R v MRH, 2019 ABQB 992

Court of Queen’s Bench of Alberta Citation: R v MRH, 2019 ABQB 992 Date: 20191220 Docket: 180476178Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - MRH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify any complainants, witnesses, or the accused must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _____________________ __________________________________ Memorandum of Decision of the Honourable Madam Justice J.C. Kubik _______________________________________________________ The following is a written version of oral reasons delivered on December 17, 2019. This written decision is the official decision of the

Court. These written reasons reflect the content and conclusions of that oral decision, and have been edited to provide further anonymity for theAccused, complainants, and other witnesses in order to give meaningful effect to the publication ban in these proceedings. I. Introduction [1] MRH (the “Accused”) was charged with three counts of sexual assault, pursuant to

section 246.1 (as it then was); one countof sexual assault, pursuant to

section 271; and one count of sexual interference, pursuant to

section 151 of the Criminal Code. [2] At the close of the Crown’s case an application to amend the Indictment as to the alleged offence dates was consented to andgranted. Prior to closing argument, the Crown invited the Court to dismiss Count 5 of the Indictment (a count under

section 246.1 withrespect to the complainant CC) on the basis that no evidence was led at trial which would prove that the Accused committed the essentialelements of the offence charged, within the offence dates specified. I directed a dismissal of Count 5 on November 13, 2019. [3] Remaining for my determination are Counts 1 through 4, as amended. II. Brief history of allegations before the Court [4] The Accused is a 51-year-old man. The allegations set out in the Indictment date back to the time period August 18, 1986,through December 18, 1993. The complainants are younger cousins of the Accused. (

a) AA is presently 46 years of age and was between the ages of 12 and 13 years old at the date of the alleged offence. (

b) BB is presently 41 years of age and was between the ages of 8 and 9 years old at the date of the alleged offence. (

c) CC is presently 39 years of age and was between the ages of 9 and 13 years old at the date of the alleged offences. [5] The Accused and complainants were raised in a close-knit family unit, lived in close physical proximity to one anotherduring the relevant time periods, and were members of the same religious organization, the Church of Jesus Christ of Latter-Day Saints.While the occurrence of the acts of sexual assault were disclosed by both the Accused and BB in the late 1980s, both to church officialsand family members, criminal charges were not laid until January 16, 2018. [6] Throughout these reasons reference will be made to the grandmother of the Accused and the complainants.

She will bereferred to generally as “Grandmother” for ease of reference. III. Burden and Standard of Proof [7] The Accused is innocent until proven guilty. The Crown bears the burden to prove all of the essential elements of theoffences charged. The Crown must prove each element beyond a reasonable doubt. A reasonable doubt is a doubt for which one can givea reason, so long as the reason given is logically connected to the evidence.

It is based on common sense logically derived from theevidence or absence of evidence: R v Lifchus, (SCC), [1997] 3 SCR 320. [8] In this case, the Accused called evidence and testified in his own defence. As a result, I must analyze the evidence asrequired by the case of R v W(D), (SCC), [1991] 1 SCR 742 (“W(D)”), now clarified by our Court of Appeal in R vRyon, 2019 ABCA 36 (“Ryon”). I note the following salient points from Ryon (as subsequently amended in R v Achuil, 2019 ABCA299): (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to thecaveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent ofthe defence.) (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or even ifsuch evidence is not believed but still leaves the jury with a reasonable doubt that it may be true, they must acquit. (Subject to defenceswith additional elements such as an objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [9] W(

D) and Ryon require me to consider the entirety of the evidence in my determination. This gives full meaning to thepresumption of innocence afforded to the Accused and the Crown’s obligation to meet the standard of proof beyond a reasonable doubt,

throughout. [10] The Crown seeks to have the Court rely on similar fact evidence in this case. They argue that the evidence of eachcomplainant is so similar as to be inconsistent with mere coincidence such that the direct evidence of each is circumstantial evidence ofthe Accused’s commission of the actus reus of the offences against the others. The Accused argues that such evidence is inadmissible –that the test as outlined in R v Handy, 2002 SCC 56 (“Handy”), is not met, and that the prejudicial effect of such evidence outweighs itsprobative value.

In addition, they argue that the Accused’s voluntary confession to church officials in 1987 and his subsequentrepentance constitutes an intervening event. Further, the Accused argues that, intentionally or unintentionally, the complainants have“colluded” or their evidence has been “tainted by their communications with each other” during the passage of time between BB’s firstdisclosure to her parents and the trial. [11] I will deal with each count on its merits and address the issue of similar fact evidence at the conclusion of these reasons. IV.

Essential elements of the Offences [12] As stated above, the burden of proof rests solely with the Crown to prove all essential elements of the offence beyond areasonable doubt. [13] With respect to the allegations of sexual assault, the essential elements of the offence for the Crown to prove beyond areasonable doubt are: (

a) That the Accused touched the complainants, directly or indirectly; (

b) That the touching was intentional; and (

c) That the touching took place in circumstances of a sexual nature. [14] In this case, the complainants by virtue of their age could not legally consent to sexual activity. As a result, the essentialelements relating to a lack of consent and knowledge with respect to that lack of consent need not be proven. [15] With respect to the allegations of sexual interference, the essential elements of the offence for the Crown to prove beyond areasonable doubt are: (

a) That the complainant, CC, was under the age of 14 years; and (

b) That at that time, the Accused touched her for a sexual purpose. [16] Additionally, with respect to all offences, the Crown must prove beyond a reasonable doubt that they occurred during the timeframes alleged at Diamond City, Alberta. V. Reliability and Credibility [17] The events testified to by the various witnesses are alleged to have occurred 25 to 30 years ago. As a result, in consideringreliability and credibility, I must bear in mind both the effect of the passage of time on memory generally, and that the complainants werechildren at the time of these events while the accused was a young adult.

Events as recalled from childhood must be considered in theirtotality and in the context of all of the evidence. [18] The Supreme Court of Canada in R v W(R), (SCC), [1992] 2 S.C.R. 122 (“W(R)”), stated that judges shouldnot give undue weight to certain inconsistencies in the evidence of children, or adults giving evidence as to events which occurred whenthey were children, regarding peripheral events: … 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… …In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed accordingto criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying. [19] This does not serve to lower the standard of proof.

As further noted in W(R): 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. [20] The analysis of allegations of historical sexual abuse must consider both the credibility of the witnesses and a carefulassessment of the reliability of their testimony. In R v Joudrie, (ON CA), 100 O.A.C. 25, at para 28 Moldaver JA, ashe then was, wrote:

…The importance of the distinction between credibility and reliability was canvassed by this Court in R. v. S.(W.) (1994), (ON CA), 90 C.C.C. (3d) 242. Like the case under appeal, S.(W.) involved allegations of a dated sexual assault where thecomplainant's evidence, although sincerely given, was contradicted in a number of significant ways. On behalf of the court, FinlaysonJ.A. wrote as follows at p. 250: ….

We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children,may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, isnot the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a convictionwhere there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman (1993), (ONCA), 87 C.C.C. (3d) 153 at pp. 170-4, 26 C.R. (4th) 256, 16 O.R. (3d) 295 (Ont.

C.A.), for a discussion on this subject. VI.

Agreed and Uncontroverted Facts [21] An Agreed Statement of Facts was entered at trial and dealt with admissions of fact relating to the ages of the Accused andcomplainants, the family relationships amongst various witnesses, the dates on which the Accused was serving on his Church mission,the dates of various marriages which serve as points of reference in the trial evidence, and the locations of various family residences inthe vicinity of Diamond City, Alberta. [22] I make the following additional factual findings based on uncontroverted facts testified to: • Between September 1, 1986, and November 1, 1986, the Accused resided in the yellow house on the family farm at DiamondCity, Alberta, with his soon to be Uncle M. • Between November 1, 1986, and May 1987, the Accused resided in the pink house on the family farm at Diamond City, Alberta,with GG, SS and their children, including BB and DD. • After leaving the pink house the Accused returned to British Columbia to live with his parents. • The Accused left on his mission on August 4, 1987.

During his mission he resided in England. He returned to Canada on August 4,1989. • From August 4, 1989 until December 31, 1989, the Accused resided with his parents in Ponoka, Alberta. • From January 1, 1990, until December 17, 1993, the Accused resided with Grandmother in the big house on the family farm atDiamond City, Alberta. • The Accused married on December 18, 1993. [23] The Accused, as an adult, was tried in the Provincial Court of Alberta – Youth Division and on March 4, 2019, was convictedof three counts of sexual assault pursuant to

section 246.1 of the Criminal Code, and one count of indecent assault on a female pursuantto

section 149 of the Criminal Code. The victims of these crimes were DD, AA, and BB. The offence dates of the various convictionsranged from October 4, 1980 to August 17, 1986. I am aware that the Accused has already been convicted of those offences, and havebeen careful to be mindful of the dates of the offences alleged in the case at bar. VII. General Overview of Allegations [24] AA is currently 46 years old and was between the ages of 12 and 13 years old at the time of the alleged events. AA testified asto multiple sexual assaults in different locations.

She testified that on multiple occasions the Accused committed various acts of sexualassault on her in Grandmother’s sitting room. This included kissing, oral sex, exposing his penis and rubbing her hand on it, and digitallypenetrating her vagina. She also testified that on one occasion the Accused drove her to the picnic grounds located at the river by thefamily farm, performed oral sex on her, masturbated himself to ejaculation and afterward digitally penetrated her vagina. [25] BB is currently 41 years old and was between the ages of 8 and 9 when the alleged assaults occurred.

BB testified as tomultiple sexual assaults occurring primarily in three different locations: the bedroom of her family home, the bathroom ofGrandmother’s home, and in a car while the Accused drove her to Brownies. The assaults in her bedroom and the bathroom were allegedto be oral-genital sexual assaults and one act of vaginal penetration. The assaults in the car were alleged to be fondling of her genitals. [26] CC is presently 39 years old and was between the ages of 9 and 13 years old at the time of the alleged assaults.

CC testified totwo specific acts of sexual assault, the first occurring in the Accused’s bedroom at Grandmother’s residence in the week prior to hiswedding. She alleged that the Accused touched her breasts, and while clothed rubbed his penis against her vagina. She also testified thatthe Accused invited her to touch his penis. The second event occurred sometime prior to the first, again in the Accused’s bedroom. CCalleged that the Accused touched her breasts, and rubbed against her in the same manner. Finally, CC recalls flashes and snippets of otherassaults occurring in the same manner as the others described.

With respect to these incidents she cannot pinpoint any dates, save that sheplaces them after the Accused’s return from his mission and occurring in the bedroom, and she recalls clothing she was wearing duringthe alleged assaults. [27] During the course of the Accused’s testimony at trial, he admitted various allegations of sexual assault made by BB butdenied others. In particular, he admitted to committing oral-genital sexual assaults on BB in the bedroom of her childhood home. He alsotestified that he similarly assaulted her “at least once” in the bathroom of her childhood home.

He denied sexually assaulting her in thebathroom of Grandmother’s home. He further denied that he ever sexually assaulted her while transporting her to Brownies.

[ 28 ] With respect to AA, while the Accused admits to having sexually assaulted her before he turned 18 years old; he denies any such assaults after his 18 th birthday. Further, he argues that he was already tried in the Youth Division with respect to the allegations she advances, and in particular, her allegation that he sexually assaulted her at the picnic grounds. [ 29 ] With respect to CC, the Accused denies all allegations of sexual assault. VIII.

The Accused’s Credibility [ 30 ] The Accused argues that the strength of his credibility is demonstrated by the fact that he voluntarily confessed his sexually abusive behavior to church officials in 1987 and thereafter, as counselled by those officials, took steps to lead an upstanding life. [ 31 ] The Accused testified that after he arrived in England for his church mission he was wracked with guilt regarding his sexual abuse of his cousins. As a result, on September 29, 1987, he confessed this activity to his Mission President Price.

He further confessed this activity to Erickson, his bishop in British Columbia. Both men are now deceased. The Accused testified that the details of his confession were that he had assaulted two of his younger cousins, BB and AA. When he initially confessed he referenced only their first names; on later questioning he disclosed their full names. He didn’t disclose the exact age differences between he and them. He testified that he was asked for details and disclosed that he had performed oral sex on them and touched them.

The Accused further testified that he followed instructions to write a letter to Erickson, to write apology letters to both BB and AA, and to deliver all three letters to Price for forwarding to Erickson. At trial, the Accused tendered a letter he had received from Erickson acknowledging receipt of a letter from the Accused. The Erickson letter neither references the letters to BB or AA, nor does it reference in any way the confession of the sexual assaults. Neither BB nor AA received an apology letter in 1987. Neither of BB’s parents received a letter addressed to her in 1987 referencing these matters.

The Accused remained on his mission and received counselling from Price until Price’s departure from his role as mission president in June or July 1988. The Accused was specifically advised by church authorities not to report the matter to police. He did not confess to his parents. [ 32 ] In March 1989 BB disclosed the abuse to her parents. Her father, GG, contacted the mission in Bristol and the Accused was confronted by his then mission president, Jones, regarding the allegations.

The Accused informed Jones that he had already dealt with the matter through Price and Erickson and did not provide him with any details. The Accused contacted GG, told him the accusations were true, that he was sorry, that he thought it had already been dealt with, and that he would send a follow-up letter. He did not tell GG the details of the abuse as he assumed BB already had. He did not tell GG that he had also sexually abused AA because GG did not ask. He subsequently sent a letter to BB apologizing for the burden he had placed on her.

In response he received a letter from GG and a letter from BB, and both offered their forgiveness. [ 33 ] In 1988 the Accused’s own mother became aware of the abuse of BB through the Accused’s sister, her daughter, in whom BB had confided. The Accused’s parents phoned their bishop who confirmed that he was aware of the abuse. The Accused’s mother did not discuss the details of it with the Accused at this time. The Accused did not disclose to his mother that he had also sexually assaulted AA and DD. [ 34 ] After returning home from his mission, the Accused never discussed the matter with his mother.

She attempted to discuss it with him but testified that he was unwilling to talk about it. He moved into the big house on the family farm with Grandmother on January 1, 1990. He attended a family dinner there that day and his cousins were in attendance. He continued to reside with Grandmother until December 17, 1993. He testified that he never discussed the abuse with Grandmother but that she knew about it and imposed a rule that he was not to be alone with any of his younger cousins in the house and that he followed that rule to a tee.

He testified that he avoided family dinners thereafter, in part because he did not want to make BB and AA uncomfortable; while he had asked for forgiveness it was not a requirement that they give it. [ 35 ] The Accused testified that at the time he was called to be a bishop he was not questioned about any matters that disqualified him from that role. He did not disclose the sexual assaults of his cousins to his stake president “because he had already dealt with these matters previously and had been told to forget them and to move on”. He had no doubt in his mind that he was worthy to be a bishop.

He was released from this position in September 2016. [ 36 ] While the events of 1987 are of little relevance to the question of culpability they are indicative of issues of credibility. I would note that the Accused did not disclose the assaults during the interview process before being posted to his mission. This, despite his acknowledgment that he was asked whether there was anything in his past that needed to be dealt with, and despite being aware that he was obligated to be truthful with church officials. When he confessed the abuse of BB and AA he did not confess the abuse of DD.

His youth record indicates a conviction for sexual assault of DD during the time period January 1, 1983, and December 31, 1983. As a result, he did not make a full disclosure to church officials either at the time of preparation for his mission or during his 1987 confession. [ 37 ] When the matter came to a head in March 1989 he did not provide details to Jones; rather, when questioned by Jones, his answer was that he had already dealt with it. This is not consistent with someone who was being forthright about the matter.

Further, when he spoke with GG, while he, in general terms, admitted the abuse of BB, he did not disclose the abuse of AA. His reason was because GG didn’t ask. Again, this behavior is not consistent with someone who has confessed and repented as he purports to have done in 1987; it is consistent with someone who is disclosing only as much information as is necessary. [ 38 ] Further, the Accused testified that after he returned from his mission in 1989 he avoided family gatherings, in part because he had not been forgiven and did not wish to put pressure on BB or AA to forgive him.

This is also inconsistent with the evidence. While he had not received forgiveness from AA, BB had forgiven him as had her father, GG. In fact, GG had been so generous in his forgiveness that he offered the Accused a place to stay with the family if he ever needed it. This was, in effect, an indication that GG’s family was prepared to welcome him back into their fold. [ 39 ] When he returned from his mission, no one pressed the Accused to discuss the sexual abuse. He did not discuss it with his mother, Grandmother, his cousins, or his aunts and uncles.

Grandmother, who I am satisfied, based upon the testimony of GG, SS, and

MH (the Accused’s mother), was aware of the abuse of BB, welcomed him to live in her home for a period of nearly 4 years, in close proximity to BB, AA, and CC. It is clear from the testimony of all witnesses but the Accused, that Grandmother was a central figure in the family.

Whereas he described her as a lonely old woman during the years he lived there, all others indicated that family gatherings after church each Sunday, holidays, and Mother’s Day continued through that time period. [ 40 ] Finally, the Accused was not forthcoming to church officials when he was interviewed regarding the position of bishop. [ 41 ] For these reasons I do not find the Accused to be a credible witness. His various confessions and admissions at the time these events were unfolding were not complete or forthright.

At trial, he made various admissions and denials with respect to the conduct alleged, including partial admissions of sexual assault on BB, coupled with denials of other assaults alleged by her. His pattern of admissions and denials appear calculated to avoid certain inferences, in particular, that any sexual contact occurred at Grandmother’s house. In addition, some of his admissions and denials are inconsistent with other trustworthy and reliable evidence. This will be discussed in more detail with respect to each count.

Suffice to say, given that I do not find the Accused to be credible; I do not believe his evidence. [ 42 ] Accordingly, I move on to consider whether his evidence or other exculpatory evidence leaves me with a reasonable doubt or whether, on the whole of the evidence, I am satisfied that the Crown has proven the guilt of the Accused on each count beyond a reasonable doubt. IX. Analysis of the Offences

a) Count 1 - AA [ 43 ] As previously noted, AA testified to being sexually assaulted by the Accused during the relevant time period both in Grandmother’s sitting room and at the picnic grounds. [ 44 ] AA also testified as to when and how the abuse stopped. She testified that during the fall of 1986, while in Grade 7, she attended a sexual education class as part of her health course. She described the band room at her school where this took place, was able to name the teacher who taught the course and described the video they watched which included a description of ways in which pregnancy might occur.

As she had not yet experienced her first period she described herself as “freaking out” when she learned this information as she thought she might be pregnant on account of what the Accused had done to her. She testified that during her Grade 7 year she and her school friends regularly went to a local Chinese restaurant for lunch. She described sitting at a long table in the back room of the restaurant, ordering fries and gravy, and then excusing herself to go to the pharmacy down the street to buy perfume and a pregnancy test.

She testified that she returned and did the pregnancy test in the bathroom of the restaurant. After this sexual education course and the accompanying pregnancy scare, sometime in the fall of 1986 the Accused came to the piano room of Grandmother’s house, took her by the hand and kissed her. This was commonly the manner in which the sexual assaults began. She confronted him with the information she had learned and told him that he could no longer touch her.

She testified that he turned, walked away and never touched her again. [ 45 ] While the Accused denied that he sexually assaulted AA after he turned 18, he agreed that this conversation (with the exception of the kiss) occurred in the fall of 1986 (September or October by his recollection), at Grandmother’s house and that he stopped sexually assaulting AA as a result. [ 46 ] AA is a credible witness. Her credibility arises in part from her position as a reluctant witness. She did not disclose the abuse to anyone until she told her mother about it in 2004.

She disclosed it to her bishop after she learned the Accused had been made a bishop. She discussed it with BB in the summer of 2016 but was not interested in pursuing the matter criminally. When she was contacted by police in the fall of 2016 after BB’s report she declined to provide a statement. She was living in the same small town as the Accused, their children went to the same school. She testified that she did not want her children to become aware of the situation.

She did not provide a statement to the police until after the Accused’s arrest on January 16, 2018. [ 47 ] With respect to her reliability, while AA is a poor historian with respect to dates, that is not isolated to the events of this trial. For example, she didn’t know her own sister’s birthdate or the age difference between them; she was unable to recollect her own ages at certain points in time. Rather, she recollects the events of this time period in reference to school grades and significant happenings. Her recollection of significant happenings was detailed and credible.

An example is her evidence with respect to the sexual education class where she learned that what the Accused was doing to her was wrong and the fall out of that education – the conversation with the Accused about this information. That AA does not recall dates makes sense in the context of these events. She was a victim of sexual assault perpetrated by the Accused during the years 1980 through 1986, as evidenced by his record of youth convictions tendered at trial. She believed the contact was normal until the sexual education class. There would be no reason for her to be marking the assaults in time.

Learning that the behavior was wrong, however, clearly stood out in her mind not only because it was shocking and traumatic but because it led her to put a stop to it. [ 48 ] An issue arises in this trial with respect to AA’s testimony regarding when the sexual assaults took place. The Accused argues that all of these same events were alleged to have occurred during the time period considered by the Youth Division trial judge. It was not until closing argument, however, that the Accused raised various legal arguments, including autrefois acquit , res judicata , issue estoppel, and double jeopardy.

Raising these arguments at the conclusion of the trial creates certain procedural problems. I cannot rectify now, those procedural steps that the Accused did not pursue, either by special plea at the outset of the trial or by opposing the admissibility of the evidence at trial. In addition, subsequent written arguments by both Crown and the Accused included passages from the decision rendered by the Youth Division trial judge. The Accused also included passages from the preliminary inquiry transcript which were not put to the witness in cross examination.

I cannot consider evidence which was not before me in the trial proper, including excerpted findings of the Youth Division trial judge. As a result, I deal with the two allegations separately, based on the evidence tendered in chief and on cross-examination.

i. The Sitting Room [ 49 ] First, with respect to the assaults alleged to have occurred in Grandmother’s sitting room, while AA was unable to give precise dates for these occurrences she testified that these assaults occurred in Grade 5, Grade 6, and Grade 7. In cross-examination a passage of her evidence at the youth trial was put to her, as follows: Q And I'm going to start at line 10. And it's a little bit long, so if you'll bear with me, I'll try to speak slowly.

I'm going to read to you again the questions that were posed to you and the answers that you gave, and you can tell me whether or not you gave those answers; all right? Line 10, page 32 of the trial transcript: (as read) Q Okay. And you said that was at the beginning of your Grade 7 year? A Just my Grade 7 year. I'm not sure which -- when in the school year it was. Q Okay. And what year did you start Grade 7? A I don't know. Q Well, you've told us when your last event of sexual abuse did not happen. Would you please tell the Court when the last time prior to that, when it did happen. A I'm -- I don't know.

Q Did it happen during the summer of 1986? You don't know, do you? A I don't remember the last time that we were -- he touched me. Q You don't remember if it happened in the spring of 1986 either, do you? A I don't know the years. I was a small child. Q And you don't know if you started school in Grade 1 when you were 5 or when you were 6, do you? A No, I don't. Q Does it help you, [AA], if I tell you that [the Accused] left on his mission April 4th, 1987? Does that help you? A No. I have no clue when he left on his mission. Q Well, I just told you.

A Yeah, I know, but I don't know where I was in -- in -- no, that doesn't help me. Q So you don't know if the last time he touched you was before or after he turned age 18, do you? You don't know? A I don't know. But I do know he did not touch me after his mission. I do know that. But I do not know that he touched me before his mission. Q So I put it to you, [AA], you don't know whether [the Accused] touched you during the summer of 1986 and forward, and you don't even know about the spring of 1986, do you? A I know I was touched. I don't know the dates. I don't have the dates in front of me.

But I do know I was touched in Grade 7, Grade 5, Grade 6. I do know that. Q Well, you testified at the youth trial that you don't know if you were touched after his 18th birthday, which we know, by agreement, was August the 18th, 1986, and you have testified that you do not know whether you were touched after his 18th birthday; isn't that true? A I do know I was touched because you just have given me the dates just now. I didn't know how old [the Accused] was.

I didn't know when he turned 18. [ 50 ] It is clear based on the cross-examination on this passage of evidence that at the time of the youth trial, AA was unaware of the Accused’s birthdate. The questions she was asked and answered used the reference of his 18 th birthday without providing the actual date. Once she became aware of the date of his birthday, during cross-examination in this trial she was able to place the general time periods of the abuse in reference to her Grade 7 year.

As a result, her evidence is not contradictory on this point. [ 51 ] Her recollection of the timing of the sitting room assaults accords with other reliable evidence. During the time frame of August 18, 1986 until Christmas 1986, AA and her family were residing at Grandmother’s residence while their new house was under construction.

Given that the Accused did not reside in the vicinity of AA until September 1986, he would not have had regular opportunity to sexually assault her in Grandmother’s sitting room at any time prior. [ 52 ] She testified that on every occasion that she and the Accused were alone together he assaulted her. The assaults followed a particular pattern with the Accused taking her by the hand, kissing her and leading her to the sitting room where he would perform oral sex on her, and rub her hand on his exposed penis. The assaults occurred with such frequency that she thought they were normal until she learned otherwise.

The evidence demonstrates that she learned these assaults were wrong in the Grade 7 sexual education class and confronted the Accused with the information she had learned on the next occasion, when he came, took her by the hand and kissed her.

This occurred in the fall of 1986, a fact conceded by the Accused. [ 53 ] AA was not cross-examined as to the particulars of the sitting room assaults, save for the final confrontation on the issue of whether the Accused did or did not kiss her. Regardless of any discrepancy between whether there was an actual kiss or the Accused leaned in to kiss AA, the fact of the confrontation is uncontroverted. On the whole of the evidence I am satisfied beyond a reasonable doubt that the sitting room assaults occurred, as described by AA, during the fall of 1986. ii.

The Picnic Grounds [ 54 ] With respect to the incident at the picnic grounds, there is inconsistent evidence as to the time frame in which this event occurred. At the youth trial, AA testified that this event occurred when she was in Grade 5 or 6. During the course of the trial before me AA testified that this incident occurred when she was in Grade 7.

When cross-examined as to the inconsistency in her evidence she testified that over the course of the youth trial, preliminary inquiry, and this trial her memory had become clearer and she recalled the particular pair of jeans she was wearing on that occasion because they were jeans that were purchased for Grade 7.

These jeans stood out in her mind because they had a particular embellishment on the front and were special because she had not had a pair of jeans that weren’t hand-me-downs. [ 55 ] Her recollection of the event happening in Grade 7 is also linked to the fear of pregnancy that arose after she saw the video in her sexual education class. AA testified that while at the picnic grounds, the Accused masturbated himself to ejaculation, wiped it on his jeans and then penetrated her vagina with his fingers.

After seeing the sex ed video she feared that any ejaculate on his fingers could have made her pregnant. [ 56 ] AA’s testimony regarding how she came to recall that the picnic ground assault occurred during her Grade 7 year, while logical and tied to important and meaningful events in her chronology, in particular the sexual education class and the confrontation with the accused in the fall of 1986, is troubling in light of her previous testimony only 11 months earlier indicating that the picnic ground assault occurred in Grade 5 or 6.

The Accused and his mother testified that during the summer of 1986 the Accused lived with an aunt in Lethbridge, and at the time of his 18 th birthday was living in British Columbia. As a result, it is entirely possible that this event could have occurred in a previous summer or in the fall of 1986. Given those distinct possibilities and AA’s contradictory statements on this point, I am not satisfied beyond a reasonable doubt as to the date on which the picnic ground assault occurred. iii.

Determination on Count 1 [ 57 ] With respect to Count 1, I am satisfied beyond a reasonable doubt that on multiple occasions during the time period of August 18, 1986 and December 31, 1986 the Accused intentionally touched AA in a sexual manner, at a time when she was of an age that she could not provide consent and thereby committed sexual assault on AA. These acts of sexual assault occurred in Grandmother’s sitting room and consisted of kissing, oral-genital sexual contact, rubbing AA’s hand against the Accused’s penis and digitally penetrating her vagina.

b) Count 2 - BB [ 58 ] As previously noted, BB testified to being sexually assaulted by the Accused during the relevant time period in her bedroom, the bathroom at Grandmother’s house and during car rides on the way to Brownies. [ 59 ] BB testified that during the time period that the Accused resided in her family home he babysat her and her siblings at least 1 to 2 times per week.

On those occasions, he would put the children to bed, tell BB to get undressed and then come to her bedroom, which she shared with a younger sibling, position her at the edge of the bunk-bed and perform oral sex on her. [ 60 ] With respect to the bathroom assaults, she testified that these occurred during family gatherings when she and her cousins were playing downstairs at Grandmothers. The Accused would ask her to come with him, take her to the bathroom, lay her on the floor, remove her pants and underpants and perform oral sex on her.

She testified that on one occasion he attempted to penetrate her vagina with either his fingers or his penis. She began to cry and move away and he stopped and soothed her. She was unable to place this event in time, except to recall that it occurred in Grandmother’s bathroom. She described the layout of the bathroom and the position of her body, with her head being nearest the toilet and furthest from the door. BB recalled these assaults being interrupted on more than one occasion by a knock on the door, once by her sister DD and once by her Aunt K.

When interrupted, the Accused would shush her, the assault would end, he would leave the bathroom, and she would follow shortly after. She was unable to place these interruptions in time. BB denied ever having been assaulted by the Accused in the bathroom of her childhood home. [ 61 ] In relation to the allegation of fondling on the car rides to Brownies, BB testified that the Accused regularly drove her to Brownies during the time period in question. Brownies was held at her school in a nearby community.

While she could not recall details of the time at which Brownies was held or the vehicle in which they travelled, she testified that this occurred each time the Accused drove her there. She recalled being alone in the vehicle with him and stated that he would put his hand up her Brownies dress and inside her underwear to touch her genitals. [ 62 ] BB testified that she first disclosed the abuse to her cousins, CC and AH (sister of the Accused), after the Accused had left on his mission. This disclosure occurred while the children were playing together in Grandmother’s basement.

Her recollection was that CC replied that the Accused had also abused her. CC did not recall making a similar disclosure of abuse at this time. AH recollected that BB’s disclosure was made to her alone and CC was not present. Regardless, sometime later, confirmed to be March 25, 1989, the date of a family wedding reception, BB disclosed the abuse to her mother (SS). Her father (GG) was advised and various events unfolded involving church officials and the Accused which culminated in the Accused admitting the fact of the abuse to GG and writing an apology letter to BB.

One detail of the apology letter stood out to her. It was that the Accused apologized for the “burden” he had placed on her. She did not, at the time, understand what the word “burden” meant and had to ask her father to explain it to her. BB and GG both wrote back to the Accused to express their forgiveness.

[ 63 ] In the summer of 2016, BB learned that the Accused had been called to be a bishop of his local ward. She was concerned that the Accused, because of his conduct with her, was not worthy to hold such a position and would by necessity have contact with youth as a result of the appointment. She contacted her own bishop to address the situation and when he had not been removed from the position by September of 2016 she reported the sexual assaults to police. [ 64 ] BB acknowledged that she had difficulty recollecting the dates on which certain of these events happened.

Her parents helped her to pinpoint certain dates in relation to family events. An example of this is the date she disclosed the abuse to her parents. BB, is, however, a credible and reliable historian as to the facts of the assaultive behavior. In fact, the Accused conceded in his testimony that the bedroom assaults occurred “like she described”, demonstrating the accuracy of her detailed memory of those assaults. Similarly, the Accused in his description of the apology letter testified that he had apologized for the “burden he had placed on her”.

This also demonstrates her recollection for details, in particular details which were confusing in nature and arising from traumatic events. [ 65 ] BB was a candid witness. She was appropriately emotional. She was not prone to exaggeration. Her explanation for what motivated her to report the matter to police was credible. Nothing can be drawn from the timing of that disclosure. The doctrine of recent complaint is abrogated.

Given that she was a child at the time of her disclosure to her parents, and her parents faithful members of her church, nothing can be read into the fact that the matter was not reported to the police. Her parents responded in a way that was familiar and comforting to them. Her report to police was driven not by malice, but by concern for the safety of other young children. [ 66 ] Overall, I am satisfied that BB was both a reliable and credible witness. [ 67 ] As noted, the Accused conceded certain of BB’s allegations, in particular, that he committed oral-genital sexual assaults on her in the bedroom.

While he denied that he committed oral-genital sexual assaults on her in Grandmother’s bathroom, he admitted to having done so in the bathroom of her family home. [ 68 ] Following the trial, the Accused invited me to enter a conviction against him on Count 2 of the Indictment, based only on the admissions made by him during his testimony. This was not on the basis of a guilty plea after trial with Crown consent. [ 69 ] To be clear, the Accused admitted the necessary elements to ground a conviction for sexual assault, pursuant to

section 246.1 of the Criminal Code . While it would be expeditious to enter a conviction on this basis, I am of the view that in the absence of a guilty plea, where there is divergent evidence as to the particulars alleged and the Accused has only made partial admissions, the duty of the Court, and public interest considerations, including confidence in the administration of justice, require me to consider all of the evidence. [ 70 ] The adjudication of sexual assault trials represents a significant portion of this Court’s work.

The ethical principles governing judges, and in particular those principles relating to judicial independence and conduct exist, in part, to protect the public interest.

In its search for the truth, the Court has a duty to exercise its role fairly and impartially, and to hear and decide the case in its entirety. [ 71 ] Where a complainant has advanced a case wherein a single count on the Indictment includes multiple allegations of sexual assault differentiated by location or manner, and the Court has heard all of the evidence, absent a guilty plea by consent, it is incumbent on the Court to consider all of the evidence in making a fair and just determination of the case.

To simply premise a conviction on only those facts the Accused has admitted, without considering the additional allegations which are denied, is not an exercise of judicial independence and does not enhance the search for truth in the trial process. As noted in R. v Barton , 2019 SCC 33 , trial fairness must be assessed from both the perspective of the accused and of society more broadly. [ 72 ] The law, as it has evolved with respect to sexual assault, has long recognized that it is a crime which is under-reported.

This has occurred for a number of reasons, including systemic failures in the justice system to ensure the integrity of the process, not only for the accused but also for the complainant. It is in the public interest that complaints of sexual assault, once before the Court, be fully and fairly canvassed at trial, and that at the conclusion of the trial process, a verdict is rendered which is premised on all of the evidence tendered.

Accordingly, in making my decision on Count 2, while I accept that the Accused committed the bedroom sexual assaults, I will consider all of the allegations and evidence with respect to the bathroom assaults and the assaults alleged to have occurred during the car trips to Brownies. i. Bathroom Assaults [ 73 ] There is a conflict in the evidence of the Accused and BB as to whether he committed oral-genital sexual assaults against her in the bathroom of her childhood home or in the bathroom of Grandmother’s home.

He admits to at least one such assault in the bathroom of her childhood home but denies any such assaults occurred at Grandmothers. She alleges these assaults occurred at Grandmothers but not at her childhood home. DD recalled seeing the Accused and BB both enter the bathroom in short proximity of one another, in both locations.

Given the passage of time and its general effect on memory it is entirely possible the assaults took place in both locations as suggested by DD’s evidence, and the competing recollections of the Accused and BB. [ 74 ] An examination of all of the evidence, however, satisfies me beyond a reasonable doubt that the bathroom assaults took place at Grandmother’s house. First, both the Accused and BB testified to the bathroom assaults happening during daytime hours. SS was a homemaker at the time of these events and GG was working during daytime hours.

The Accused testified that he only assaulted BB when both SS and GG were away from home. SS and GG were only away from home during evening hours when they left the Accused in charge of the children while they went to various church related events, on date nights, or in the case of SS, to home and school meetings. [ 75 ] Further, the Accused and BB both recall Aunt K knocking on the door and interrupting one of the assaults. Both testified it was an assault in the bathroom that was interrupted. The Accused testified it was the last time he assaulted BB; BB could not place this event in time.

Aunt K was a school teacher during the relevant time period. On weekdays she was working during daytime hours, the Accused was at college and BB was at school. From September 1, 1986 to November 8, 1986, Aunt K was living at Grandmother’s house. Following her marriage on November 8, 1986 she moved into the yellow house. Thereafter she regularly went to Grandmother’s house, including for Sunday dinners following church. These dinners occurred during the daytime, specifically, after church concluded

at 1:00 pm. During this time frame the Accused was attending the same ward as the rest of the extended family and attended these family dinners. It is not believable that Aunt K interrupted the bathroom assault in the home of GG and SS; rather, all of the evidence points to this assault having occurred at Grandmother’s, during the weekly Sunday gatherings as testified to by BB, where the Accused, BB and Aunt K, as well as DD, were all present.

I am also satisfied beyond a reasonable doubt that the bathroom assaults at Grandmothers took place on more than one occasion, based on both the testimony of BB and DD, and that on one of those occasions the Accused penetrated BB’s vagina with his fingers or his penis, as testified to by BB. ii. Brownies [ 76 ] Finally, with respect to the allegations of fondling during the car rides to Brownies, there is a lack of clarity in material aspects of the evidence to satisfy me beyond a reasonable doubt that this specific act of sexual assault occurred.

While I consider BB to be a reliable and credible witness and have rejected the Accused’s denials, I still must consider all of the evidence on this point including the fact that neither BB, DD, GG or SS could describe the vehicle they travelled to Brownies in or when they went. In addition, BB and SS recollected BB travelling alone with the Accused, whereas DD recalled that she, BB and another sibling travelled together with the Accused. DD described seeing the Accused briefly touching BB’s knee on two occasions during these trips but seeing no other behavior beyond that.

While there is conflicting evidence with respect to the Brownie’s allegation which gives rise to a reasonable doubt as to those particular allegations of abuse, it does not cause me to doubt the veracity of BB’s other allegations of sexual assault, which are internally and externally consistent with the other evidence. iii.

Determination on Count 2 [ 77 ] With respect to Count 2, I am satisfied beyond a reasonable doubt that on multiple occasions during the time period August 18, 1986 and August 4, 1987 the Accused intentionally touched BB in a sexual manner, at a time when she was of an age that she could not provide consent and thereby committed sexual assault on BB. These acts of sexual assault occurred both in her bedroom and Grandmother’s bathroom and consisted of oral-genital sexual assault and an incident of vaginal penetration by the Accused with either his fingers or penis.

c) Counts 3 and 4 – CC [ 78 ] CC alleges that the Accused sexually assaulted her on multiple occasions after he returned from his mission. She recounted two specific instances at trial, as well as memories consisting of flashes and snippets of acts of touching and the different clothing she was wearing. [ 79 ] All of the incidents alleged by CC were said to have taken place in the Accused’s bedroom at Grandmother’s house. One was said to have occurred in the approximate week prior to the Accused’s wedding in December 1993.

CC testified that on this occasion she and her younger sister encountered the Accused in Grandmother’s house and he asked her younger sister to come upstairs with him. CC, wishing to spare her sister from abuse told her to go outside and instead she went upstairs with him. She testified that he laid her on the bed, fondled her breasts and, through their clothing, pushed his penis against her vagina. He also invited her to touch his penis.

She recalled the timing of this particular event based on seeing the Accused’s wedding invitation propped up against a red British phone booth telephone which was positioned on the headboard of the bed. She testified that she thought to herself “next week it was going to be over, he’d be married, and he’d be gone, and I wouldn’t have to do this anymore.” CC alleged that the assault came to an end when her younger sister knocked on the door. [ 80 ] The other specific event she testified about occurred sometime following the Accused’s return from his mission.

Although she could not pinpoint a date, she was certain that it occurred prior to the December 1993 event. On that occasion, CC alleged that the two were in his bedroom and the Accused had one hand down her pants, one hand on her breast and was pushing his penis against her leg. She testified that the assault stopped when they heard Grandmother coming upstairs. CC testified that she rolled off the bed and hid in the closet amongst the clothes, Grandmother came in and spoke to the Accused, looking for CC. After Grandmother left, CC exited the room and snuck out a side door of the house.

She particularly recalled the assault as she was wearing a new pair of burgundy cowboy boots and was concerned she would get in trouble for wearing the boots in the house. [ 81 ] The balance of the allegations are flashes and snippets of memories of the Accused laying on her, again in the bedroom, grinding against her with his penis, grabbing her breasts, and biting her breasts through her shirt. Sometimes he would lift her shirt.

She also remembered details of the clothing she was wearing – striped pastel jean shorts and a white tank top, cotton track pants with a matching jacket, a dress which was part of a matching family set, and a second occasion when she was wearing the same burgundy cowboy boots. CC cannot pinpoint the date of these incidents save to say that they occurred during the approximate four-year period when the Accused was residing with Grandmother. [ 82 ] The Accused denied any touching of CC. He challenged her credibility and the reliability of her memory.

He also argued that the 1987 confession and the completion of his mission rendered him a changed man, such that he did not commit any acts of sexual assault after departing for his mission on August 4, 1987. [ 83 ] The Accused argued that CC’s recollections were false or fabricated. He based this argument on CC’s admission that when the Accused departed on his mission she thought of him as her secret boyfriend. The Accused also suggested that CC was obsessed with him as a result of BB’s disclosure of her own abuse and that CC was copying BB’s allegations.

I reject the suggestions that CC fabricated these allegations because of an obsession with the Accused, or because she was prone to copying BB. [ 84 ] The notion that CC thought of the Accused as her secret boyfriend before he left on his mission arises from her own testimony. She described having what might be considered a childhood crush on her older cousin.

While there is no detailed evidence before me regarding matters pre-dating the Accused’s 18 th birthday, it is clear that CC alleged the Accused had sexually abused her before August 18, 1986, and that those allegations were the subject of a trial held within the Youth Division. She testified at trial, and all previous proceedings, that she recalled watching “Gone with the Wind” with the Accused, that there was a point in the movie where

there is talk of cousins marrying one another, and the Accused looked at her in a way that implied they would marry. She believed it until she got older. The Accused denied ever having seen “Gone with the Wind”. It should be remembered, however, that CC was 7 years old when the Accused left on his mission and was just turning 10 years old when he moved into Grandmother’s house.

While I am obviously not assessing the veracity of the youth allegations, given the context of a girl, age 7, attempting to rationalize potential abuse by a much older cousin, I cannot say the concept that she thought of him as a boyfriend is unusual. People respond to traumatic events in a variety of ways. Even people who can logically understand those events might respond in ways that seem inexplicable. But, a young person, who has no context for making sense of sexual abuse by a family member, may well perceive that the person was acting out of affection.

As such, I don’t draw any inference from this perception and it does not give rise to an argument that CC was obsessed with the Accused and made up stories of abuse as a result. [ 85 ] In relation to the suggestions that CC was copying BB, or was obsessed with the Accused because of what he had done to BB, the Accused’s sister, AH, testified that at some point when the girls were teenagers, BB wrote a letter to AH complaining that CC copied her by getting her ears double pierced and wearing the same kind of earrings.

Additionally, the letter asked AH not to tell CC of BB’s crush on a particular boy because CC might decide she liked him. There is nothing of significance about CC’s adult behavior which can be extrapolated from the teenage letter BB wrote to AH about CC, and certainly there is no evidence before me which suggests CC harboured an obsession through adulthood correlating to her making false accusations of sexual assault. [ 86 ] Furthermore, both credibility challenges rest on age-old myths and stereotypes that women fantasize about rape and have a propensity to lie about rape.

That the foundational premise for these challenges arises from the behavior of children or teenage girls demonstrates the absurdity of such myths and stereotypes. [ 87 ] The Accused argues that CC’s various statements, and her testimonies in the youth trial, preliminary inquiry, and this trial reflect a “creeping narrative” where details have been added, changed, or amplified over time. The Crown argues that no inference can be drawn from the manner in which CC has disclosed or remembered certain details of the events.

In considering this particular argument, it is important to point out that not all of the evidence that was put to me on behalf of the Accused in closing argument was in the evidentiary record at trial. In particular, CC was not challenged with her preliminary inquiry transcript at trial as relates to the additional details surrounding the sexual assaults which are alleged to have been added to her trial testimony.

As a result, I can only consider what is in the evidentiary record before me. [ 88 ] CC was questioned regarding her statements to police and why she had not included a description of the assault interrupted by Grandmother in her statements. Her testimony was that she was told to write down the incidents she could recall in detail. As she was unable to recall the date of this particular assault she did not include it. Based on cross-examination, her statement included a description of two incidents, one, which did not form part of the subject of the Counts before me, and the other, being the pre-wedding incident.

Her statement to police specifically indicated that these were the only two events she could recall in detail . When pressed in cross- examination she stated that she had always remembered the event. [ 89 ] CC was also confronted with her preliminary inquiry testimony, that in 2016 she had written to Jensen, a church bishop. At trial she was asked if she had ever forwarded that letter to the Crown. Her answer was that no one ever asked for it.

CC was then read a police report sent to the Crown on January 8, 2019, which indicated that CC told the officer who asked about the letter that she had never sent Jensen a letter. She then testified at trial that the letter may have been to an Area 70 official (another church official). I can’t say I am satisfied much turns on this point. CC was contacted by police after BB told them she was also a victim of abuse at the hands of the Accused. She gave two statements to police.

She may or may not have communicated with church officials. [ 90 ] I am not satisfied that CC’s accounts are reflective of a “creeping narrative” as put forward by the Accused. I bear in mind the case law with respect to how the Court must approach evidence with respect to memories formed during childhood and the frailties associated with recollecting memories from time long past. I identify these issues as relating to the issue of the reliability of CC’s memory than any intentional falsification on her part. [ 91 ] In relation to CC’s credibility I am satisfied she was an honest witness.

She testified that she had more clear and detailed recollections of some events, than others; she conceded gaps in her memory with respect to specific dates and was not swayed by alternative testimony put to her in cross-examination. As such, I do not accept the argument that her allegations are fabricated or falsely made. [ 92 ] An honest witness however, may still have an unreliable memory and hold an honest belief in the strength of that memory.

In this case there are both accuracies and inaccuracies in CC’s memory of bedroom décor, and the presence or absence of Grandmother at certain times when the alleged events are said to have occurred. The question is whether these inaccuracies are material to her allegations. I am satisfied that taken together and considered with the balance of the evidence, they are. [ 93 ] The main focus of cross-examination was on CC’s memory of the bedroom décor. CC’s description of the bedroom layout was not challenged on cross-examination.

Her description of the shelf-style headboard was accurate, as was her description of the red English phone booth telephone. She recalled that the Accused’s wedding invitation was propped against the telephone, which the Accused denied. Although she was incorrect as to the colour of the Accused’s wedding invitation she was correct that the invitation included a photograph of the Accused and his fiancé. CC testified that there were other pictures of the Accused’s fiancé in the room, which the Accused and his spouse denied. On cross-examination, CC recalled the bed being a double sized, box spring and mattress.

The Accused and his spouse testified it was a waterbed, without baffles. CC had no recollection of the bedspread on the bed. The bedspread, which was a quilt made of the British and Welsh flags and various tea towels the Accused had gathered on his mission, was exhibited at trial. Finally, CC recalled various pictures on the walls of the room, including babies in baskets with flowers or balloons. The Accused and his spouse testified that there was an embroidered picture of a ship on the wall.

I have no reason to doubt the credibility or reliability of the Accused’s spouse. [ 94 ] The Accused argued that CC’s inability to recollect the waterbed and quilt, as well as the divergent evidence as to the art on the walls and the presence of photographs of the Accused’s fiancé in the room, demonstrate that her evidence should not be trusted as reliable. The fact is, however, that CC did have other accurate recollections of the room. Witness testimony on these types of details can

be inherently unreliable. Coupled with this is the fact that CC was a child at the time and is recalling these details some 30 years later. Given her accuracy on some issues – the bedroom layout, the phone, the headboard, and her partial recollection of the wedding invitation I do not find her memory to be inherently unreliable. There are, however, discrepancies which are significant with respect to the allegations made. i. First Event [ 95 ] In relation to the specific allegations of sexual assault I will deal first with the assault alleged to have been committed in the week leading up to the Accused’s wedding.

CC testified specifically at trial that she recalled the time frame in which this assault occurred because she was focused on the wedding invitation and thought “next week it was going to be over, he’d be married, and he’d be gone, and I wouldn’t have to do this anymore”. This is a material detail, central to her allegation. [ 96 ] CC also testified that she did not go inside Grandmother’s house when Grandmother was not home.

It has been proven through the testimony of the Accused’s mother (MH), Aunt K, and the Accused’s spouse that Grandmother was absent from Canada between October 20, 1993 and December 17, 1993.

Accordingly, this sexual assault could not have occurred as alleged. [ 97 ] While there was alibi evidence tendered through the Accused’s spouse that on December 11, 1993 the Accused was installing a shower in their soon to be matrimonial home and could not have perpetrated the sexual assault, the foundation for this evidence was the suggestion that CC had specifically testified that the assault took place on the Saturday prior to the Accused’s wedding. That was not her testimony. Her testimony was that the assault happened in the week prior to the Accused’s wedding.

On cross-examination it was suggested to her that she had testified it was a Saturday. Her examination in chief was not to that effect and there was no evidence of a prior inconsistent statement in that regard. In fact, on cross-examination, CC was not prepared to specify the date. As a result, the alibi proffered for December 11, 1993 is irrelevant to this analysis. ii. Second Event [ 98 ] The second event of sexual assault recalled by CC was alleged to have been interrupted by Grandmother.

CC was unable to recollect the date of this assault but was clear that it occurred after the Accused returned from his mission, in his bedroom at Grandmothers on an occasion when she was visiting Grandmother’s home. She described the assault in detail. She also testified that there were other incidents of sexual assault, of which she can only recall flashes and snippets of the sexual acts in question, and the clothes she was wearing. She was unable to place these events in time except, again, that they occurred following the Accused’s return from his mission.

The Accused denied all of these assaults occurred. [ 99 ] I am satisfied on the evidence that Grandmother’s house was the heart of family activity during the period in question. The testimony of GG, SS, BB, AA, DD, and CC all confirm that the family gathered there on holidays and every Sunday after church.

The Accused’s testimony that Grandmother was a lonely old woman when he lived with her stands in stark contrast to the preponderance of the evidence on this point. [ 100 ] CC spent the first seven years of her life living in Grandmother’s home while her own family were constructing a house on the adjacent property. After CC and her family moved to their new house they were within easy walking distance of Grandmother’s house. CC’s parents both worked. I accept CC’s testimony that she and her younger sister were frequent visitors at Grandmothers in the after- school hours before suppertime.

CC testified that she loved being with Grandmother. This is entirely consistent with her having lived the entirety of her young life with Grandmother or in close proximity to her. Aunt K remembered the children being at Grandmother’s home in the summer and agreed that it was possible that CC and her younger sister were there after school as well. [ 101 ] However, the Accused testified that he typically returned home from college or work between the hours of 5:00 and 5:30 pm.

He also testified that following his mission he was attending a young singles ward of his church, which congregated in Lethbridge at different hours than the Diamond City ward, and as a result he did not participate in family Sunday dinners. No other witnesses could recall seeing him on these occasions. In addition, the evidence demonstrates that he was going to school, working, began a relationship with his fiancé in January 1992 and became engaged to her in September 1993.

Most of his personal belongings, save for the bed and his clothing, were removed from the bedroom at Grandmothers by November 6, 1993, in advance of his pending marriage. [ 102 ] There was competing evidence about whether Grandmother had rules about the presence of children in her house. The Accused testified that as a consequence of his abuse of BB, Grandmother laid down a rule that he was not to be alone with any of his younger cousins in the house and that he followed this rule to a tee. I am satisfied on the evidence that she was aware that this abuse had occurred.

While no one else testified as to being aware of this rule, it is not implausible that Grandmother imposed such a rule. [ 103 ] Other witnesses testified that Grandmother also had a general rule that young children were not to go upstairs in her house. This revolved primarily around their presence in her sewing room, piano room and sitting room, and was not specifically related to the conduct of the Accused.

Aunt K also testified that despite the rule, it was not uncommon for the children to try to sneak upstairs. [ 104 ] While CC testified about the second assault in detail, her testimony about the snippets and flashes of other memories are incomplete. I believe CC was in the Accused’s bedroom given her accurate recollection of certain elements of décor and the layout of the room, however, I am cautious about the accuracy and reliability of her recollection of the second event and the incomplete memories, in the face of her more vivid recollection of the pre-wedding assault being incorrect.

In addition, there is divergent evidence with respect to whether the Accused had opportunity to commit the alleged assaults, both by virtue of his work and social

schedule and because of rules surrounding his contact with children in the house, or rules surrounding the presence of children upstairs in the house. There is no other evidence in the Crown case which allows me to conclude beyond a reasonable doubt that the sexual contact as alleged occurred. iii. Determination on Counts 3 and 4 [ 105 ] Accordingly, based on my concerns regarding the reliability of CC’s memory and the divergent evidence on the other points, I

am unable to conclude, beyond a reasonable doubt that the Accused committed the offences alleged in Counts 3 and 4. X. Similar Fact Evidence [106] Similar fact evidence is presumptively inadmissible. The burden of proof rests with the Crown on a balance of probabilities tosatisfy the Court that the probative values of the disposition evidence outweighs its potential prejudicial effect: R v Arp, (SCC), [1998] 3 SCR 339. [107] In this case the Crown seeks to convince the Court that the Accused had a specific propensity to sexually abuse the threecomplainants.

The Crown relies on the testimony of each complainant in this regard. [108] The Accused argues that there was an intervening event which disrupted both proximity in time and propensity and that therewas intentional or unintentional collusion amongst the complainants. As a result, the Accused submits that the Crown has not met theburden of proof and that the potential prejudice is significant, such that the evidence should not be admitted. [109] The Supreme Court of Canada in Handy set out a non-exhaustive list of factors to be considered by the Court in assessingpotential similar facts. These include: (

a) Proximity in time of the similar acts; (

b) Extent to which the other acts are similar in detail to the charged conduct; (

c) Number of occurrences of similar acts; (

d) Circumstances surrounding or relating to the similar acts; (

e) Any distinctive features unifying the incidents; (

f) Intervening events; and (

g) Any other acts that would tend to support or rebut the underlying unity of the similar acts. [110] The Court must also consider evidence of collusion, intentional or unintentional, when assessing the probative value and risk ofprejudice. [111] Accordingly, I will consider all of the factors in turn.

a) Proximity in Time [112] The Accused’s youth record reveals convictions for sexual assault over the time period 1980 to 1986, against AA, BB and athird cousin, DD. These girls were between the ages of 6 and 13 years old at the times material to these convictions. The Accused in hisown testimony admitted to the sexual assault of BB over the time period September 1, 1986, to May 1, 1987, when she was 8 (turning 9)years old.

In the fall of 1986 when AA confronted the Accused and put a stop to his abuse of her, she was around the age of 13 years old.CC was 9 (turning 10) years old when the Accused moved into Grandmother’s house. The abuse of CC is alleged to have occurredbetween August 4, 1989, and December 18, 1993. As a result, there is an approximate 2.5-year gap between the time period in which thealleged events occurred. During this gap in time the Accused did not reside on or visit the family farm in Diamond City, but was residentin British Columbia, England, and Ponoka, Alberta.

b) Extent to Which the Other Acts are Similar in Detail to the Charged Conduct [113] The acts alleged are all acts of sexual assaults against female cousins of the Accused. These girls were all in the age-range 6 to14 years old. The acts of assault alleged either took place in their family home (in the case of BB) or in Grandmother’s home (in the caseof all 3). The assaults alleged took place in bedrooms and bathrooms. The assaults alleged took place when both adults and other childrenwere present.

The assaults took place when opportunities presented themselves – at family gatherings, when the Accused wasbabysitting, when the Accused had the opportunity to isolate the complainants. The assaults occurred on multiple occasions. The assaultsalleged vaginal touching, rubbing, oral sex, digital penetration and touching of breasts. In all cases the complainants were clothed orpartially clothed. In the case of BB and AA, the allegations of oral sex are similar. In the case of AA and CC, the allegations of theAccused rubbing his erect penis against their leg or vagina are similar.

AA testified that the Accused put her hand on his penis andmoved it up and down. CC testified that the Accused invited her to touch his penis on one occasion. [114] There are also dissimilarities. The assaults alleged by CC include the grabbing and biting of her breasts which is notcharacteristic of the other assaults. Additionally, CC’s allegations do not include oral-genital assault, which is characteristic of the otherassaults.

c) Number of Occurrences of the Similar Acts [115] Each count of the Indictment relates to multiple acts committed against each complainant. The Accused admitted at trial to therepeated sexual assault of BB and admitted that he had offended against AA “too many times to count”, although that reference to AA was in relation to the time period before his 18th birthday. Multiple occurrences were testified to by each complainant.

d) Circumstances Surrounding or Relating to the Similar Acts [ 116 ] The sexual assaults alleged were all with respect to similar aged girls who were related to each other and to the Accused. The assaults were alleged to have occurred in family homes where the Accused had access to the girls, either by virtue of their living arrangements or his own.

e) Any Distinctive Features Unifying the Incidents [ 117 ] The locations of the alleged assaults on the family farm in circumstances where the Accused had lengthy periods of exclusive access to the girls, the girls were to some degree isolated within a close-knit family unit and where the girls, the Accused and their families were all members of the same church community are distinctive features which unify the incidents.

f) Intervening Events [ 118 ] The Accused argues that his confession in 1987, the counselling he received while on his mission, and his act of written apology to both BB and AA in 1987, as well as the subsequent apology letter to BB in 1989 are intervening events which undermine any similarity between the events occurring prior to his mission and those alleged by CC after his return. [ 119 ] The Crown argues that these events are not intervening, but are merely an interruption in time, owing to the fact that the Accused was not living in proximity to the complainants and therefore had no opportunity to continue to abuse them. [ 120 ] I have previously analyzed the Accused’s credibility with respect to the issue of the confession.

Suffice to say, I am not satisfied that the Accused’s confession was complete or bound his conscience such that it constituted an intervening event for the purposes of undermining the similar fact argument. In 1987 he did not confess to all of the acts of sexual assault he committed, as evidenced by his youth convictions, and in 1989 when BB disclosed the abuse to her parents, he did not voluntarily disclose the abuse of AA or DD to GG. He did not provide any details to his new mission president.

His testimony in Court demonstrated his view that the matter was closed for discussion; that he had paid the price already. XI. Collusion [ 121 ] The Accused argues that there is evidence of direct collusion or at the very least tainting of the complainants’ evidence by virtue of their discussions about the abuse over the course of many years. The Crown argues there is no evidence of collusion. The burden is on the Crown to prove that there is no collusion. [ 122 ] By BB’s evidence she first disclosed the sexual assaults to her cousins AH and CC sometime after the Accused left on his mission.

She agreed on cross-examination this could have been in the fall of 1988 and the testimony of AH and MH place the disclosure in this time frame while they were living in Ponoka. In March 1989, a confrontation occurred between BB and AH over the truth of her allegation, which led to BB disclosing the abuse to her mother. BB’s description of the events of the abuse to AH, CC, and her mother were that the Accused had touched her. No additional details were provided. [ 123 ] There is evidence that the Accused’s abuse of BB was known amongst the adult members of the family because of this disclosure.

The evidence of BB, AA, DD, and CC demonstrate they learned of the abuse of each other at varying times. DD learned of BB’s abuse around the time it was disclosed to BB’s parents in 1989; she disclosed her own abuse to BB in the late 1990s or early 2000s while she was living in the United States. CC believed she had learned of BB’s abuse before the Accused left on his mission; she learned of AA’s abuse some years after AA married; she learned of DD’s abuse after the criminal proceedings arose. AA disclosed her abuse to her mother in 2004. AA did not disclose her abuse to BB until 2016.

BB testified she learned of CC’s abuse in the fall of 1988. C

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