R. v. E.H.S. Date:, 2012 BCPC 450

Citation: R. v. E.H.S. Date: 20121214 2012 BCPC 0450 File No: 156155-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.H.S. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BLAKE Counsel for the Crown: Laura M. Ford Counsel for the Defendant: Victor A. Simpson Place of Hearing: Victoria , B.C. Date of Hearing: November 29 and 30, 2012 and December 4, 2012 Date of Judgment: December 14, 2012

INTRODUCTION [ 1 ] The accused person, E.H.S., is charged with the offence of sexually assaulting his daughter L.S., contrary to s. 271 of the Criminal Code . He is also charged with touching the same girl for a sexual purpose, contrary to s. 151 of the Criminal Code.

Both offences are alleged to have occurred at some time between June 6, 2009 (the date of L.S.’s twelfth birthday) and October 14, 2011. [ 2 ] At the trial in this matter, a voir dire was held for the purpose of determining whether L.S.'s evidence could be presented to the Court by means of the adoption of a statement which she gave to the police on October 19, 2011. That statement was recorded on audiotape and videotape.

At the conclusion of the voir dire I ruled that L.S.’s evidence could be presented in that fashion, the Crown having satisfied the requirements of s. 715.1 of the Criminal Code . [ 3 ] L.S. gave further viva voce evidence in this Court, both in direct examination and in cross-examination. She was permitted to give this additional evidence at a location outside the courtroom, in the presence of a support worker, pursuant to ss. 486.1 and 486.2 of the Criminal Code .

SUMMARY OF EVIDENCE [ 4 ] L.S.'s evidence was somewhat difficult to follow but essentially related to two incidents of alleged wrongdoing on E.H.S.'s part. [ 5 ] The first incident is said to have occurred near the end of the year 2009. L.S. stated that at that time she lived with her mother R.J., her father E.H.S., her grandmother J.G. and her younger sister La.S.. Her younger sister La.S. was away from home, however, staying with an aunt at the relevant time. [ 6 ] L.S. described that one particular evening her father had been drinking.

Her mother left the home at some stage and did not return until the following morning. E.H.S. was angry at his wife’s action and got into an argument with her upon her return, as a result of which she left the house a second time. E.H.S. also went out for a time, leaving L.S. alone with her grandmother. The grandmother at some point suggested that L.S. should go to sleep on a couch in the living room, which she did. [ 7 ] L.S. maintains that when her father returned to the house, he came to lie beside her under the blanket on the couch in the living room.

On several occasions he then placed his hand inside her clothing, touching the part of her body which she identified as “the private”. L.S. was shown an anatomic diagram to illustrate her meaning, and as a result it is clear that she was referring to her genital area. Each time her father touched her in this way, according to L.S., she removed his hand from her genital area, but each time he put it back inside her pants. Eventually she got so upset with her father's actions that she pushed him off the couch.

He then went to sleep on a separate couch in the same room. [ 8 ] L.S. testified that she smelled liquor on her father's breath when the events occurred on the couch. When he eventually moved away to the second couch L.S. was cold because her father had taken the blanket with him. As a result, she went to her grandmother's room and asked her grandmother for another blanket.

She says that she told her grandmother what had happened, and that her grandmother angrily confronted her father about it soon afterward, perhaps the next morning. [ 9 ] L.S. testified that her grandmother also told R.J. about what E.H.S. had done and that her mother was so angry with E.H.S. that she nearly threw him out of the house. [ 10 ] The second incident which L.S. described occurred some time later, perhaps a year or so later. On this occasion, according to L.S., her mother and her grandmother had gone to the casino, leaving her and her younger sister in E.H.S.'s care at home.

She testified that she was watching television in her parents' bedroom when her dad came up from his workshop on the lower floor to check on the girls. The younger girl, L.S., happened to be out of the room at that moment. E.H.S. pushed on L.S.'s shoulder, causing her to recline backwards onto the bed. He then proceeded to put his hand inside her pants and her underwear, and to fondle her genital area once more. He left the room of his own accord soon afterward and returned to his workshop downstairs. [ 11 ] L.S. was pressed for detail concerning her father's actions on this second occasion.

She stated that when he touched her his fingers were moving “in the hole”. When asked to identify “the hole” she described it as “the hole between the lips of the private.” She said it did not hurt but she did not like it. [ 12 ] It is clear that L.S.'s account of events is problematic in some respects. For example, in her statement to the police, which she adopted as accurate in court, she spoke of her father touching her “bum” and her “boobs” ( transcript of interview , lines 168-172; line 708), areas which she identified on the anatomic diagram as being her rear end and her breasts.

At one point ( transcript of interview , lines 701-708) she told the police officer that her father had touched her in her private areas “lots of times”. In viva voce evidence at trial, however, she specifically denied that her father ever touched either her “bum” or her “boobs”, and she specifically limited the number of incidents of improper touching to the two which I have already mentioned. [ 13 ] At another stage in her interview with the police, she begins to speak of an incident in which her father put his hands on her breasts while she was sleeping in her own room ( transcript , lines 436-464).

At a point where the police officer believed the story to have ended, she asked L.S. the simple question: “And that was one of the times, too, that he touched you, or not?” Despite all that she had just said to the officer, L.S. responded to that question with the remarkable answer “No” and said no more about it.

There are portions of the interview and of the girl's evidence which are mystifying, if not downright incomprehensible. [ 14 ] In deciding what to make of L.S.'s testimony, I do have to bear in mind the clear evidence before me that L.S. has significant mental challenges and that her mental development does not match her chronological age. In that respect, I accept the evidence given by the Crown witnesses A.G. and J.M., which I will touch upon now.

[ 15 ] A.G. is a trained education assistant who works one-on-one in the classroom with special needs children. She worked with L.S. throughout her Grade 8 year (which I take to be 2011-2012). She also worked with L.S. the previous school year, but not entirely on a one-on-one basis. I am satisfied that her training and her specific experience with L.S. permit her to make helpful and detailed observations which are relevant to the proceedings in this court. [ 16 ] From the outset, A.G. had been advised that L.S. suffered from fetal alcohol syndrome (“FAS”).

L.S.'s mother, R.J., later gave testimony confirming that L.S. had been formally diagnosed in that respect. [ 17 ] Whilst I do not have specific evidence before me concerning the effects of FAS, it is clear from A.G.’s evidence that L.S.'s intellectual capacity was significantly compromised. At age fourteen, she could not read or do mathematics except at a very basic level. She could not tell time either, a somewhat remarkable shortcoming which, ironically, was also noted during her interview with Constable Frohloff.

The interview with the police officer also demonstrated that at age 14 L.S. is able to remember her middle name. [ 18 ] The Crown witness J.M. is a student counsellor at the school that L.S. attended for grades 6, 7 and 8. J.M. impressed me as a highly skilled, caring and competent counsellor. She specializes in counselling aboriginal children like L.S. and is well schooled in recognizing and dealing with FAS-related issues.

In this court, she did not speak at length of L.S.'s mental state, but she did confirm that L.S.'s intellectual and emotional development lagged well behind her chronological age. [ 19 ] In addition to commenting on L.S.'s developmental issues, the Crown witnesses gave some evidence concerning the girl's temperament. A.G. in particular spoke of L.S. as a somewhat unemotional child who was not prone to fits of temper.

On the contrary, I was left with the impression that L.S. was generally a well-behaved child in school, willing to take direction from her teachers to the extent that she intellectually capable of doing so.

Although I will say more about this later in these reasons, I would just say for the moment that this evidence is in general accord with the defence evidence to the effect that L.S. is not a girl inclined to lying or histrionics, but is generally well-behaved and respectful. [ 20 ] The remainder of the Crown evidence at trial was directed to demonstrating the manner in which L.S.'s allegations of wrongdoing against E.H.S. have come to light in October 2011. I ruled this evidence admissible not for the truth of L.S.’s disclosures to the various witnesses but solely on the basis authorized in R. v.

Buck, [1999] OJ 3523 (CA) that the method of disclosure could be relevant in assessing the credibility of L.S.`s testimony. [ 21 ] It appears that in October 2011 L.S.'s mother was due to attend a ceremonial potlatch in Gold River. L.S. was not able to attend, although she had earlier expressed a wish to do so. The effect of the mother's departure meant that L.S. would be left alone in the house with her father, sister and grandmother.

She expressed to A.G. that she did not like being alone with her dad, and particularly did not like sleeping in the same bed as him. [ 22 ] L.S.'s statement immediately set off alarm bells with A.G., who decided that she should immediately take the girl to see J.M., the counsellor. Wisely, A.G. did not discuss the issue any further with L.S.. Once at J.M.’s office she provided the counsellor with a quick

summary of what L.S. had said, then left the room. [ 23 ] J.M. initially approached the matter lightly. She said to L.S. that if she was sleeping in her father's bed it either meant that there were not enough beds in the house or perhaps that something inappropriate was happening. According to J.M., L.S. immediately looked down, sadly and said: “I don't like it when my dad does that to me”. [ 24 ] J.M. listened sympathetically as L.S. gave some detail of the alleged wrongdoing, but it appears to me that she handled the matter in a thoroughly professional and appropriate manner.

She assured the girl that she had done nothing wrong and that she would find some help for her. She contented herself mainly with questions about the girl's immediate safety, knowing that the mother had already left town. She determined that the grandmother was still in residence and stressed to L.S. that she should insist to her grandmother that she would not be sleeping with her father. [ 25 ] R.J. then contacted a representative of the Ministry of Children and Family Development, as she was required to do. That call eventually brought the social worker Paula Gregory into the picture. Ms.

Gregory is also skilled and experienced in her work. She specializes in dealing with the problems facing aboriginal children in particular, and spends a considerable amount of her time interviewing children. [ 26 ] Ms. Gregory interviewed L.S. the day after the girl’s initial disclosure at school. Knowing that L.S.’s allegations would in all likelihood lead to a police investigation, Ms. Gregory asked the girl general questions only.

Mainly, she was concerned with obtaining a general confirmation of the situation and determining the nature of the safety issues at play. [ 27 ] Like Constable Frohloff after her, Ms. Gregory appears to have had some difficulty following the flow of allegations which L.S. was making.

She was left with the impression that L.S. was disclosing three separate incidents of improper touching, but at least one of those incidents, involving something that occurred in a bathroom, does not seem to have ever been mentioned again, either in the police statement or in this court. [ 28 ] During the course of her one-hour interview with L.S., Ms. Gregory observed that the girl was fairly composed and straightforward in her disclosure, but that she became tearful when asked to identify three wishes for her own future.

She became upset in saying that she mainly wished her father would just stop touching her in places where he should not go. She also expressed sadness and fear about what would become of her family situation now that she had made her disclosure. [ 29 ] Ms. Gregory gave some additional evidence relevant to this matter, but I think it best that I reserve comment on that other evidence for the moment, and return to it in another context later on. [ 30 ] The defence called four witnesses. E.H.S. gave evidence on his own behalf.

He was preceded into the witness box by his wife R.J. (L.S.`s mother), by his mother-in-law J.G. (L.S.`s maternal grandmother) and his sister-in-law C.B. (L.S.`s paternal aunt).

[31] R.J. testified that although her daughter L.S. is generally well-behaved she became quite angry in September 2011. The causeof her anger was the potlatch in Gold River or, more precisely, her own exclusion from the potlatch. According to R.J. her daughterthreatened that she would get her and E.H.S. in some sort of trouble for refusing to allow her to go to the potlatch. She skipped schooland refused to do her chores or even to speak for some time.

R.J. claims to have been so afraid that L.S. would physically strike her thatshe called E.H.S. in Vancouver, asking that he come home early from selling his carvings there. [32] R.J. further testified that, contrary to L.S.'s evidence, she was never informed by her daughter that E.H.S. had touched herinappropriately. Nor did she ever argue with her husband about any such thing. [33] J.G.’s evidence paralleled her daughter R.J.’s testimony in contradicting L.S. about the alleged early disclosure of impropertouching.

She was adamant that L.S. made no such disclosure to her. [34] J.G. also confirmed that L.S. had been upset at not being allowed to go to the Gold River potlatch. She stated that hergranddaughter could on occasion become angry when she did not get her own way, as once occurred in relation to a cell phone, but sheconceded that she had never known L.S. to tell lies. [35] C.B. was called by the defence to testify about time she spent with her niece L.S. on the Thanksgiving weekend in earlyOctober 2011.

That weekend was shortly after the time when L.S. had been told that she was not going to Gold River. [36] C.B.’s evidence did not assist the defence. She described L.S. as initially appearing to be “a little upset” by her exclusion fromthe ceremonial potlatch, a phrase which she deliberately repeated in cross-examination. L.S. remained in C.B.’s home for two or threedays thereafter, however, and over that period of time the girl's mood improved.

According to C.B., L.S. very soon joined in familyactivities, ate all her meals and played with the other children in the home. [37] E.H.S. was the last witness called by the defence. Early in his evidence in chief, he was asked to describe his daughter's generaltemperament. He described L.S. as having “a little temper” and said that when she did not get her own way she could be stubborn andwould “cross her arms” as a sign of defiance. He conceded, though, that in general L.S. was a respectful and obedient child.

E.H.S.indicated that he could comment with some authority on such matters because he was in many ways the prime caregiver for L.S. and hersister. This state of affairs arose as a result of the fact that R.J. suffers from the chronic illness known as irritable bowel syndrome andalso, more recently, has become depressed as a result of witnessing a person being struck and killed by a bus in downtown Victoria. [38] E.H.S. did confirm that his daughter was upset at being excluded from the Gold River potlatch.

When pressed on the point,however, he conceded that once he spoke to her calmly on the subject she calmed down a lot. He agreed that by the end of theThanksgiving weekend L.S. was participating fully in family activities at C.B.’s residence, as I have already described. [39] E.H.S. was then asked directly to comment on the allegations which his daughter had made against him regarding inappropriatesexual touching. He described L.S.'s disclosures as “lies”, and said flatly that he would never engage in the sort of behaviour of which hewas being accused. [40] I provide the foregoing as an essential

summary of the evidence, without purporting to refer to all of the details presented to thecourt over two days of testimony. Some of the details are, I think, best left to the analysis which follows hereafter; others are notessential to the conclusions which I have reached. THE LAW [41] The essential issue in this case is, of course, credibility. Pared down to its essentials the case involves a complainant testifyingthat she was inappropriately touched by the accused, while the accused denies that he did any such thing.

Each side points to portions ofthe evidence given by other witnesses which tend to bolster the credibility of L.S. on the one hand or E.H.S. on the other hand, but thereis no denying the central issue remains the credibility of these two essential witnesses. [42] The assessment of credibility in such circumstances must be decided on the basis of proof beyond reasonable doubt, inaccordance with the fundamental principle which underlies the criminal law. The Supreme Court of Canada decision in R. v. W (D)(1991), (SCC), 63 CCC (3d) 397 (SCC) sets out a helpful framework by which to approach the issue.

The trial courtmust consider whether the evidence of the accused is to be believed. If so, then obviously the accused must be acquitted. If the courtdoes not necessarily believe the evidence of the accused, but nonetheless finds that what he says could reasonably be true, then the courtmust still acquit. Even if the court does not accept the evidence of the accused or even find that it could reasonably be true, the courtmust go on to consider whether the evidence as a whole establishes the guilt of the accused beyond reasonable doubt. The BritishColumbia Court of Appeal supplemented the W(

D) test by adding a fourth step, providing that the trial court should also considerwhether it is even possible to determine what actually happened with respect to the central issue in the prosecution; if such adetermination cannot be made then, too, the accused must be acquitted. [43] There are a couple of comments to be made about the modified W(

D) test as it applies to this case. First, I think it should bepointed out that as the case law has developed in the twenty years since W(

D) was decided it has become apparent that trial judges arenot required to necessarily follow the precise sequence of the analysis which W(

D) appears to contemplate. As Rosenberg, JA said in R.v. Minuskin, (ON CA), [2003] OJ 5253 (CA): It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instructionwas intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particularly chronology, for example, looking first at the accused'sevidence and then at the rest of the evidence.

It should, however, be clear form an examination of the reasons that at the end of the daythe trial judge has had regard for the basic principles underlying thereafter W(

D) instruction. One of those principles is that it is notnecessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if thereafter trier of factbelieves the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory Jin W(

D) at p. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable

doubt as to the accused's guilt “after considering the accused's evidence in the context of the evidence as a whole”. [44] In this respect, see also the comments of Charron, J. in R. v. Dinardo 2008 SCC 24, at paragraph 23. [45] In the present case, the defence amounts to what is sometimes called a “flat denial”. E.H.S. takes the very straightforwardposition that he simply did not commit the alleged act or acts of wrongdoing. It is important for a court not treat such a defence assomehow illegitimate or as somehow less worthy of the W(

D) form of analysis than other, more complicated types of defence. As theAlberta Court of Appeal said in R. v. McIntosh, 2010 ABCA 352 , [2010] AJ 1331 (CA),at paragraph 12, there are no doubtplenty of situations in which one might fairly ask “what more can an accused do” than offer a denial under oath and open himself up tocross-examination. That sort of question may be particularly appropriate, it seems to me, when a historical sexual assault is alleged. [46] The “flat denial” raises particular issues related to the W(

D) analysis, however. It seems to me that in a case where that sort ofdefence is put forward, it is singularly unhelpful to begin with an analysis of the defence position. Anderson, PCJ considered the effectof the flat denial on the method of analysis in R. v. Rana [2010] AJ 697 (PC). At paragraph 14 of that decision His Honour stated: The accused's denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracityof a denial without more. The strength of a denial depends entirely on context. [47] Similarly, in R.

JWA, 2010 ABCA 406 , [2010] AJ 1469, the Alberta Court of Appeal said this at paragraph 22: [T]he law has not elevated the requirements of W(

D) to include a mandatory statement as to the precise reasons for rejecting theaccused's testimony in isolation before considering the testimony in the context of all the other testimony. This argument was advancedto the trial judge and properly rejected. Relying on R. v. JJRD (2006) (ON CA), 218 OAC 37, 215 CCC (3d) 252,she concluded that the evidence of the accused must be considered, not in isolation but rather in the context of the evidence as a whole. She stated as follows: Here there is a simple denial.

There are admittedly no facts in the descriptions of the events given by the girls so that the denial isnecessarily simple. However, to say that all I can consider at Steps 1 and 2 of the W(

D) analysis is the evidence of the accused and otherdefence evidence is essentially to give the defence a veto or put up an impenetrable roadblock to consider the evidence in the trial as awhole. We agree. [48] In this particular case, I do find it helpful to begin by considering the strengths and weaknesses of the prosecution case. Theimportant qualification, though, is not to reach any final conclusions until all of the evidence has been considered. As Lambert, JA statedin R. v.

PW, [2003] BCJ 2447 (CA) at paragraph 19: It is not the function of the trial judge to decide whether she believes the complainant and, having reached a conclusion in that, to go onand only then consider what the evidence of the appellant was on his own behalf. The consideration of both must be deferred until theycan be looked at together and an overall conclusion reached on the basis of the whole of the evidence. [49] L.S.'s evidence must be evaluated having regard to her particular circumstances.

At the time that she gave the statement to thepolice which she adopted as accurate in this court, she was a fourteen year old girl with significant mental challenges. Her generalmemory appears to be poor and her capacity to process and formulate complex ideas is somewhat limited. In the circumstances, I ammost mindful of the frequent pronouncements from the Supreme Court of Canada about the need for trial judges not to assess thecredibility of youthful witnesses using the same yardsticks that are used for adult witnesses.

The same warnings surely apply to youthfuland mentally challenged witnesses such as L.S.. [50] At the same time, of course, it is important not to overcompensate by simply assuming that any failings in the evidence of achild witness can safely be ignored as irrelevant to an assessment of credibility. In that respect, I refer to the words of Wood, JA (as hethen was)written in a slightly different context in R. v.

K(V) (1991), (BC CA), 68 CCC (3d) 18 at page 35: Earlier in the judgment, I noted the gender-related stereotypical thinking that led to assumptions about the credibility of complainants insexual cases which we have at long last discarded as totally inappropriate. It is important to ensure that they are not replaced by anequally pernicious set of assumptions about the believability of complainants which would have the effect of shifting the burden of proofto those accused of such crimes. [51] I am acutely aware of the frailties of L.S.'s evidence, as I have already mentioned.

There is no doubt that those frailties arisedirectly out of her own intellectual limitations. At the same time, however, I am convinced that her limitations in many ways also givestrength to her testimony.

Without intending to sound patronizing or insulting, I am convinced that L.S. does not have either the guile orthe wit to fabricate a story of sexual abuse at the hands of her father and to remain fixed in such a mode of deceit over the long period oftime which has elapsed here since her first disclosure. [52] In making the above comment, I note that L.S.'s version of the evidence is not merely generic or vague in nature. On close

analysis, it is replete with details. With respect to the first incident of sexual touching, she refers to her father taking the blanket off the couch at the conclusion of the events, leaving her so cold that she sought out her grandmother for assistance. In the second incident, she described for the court the television program that she was watching when her father began to push her onto the bed.

It is difficult indeed to picture this particular girl having the creativity to embroider such detail into her recollection of the events. [ 53 ] Nor does it seem likely that L.S. would engage in such a vindictive and spiteful attack on her father as would be required to sustain a false accusation of sexual assault. By all accounts, L.S., for all her intellectual shortcomings, is described as a respectful girl, not prone to telling lies. [ 54 ] I would venture to say that many, if not all, young people can become testy and uncooperative when they do not get their way.

The impression created of L.S. folding her arms in defiance on occasion did not seem the least bit unusual to me.

To my mind, however, there is an enormous gulf between the child who occasionally sulks or even has tantrums when crossed, and the child who makes serious allegations of sexual assault against a parent in such circumstances. [ 55 ] In this case, the defence suggestion is that L.S. was so incensed at being refused permission to attend the potlatch in Gold River that she invented a perverse story of sexual assault against her father. [ 56 ] The evidence simply cannot bear the weight of that proposition, however.

After a full consideration of the testimony of all of the witnesses, including C.B. and E.H.S. himself, the only conclusion which I can draw is that L.S. considered her inability to travel to Gold River as little more than a passing annoyance., one whose effect had subsided a significant time before she made her allegation of sexually inappropriate behaviour against her father. [ 57 ] Of course, the fact that the evidence does not establish a motive to lie on the complainant's part does not by any means establish that her story must be true.

To accept that proposition would indeed involve transporting the burden of proof onto the shoulders of the accused. The fact that there is no apparent motive for the complainant in this case to make up such vindictive story against her father is at least, however, a factor which I am entitled to consider in assessing her credibility. [ 58 ] I also take into account the manner in which the process of disclosure occurred in this case.

If I may say so, it appears to me as if the process unfolded as very nearly a textbook exercise in how to elicit disclosure from a youthful and mentally challenged complainant without poisoning the atmosphere through inappropriate questioning or inappropriate responses. In my view, all of those persons who dealt with L.S. from the moment of her first disclosure through to her lengthy statement at the Saanich police station proceeded with the utmost caution and professionalism.

As a result, it seems to me that there is very little likelihood that the disclosure process itself in any way led to the propagation of false or exaggerated claims on L.S.'s part. Again, I remind myself that the absence of improper questioning or improper responses does not in any way prove the truth of the complaint made; these are merely factors which I take into account when attempting to arrive at an overall assessment on the issue of credibility. [ 59 ] In

summary, then, it is my view that the Crown has presented a strong case against this accused. The difficulties with L.S.'s evidence are all too obvious. When analysed carefully, however, those difficulties do not seriously affect her credibility. The frailties of the testimony leave her intellectual limitations clearly exposed to view, but there a significant number of factors operating at the same time as to suggest, in my mind at least, that L.S.'s credibility has not been seriously brought into question.

I go no further than that at this stage of the analysis. [ 60 ] I turn to assess the strength of the defence case. [ 61 ] R.J.’s evidence is substantially directed toward two issues. First, her evidence serves as a rebuttal to L.S.'s testimony that she notified her mother very soon after at least the first incident of improper touching.

Second, her testimony is directed toward the assertion that L.S. was acting in a vindictive and unreasonable fashion around the time that she made her disclosure to the school authorities and the police in October 2011. [ 62 ] It seems to me that there are very good reasons to be very careful before accepting R.J.’s evidence. The evidence is clear that for a very long time this family has been under the watchful eye of the Ministry of Children and Family Development. R.J. concedes that she does not wish to lose her children to ministry intervention.

It takes no great insight to identify the connection between ministry intervention and a judicial finding that L.S. has been the subject of sexual abuse at her father's hands while her mother was absent from the home. [ 63 ] Perhaps more subtly, the evidence discloses also that R.J. is highly dependent on E.H.S., both emotionally and financially. She suffers from chronic illness and depression. She is dependent upon E.H.S. for the income which he derives from his woodcarving.

It is not difficult to imagine the risks which R.J. can foresee if her close bonds of dependency with E.H.S. were to be severed by a conviction in the present circumstances. [ 64 ] Of course, these considerations only relate to the potential that she might shade her evidence to favour her husband over her daughter. They raise warning flags about the need to be careful; they do not constitute, in and of themselves, cause to reject her evidence. [ 65 ] Upon full consideration of R.J.’s evidence, however, it becomes clear that the cause for concern is real and not merely academic or potential in nature.

In a number of respects, her evidence clearly reveals a deliberate and alarming tendency to protect her husband's interests at the expense of being accurate. In that respect, I refer first to her steadfast rejection of the proposition that E.H.S. had a drinking problem during the time that the family lived in Nanaimo. E.H.S.'s own evidence is that he is (or was, at that time) an alcoholic with a problem so serious that it caused him to fall three storeys from a roof top during the time of the family's residence in Nanaimo. He admits that theirs was a party house in Nanaimo.

That evidence must surely be true, especially as it is essentially corroborated by J.G.. [ 66 ] Likewise, I simply cannot accept R.J.’s evidence about certain events that took place when she was granted access to L.S. after the child had been placed in foster care in October 2011. The social worker Paula Gregory, whose professional task it was to supervise that visit and whose evidence in this court was of the highest quality, testified that before the access visit she had informed R.J. that there

was a court order preventing her husband from having any contact, directly or indirectly, with L.S. and her sister. Despite being informed of the court order, during the course of the access visit R.J. used her telephone to show her children a video recording from E.H.S. directed toward the girls. Later on in the visit, according to Ms. Gregory, R.J. went on to tell her daughter that she could not come home yet because of the things that she had said about her dad. [ 67 ] In response to Ms.

Gregory's testimony, R.J. denied that she was aware of the no-contact order between E.H.S. and the girls, or at least maintained that she did not understand its implications. She then flatly denied Ms. Gregory's assertion that she had essentially placed the blame on L.S.'s shoulders with respect to the break-up of the family unit. [ 68 ] I entirely accept Ms. Gregory's version of these events. She was engaged in a professional manner with this family and she took notes of what transpired at the access visit.

It follows that I reject R.J’s contrary version of the events as patently unbelievable. [ 69 ] Likewise, I entirely reject R.J.’s testimony concerning the level of L.S.'s anxiety following the determination that she would not be going to the Gold River potlatch. In this respect, R.J’s evidence is totally out of step with the testimony given by both E.H.S. and C.B., which is far more likely to be true. Further, the assertion by R.J. that L.S. made a threat to her and to E.H.S. which caused her to contact E.H.S. in Vancouver is a thing of fiction, in my view.

The assertion was never put to L.S. in the course of her evidence and it appears to be totally out of character with all of the other evidence about the girl's general temperament and her reaction to the Gold River issue specifically. Furthermore, E.H.S. in his own evidence made no mention whatever of receiving a call from his wife requesting that he return home from Vancouver because of his daughter's threats. [ 70 ] In short, while I have some sympathy for the position in which R.J. finds herself, I must nonetheless reject the bulk of her evidence as being completely unreliable.

In my view, she has made the conscious decision to cast her lot in with her husband whether or not that causes her to bend the truth in this court. Wherever R.J.’s evidence conflicts with that of her daughter I prefer the daughter's evidence. [ 71 ] J.G.’s evidence is not so easy to cast to one side. She at least gave the appearance of trying to be impartial. And there are many respects in which her evidence is demonstrably accurate, as, for example, in her concession that her daughter R.J. and her son-in-law E.H.S. lived a chaotic and alcohol-soaked existence during the time that they lived in Nanaimo.

She also candidly conceded that she is not aware of any instance in which L.S. has lied to her. [ 72 ] At the same time, though, there is again reason to be cautious with respect to some of J.G.’s testimony. She too is dependent on E.H.S. and the continued stability of his family. She relies upon the family for her accommodation, if nothing else.

And I have no doubt that she would very much like to see her children and grandchildren remain together as a family unit rather than be subject to intrusive intervention by the Ministry of Children and Family Development. [ 73 ] I also take note of the fact that J.G., a 67-year old woman, concedes in her evidence that her memory is less than perfect and that she has a tendency to block out things she does not wish to hear. [ 74 ] As a result of my reservations about accepting the totality of J.G.’s evidence I prefer L.S.'s evidence about the complaint made to her grandmother after the first incident of sexual touching.

L.S. gave that evidence in detailed and convincing fashion. J.G. has either forgotten, or more likely she has deliberately chosen to forget, that her granddaughter made such a complaint to her. [ 75 ] It remains for me to consider the evidence presented by E.H.S. himself. There are some respects in which his testimony is undoubtedly reliable. With respect to the family dynamics generally and the problems which the family experienced in Nanaimo in particular, I have no doubt that he speaks the truth. He acknowledges that he is an alcohol.

The fact that he now minimizes his difficulties with alcohol may or may not reveal a lack of candour on his part. [ 76 ] I note as well, though, that while he flatly denies the allegations of sexual touching he does confirm the accuracy of many of the surrounding circumstances which L.S. described in her evidence. He concedes, for example, that there was a time in late 2009 when R.J. left the home overnight and that there was an argument thereafter.

He agrees that on occasion he does consume alcohol in his workshop, a fact which is at least consistent with L.S.'s observation of smelling alcohol on his breath. [ 77 ] With respect to the second alleged incident, again there are significant aspects of L.S.'s version of events which he concedes as accurate. He acknowledges, for example, that it was common for the girls to watch television in the parents' bedroom because that was where the biggest television in the house was to be found. He also concedes that on the occasion of which L.S. speaks he went into the room to check on his daughter's wellbeing.

He simply denies that on either the first or second occasion he engaged in the sexual touching of which his daughter complains. [ 78 ] In light of E.H.S’s testimony concerning the central factual core of the two relevant incidents described by his daughter, it seems to me that the defence inevitably finds itself advancing this proposition: L.S. has for some reason remembered these entirely mundane incidents for a period of months of even years, but then has brought them to the surface and has injected a sinister twist of sexual wrongdoing when moved to do so, apparently by vindictiveness against her father.

Given L.S.’s intellectual limitations and her personal make-up that seems to me to be a most unlikely scenario. [ 79 ] It is undoubtedly correct to say that, unlike R.J.’s testimony, E.H.S.'s evidence does not fall apart for utter implausibility. Nor can it be said that E.H.S. seriously contradicted himself during the course of his testimony. In the course of a bare denial, of course, it is somewhat less likely that an accused person would do so than in the case of a more complicated defence.

The truth is, though, that in making a credibility assessment with respect to E.H.S.'s evidence the court must not only consider that evidence in isolation, but must also consider it in the context of the evidence in the trial as a whole. In that respect, I refer once more to the decision of Anderson, PCJ in R.v Rana (referred to above) at paragraph 15: [I]t seems that for all intents and purposes the assessment of a bare denial without more is much the same as the analysis under the third leg of W(D). Does all of the evidence, including the denial and the complainant's testimony leave a reasonable doubt?

A court must be careful to not simply balance one version against the other. However, where the only context is the testimony of the complainant, the

strength of the complainant's testimony necessarily becomes a significant consideration in assessing the credibility of a denial. [ 80 ] Mindful of Judge Anderson's perceptive comment, I have endeavoured to avoid the fundamental mistake of viewing this case as involving the mere balancing of the evidence of one witness against another, and determining which is preferable. To adopt that approach would seriously disrupt the proper burden of proof in a criminal case.

On the contrary, for reasons which I have gone to some lengths to express, I take the view in this case that the bare denial of the accused simply does not raise a doubt in the face of the credible evidence presented by the Crown. Although I do not know exactly how many times E.H.S. engaged in sexually inappropriate behaviour toward his daughter I am satisfied beyond reasonable doubt that the two incidents which she has described in detail in her evidence did indeed occur in substantially the manner in which she has outlined them.

CONCLUSION I find the accused guilty on both counts of the Information, subject to consideration of the rule against multiple convictions arising out of the same incident. ________________________ E.C. Blake Provincial Court Judge