ve just made up, isn’t it?’ On the other hand, she readily conceded potentially difficult topics. For example, she conceded that she allowed people to come to her house to do illegal acts, like drugs and underage drinking.

CT [ 14 ] CT, Mr. C’s partner, from 2012 through 2015, testified and her demeanor and manner of answering questions seemed appropriate in terms of her narration of the events and observations she described. She addressed personal matters directly and succinctly. But there are inconsistencies, which are perhaps better described as frailties, in her evidence, which I will discuss in more detail in regards to both Mr. C’s injured right arm and in regards to the incident alleged to have occurred during Treaty Days. Mr. C [ 15 ] Mr. C denies any sexual contact with SG.

While I appreciate the difficulties faced by a witness who denies that something has happened, I find that I am unable to place any confidence in Mr. C’s evidence. [ 16 ] Mr. C’s demeanor and manner of answering questions was reasonable, particularly when considering that the key parts of his testimony were denials. Little can be said by a witness who denies something happened beyond the denial itself. Nor is it easy to point to corroboration of a straight-forward denial. [ 17 ] There were, however, numerous unexplained, unqualified, and significant inconsistencies in Mr.

C’s testimony, including internal inconsistencies in his cross-examination. For example, he testified that he quit drinking when he was 47. Then he said it was after he got his impaired driving charge in 2012 (he was about 51 then). He then testified that he quit drinking after that charge, but agreed he was convicted for breach of recognizance for drinking in 2016, and explained in his statement that he hardly ever drinks, ‘well not every day maybe’. SG [ 18 ] I find that SG gave detailed evidence. She generally conceded when she could not remember specific details, like whether it was dark when Mr.

C allegedly assaulted her in the Last Incident. There were some inconsistencies in her evidence, which I will discuss in greater detail later in these reasons, but for the most part, these inconsistencies were not consequential. She explained that there were so many occasions in which Mr. C engaged in sexual activity with her, that she did not remember each individual occasion, particularly those when she was very young. This is understandable. Issues [ 19 ] In order to make my determination it is necessary to consider:

a) principles for analysing evidence;

b) the evidence;

c) application of WD;

d) the Crown’s case must prove the offences beyond a reasonable doubt. Principles for analyzing the evidence [ 20 ] There was no suggestion that the acts as described by SG did not constitute the alleged sexual offences. [ 21 ] The elements of the offences are as follows: 1. Sexual interference (s 151): The Crown must prove beyond a reasonable doubt that the accused did i. touch either directly or indirectly ii. a person under the age of 16 iii. for a sexual purpose. 2.

Incest (s 155): The Crown must prove beyond a reasonable doubt that the accused i. engaged in sexual intercourse [1] with a person ii. knowing that that person is a grandchild. 3. Sexual assault (s 271): The Crown must prove beyond a reasonable doubt that the accused i. intentionally applied, or threatened to apply, force ii. to a person under the age of 16 (under s 150.1 there is no consent if the complainant is under the age of 16) iii. in circumstances of a sexual nature.

What are the legal principles applicable here? [22] Some legal principles must be noted. First, in law there is no presumption about the quality of witness testimony: the evidenceof each witness in a criminal case is to be assessed in light of the totality of the evidence without any presumption. Secondly, in criminallaw two principles are fundamental: presumption of innocence and proof beyond a reasonable doubt.

Thirdly, the Crown bears theburden of proof. [23] The standard is not one beyond ‘any’ doubt - it is not a standard of absolute certainty - but the standard is one that excludesall ‘reasonable’ doubts about innocence, doubts that are not mere speculation, or imaginary or frivolous, or based on sympathy orprejudice: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 31 and 36. A reasonable doubt may be derived from theevidence or the absence of evidence: Lifchus at para 36. [24] This standard is ancient.

As the Supreme Court of Canada explained in Lifchus at para 13, the standard of beyond areasonable doubt “is one of the principal safeguards which seeks to ensure that no innocent person is convicted.” [25] Accordingly, in a case such as this where the story of a witness is met by the accused’s explanation and denial, it is neverappropriate to simply choose the preferable story. Doing so undermines the accused’s presumption of innocence and suggests that theaccused bears some burden of proof. The burden of proof is always the Crown’s; it does not shift.

To meet its burden the Crown mustprove that the evidence as a whole, including the accused’s explanation and denial, establishes the accused’s guilt beyond a reasonabledoubt. [26] The Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742 (at para 28) sets out an analyticalframework to ensure that the presumption of innocence is not undermined and that the burden of proof borne by the Crown is notreduced or shifted: 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. [27] In R v JHS, 2008 SCC 30 at para 12, a fourth possible step was endorsed: “I would add one more instruction in suchcases which logically ought to be second in the order namely ‘if after careful consideration of all of the evidence you are unable to decidewhom to believe, you must acquit’”. [28] Our Court of Appeal recently revisited this matter.

In R v Ryon, 2019 ABCA 36 the Court commented on juryinstructions where W(

D) is engaged. The first step is to “begin by identifying, either generally or specifically, the evidence to which theinstruction is to apply.” (at para 49). [29] The Court in Ryon then explained (at para 51) that the jury charge should impart the following information: i. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt, and thatburden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led bythe Crown. ii.

In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidenceto that effect) or if they are not confident they can accept the Crown’s version of events, they must acquit. iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused,a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of allthe evidence, the jury is unable to decide whom to believe, they must acquit. iv.

Even if the jury completely rejects the accused’s evidence, they may not simply assume the Crown’s versionof events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades thembeyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or where applicable, other exculpatoryevidence) cannot be taken as proof of the accused’s guilt. [30] In R v Achuil, 2019 ABCA 299 Martin, J (at para 18) explained that it may be safer for the second point above to revert to thewording proposed in R v Gray, 2012 ABCA 51 at para 42: In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit.

How should the witnesses’ evidence be assessed? [31] To repeat: the Crown must prove every element of the offenses beyond a reasonable doubt. A trial is not a credibility contestrequiring the court to decide that one of the conflicting versions is true. All of the evidence must be considered and weighed. [32] The assessment of credibility is a fundamental and difficult judicial task. There are two main aspects of the analysis:reliability and credibility. A witness may be honest and credible, but when their evidence is assessed overall, they may be unreliable. A

court may accept some, all, or none of the evidence of a witness. [33] A court must apply the same level of scrutiny to the evidence of an accused person as it does to a complainant.

A court mustbe even-handed: it is wrong to apply a ‘microscope‘ to the evidence of one and a ‘searchlight‘ to the evidence of another. [34] It is said that the ‘‘whole tapestry’’ - the whole scope and nature of the evidence - is considered when assessing credibility.The often-quoted comments of O’Halloran J.A. in Faryna v Chorny, (BC CA), [1952] 2 DLR 354 are helpful: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [35] Evidence is assessed using a number of factors including: internal consistency, consistency over time, reputation or previoustruthfulness, prior convictions, corroboration, interest, independence, presence or absence of an oath, consistency/inconsistency with theevidence of other witnesses, consistency/inconsistency with documentary or other ‘real‘ evidence, plausibility, and demeanour.

Evidence from children [36] Even though SG was 18 at the time of the trial before me, she was only five when the first incidents arose and 13 at the timeof the last incident. As mentioned earlier, there have been numerous proceedings to date. She was cross-examined on an initial statementshe gave to police in October, 2014 (when she was 13); testimony she gave at the preliminary inquiry in March, 2015 (when she was 14);testimony at the first trial in September, 2016 (when she was 15); testimony at the second trial in November, 2018 (when she was 17);and the third trial in March, 2019 (when she was 18).

So, the entirety of her evidence cannot be assessed as if she were an adult; modernprinciples concerning the assessment of child witnesses must be reviewed. [37] The notion that the evidence of children is inherently unreliable is no longer correct in Canadian evidence law, and anappreciation has developed that adult tests for credibility must be applied flexibly to the evidence of children.

McLachlin, J in R v W(R), (SCC), [1992] 2 SCR 122 at 132-34, noted in particular that since children experience the world differently from adults,the details adults consider important, like time and place, are often missing from their memory. Further, as noted by Wilson, J in R v B(G), (SCC), [1990] 2 SCR 30, at pp 54-55, this does not mean that children’s evidence attracts a lower standard ofproof, but that when assessing credibility of child witnesses, inconsistencies and contradictions in the evidence are not as crucial.

The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found atcommon 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: s 586 of the Criminal Code,R.S.C. 1970, c.C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, wasrepealed by

an Act to amend the Criminal Code and Canada Evidence Act, S.C. 1987, c.24, s.15, effective January 1, 1988. Similarprovisions of the Canada Evidence Act, R.S.C. 1970, c.E-10, and Young Offenders Act, S.C. 1980-81-82-83, c.110, have also beeneliminated. The repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent the judge orjury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case.

But it does revoke theassumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidenceof adults. So, if a court proceeds to discount 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 of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection.

Wilson, J recognized this in R v B (G), (SCC), [1990] 2 SCR 30, at pp54-55, when, in referring to submissions regarding the court of appeal judge‘s treatment of the evidence of the complainant, she said that ...it seems to me that he was simply suggesting that the judiciary should take a common-sense approach when dealing with the testimonyof young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that the courtsshould not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must belowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in achild’ s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well foundedand his comments entirely appropriate.

While children may not be able to recount precise details and communicate the when and whereof an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years wehave adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and Ibelieve that this is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefullyassessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. 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 an injustice of the conviction of an innocent person require a solid foundation for a verdict of guilty,whether the complainant be an adult or 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 recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters 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 is testifying. [ 38 ] As clarified in R v QEA , 2015 ABCA 315 at para 14 this does not mean that the evidence provided by a child is presumptively true, or that an accused must disprove their guilt. Significant inconsistencies or inaccuracies may undermine the credibility or reliability of a child’s evidence. The evidence

a) Early childhood [ 39 ] SG’s evidence contained considerable detail. For example, her testimony about the earliest incidents describe Mr. C driving on trails toward the dam and Haig Lake, locations she identified on a map. She said he would stop the truck, come around to her side of the truck, pull her legs so they dangled out the door. He would then pull the bottom parts of her clothing off, and ‘doing intercourse’. This evidence was consistent with her other testimony at the earlier trials. However, the first time SG testified to Mr.

C telling her to touch herself “down there” while having a bath was at this trial. And much of her evidence of abuse at her V’s house was first heard at this trial. [ 40 ] Sam G testified in chief that when she and SG lived with Mr. C and V, SG was alone with Mr. C “every third day”. And Mr. C and SG would go for a drive, and often no one else went with them. [ 41 ] At this trial, Mr. C testified that he never took SG to Haig Lake, but at the earlier trial he testified that he took her there with two others. SG testified that sometimes there may have been others taken on a truck ride, but that Mr.

C never did anything sexual with her when others were present. There was some evidence from SG about occasions after Sam G and SG moved out (so between the ages of seven and 13), when her little sister accompanied them on a truck ride and Mr. C left the sister in the truck and took SG into the bush to have intercourse with her. [ 42 ] Parts of Mr. C’s evidence raise questions around plausibility. For example, Mr. C stated that he was never alone with SG. I find, it is at best highly unusual that SG lived with Mr. C for about two years and during that time Mr. C was never alone with her.

He states that he really does not remember when she lived with him. At best, that evidence appears to be ‘stretching it’, much like Mr. C’s evidence of his arm limitations, discussed later. Both SG and Sam G testified that Mr. C took SG driving.

b) Treaty Days [ 43 ] SG made no disclosure of the incident at Treaty Days in her initial police statement, but testified about it later at the trials. SG testified that during Treaty Days (she wasn’t sure which day), Mr. C asked her to go with him in his truck to the home to help pick something up. While she was retrieving items he asked her to get from the bedroom, he came into the same room, got on top of her, “did intercourse with her…pulled out, and he wiped his-self onto a towel, and he just walked out like nothing happened.” [ 44 ] CT testified extensively about Treaty Days.

She said in examination-in-chief that she attended Treaty Days celebration, working in a concession in their RV. From that vantage point, she said Mr. C’s truck was parked in her direct line of sight and she could have seen whether anyone drove the truck away. Further, the only keys for the truck were in the cubbyhole in the front of the RV. She also testified that she had frequent and continuous contact with Mr.

C, leading to the inference that he could not have left the grounds with SG as she alleged. [ 45 ] But in cross-examination, CT agreed the truck was not the center of her attention; she was busy with the concession, which was officially open from 9AM to 9PM, but also served throughout the night as festivities required. She worked mainly behind the counter in the RV and Mr. C came by frequently. From the counter, she could not see to the front or back of the RV and the keys were 1 ½ metres from the door in the front. She conceded that Mr. C could be gone without her being aware.

Her evidence is of little assistance to support any conclusion that Mr. C did not leave the treaty grounds with SG or that he was unable to engage in any of the activities she described. [ 46 ] Further, CT’s evidence that Mr. C worked security all 4 days of the festival is inconsistent with the evidence of Mr. C who testified he did not work security every day. I find that CT is credible, but the weight to be attached to her evidence must be carefully considered as her evidence tends to overstate the topics she addressed. [ 47 ] Mr. C’s testimony was inconsistent over time. For example, at this trial, Mr.

C testified that Treaty Days was 4 days long, and he worked as security on 3 days. He testified that he saw SG at the grounds, every day, while doing security. But at the earlier trial he testified that Treaty Days was 3 days long and he worked 2 days, and he testified then that SG was not around and he did not see her there. Before me, he agreed during cross-examination that that testimony at the earlier trial was not accurate.

c) Final Incident

[ 48 ] As to the last incident, SG testified that Mr. C came into the room while she was still in bed, getting ready for school, sat beside her, and then laid on her with his hand or arm over her mouth. She could not remember if it was his left or right arm.

He then simulated having sex with her – “dry humping.” [ 49 ] SG’s evidence about the last incident in her initial police statement was that “he just come, put his hand on me, and then he just laid down and came on top of me……as he had his thing in you (Yeah)…there was a lot of times, like how many times he did this.” [ 50 ] At the preliminary, she testified, “He’d just come lay there, and then he’d usually come on top of me and try to ask me if I would do it, but he would leave – but he would leave the room because his kids and stuff would be up.” [ 51 ] At the first trial she testified that “He came and sat on the corner of the bed, and then he come sat – yeah, he come sat on the corner of the bed, and then he came on top of me, and then he put his arm over my mouth.

The he pulled off his bottom pants, and then he did the same thing to me. Pulled off my bottoms….He put his penis inside – inside of me.” [ 52 ] At the March 2019 trial, she testified that he had sexual intercourse with her. Before me, she testified that he ‘dry humped’ her on that occasion, but he never inserted his penis on that occasion. [ 53 ] It is clear that there are some inconsistencies in this evidence as to whether there was intercourse or “dry humping”. However, all the other details in regards to this incident are consistent.

He came into her room while she was still in bed; he sat on the bed, he then laid on top of her, and put his arm or hand on her mouth. He took off her bottom clothes. Given that SG testified about many incidents, the fact that sometimes in the re-telling there was intercourse and sometimes there was not, may simply be because the incidents became confused in her mind in the retelling. [ 54 ] In contrast, Mr. C’s evidence concerning the circumstances around the final allegation are widely inconsistent. Mr. C, in his statement, said that he got up at 7AM and never went to SG’s room.

At the earlier trial, he testified that he went to her room and asked if she was going to school, and he was sure he never got up until 9AM, and that it could not have been 7AM. In this trial, he testified that he could not remember when he got up and that he did not go to her room, or in her room. However, later he explained that he went up to her door and opened it, but did not go in. [ 55 ] Sam G testified that it was when SG moved back to her place in October, 2014, immediately following the Last Incident, that SG told her of her complaints concerning Mr. C. Defence evidence Mr.

C’s injured right arm [ 56 ] Mr. C was injured in an accident in 1993, and the question arose as to whether he could have used one arm to cover SG’s mouth and the other to remove her clothes as she alleged. [ 57 ] In cross-examination, Sam G testified that Mr. C had no problems with his right hand as she had seen him load garbage which needed two hands. She became quite aggressive when asked whether he had an injury to that hand and claimed not to know. This evidence is quite different than the evidence of MS, CT, and Mr. C all of whom testified that Mr. C did have limitations in his right arm.

However, a restatement to the effect of “I do not know” is not as damning to the reliability of person’s evidence as would be an insistence to the contrary from the evidence of several other individuals. But I am only somewhat troubled (though I remain troubled nonetheless) by her denial of Mr. C’s arm limitations in light of her explanation for that denial; ‘I am not a Doctor’ was her response to questions about whether Mr. C had limitations. [ 58 ] MS testified that Mr. C had an accident in 1993 and as a result his right arm movement is severely limited. I have concerns as to the reliability of MS’s testimony.

Her evidence seemed to me to be overstating the severity of Mr. C’s arm condition. In examination in chief, MS testified that Mr. C cannot lift his arm over the shoulder or elbow and has to use his left arm to lift his right arm to about chest level. He cannot push, pull, or carry anything, and the condition worsened over time. Yet, then in cross-examination, she testified that the disability was more severe in the first 10 years than in later years. [ 59 ] Further in cross-examination, MS testified that Mr.

C could only reach his left arm to the elbow using his right hand, and only then with his right hand being helped by his left hand. But that is not what is observed in Exhibit 5 where Mr. C is seen to be scratching his raised left forearm with his right hand. [ 60 ] CT’s testified that Mr. C’s right arm is ‘dead’ and he can raise it to chest level if he uses his other arm. I conclude that this is inconsistent with Exhibit 5. Similarly, FE also testified that Mr. C’s right arm is paralyzed, and that he cannot use it, although he can maybe grab a cup or a half a cup of coffee. [ 61 ] Mr.

C also described serious arm movement limitations, but these were overstated compared to his observed arm movements in Exhibit 5. [ 62 ] I find that Mr. C has some limitation in his right arm; it is the extent of that limitation which is unclear. I conclude that SG’s evidence about Mr. C putting his arm or hand on her mouth is plausible. Victim’s compensation claim [ 63 ] FE, Mr. C’s sister, testified in chief that at a party at her house in September 2018, SG told her that “her mother is doing this – making her doing this for $70,000 of Victim Services’ money, and she said nothing happened. She cried.

Literally cried….After that she went back to that party as if nothing.” She further testified that there were drugs (cocaine and methamphetamines) and alcohol at the party; that SG was intoxicated but ‘not the drunk state’; and that SG just went back to the party as if she had not just admitted that her

mother was making her participate in the trial for $70,000. In other words, she testified that SG told her she was lying. FE testified that she told her brother about the statement. [ 64 ] FE was present at the second trial in this matter in November 2018, but did not testify. She testified in cross-examination that after she left that trial she received a call from her sister and returned where she told the lawyer what SG had said. She testified at the third trial.

She said she attended the second trial only to listen, not to testify. [ 65 ] FE appeared somewhat aggressive to counsel during her cross-examination, especially when counsel specifically suggested she was lying; for example, when counsel suggested that “That’s a number you’ve just made up, isn’t it?” On the other hand, she readily conceded potentially difficult topics. For example, she conceded that she allowed people to come to her house to do illegal acts. [ 66 ] In cross-examination, a possible inconsistency in FE’s testimony emerged: Q Yeah, exactly.

So, you came to watch the trial, and you watched some of the evidence; but in the two months that preceded that trial, the one before that trial, you didn’t mention it to anybody? A No. Q Yet you knew your brother was on trial for -- A Yes, I knew he was -- Q -- serious sexual -- A Yes. Q -- crimes? A Yes. Q And you knew that the statement that you said was made would have been very significant in that trial? A I don’t know what -- what you mean. Q Well, you knew that he -- you’re saying that she confessed to lying. A She had told me -- she sat beside me I told you. Q Yes, I know.

You knew that she confessed to lying -- A Yeah. Yes, she told me. Q -- according to you? A Yes, she told me. Q Yeah. But in the two months that followed that, you didn’t utter a single word to your brother about that, did you? A I didn’t tell nobody. But she explained that inconsistency as follows: Q Okay. What did the lawyer say to you? A What did a -- why would I answer that to you what -- what the lawyer said to me? Q Because I want to know what he told you before you told him anything. A I told him what SG said. Q Well, how did that come about? A Because my brother remembered I had told him. Q Oh.

A That was how the lawyer found out. Q Oh. So when you told us earlier that you hadn’t told anybody -- A No, I told you last trial my brother -- I told my brother too. Q But I just asked you a whole bunch of questions, and you said, "no, no, no, never told anybody."

A No, I told you -- Q Didn’t tell -- A -- I don’t – Q -- the lawyer -- A -- know what -- Q -- didn’t call my brother; I didn’t tell anybody. A No, I told you I told my brother. The only one I told was my brother. No other person. Q When did you do that? A After that party. Q Right after the party? A Not right after. I don’t know how many weeks later. Q Before -- A Or a month later. Q -- the trial? A Hm, yes. But I just forgot about it anyways. Q So when you told us earlier that you hadn’t told anybody, you left that one person out? A No, I -- Q Your brother. A -- did not.

I told you I told my brother [ 67 ] In chief, FE testified as follows: Q Okay. And when’s the first -- did you ever tell anyone else about this conversation? A Just my brother Melvin. Q Okay. When did you tell Melvin? A About -- well, that

part I don’t know -- even know. I don’t even know when I said this to him, but I told him about it. Q Okay. And when’s the first time you told someone else -- did you tell anyone else other than Melvin? A No, I never did. Q Okay. When’s the first time you told someone about it other than Melvin? A The last -- the last court here. The last trial I mean. [ 68 ] So the inconsistency is whether FE told Mr. C about the conversation at the party, and when she did so. She said nothing to anyone at that trial until she was later called with a request to speak to Mr. C’s lawyer.

It is not at all clear from her evidence when she told the lawyer about the statement. [ 69 ] FE’s testimony was also inconsistent with the testimony of Sam G who testified that she had no knowledge of victim compensation until March 2019, when she made an application which was denied. Sam G also testified that she never spoke with SG about the possibility of receiving money as a victim before then.

Sam G testified that she never encouraged SG to make up any part of these allegations or proceed through any trial for monetary compensation. [ 70 ] FE’s testimony was also inconsistent with the evidence of SG, who testified that she only learned of the possibility of receiving money as a victim when Victim Services came to her and her mother to tell them about the possibility and it was only at that time that both she and her mother were aware of this possibility. Further, SG denied that she told FE that she did not want to participate in the trial and that she made up the allegations against Mr.

C. [ 71 ] SG did agree, however, that there were many times when she was at FE’s house for a party, and “while I was intoxicated, I did so many stuff when I was intoxicated.” [ 72 ] Considering all of the evidence here, I find that there are concerns about FE’s credibility. I do not completely reject all of her evidence, but I am cautious as to the weight to place on her testimony.

[ 73 ] SG testified she first learned about the possibility of compensation this year, when Victim Services told her and Sam G about it. This is consistent with the evidence of Sam G who testified that she never knew of the possibility of victim compensation until March 2019 and an application was made then. Sam G testified that she never talked to SG about the possibility of receiving victim compensation before March 2019. There may have been some conversation between FE and SG in September 2018, but I find that not much weight can be attached to the hearsay statements FE testified were said by SG.

I have already commented on my analysis of FE’s testimony. Coupled with that is the observation that no application for compensation was made for nearly 5 years after the initial disclosure, and they did not apply until after the party. Further, FE did not testify to this discussion at the trial that occurred soon after the party. [ 74 ] Even if the words, ‘nothing happened’ were stated by SG, they could be interpreted as referring to other matters: an application for compensation being denied; the previous trials failing to bring a resolution.

The entire statement, if it was actually made, must be considered within the timeframe (4 years after disclosure), context (an intoxicated 13 year old at a drug/alcohol party) and the point (2 years after the first trial) within which it was made. [ 75 ] I put little weight on the report by FE of SG’s purported statement when considering the weight to attach to her testimony. WD analysis [ 76 ] First, I must decide if I believe the evidence of the accused: I do not believe Mr.

C’s denial of sexual contact with SG. [ 77 ] But that is far from the end of the inquiry. [ 78 ] If I do not believe the accused’s evidence denying complicity or guilt and the other defence evidence, I must still ask whether I have a reasonable doubt that this evidence may be true, and similarly, if I do not believe the testimony of the accused, I must ask whether I am left in reasonable doubt by his evidence.

I do not have a reasonable doubt raised by the defence evidence. [ 79 ] Finally, even if I am not left in doubt by the evidence of the accused, I must ask, on the basis of the evidence which I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 80 ] Mr.

C’s evidence stands directly against the evidence of SG and is considered as part of the overall evidence which must be reviewed to determine if the Crown has met the burden of proof upon it. [ 81 ] Considering all of the evidence, I find that SG is a credible witness, but in the circumstances, I treat her evidence with caution as it relates to some of the details she testified to. [ 82 ] When assessing her evidence as a child (in the prior proceedings), I use a “common sense” basis, considering the strengths and weaknesses which characterize the evidence offered in the particular case: (see R v W(R) ).

However , as with any witness, I must c a refully asse ss her credibilit y using the principles and factors described earlier. And to repeat: the s tandard of proof is the same w ith ch ildren as with adult witnesses. [ 83 ] Because SG is now an adult, but is testifying as to events which occurred when she was a child, I assess her credibility according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, are considered in the context of her age at the time of the events to which she is testifying (see R v W(R) ). [ 84 ] While there have been inconsistencies in SG’s evidence over the five years since this matter began, and with the five previous times she has provided evidence (by statement or testimony), these inconsistencies are slight and can be easily explained. This is unlike Mr.

C’s more significant and unexplained inconsistent statements. For example, some of her evidence ‘evolved’ over time : SG made no disclosure of the incident at Treaty Days in her initial police statement, but testified about it later. The first time SG testified to Mr. C telling her to touch herself “down there” while having a bath was at this trial. And much of her evidence of abuse while living with Mr. C and V, was first heard at this trial. [ 85 ] SG provided spontaneous explanations for the inconsistencies and evolving nature of her testimony on multiple occasions: Q Do you remember testifying to that?

A Well, yeah, I remember all -- all, like -- you’re telling -- like, I -- how many times I been doing this, four times now, and there’s probably -- every time I come up here, there’s a different story I have that he’s done that no one’s heard. And these stories you’re telling me, they just come back to mind, ‘cause this was when I was a kid. Like, I was a kid, and I lived on my life, and I forgot about it. Why would I want to keep remembering about it? [ 86 ] As discussed, in W(

R) and B(G) , memories of events that occurred during childhood must be assessed within the context of the time of the events to which she is testifying. Here SG’s demeanour and manner of answering questions seemed appropriate in terms of her narration of the events she describes. For example, she was not evasive or hesitant in providing her testimony or in answering to her previous evidence. [ 87 ] Her evidence is more than plausible; it leaves me with no doubt. Her evidence concerning Mr. C’s arm or hand over her mouth is consistent with his movements observed in the photographic evidence.

Her evidence of the final incident and Mr. C’s arm movement is consistent with the visual evidence in the photograph. [ 88 ] Before me SG testified that Mr. C engaged in various sexual activities with her, and Mr. C denies that he ever engaged in any such activities. Further, FE testified that SG told her that her mother was making her testify for $70,000 of victim services’ money, and that nothing happened as alleged. SG denies that she said anything to this effect.

Has the Crown proven that the acts occurred? [ 89 ] My confidence arises, beyond a reasonable doubt, after a review of all the evidence. [ 90 ] On my assessment of Mr. C’s evidence, I do not believe his testimony denying guilt. Nor does it leave me with a reasonable doubt that it may be true. His evidence was overstated and too inconsistent for me to put sufficient weight on it. In short, I do not believe his evidence.

And none of his evidence causes me to doubt the certainty of the facts necessary to prove his guilt beyond a reasonable doubt. [ 91 ] But that does not end the inquiry I must make in a criminal prosecution of this nature. The burden is on the Crown to prove by other evidence which I do accept, beyond a reasonable doubt, that Mr. C committed the acts complained of. [ 92 ] The core evidence of SG about the activities is consistent and compelling. I believe her re-telling of those core stories.

The detail with which SG related her story is, again using common sense and experience, supportive of and consistent with a five to 13-year old who has experienced traumatic events personally. And SG’s explanation for the inconsistencies and evolving nature of her evidence makes sense and is consistent with the long and thorny history of this case. It supports her credibility. The evidence of FE when considered within the entire circumstances of this case do not shake my confidence in the testimony of SG [ 93 ] In short, I believe SG’s testimony as it relates to the core stories.

And the evidence of FE does not raise a reasonable doubt of the guilt of the accused. I remain convinced, beyond a reasonable doubt of Mr. C’s guilt. [ 94 ] Based on the credibility, reasonability, and unqualified believability of the evidence given by SG, and the significantly inconsistent evidence presented by Mr. C, I find the following facts:

a) Mr. C touched SG on multiple occasions from when she was very young, only five years old, onward. That contact included touching her body including her vagina with his penis both above her clothing and when her vagina was bare. This touching was for a sexual purpose.

b) Mr. C knew SG was his grand-daughter. When she was 13, he had sexual intercourse with her on at least one occasion during Treaty Days. I need not find whether the Final Incident involved penetration.

c) Mr. C intentionally applied force to SG and engaged in repeated sexual assault upon her. Conclusion [ 95 ] Mr. C directly and intentionally touched SG with his penis for a sexual purpose. He is guilty of sexual interference. [ 96 ] He intentionally applied force to her in circumstances of a sexual nature by touching and penetrating her vagina with his penis. He is guilty of sexual assault. [ 97 ] He had sexual intercourse with her knowing she was his grand-daughter. He is guilty of incest. [ 98 ] I find Mr. C guilty of the three charges: sexual interference; sexual assault; and incest.

Heard on the 11 th day of October, 2019. Dated at the Town of Peace River, Alberta this 12 th day of December, 2019. R.A. Jerke J.C.Q.B.A. Appearances: James Brydon, QC for the Crown

Adam Klassen for the Accused