R. v. L. et al. Date:, 2011 BCPC 486

Citation: R. v. L. et al. Date: 20111107 2011 BCPC 0486 File No: 8116-3-C Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION PURSUANT TO S.486.4(2) CRIMINAL CODE OF CANADA AND 1980-81-82, c. 110 YOUNG OFFENDERS ACT REGINA v. P.E.L., D.B.L., and S.C.L. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. ROHRMOSER Counsel for the Crown: C. Hawes/C. Elliott Counsel for Defendant, P.E.L.: F. Kaatz Counsel for Defendant, D.B.L.: K. Sommerfeld Counsel for Defendant, S.C.L.: D. Campbell

Place of Hearing: Lillooet , B.C. Dates of Hearing: May 30 – June 2; June 6 – 9; June 13 – 15; June 20 – 22, 2011 Date of Judgment: November 7, 2011 INTRODUCTION: [ 1 ] This case is about whether eight little girls and two young boys were systematically and repeatedly sexually abused over a period of years in the 1980’s by three teenaged brothers. Almost all of the alleged abuses occurred in three or four locations on the T’it’q’et Reserve at Lillooet, British Columbia. Rumours of these violations circulated within the community, but these were mostly never brought to the attention of police in timely fashion.

A few of the allegations were the subject of complaint to the police in the mid- 1980s, but it was not until 2007 that a thorough and comprehensive investigation was undertaken. The complaints spanned an approximate period of seven years. Eventually, some of the children who had been abused grew up and found their voices, and, as adults, demanded to be heard. Many of the victims were related to the accused.

Some of the victims were related to each other, and almost all knew each other. [ 2 ] In the course of growing up, and through their teens and early adulthood, the victims sometimes discussed the incidents and became aware of the victimization of each other. The defence denies that any of the abuses were committed by any of the accused at any time, suggesting that the numerous complaints were either a misidentification of the right perpetrator, or the product of false memories, in some cases deliberate fabrications, or, simply fantasies conjured from their discussions and reinforced thereby. ISSUES: 1 .

Whether the actus reus occurred, 2 . Similar act evidence, 3 . Whether, even if the acts occurred, the Crown has proven that they did within the times framed in the Indictment. FACTS: Setting: [ 3 ] The T’it’q’et (T’it’q’et / Lillooet / Thunderbird / T-Bird) Reserve, just west of and adjacent to the town of Lillooet, is a community of approximately 500 people. Lillooet itself is a small town of a few thousand people. The closest community of any appreciable size, to which it has ties, is Kamloops, about 180 km away.

The T’it’q’et community, itself, is a semi-rural setting with houses scattered along two or three of the main roads. One of those houses was the residence of B. and W.L., who lived there with their sons P.E.L. (born 1968), D.B.L. (born 1970), and S.C.L. (born 1972). This house served as a foster home in 1983 for five siblings from the J. family. Two of those children, L.J. and C.J., were complainants who testified at this trial. [ 4 ] The Julianne Hall, a community hall across a field from the L. residence, was the site of several abuses against several victims.

There were two or three storage areas, either at the outside or in the basement of the Julianne Hall, where these abuses were alleged to have occurred. There was a children's playground close to the Julianne Hall at which the complainants often played, often with each other. [ 5 ] Near the Julianne Hall, there used to be a preschool, since replaced by a tribal police building. These sites were also mentioned in the narratives of the complainants as being places where they were abused.

COMPLAINANTS: L.J. (J.) [ 6 ] The documentary evidence from the Ministry of Children and Families confirms L.J.'s testimony that she and her four brothers and sisters had been placed in B. and W.L.’s foster home in January 1983 after being apprehended by the Ministry from the care of their alcoholic mother. L.J.'s recollection was that she was placed in foster care when she was about five years old and in kindergarten. On the whole of the evidence, including that of her mother, S.J., who talked about how long it took for her treatment and the process of getting

the children back, I find that the time L.J. was in foster care with the L. was closer to six months then six weeks, as has been suggested by defence. During that time all three accused boys were living in the same house. [ 7 ] L.J. was born on [DOB]. Ms. J. grew up in the Lilllooet area. She is presently employed as a teacher in the Bridge River community and is a member of that band. After high school, Ms. J. attended a Native Indian Teacher Education Program through the University of British Columbia and got her Bachelor's degree in Education.

She also has a General Studies degree, Language Proficiency certificate and Counselling and Wellness certificate. At the time of this trial she was completing her Masters of Education degree. Ms. J. has taught college prep to students, including first and second year university students, and has been employed through the Nicola Valley Institute of Technology (NVIT) and the Lillooet Tribal Council. [ 8 ] Ms. J. is the mother of three children between five and eleven years old. For the past four years she has been a teacher on the Bridge River Reserve. Before that she lived for a time in Vancouver. [ 9 ] Ms.

L.J. was one of the driving forces behind the major investigation into these matters that was undertaken in 2007. Ms. J. recalled four separate instances of sexual abuse by P.E.L. and two episodes of abuse by D.B.L. These are the subject of Counts #1 and #4. She also mentions abusive behaviour by S.C.L., for which he was not charged. L.J. recalled that W.L. was away from home for extended periods. B.L. was usually around the house for regular meals and activities, but she was also not there at times, and that is when most of the assaults occurred, according to Ms.

J. [ 10 ] As was common to all of the complainants, Ms. J.’s adult recollections of what happened to her as a child are fragmentary. The following is her testimony. P.E.L. [ 11 ] Within a week of her arrival at the foster home L.J. said she was assaulted by P.E.L. P.E.L. told her to take her clothes off. She did not want to. He lay her down on the bed and told her to be a “good girl” and got on top of her and had sexual intercourse.

She cried and told him not to and that it hurt her, but he would not stop, continuing to tell her that she was a good girl and that she would like it, and that it would make her feel better. He told her not to tell anybody or she would "get it." When he finished, he told her to go play with the other kids and say nothing. According to L.J., this happened in her bedroom on a single bed, where P.E.L. had placed her.

She did not tell anyone. [ 12 ] L.J.'s next recollection was towards the end of a school day when she was getting off the bus, and P.E.L. called her into the house and told the other children to play at the park. He took her to the bedroom again. She remembered S.C.L. coming into the house, and her being hid in a closet by P.E.L. After sending his brother away, P.E.L. pulled L.J. out of the closet, told her to get back on the bed and took off her clothes, again telling her to be a “good girl,” that she would like it and it would make him feel good. She said she was crying, it hurt her and she asked him to stop.

Not just did she cry then, but her solid composure, which she had maintained in giving her evidence, fell apart completely while she was recalling these events on the stand. She said she remembered the weight of his torso, his smelling of smoke and being clammy, and the rubbing of his chest against her face. She thought he was about sixteen at the time. [ 13 ] L.J. had a particular recollection of S.C.L. coming in while this was happening to say that their mother was home, and at that point being shoved in a closet by P.E.L. B.L. did come into the room, according to Ms.

J., and asked after the children, whereupon P.E.L. told her they were playing outside in the park. After B.L. went away, P.E.L. took L.J. out of the closet again, told her to get back on the bed and started having intercourse with her all over again. When it was over he got up, got dressed and told her to play with the other children and to be a good girl and to say nothing. Ms. J. said it was a painful experience, and she found it hard to breathe. She said she did not say anything to anyone because she thought no one would believe her and that if she did, it would get worse.

She did not know, then, where her own mother was. [ 14 ] L.J. testified that P.E.L. had sexual intercourse with her several times in that house in her room. She does not know exactly how often, but said “it happened a lot and frequently". Not only did he hide her in a closet, but also in the bathroom at times, and he also sexually abused her in his bedroom downstairs. She remembered one of those incidents, when she was wearing a long nightgown dress and some underwear pants. He took off her pants and told her to be a good girl and later, on his bed, took his own shorts off, and had intercourse with her.

Again, this evidence was accompanied with nearly total emotional disintegration of a sort that would be hard to manufacture convincingly for the sake, merely, of buttressing fabricated evidence. In connection with this last mentioned incident L.J. said that B.L., having heard noises, came into the room. P.E.L. reacted by lifting the mattress over L.J., and laying on top of it and her, and explaining to his mother that he was doing exercises on his bed.

B.L. left; P.E.L. pulled L.J. out from under the mattress, kissed her all over her face, told her things will be all right and started having sexual intercourse with her again. She said she felt numb all over her body. The experience was painful and she wanted him to stop but he would not until he was finished. The recollection of suffocation from being "squished between the mattress and box spring" was particularly distressing for this witness. When it was over, he told her to put her underpants back on and not to tell.

She said nothing about it to anyone, and cried herself to sleep. [ 15 ] L.J. recalls an incident involving all three brothers, where she and other children were playing at the park by the preschool. They were taken inside the preschool and made to line up in a row. P.E.L. had a key to the preschool. P.E.L. called her and told her to lie down on a towel or blanket and to be a good girl and take her pants off. She did not want to and said that she had to pee. This was ignored and she was told to lie down.

She begged P.E.L. to let her “go pee”, but he insisted and made her get down on the towel. [ 16 ] This occasion stood out in L.J.'s mind as being different because P.E.L. appeared to be directing the others to sexually assault her. He told his brother, D.B.L., to get on top of her, saying that it was D.B.L.'s turn to put his penis in her vagina.

D.B.L. played with his penis, with P.E.L. telling him what to do, and to be a man and have sex with L.J., and then D.B.L. got on top of L.J. and, though apologetic, nevertheless placed his penis inside her and had sexual intercourse, while he was kissing her all over her face. Ms. J. said, "D.B.L. never lasted long." He got up, and P.E.L. asked him "is that all you got?" D.B.L. apologized again, and P.E.L. told her to get up and use the towel to clean herself. She got dressed and went out to play. L.J. remembered the presence of many children at the preschool

during this assault, naming, besides her own sibling, S.C., G.T., T.L., and B.L.C. All of these people testified as victims in this case. L.J. recalled that when D.B.L. was having intercourse with her, the other children were lined up, and, in turn, were sexually assaulted by S.C.L., D.B.L., or P.E.L. on the three blankets arranged next to each other on which the assaults occurred. C.J., L.J.'s sister, was one of the children Ms. J. remembers being raped by D.B.L., who, she said, was rough with C.J.

L.J. remembered C.J. crying and her head getting banged against a storage cabinet and her sister looking at her while they were both being assaulted sexually at the same time, with D.B.L. on her sister and S.C.L. on L.J.. She said S.C.L. was very rough, aggressive and forceful. [ 17 ] At this preschool, L.J. also remembered P.E.L. instructing her brother, G.J., to take a turn having sex with L.J. G.J. protested because L.J. was his sister.

P.E.L.’s reaction to that was to tell G.J. not to be "a pussy" or a "woos” and he continued to encourage him as well as threaten him that if he did not do it he would "fuck him up the ass.” G.J. still would not do it, and with that, P.E.L. made fun of him and dismissed him and L.J. to the playground. The term "humping” was one frequently used by P.E.L. with reference to acts of sexual intercourse, according to L.J. [ 18 ] G.J. testified but did not recall the incident. He suffers memory loss due to a brain injury caused by a stroke six or seven years ago.

There were large gaps in G.J.s’ memory, but as far as he could recall anything, I found him to be a truthful witness who would have had difficulty, because of his disabilities, in maintaining any sort of coherent fabrication. [ 19 ] The memory of D.J., another brother, was also unreliable because of a head injury he sustained from being assaulted with a baseball bat. The evidence of these two brothers, nevertheless, offers some confirmation of the interaction of the foster children with the L. brothers, something that P.E.L. categorically denies happened.

D.J. also remembered D.B.L. and L.J. in a bathroom one time, and P.E.L. coming by, and there being a scuffle between the two brothers over something to do with L.J. D.J. remembered P.E.L. saying to his brother, D.B.L., something to the effect of "that is not nice." [ 20 ] L.J. remembered a similar type of sexual assault, involving other children, taking place at the Julianne Hall basement behind the stage, when she was there with S.C. and her sister C.J. She remembered C.J. being assaulted by S.C.L., very aggressively, and that she was crying with her head getting banged in the filing cabinet.

It is possible that L.J. may have confused S.C.L. and D.B.L. in the incidents in which they were supposed to have been involved at the preschool and the Julianne Hall. S.C.L. was not charged with assaulting L.J. from anything arising out of those incidents. The Counts in the Information specifying charges of assault by D.B.L. on L.J. were also occurrences other than those mentioned above, where P.E.L. was supposed to have directed assaults at the preschool or the Julianne Hall. D.B.L. [ 21 ] After the preschool incidents, described above, L.J. remembered at least two other incidents involving D.B.L., one

an act of sexual intercourse and one of fondling. [ 22 ] In the first of these, D.B.L. came into her room and woke her up from her sleep, fondling her between her legs, kissing her and telling her he wanted to try again and get it right this time. He asked her to rub his penis. She said she did not want to and asked him to stop, but he would not. He wanted intercourse with her and had it. [ 23 ] The next occasion she remembered was when D.B.L. was fondling her in her room, and B.L. opened the door causing D.B.L. to pull his hands out of L.J.’s pants. B.L. asked what was going on here.

"Nothing," was D.B.L.'s response. B.L. said she did not want to see any of that going on and did not want to hear about it and told D.B.L. not do that and left. [ 24 ] Years later, when L.J. was in her twenties, D.B.L., then married to a friend of hers, apologized for hurting her. She brushed him off and refused to acknowledge him. D.B.L. tried to apologize again, once, when she was running laps, and then, a third time, at a lookout at Seton Lake, when he presented her with a feather and some sweet grass. Again, he apologized for hurting her.

She took the package and said "okay – just leave me alone." He left, and she tossed the bundle in the lake. [ 25 ] L.J. cannot recall how often she was assaulted by all three brothers. She described it as a "regular event," saying that she could not even count how many times it happened, except to say that S.C.L. assaulted her many times, and D.B.L. "the least amount," probably around three times, she guessed.

L.J. admitted that her memory was imperfect on some details, but that it was good in respect of the traumatic experiences she related, though she was less than certain about times, dates and particulars, such as the layout of the house. She was cross-examined extensively, in which she conceded that it may not be clear if she was assaulted by P.E.L. on the first day of her arrival in the foster home, or within the first few days.

About that, she said, "whether it happened the first day, the second day or the third day – he brought me to my room and assaulted me." [ 26 ] L.J. remembered running away from the foster home and being brought back at least once. L.J. was cross-examined extensively on why she did not turn to B.L. as her protector and for help. Her answer was that she did not trust B.L., or feel safe with her. That she did not trust Ms. L. or feel that she would protect her is suggested by L.J.'s act of running away, something that her sister confirmed, as well.

I find that there is objective evidence to support L.J.’s contention that B.L. could not be depended on to protect her, in the lengths that B.L. went to insulate her own sons in the episode involving S.C.L.’s attack on B.C. I will expand upon that idea when that incident is reviewed, further on. The point I wish to make from it now is that L.J.’s distrust of B.L. was not unreasonable, and the basis for it finds support in other evidence.

Even B.L.’s own testimony about the reluctance of the foster children to talk at all, and her sons’ testimony about her ‘drill sergeant’ discipline tends to contradict the suggestion that the atmosphere in the foster home was one in which the children were likely to take comfort in the presence of their guardians, or be very forthcoming about what was happening to them in that environment.

L.J. revealed, in cross-examination, another seemingly irrelevant incident, too peculiar or unique for invention, which only adds to the evidence that B.L. was all too ready to take her own children’s side over protecting the interests of the foster children in circumstances where she ought to have been more ready to do so. This related to when P.E.L. was taunting her with an apple that she wanted to eat, but he would not give it to her until she kissed him. B.L.’s response to that was to tell L.J. to give him a kiss, and he would give her the apple.

Bearing in mind that L.J. was five or six, and P.E.L. was fifteen, this is but another example of why L.J.'s

misgivings about relying on B.L. as her protector are understandable. [ 27 ] Another significant detail that came out in cross-examination, but which was not led by the Crown in examination-in-chief was that of S.C.L. coming into L.J.'s room a number of times and assaulting her. She said that S.C.L. would try to trap her in the bathroom to have sex in the bathroom and also in the living room, and at times he tried to fondle her at the dinner table. The likely reason that this otherwise relevant evidence was not introduced by the Crown was that, at the time, S.C.L. was probably twelve and too young to be charged.

That evidence, nonetheless, has the potential of being received as similar fact evidence; likewise the further evidence related by Ms. J. involving S.C.L. in her room, where he suffocated her to the point that she passed out. She recalled him throwing water in her face and being slightly panicked as he urgently tried to revive her. These events involving S.C.L. are not recent concoctions. It was clear from her cross-examination that she mentioned these to the police in some detail.

The potential relevance of these episodes, as similar fact evidence, lies in the connection between this and other evidence describing S.C.L. as being particularly rough with complainants, but that aside, what I wish to reference at this juncture, is that the way that evidence came out, to my mind, adds to the credit of this complainant as a witness.

She gave no indication in her narrative of fervidly attempting to expose the accused with every detail that came to mind, but appeared to be rather restrained, as a witness, and concerned with the accuracy of her testimony, even in conceding where her memory failed her. This and for other reasons discussed, I found Ms. J. to be credible. [ 28 ] L.J. never told her mother, or anyone else for a long time, what had occurred at the foster residence.

About fifteen years later, she said, she opened up somewhat, telling her husband, B.N. about it, and also telling her sister in law and probation officer, D.A. [ 29 ] L.J. also appears to have discussed some of these events with some of the other victims when they all became teenagers. That they would discuss these things at that time in their lives, when they all knew each other, does not strike me as abnormal. It is just about what you might expect from teenagers or young adults trying to come to terms with childhood events that deeply affected them.

It does, nevertheless, raise the spectre of "collusion", as defined and discussed below, as a real issue in this case. The extent to which, and the context in which L.J. and each of the witness involved themselves in such discussions has to be weighed, and is of particular significance in relation to the analysis of potential similar act evidence. [ 30 ] It is obvious, that for all her achievements in life, L.J. harbours feelings of rage and resentment for what happened to her, and an intense antipathy, especially toward P.E.L. She admits that.

She took counselling to deal with her anger, but did not discuss the details of her abuse with her counsellors, though she may have mentioned that she was abused. She did not, in fact, take much comfort from, or place much trust in, the counsellors assigned to her until the last one, the first female counsellor that she dealt with, and the first one she was disposed to open up to a little more. For the most part, L.J. held her feelings inside for a very long time, though she could not let them go. I find that she was fairly taciturn, over her life, about what took place.

At best, in her case, one might argue that the potential for collusion existed, but I find it is no more than that. There is no evidentiary basis beyond speculation upon which to base any concrete finding that L.J. freely and frequently discussed her memories, though she revealed them at critical points over the years. There is no evidence that her testimony is the stuff of invention or fabrication reconstructed with the help of friends or investigating police officers.

I found L.J. to have been at pains not to testify about things she did not know about personally, and on the whole, found her evidence to be reliable, both before, and then after, a very thorough cross-examination. [ 31 ] Recent concoction is a recurring defence theme in this case. The extent to which L.J., as well as the other complainants, did disclose the details of their abuse over the years in a consistent way tends to refute suggestions that events were recently fabricated.

L.J.'s case is a fairly typical illustration of how these allegations surfaced in this small community, where nearly everybody knew everybody else and their business. Around 1995, when B.N., now L.J.'s husband, was going to lead S.C.L. in a cultural event, there was a reaction among community members. This prompted L.J. to tell B.N. of the abuse she suffered from the L. brothers, which disclosure included that of being stuffed under a mattress and being hidden from B.L.

Later on, L.J.'s reaction to hearing a rumour about S.C.L. being involved in a circle sentencing was to bring this up with her sister-in-law, a seventeen-year probation officer, D.A. L.J.'s concern was that S.C.L. might evade responsibility. She outlined to Ms. A. that S.C.L. and D.B.L. used to line up children and sexually abuse them. D.A. took the complaint to Sgt. Simkin-Works, of the Tribal police, who then launched this investigation, which then drew in other complainants.

This was not a case of victims first collaborating with each other, and then clamouring at the doors of the police detachment with their made-up stories to inflict a most vengeful sort of punishment for vaguely articulated injuries through a conspiracy sustained by almost a dozen of them, culminations in the most egregious sort of perjury.

I do not accept that theory. [ 32 ] A good deal of the evidence of the Crown about prior disclosures by the complainants was led without objection, presumably because it supported the Defence theory of collusion, and was admissible as anticipatory evidence rebutting the implied suggestion of recent concoction. C.J. [ 33 ] C.J., now thirty-seven, was born [DOB], making her three and one half years older than her sister, L.J. C.J. was around nine years old when they were in the foster home.

C.J. also alleges sexual abuse by P.E.L., D.B.L. and S.C.L. during her time in the foster care of their parents between January 13, 1983 and June 30, 1983. Again, at that time, S.C.L. was likely too young to be charged. He was involved in activities that could constitute similar fact evidence that is not the subject of any counts in the Information. [ 34 ] C.J. no longer lives in Lillooet. She has three children of her own aged twenty, sixteen and thirteen. [ 35 ] C.J. also suffered considerable emotional distress in testifying about this difficult part of her life. P.E.L .

[ 36 ] C.J. said that once P.E.L. called her from the park to the Julianne Hall basement. When she went in, she saw L.J. sitting on the couch, so she sat next to her and asked P.E.L. what he wanted. He looked at L.J. and told her she could go, and L.J. ran out of there. P.E.L. told C.J.to take off her clothes.

She just sat there, so he stood up and took off his shorts and went over to a steel support pole, and, in her child’s mind, “started jiggling against it.” She did not understand what he was doing or why, but noticed that when he moved down from the pole, “he looked like he was peeing.” He came towards her and took C.J.’s pants off and then “wrapped himself around me,” and came down on her so that his whole body covered her. She was lying on the couch on her back. His head was higher than hers as he faced her.

He then stopped what he was doing, saying, “I can’t do this.” He told her to get dressed and go, and she did. The photographs show that there were in fact steel poles in the basement of the Julianne Hall where the children were periodically taken. [ 37 ] C.J. did not share her sister L.J.'s antipathy toward B. and W.L. She loves them very much, she said, adding that they never mistreated them, taught the children family values and how to present themselves, and how to learn new things about food, for example.

The environment from which C.J. and her sibling were removed was extraordinarily impoverished, according to the evidence, and C.J., being older, might have appreciated that fact more fully. In any case, perspectives may differ subjectively, based on factors such as age and personality. Their situation in the foster home differed in one respect, and that is that C.J. claimed that she was able to look after herself better than L.J.

C.J. was, in fact, concerned about the welfare of L.J. at the foster home, and said she tried to watch out for her. [ 38 ] From C.J.s’ account, one could credit B. and W.L. with giving decent care to the foster children, apart from failing to protect them from their sons. At all events, one would not infer from C.J.s’ evidence, as has been suggested in L.J.'s testimony, that C.J. would have a motive to bring harm to B. and W.L. out of any hatred or malice. Yet in C.J.s’ evidence of the activities of the L. brothers, there are significant similarities to that of L.J.

D.B.L. [ 39 ] Initially in her testimony, C.J. said that D.B.L. took a group of girls, including D.J. and possibly L.J., to a building by the Julianne Hall; that he broke into it at the front door, and then told them to go inside. D.B.L., once inside, took them to the end of the building in an office area with lots of filing cabinets and a desk. D.B.L. lifted the other kids onto a filing cabinet and told C.J.to lie down. He lifted up her dress and took off her panties.

He tried to put his penis in her vagina, but could not, so he asked D.J. to come down and hold C.J.’s vagina open for him, and she did that, after which he told her to get back up on the filing cabinets. He then "moved up and down," according to C.J. When he stopped she felt wetness. She described him as "peeing on her dress." She protested. He told her not to worry about it – it would dry. C.J. looked up at the other girls on the filing cabinet until she could look at them no more, and began shaking and crying and looking out the window. Her vagina was hurting a lot.

She recalled wearing a yellow and orange dress. She put her panty back on, and they left the building. D.B.L. took them to an old abandoned road and said, “let’s jump down there and hide.” They went back home, and W.L. and B.L. were very upset, saying they had been looking for them. D.B.L. made up some lie. C.J. went to her room and cried. [ 40 ] In her earlier police statement C.J. had mentioned that it was S.C.L., and not D.B.L. that took them inside and got them to line up in the Julianne Hall.

That contradiction in identification cannot be accounted for by C.J., who maintained, under oath, that it was, however, D.B.L. and not S.C.L., as she said in her police statement. Whether the contradiction is a result of a mistake in the police statement, or a different recollection by C.J. since she gave that statement, cannot be determined. Accordingly, although I do not doubt that the events C.J. described took place, and that this is no deliberate falsification of previous evidence, it simply cannot be determined which of the two brothers, whether D.B.L. or S.C.L., was the perpetrator.

As a result, this evidence is inconclusive on the issue of identification, and raises a reasonable doubt about the identity of the accused, D.B.L., in Count #5, even in spite of his apology years later. The apology was quite general in nature, and did not refer to any specific occurrence.

That evidence also cannot be used as similar fact evidence implicating either S.C.L. or D.B.L. as evidence tending to suggest, as other witnesses did, that the brothers were together and acting in concert when the abuses occurred. [ 41 ] C.J. recalled another incident with D.B.L. around dinner time, when L.J. and D.B.L. were missing, and B.L. was looking for them. Someone noticed that the door to the bathroom was locked, with D.B.L. on the other side with L.J., and muffled sounds coming from within the bathroom. C.J. said she knew it was L.J. in there with D.B.L., and that something bad was happening.

She felt helpless and stayed near the door until D.B.L. opened it. B.L., L.J. recalled, had raised her voice at D.B.L. and appeared unhappy and uncomfortable as she looked at L.J. D.B.L.’s retort to his mother was something along the lines of “doesn’t she look pretty. I did her hair,” as he stood right next to the bathroom doorway. S.C.L. [ 42 ] According to C.J., on one occasion, several children were playing at the park. S.C.L. told them to go into a shed next to the Julianne Hall and to go the back, and line up and face him. He told all of them to pull their pants down, both outer wear and underwear.

C.J. and G.T., the girl next to her, did not want to comply. G.T. questioned C.J. about this. Reluctantly they both assented to the request. C.J. said that S.C.L. said that if C.J. ever told her mother or his mother, he would kill them, so, she said, she never told anyone. [ 43 ] C.J. and L.J. never talked about the abuse until about 2006 or 2007, when L.J. called her one night and asked her if she recalled the abuse in the foster home. C.J. said she did. L.J. suggested that something ought to be done about it.

C.J. reminded her that she had already tried and it went nowhere, when she revealed the abuse to a friend, and shortly after, to RCMP, who came and took a statement from her when she was around fifteen or sixteen years old, yet nothing further came of it. [ 44 ] It is apparent that C.J. recalls different aspects of life in the foster home from what L.J. remembered. To some extent, that is because they were not together all the time, but also simply because they recall different things.

Absent anything further, like collusion, such differing fragmentary recollections of long-past events have to be taken as normal and common enough, and do not automatically suggest or reveal inconsistency or a lack of credibility and reliability on the part of the witnesses, though the question of weight to be

attached to such evidence is always there. [ 45 ] Like L.J., C.J. also says that she ran away from foster care, but she remembers several such attempts, and not just one. She also recalled the futility of this, because they were always taken back to the foster home, once by W.L.

C.J. and L.J. tend to confirm each other's testimony about running away and their unhappiness with the foster home, which may not of itself be unusual for foster children, but nevertheless, has to be seen in the context of the whole of the evidence and tends to add to the credit that might be given to their accounts as to why they were unhappy enough in foster care to run away as such young children. [ 46 ] When C.J. was fifteen or sixteen, she recalled the police coming to see her and wanting to talk to her about her foster home experience, and she said she told the officer what happened in his police car, but nothing happened after that investigation. [ 47 ] Some years later, according to C.J., when she was nineteen, and walking from the mall to the Friendship Centre to a women's support group, she heard footsteps behind her and recognized D.B.L., so she walked faster, but he eventually caught up with her.

He said to her, "C.J., I just wanted to apologize for what I did those years ago." C.J. said she looked him in the eyes and she felt that he was sincere, but she did not accept the apology or say anything to him. [ 48 ] When C.J. had to look at the photographs of the Julianne Hall on the witness stand, she became visibly and obviously distraught. Recalling those events was difficult for her, but, for the most part, she persevered, and in the course of her testimony presented herself as a thoughtful, careful witness, who would pay close attention to the questions that were asked and gave careful answers.

On one occasion, when it was suggested in cross-examination that she recalls more now than when she spoke to the police officer at the age of fifteen, she replied "I fail to see the logic in that.” Another example of how C.J. strove to be accurate was when, in cross-examination, she was asked this: “was it later on when you were an adult you realized he put his penis in your vagina?” The clear implication of the question was that she did not know where or what a penis was then, and had likely reconstruct events based on her adult experiences.

Her firm response to that question was "yes, his penis went into my vagina-- that is true – what I do not know was why – that is what I did not understand – it was not that I did not understand what was going on, because I knew his penis was going in and out of me, but why." There is nothing subtle, nuanced or difficult to understand about the experience of being raped, she was saying in effect.

This witness had the intelligence and discernment to see through the suggestion that she was conflating adult life with her childhood trauma, and refuted it emphatically. [ 49 ] As a general feature of her evidence, I found C.J. resistant to any temptations offered her to embellish or exaggerate. In her police statement, it was written that the accused pulled down her pants, whereas in her testimony she said the accused told the girls to pull down their pants, which is exactly what someone had handwritten in the margin of the police statement, correcting what had been typed on that point.

Had she wanted to make the act look even worse than it was, Ms. J. might have let that relatively minor detail pass, but she did not because she was careful about the details. Another example of that is a response to a question in cross-examination as to whether she told “the whole story.” Her answer was “I can't remember the whole story, and I don't think anybody can." That is a sound proposition to which everyone probably agrees. G.T. [ 50 ] G.T., born [DOB], is now the thirty-six year old Executive Assistant in the Administration Office of the Fountain Band.

Before that, she worked for thirteen years on the Tribal Council in various positions. She is a lifelong resident of the Lillooet area, and now resides on the T’it’q’et Reserve and has done so for the past seven years. She grew up on that Reserve in P.S.'s residence, which was straight across from the Julianne Hall. G.T. does recall C.J. and L.J. living on that Reserve for part of the time that she was at the S. residence. C.J. and L.J. were part of the group of children that G.T. used to play with. This group included the L. brothers, whom G.T. recalled as being bigger and older than the rest of the children.

G.T.'s ongoing connection with the T’it’q’et Reserve, and her long acquaintanceship with the victims and the accused, circumstantially, significantly reduces the possibility that the complainants were mistaken in their consistent identification of the accused persons, especially where a number of the complainants were related and had contact with each other since childhood. [ 51 ] G.T.'s fragmentary recollections also include memories of what happened to some of the other victims, besides what happened to her, which is the subject of Count #6, something that Ms.

T. considered as being relatively minor in the scheme of things. Ms. T. was certainly not a vindictive complainant bent on revenge. On the contrary, she thought the Crown overreacted by naming her as a victim. Ms. T., on the witness stand, was forthright and direct, and sometimes outspoken.

She presented as an animated, dynamic individual who was not intimidated by the court process generally, or cross-examination in particular, and made no secret of her frustration with the latter process, especially when being closely interrogated on the issue of identification in relation to individuals she had known most of her life. Notwithstanding Ms.

T.’s less than respectful outburst toward cross-examining counsel, I did not take that to translate into any deliberate disrespect for the court, but simply an eruption of frustration at having been recalled to cover docket identification, which had been overlooked, and which then opened her up to further cross-examination on identification evidence she clearly considered a non- issue. I do not discount Ms. T.’s evidence as being incredible.

P.E.L. and D.B.L. [ 52 ] While G.T. was not particularly happy about being named as a victim in relation to what P.E.L. and D.B.L. allegedly did to her, she also bluntly dismissed the suggestions that those things were fictitious as being ludicrous. [ 53 ] Her recollection was that D.B.L. and P.E.L. took her and C.J. into a “dungeon place” in the Julianne Hall with padded mattresses used for sports. She does not know how that came about. D.B.L. and P.E.L. told the children that they were playing house, and that C.J. was the wife.

G.T.'s evidence tends to confirm what others have said about the basement of the Julianne Hall as being one

of the common locations where abuses occurred. Her description is also generally consistent with what the others have said about the messiness of this location and its being used as some sort of storage facility. [ 54 ] G.T. said that D.B.L. kissed C.J. She also said that she, G.T., was not held against her will, but when she was leaving she noticed movement under a tarp and that C.J., who was underneath, was crying, but not fighting. C.J. was on her back, with D.B.L. on top of her, moving back and forth. G.T. did not actually see the sex act, but inferred it from what she witnessed.

While all this was going on, according to Ms. T., P.E.L. was also there, but in the shadows. Her impression was that P.E.L. was instructing or educating D.B.L. P.E.L. was talking, but she does not remember what he said. For all of her tough exterior, G.T. struggled to remain composed when shown the photographs of the basement of the Julianne Hall, because of the memories they revived. [ 55 ] G.T. was not cross-examined on behalf of D.B.L.

Her testimony was not challenged by him and can therefore be regarded as accurate, as against him at least, subject only to what was made of her credibility by cross-examination by the others. [ 56 ] G.T.’s evidence was also that P.E.L. once groped her private parts when they were playing hide and seek inside his house against the strict prohibition of her caregivers never to go there. She remembers this being some time around Thanksgiving, and that there was a turkey in the oven. Ms. T. recalls that the three L. brothers were there as well as and her and her brother. Nobody else was in the house.

G.T. said that she always assumed P.E.L. was the oldest "because he was their boss", referring to the other boys. That observation is not inconsistent with other evidence about P.E.L.’s dominance among his brothers. [ 57 ] G.T. said that in the hide and seek game, she hid in the master bedroom closet behind some clothes and jackets, and was found right away by P.E.L. She said P.E.L. grabbed her and led her by the wrists to the master bed and told her he had a secret to tell her that she could not tell anybody else, not even her parents. He sat her on the edge of the bed and sat beside her.

He was closer to the door, blocking her escape route, she said. He repeated that this was a secret between the two of them, and not even her parents could know. She finally agreed to keep the secret. He then leaned in to kiss her and put his hand up her shorts. G.T. pulled away instantly when he leaned in to kiss her. There was brief physical contact when he put his hand up her shorts and touched her vagina.

She bolted out of the room and went home. [ 58 ] She told no one for fear of getting into trouble for having been there when she was told not to. [ 59 ] As best as G.T. could recall, the foregoing events in the “dungeon place” involving P.E.L., her, D.B.L. and C.J. occurred when G.T. was between five and seven years old, in other words between July 1980 and July of 1982, but most likely in 1981. She connects the event to when she got a crown for her birthday just before school got out, which they all did in Grade 1. This would make her six years old.

The Thanksgiving incident, then, was in October of 1981, as a set out the Information. By that time, P.E.L. was thirteen, and old enough to be charged, but D.B.L., who did not turn twelve until July of 1982, may have been too young. [ 60 ] The motorcycle incident that G.T. spoke of, involving D.B.L., is similarly problematic regarding dates and D.B.L.’s age, but also because it may not have constituted an assault, as described by her. Count #6 of the Information charges D.B.L. between the dates of July 8, 1983 and July 8, 1984, of sexually assaulting G.T.

Given that chasing someone with one’s exposed penis might amount to that part of the definition of an assault which includes the attempt or threat by act or gesture to apply force to another person if the accused causes that other person to believe upon reasonable grounds that he has the present ability to affect this purpose, whether it actually does, depends on the facts. Ms. T. registered her disapproval with D.B.L.’s behaviour promptly.

The episode was brief, and right afterwards, she got back on the bike with D.B.L., suggesting that she may have viewed the matter more as a stupid, immature and obscene childish prank than an actual assault. Specifically, what happened, according to G.T., was that D.B.L. drove her over the dirt roads and stopped to urinate. She was twenty feet away. D.B.L. was, at first, facing away to urinate, but then turned and asked her if she wants to see ‘daddy’s thumb’ meaning his penis, which he exposed and then chased her, threatening her with it and also threatening to touch her with it or pee on her.

He was past puberty, she said, adding "It was not a kid’s penis I was looking at.” The incident ends. D.B.L. managed to persuade her to get back on the bike, and they went away somewhere else, she does not remember where. [ 61 ] Because I do find G.T.'s evidence to be believable, and given Ms. T.’s apparent disinclination to treat the matter as being all that serious, there is some doubt about whether, in the circumstances, this incident actually constituted an assault by act or gesture, or a threat of assault that she took seriously.

The evidence as to whether this occurred after D.B.L. was twelve is also not strong. Accordingly, I find there is not a sufficiently strong case to convict D.B.L. on Count #6. B.C. [ 62 ] The evidence of B.C. is pivotal, not just on the issue of her own credibility, but also with respect to the credibility of the defendant and witness S.C.L., and his parents W.L. and B.L.

On a consideration of the evidence of the latter three L., as well as that of other members of the T’it’q’et community who were drawn into this case by witnessing aspects of a disturbance between S.C.L. and B.C., I have come to the conclusion that B.C. is credible and believable, and S.C.L. and his parents are not.

I have concluded that the categorical denials of any and all wrongdoing by S.C.L. are not to be trusted, and that his parents have decided to close ranks around their son rather than provide an objective and reliable narrative of what went on in the B.C.s’ incident, to which there were several other witnesses. I also note, in making these findings of credibility in favour of B.C., that she accuses not only S.C.L., but D.B.L. as well, for things that happened in 1985, by which time P.E.L. had moved away. Because Ms.

C. was a relative and had grown up in T’it’q’et, and had known P.E.L., D.B.L. and S.C.L. most of her life, I have no concerns that she mixed them up with any other person. [ 63 ] B.C., born [DOB], now thirty-one, is the niece of W.L. Her father, P.S., is W.L.'s brother. Her mother, V.S., is B.L.'s sister. B.C. was described as "double cousins" to the L. boys. There is no plausible motive why she would implicate her cousins with false evidence.

I do not accept that she has fabricated evidence or somehow, through collusion or influence, has reconstructed events so as to help other complainants. [ 64 ] B.C. moved, with her family, to the T’it’q’et Reserve when she was four years old in 1982. B.C. moved out of T’it’q’et when

she was eight years old in 1986. B.C. alleges assaults by D.B.L. and S.C.L. between January 1 and December 31 of 1985. There was no lack of opportunity. B.C. and her family visited regularly with the L. and knew all three cousins, D.B.L., S.C.L. and P.E.L. very well. Apart from the events she described in her testimony, there did not appear to be any history of dispute or animosity between the S. and the L. [ 65 ] I would characterize B.C. (nee S.) as a quiet, serious, articulate, and careful witness. By occupation she is a youth worker for Secwepemc. Ms. C. has three children aged eleven, ten, and four.

She grew up mainly in Lillooet, but has lived a portion of her childhood in Vancouver. D.B.L. [ 66 ] Ms. C. testified that when she was seven, in 1985, D.B.L. took her to an opening in the basement of the high school in Lillooet, which was under construction. She remembered an area of slanted cement and a crawlway where he raped her. She remembers him trying to put his tongue inside her mouth to kiss her and her turning her head aside while he kept trying to stick his tongue in. It made her gag. The sexual intercourse was described by her as being very painful, and she cried.

At that time, D.B.L. was fifteen and B.C. was seven. She said she lay on her back with her head on the top side of the slanted cement while he raped her, putting his penis in her vagina. While he was raping her he was speaking soothingly. She did not resist because she did not know it was going to happen, she said. When it started, she tried to push him away but didn’t have “the muscle or the energy to be able to fight him.” She did not call out because she did not think anybody would hear her. She does not remember if he ejaculated.

Later on, when she attended that high school, and was among some of the students who went to that area when they wanted to skip class, she found it was very difficult because of the memories. [ 67 ] B.C. did not tell anyone immediately, because D.B.L. made it seem like not "a big deal" and because she thought that nobody would care, but she did tell some friends when she was a teenager, and found out that the same thing had happened to them. [ 68 ] Ms.

C. remembered that there was a time after that when her mother and father were going to call D.B.L. in to babysit, when B.C.’s mother was taken to hospital to give birth to her sister, S.C.(1), B.C. protested that she did not want D.B.L. to come over, and that she could look after her brother and herself, but they still had him come over, something she resented deeply. [ 69 ] D.B.L. arrived late, around midnight. Ms. C. remembered this as being a time when the house was under renovation and her bedroom was the living room.

As soon as her parents departed for the hospital, she said, D.B.L. raped her, this time on her bed. She does not recall specifics, except that she was very angry with her parents. She remembers trying not to scream so as not to wake up her brother. As he was placing his penis in her vagina, and B.C. was asking him not to and to stop, D.B.L. kept telling her to “hush” and continued on. [ 70 ] B.C. did not tell her father when he came home.

She told nobody, especially her parents, with whom she was very angry for being so stupid as not to listen to her protests. [ 71 ] Through questioning, it was brought out of her on the stand that there was another unpleasant occurrence involving D.B.L. that B.C. associated with the Tribal Police Office, previously the Band office, which she could not clearly recall and therefore declined to speculate about. This impressed me as coming from a witness who strove to recount accurately only what she herself remembered, being disinclined to embellish her evidence with conjecture. That Ms.

C. was attuned to the subtleties of the questions being asked of her was apparent in her cross examination, when she corrected counsel a number of times on the way certain questions were put to her. [ 72 ] B.C. angrily confronted D.B.L. later on about his violation of her at a bush party, when she was about sixteen or seventeen. She screamed at him, told him how much she hated him, how much he hurt her, how stupid he was, how mad she was, and she hit him. D.B.L. apologized for molesting her, and he cried. This evidence of apology is also un-contradicted, and I find it took place.

This is corroborative of other, similar apologetic behaviour exhibited by D.B.L. towards L.J. and C.J. These apologies are facts related by three different complainants, and all reinforce the point that there was something serious that called for such apologies that was working on D.B.L.’s conscience many years later. Logically, of course, the only thing that emerges from the evidence that would fit are those acts described by those complainants. There certainly is no evidence to support the belief that the apologies were issued for anything else, and to conclude that they were would be pure speculation.

S.C.L. [ 73 ] The rape Ms. C. alleges by S.C.L. in the outdoor shed is the event that I described earlier as being "pivotal" on the issue of credibility. Were I to accept the evidence of S.C.L. and his parents, it would follow that B.C. would have to be considered a perjurer and therefore completely unreliable. Even if I did not accept S.C.L.’s testimony, it might raise a reasonable doubt about B.C.’ evidence on this episode, if this were just a case of her word against Mr. S.C.L.’s, and there were no other evidence to consider, based on an application of the Supreme Court of Canada decision in R v. D.W.D .

But I have no doubt about B.C.s’ evidence for several reasons. In the first place, S.C.L. admitted to police officers having hurt B.C., but before turning to that bit of evidence, I would examine, more closely, the evidence relating to this incident. [ 74 ] B.C. said that one time, when she was seven years old (1985), she was visiting the daughter of her neighbour, B.B., who lived two houses down from her. It was fairly late. B.B.'s mother answered the door. It was S.C.L. that came calling, saying that B.C.’s mother had sent him to come over and get her. Ms. C. mother had done no such thing, as it turns out.

B.C. was adamant that she would not go home with S.C.L. Fifteen or twenty minutes later, S.C.L. came back, saying that B.C. had to come home right now, and that her mom and dad were really mad at her, and that she would get spanked if she did not. Again she refused, but L., B.B.’s mother, at this point insisted that she go, so she reluctantly did.

[ 75 ] S.C.L. took her to a small shed nearby, with two benches in it and with an open doorway. B.C. recalls having a skirt on at the time. There, he raped her. [ 76 ] First, S.C.L. made B.C. lay on the ground. She did not want to, and did not want to get her skirt dirty. She fought, she said, kicking at him and trying to hit him and recalls screaming. He kneeled at her feet, unzipping his pants and pulling them and his underwear down as he held her down on the ground with his free hand. She recalls his pulling up his shirt and tucking it under his chin.

She remembers that this shed had no floor, but rocks on the ground and was really struggling to get up. S.C.L. lay her on her back and she recalls him lying on her chest, facing her. She was not clear on what part of him was touching her, whether she felt his penis with her hands, or if his skin was against hers, or whether his penis was inside her. She just remembers feeling his skin and feeling his hand on his penis as he was trying to get it in her. She felt it between her legs.

He was very heavy, she said, and squashing her, which is consistent with other evidence that S.C.L. was a very large boy for his age. [ 77 ] B.C. recalled, with some disgust, feeling how fat he was and her continuing to struggle. She does not recall if he ever entered her. She heard her Aunt P.S.(1)’s voice calling out, asking what was going on, and recalls seeing a flashlight move towards her and thinking that someone was saving her. She does not remember how it ended or how she got home, but she did go home.

Her next recollection was of being on her parent’s bed, in her home, and her mother comforting her and her father yelling in the living room, asking B. and W.L. , who were there, as to what kind of a son they had raised. [ 78 ] B.C. also remembered another incident when she was seven and in the L. basement with some of her male cousins and S.C.L. She recalled being on a really high bed with S.C.L. holding her down, physically restraining her. She was screaming for him to let her go. She recalled his holding her arms over her head.

An incident like this was also witnessed and recalled by T.L. [ 79 ] B.C. said that when she and S.C. were between twelve and thirteen years of age, she told S.C. about her victimization. Also, she said that when she was about sixteen, she told others, including some witnesses in this case, that she had been abused by the brothers. That may have been at either the girl’s group that she described or at sleepovers. She mentioned the fact of her victimization to quite a few people, but without the details. [ 80 ] Ms.

C.’s description of D.B.L.’s somewhat incongruous act of speaking soothingly, or for that matter, apologetically, while he was raping her, is similar to what was described by other complainants.

This is unlikely the kind of detail that would be invented by complainants through their active collaboration. [ 81 ] P.S.(1), a respected elder, and a very important witness in this case, offered significant material support to the events described by B.C. in relation to the rape in the shed. [ 82 ] P.S.(1) said that she heard a scream that sounded as if someone was hurt, and went outside to this shed by the Tribal Police building near her home. She saw B.S. standing outside this shed. The only other person standing near her was S.C.L. P.S.(1) asked B.C. what was wrong. Ms.

S. remembers B. pulling her dress or slacks down to straighten them out in some manner. She was not sure what B. was wearing at the time. P.S.(1) took B.’s hand and walked her to the latter’s nearby house. P.S.(1) also had some recollection of other people standing around in the vicinity at that time. [ 83 ] P.S.(1) did not remember taking a flashlight, as B.C. said she did, saying that she found the location because it was close to the house. [ 84 ] P.S.(1) did not tell anyone about this. [ 85 ] P.S.(1) was eighty-eight years old when she gave this evidence.

She was an elder, obviously respected in her community. She gave evidence on a matter that put her between her relatives, who were both victim and accused. It was an entirely appropriate gesture of respect for two of the accused, who could, to stand up when P.S.(1) left the court after finishing her evidence, something that I noticed did happen. That might have been a reflection of the fact that this matriarchal witness willingly took the stand about fifteen minutes after receiving the news that her sister had just died.

I infer from that, that this case was obviously of some importance to her. [ 86 ] P.S.(1) is related to both parties but it was never suggested, and there is no evidence, that she favoured one side over the other, or had any reason to. There was minimal cross-examination of Ms. S., and her testimony was essentially unchallenged.

I accept it, and take it as strong confirmation of B.C.s’ complaint. [ 87 ] I find it scarcely remarkable that a seven year old girl, being violently assaulted under the crushing weight of an accused on rocky ground, might not recall whether she touched his penis or some other part of his flesh, or whether that penis entered her vagina or just touched it. I am more impressed with the fact that Ms.

C. did not try to be certain about such details when she could not be. [ 88 ] The discrepancy over the flashlight is a minor detail such as might not register after 25 years as strongly as details of the trauma of the assault itself, which produced an outcry to which Ms. S. responded, with or without flashlight.

That response led to the victim being taken home, and that was followed by a meeting between the two branches of the family, which is a logical enough consequence of what happened, but is something that S.C.L., W.L. and B.L. categorically denied ever took place. [ 89 ] B.’s own mother, V.S., remembered her uncle J.S., P.S.(1)’s late husband, bringing B.C. home the day she had been to B.B.’s place. V.S. associates that time with canning cherries in the early summer of 1985. [ 90 ] According to V.S., earlier in the day, while she was canning, her nephew S.C.L. came over to her house and sat with her for a while.

She remembered that S.C.L. asked for B., specifically. V.S. told him she was playing at B.B.'s place. She recalled S.C.L. asking her if she wanted him to go and get B. V.S. said “no.” He persisted, asking again if V.S. was sure he should not go get her. V.S. said she would get her herself after she was done canning. S.C.L. said he was going home and left rather late, between 10:00 and 11:00 pm, according to V.S. [ 91 ] At some later point, V.S. recalled her husband hollering, saying that S.C.L. is trying to hurt B.C. V.S. says she saw B. running

into a room. V.S. went into the room with her and asked her what was going on. B. was crying. V.S. went back to the living room to find her husband, P.S., talking to S.C.L., who was sitting down on a couch. According to this account, V.S.’s husband, P.S., called B. and W.L. to come over, which they did after a time. Meanwhile, P.S. was asking S.C.L. what had happened. He admitted to nothing, but did say “D.B.L. did it too.” P.S. then called B. and W.L. and told them to bring D.B.L. over, too.

V.S. then spoke to B. again, who was still crying, saying she did not want S.C.L. to do it to her, and that she told S.C.L. to leave her alone. [ 92 ] V.S. said she apologized to B. because just the day before, when she was going to language school, she was getting S.C.L. to babysit, and B. hollered at her – “no!” and that she didn’t like S.C.L. V.S. told her not to talk like that and that she was going to phone S.C.L. and get him to babysit. V.S. said that B. told her he tries to touch her and lie on her, and he hurts her. V.S. said her reaction to that was to slap B. and tell her not to talk like that.

She feels very badly about that now. [ 93 ] Going back to these events, V.S. said that when B. and W.L. came in with D.B.L., P.S. told D.B.L. to sit on the couch. P.S. asked S.C.L. what was going on. At first, S.C.L. said nothing, and then, that D.B.L. did it, too. When S.C.L. said he was just going to get B. for V.S., Ms. S. interjected at that point to say that S.C.L. had been over to her house earlier, and she told him she was going to get B. herself.

S.C.L. continued to deny doing anything to B. [ 94 ] There was also evidence that when S.C.L. said that D.B.L. did it first, D.B.L. said that P.E.L. did it first. This evidence, though it sums up the theory of the Crown, is not evidence against either D.B.L. or P.E.L., but it can be taken as a form of admission by S.C.L. The evidence that S.C.L. then said it only happened once, but D.B.L. did it more often must be similarly treated.

V.S. also testified that B.L. started hollering that it was all B.’s fault because she climbs on the boys and tries to lie on them. [ 95 ] V.S. said that her husband, P.S., called the police, and that two RCMP officers came to the house two days later. This is corroborated by the evidence that the police did in fact investigate the matter and took a statement from Ms. S. They told Ms. S. to take B. to a doctor. It seems to be common ground that Ms.

S. did take B. to a doctor, which is supportive of her own testimony of what the police told her to do, and also of the fact that there was police involvement over something serious, even though B.L. denies police involvement, though W.L., in a roundabout way, admitted it. I find as a fact that the police were involved, and did take some statements, and that V.S. took B. to a doctor as they suggested. The medical evidence, whatever it was, is not available.

There is no admissible medical evidence at all to consider in this case. [ 96 ] The fact that V.S. gave a statement to the police about this in 1985 is also established by the fact that it was produced at trial. Cumulatively, the evidence establishes beyond any doubt that there was a complaint to the police about this incident, and there was some police involvement, and any suggestion to the contrary is unbelievable. [ 97 ] The cross-examination of V.S., on behalf of S.C.L., was minimal. There was none on behalf of D.B.L., either. I consider that Ms.

S.'s testimony remained unshaken and essentially confirmed both P.S.(1) and B.C.s’ testimony that something quite out of the ordinary and violent occurred between S.C.L. and B.C., something serious enough to bring the police into the picture, as well as S.C.L.’s parents. [ 98 ] W.L. said he was positive that there was definitely no family meeting at the B.C.s’ household after P.S. phoned him, but he admits, albeit in indirect fashion, that the phone call from P.S. did occur.

Regrettably, W.L. was suffering from serious illness at the time he testified, but it must be said that his testimony was, at times, difficult to follow. When asked if he got that phone call from P.S. about S.C.L. hurting B. and P.S. wanting to phone the police, his answer was, "I put that in my head." The questions in cross-examination followed that point up in apparent efforts to establish that there was indeed such a phone call. W.L.’s responses to whether the police were involved were muddled, but I conclude that, taken as a whole, his answers confirmed that the police were involved.

The tenor of W.L.’s testimony was not so much that there was no police involvement, but that he wanted to distance himself from it. Mr. W.L.’s age and infirmity raise legitimate questions about his capacities at the time he testified. I conclude from W.L.’s testimony that he did not always appreciate the ramifications of some of his answers, and the way they might have implicated his sons, but when he did appreciate the point that some of the questions might incriminate his sons, he tended to become evasive.

I will come back to this point in dealing with Defence testimony. [ 99 ] B.L., as well, denied there was ever a phone call from P.S. I do not believe her, either. She flatly denied that there was any discussion about charges, which is simply not the case, or the police would not have been involved, as I found they were. Besides that, this denial contradicts what her husband said about the police being involved. It suggests to me that then, as now, that B.L.'s main desire is to keep matters within the family.

Her evidence could be summarized as suggesting that there was never anything out of the ordinary at her home, there was no telephone call from her brother-in-law, followed by a family meeting, there was no discussion about police and there was no police involvement. I reject that, and tend to view Ms.

B.L.’s testimony as being consistent with an intention to “stonewall” and protect her immediate family, come what may. [ 100 ] Coming back to S.C.L.’s admission, on January 27, 2010 after solidly standing on his right to silence, and thwarting every effort of a couple of RCMP serious crimes investigators from Kelowna to extract some sort of confession from him over a period of hours, S.C.L. was then said to have made an admission concerning B.C. That admission came after the formal statement taking was over and he on his way out of the police station, apparently.

It was not captured on video or audio recording. [ 101 ] Constable Cyr said that when S.C.L. was released they had a friendly chat outside the door of the police station, in which Constable Cyr asked S.C.L. if he had been sexually abused himself in the past. To this S.C.L. nodded ‘yes.’ When Constable Cyr then asked him if he had ever spoken to anyone about it, S.C.L. said that he had spoken to one person, and that was coming back to haunt him. Constable Cyr asked him what he meant.

S.C.L. made reference to a report that had been shown to him in the course of the interviews a few hours earlier along with B.C.s’ statement. S.C.L. was supposed to have then said that he knew he had caused harm to that girl, referring to B.C., adding that the other reports were not true, but the one about B. was. S.C.L. began to get tears in his eyes.

He was visibly upset, said Constable Cyr. [ 102 ] While it may seem suspicious that these experienced investigators, who were unable to get any sort of admission from S.C.L. during the formal interviews, just happened to obtain a confession that was not recorded in the circumstances described above, I accept

that this happened just as the officer said it did. The evidence about S.C.L. saying that he had been abused is very much in line with what he testified to on the witness stand himself, in some detail. Moreover, even without the evidence of this statement, and also without considering anything that might fall under the category of the similar fact evidence, I would have found that S.C.L. abused B.C. just as she said, on the earlier analysis of the evidence about that event. His admission, therefore, is consistent with those findings.

S.C. and B.L.C. [ 103 ] The evidence of S.C. and B.L.C. will be considered together. Their testimony covered allegations of simultaneous assaults on both of them in 1985, allegedly by S.C.L. and D.B.L. These are the subject of Counts #8 and #13. S.C. and B.L.C. were very close when they were children. It is argued that inconsistencies in their testimony are so fundamental as to render the testimony of each of them valueless. [ 104 ] S.C. was born [DOB] making her seven years old in 1985 and B.L.C., born [DOB] was six then. They are now thirty-three and thirty-two, respectively. [ 105 ] S.C. lives in Kamloops.

She works as a construction safety officer, is married and has a stepson. She lived in the Fountain Valley from the ages of three to six and then in the Town of Lillooet until she was about 10, after which she moved on to the T’it’q’et Reserve. When she was a child, S.C.'s father lived in T’it’q’et, where she would visit him, and at the same time play with other children her age including her cousin, B.L.C. When S.C. was around six, her father lived on that Reserve with R.T., who is B.L.C.'s father. [ 106 ] B.L.C. has been living on the T’it’q’et Reserve for the past five years.

She has a twelve year old son and obtained a Bachelor of Arts and Drama Degree through the University of Lethbridge in 2005. She is pursuing her Masters Degree in Indigenous Education. B.L.C. moved to the lower mainland until she was about eight years old, and after that moved around quite a bit with her mother until she came back to Lillooet late in her teens, where she graduated from the senior secondary school in 1998. She describes S.C. as someone who is like a sister to her. [ 107 ] According to the Crown theory, S.C. and B.L.C. were, in the case of their testimony, describing a single event.

In this event, S.C. talked about D.B.L. taking her and B.L.C. to the Tribal Police Office. B.L.C. talked about that occurring in the Julianne Hall basement, where S.C.L. was also present, and both of them being raped at the same time. S.C. only talked about an attack on her alone when she was with B.L.C. The discrepancies, therefore, are significant. [ 108 ] There was a qualitative difference in the way both of those women gave evidence. [ 109 ] S.C. impressed me as being a very strong witness. She was open, balanced, and careful over her choice of answers.

She was respectful and articulate, though in contrast to some other some witnesses, not overly shy or terribly upset by having to relate these events. However, S.C. refused any attempt to reconcile the differences between her version and B.L.C.’s, though aware that there were material differences. She declined to speculate about matters she was not certain of and made no attempt to rationalize the contradictory versions.

Her description of S.C.L., as she recalled him, was anything but flattering, nevertheless she refused to implicate him in what might be considered an even more serious incident as described by B.L.C. S.C. was not given to embellishment or exaggeration, in my view, and did not appear to fear questions from lawyers, maintaining a fairly cheery confidence throughout the entire process. By itself, I would have taken S.C.'s testimony to be believable. It is valid to question whether the contradictions between her and B.L.C. render both unreliable.

I have concluded that that is not the case. [ 110 ] B.L.C.’s testimony was vigorously attacked under cross-examination by counsel for D.B.L. and S.C.L. as being the subject of dramatic fantasies. She was accused of theatrical invention for the sake of assisting S.C. and other complainants, as well as, possibly, to gain notoriety herself.

This was obvious from counsel’s opening question in cross-examination as to when she “first developed an interest in the thespian arts?" Her answer was "when I was two." She was asked several times about her "cosmic moment," a reference, I think, to her description of how, while both girls were being simultaneously raped by the two brothers, through an exchange of looks, in a flash of unspoken communication, they both knew to simultaneously kick their assailants in the groin and flee, evading their assailants, who were in hot pursuit.

After dealing with a jammed door, and then successfully eluding them they hid in bushes outside until it was safe to go home. [ 111 ] There was considerable focus in the cross-examination of B.L.C. as to exactly how a small five year old girl could get the large person of S.C.L. off her in the way B.L.C. described, and make a successful escape bid, with all the obstacles inherent in her narrative.

In fact, this type of fight and flight was exceptional, compared to most of the other evidence, in which the victims submitted, being overwhelmed by the circumstances in which they found themselves. [ 112 ] S.C., on the other hand only remembered being raped by D.B.L. and none of the other actions such as the pushing off, kicking, fleeing and hiding as described by B.L.C. S.C. does remember running home with B.L.C. The substance of S.C.'s evidence was as follows. D.B.L. [ 113 ] S.C. testified that D.B.L. approached both girls and told them their mom told him to babysit them.

They told him that they were with their fathers. He then said that there fathers told him to babysit them. It was day time. He walked them around and eventually back to the playground at which he had found them. He then took them to the old Tribal police building. S.C. said that he had keys to this building. He directed them into a room on the right. B.L.C. walked in first, followed by S.C., then D.B.L. Once inside, he closed the door and locked it. There was an old mattress on the floor. He told them to lie on it and take off their underwear. S.C. did, and B.L.C. said “no”.

He told B.L.C.to watch S.C., who was a ‘good girl’. B.L.C. was standing beside the mattress.

[ 114 ] According to S.C., D.B.L. then opened up her legs and kneeled in front of her between her legs, undid his jeans and pulled out his erect penis. S.C. saw that B.L.C. was crying and was scared herself and crossed both of her arms over her face. That is the last thing S.C. remembered until just before she got home, on the run, in the dark. [ 115 ] S.C. said that they did not tell anyone else until years later, because up to then she thought she was wrong, and it was her fault. The first time she mentioned it to anyone was when she was about nine years old.

Later, she had other discussions in later school grades with other girls like B.C. and L.J., but she gave out little detail in those discussions, she said. S.C. also recounted that once, at a ‘Flying on your own’ program, T.L. started crying when S.C. was talking to B.C. about abuse, saying that the same thing had happened to him. [ 116 ] There were other, secondary discrepancies in their respective versions, for instance, about the dresses that they had been given to the girls just before the sexual assault incident took place.

B.L.C.'s unwavering certainty about those dresses bearing special significance as having been purchased brand new in Vancouver was contradicted by S.C.’s recollection of their more mundane, local provenance, to which she attributed much less significance. That would be consistent with their more likely local origins and the secondary importance of such a detail compared with the traumatic events she was trying to recall. [ 117 ] S.C. was forthcoming about the fact that she discussed her abuse with a fair number of people, including B.L.C.

The danger that their respective memories might have been tainted by such discussions is greater with B.L.C. than with S.C. S.C.’s account was clearly based on a limited or fragmentary recollection that she made no effort to patch up, but she remained unshaken in that recollection. I am concerned that B.L.C.’s testimony may have been subject to pressures that were not apparent in the case of S.C. or that of other complainants.

B.L.C.'s mother’s pride in her daughter was apparent in her attempt on the witness stand to have the court receive a picture of B.L.C., which was not introduced simply because it had no legal relevance however much it meant to her. I am mindful that B.L.C. sometimes had to deal with questions aimed at diminishing her person, questions that a witness is not required to answer, such as whether she was as bright as she suggested she was, or where she lived when she was born.

Despite that, in considering the conflicts in her testimony with that of S.C., who was a stronger witness, and whose account is more plausible and consistent with other evidence, and the possible pressures on B.L.C. that I have adverted to, the doubts that have been raised about her evidence must be resolved in favour of the accused, which leaves me in the position of being able to rely only on the testimony of S.C. [ 118 ] Saying that, I consider that S.C.'s evidence may be relied upon as some proof on Count #8, as well as being treated as similar fact evidence to that of other complainants.

That would not be the case with respect to Count #13. D.J. [ 119 ] D.J. was born [DOB]. She testified about events involving D.B.L., referred to in Count #9, events that happened between 1983 and 1986. The Information was amended to conform to the evidence to include that later date. Between those periods of time, D.J. would have been between six and nine years of age, and D.B.L. would have been between thirteen and sixteen. She is now thirty-four. Ms.

J. lived in Lillooet for most of her life, having been born there, but now lives in Kamloops, where she has worked as a drafting technician for the past seven years doing drafting, mapping, three-dimensional modelling and “computer – type stuff”. [ 120 ] Ms. J., too, has lived on the T’it’q’et Reserve. She knew B. and W.L. as well as the L. boys, and is distantly related to them, but did not associate with them much. She was close friends with B.S.(C.) and S.C. She knew the J. children and associated with them sometimes.

D.B.L. [ 121 ] D.J.’s first recollection was of D.B.L. bringing, her, L.J.(J.), C.J. and B.C. to the building that used to stand beside the Julianne Hall. D.B.L. approached the playground near the Julianne Hall and told those children to follow him. L.J. and C.J. were scared, and asked D.J. to come with them. D.B.L. led the way. L.J. and C.J. were in front. D.B.L. said he wanted to show them something. He unlocked the door with a key. They all went inside. It was dark. He led them to a door on the right side of the building towards the back, to the last room on the right.

Those details D.J. was able to recall about the place made her think it was an office containing shelves, curtains, and the like. [ 122 ] D.J. said that D.B.L. asked each of the girls to pee on a newspaper under the

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