R. v. R.A.M., 2021 BCPC 528

Citation: R. v. R.A.M. 2021 BCPC 528 Date: 20211125 File No: 4114 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. R. A. M. Ban on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Crown: J. Krupa Counsel for the Defendant: M. Klein, QC. Place of Hearing: Pemberton, B.C. Dates of Hearing: June 14-16, 21; July 21, 2021 Date of Judgment: November 25, 2021

INTRODUCTION [ 1 ] R. A. M. (Mr. M.) is charged with 5 counts involving Complainant #1: touching a person under the age of 14 for a sexual purpose; touching a person under the age of 16 for a sexual purpose; sexual assault; inviting, counselling or inciting a person under the age of 16 to touch him for a sexual purpose; and inviting, counselling or inciting a person under the age of 14 to touch him for a sexual purpose.

He is charged with 2 counts involving Complainant #2: sexual assault, and touching a person under the age of 16 for a sexual purpose. [ 2 ] The Crown called the Complainants and their parents as witnesses. The defence called Mr. M. and a member of his family to testify. BACKGROUND FACTS THAT ARE NOT IN DISPUTE [ 3 ] The charges arose in the context of 3 families with children who were neighbours and then friends and then very close friends who effectively operated as an extended family of siblings and cousins. Mr. M. has 3 children. His daughter became best friends with a sister of Complainant #1.

Complainant #2 was also a very close friend of Mr. M.’s daughter. [ 4 ] The 3 families met while living in a townhouse complex in Pemberton. By 2009 the 3 families were spending a significant amount of time together. The father of Complainant #2 described Mr. M. as his best friend and like a brother to him. The mother of Complainant #1 described Mr. M.’s wife as her best friend.

Those feelings were reciprocated in that they demonstrated the high regard they had for the parents of Complainant #2 by appointing them guardians of their children in the event of the death of both M. parents. [ 5 ] The children enjoyed a safe and carefree childhood playing outdoors and roaming freely amongst the homes of the 3 families with adult supervision provided for all of the children by all of the adults. The children regarded the adults who were not their parents as aunts and uncles. [ 6 ] In 2010 Mr. M. and his wife designed and built a new big house in a neighbourhood close to the townhouse complex.

In March, 2011 they moved to the new home. The move did not break the close bond that held the 3 families together; it strengthened it.

The new house was designed to accommodate large gatherings of the 6 adults and 9 children who socialized together and most birthdays and other special occasions were celebrated by the 3 families at the M. house, in addition to regular dinners and barbecues. [ 7 ] The new house was comprised of 3 storeys: a ground floor level that included a garage, an in law suite, a large rec room with a TV and a large sectional couch, a bathroom, a storage room and a mechanical room that acted as a passage way between the rec room and the suite.

The children used the rec room as a play area or to watch movies, at times with adults also in attendance. A typical evening might include a dinner, with the children heading downstairs after dinner and the adults continuing to converse or play cards at the dining room table. [ 8 ] The main floor included an open concept kitchen, dining room and living room area with a big deck. The dining room table was large enough to seat the family of 15 adults and children. The M.s’ bedroom with a walk in closet was also on this floor, along with a bathroom and laundry room. Just to the left of the front door was an office.

A flight of stairs connected the ground and main floors. [ 9 ] The home also had a smaller upstairs floor comprised of the bedrooms of the three M. children and a bathroom. The daughter’s room was furthest from the stairs that connected the main floor to the upstairs floor. [ 10 ] The parents of the Complainants all testified that they held Mr. M and Ms. M. in the highest regard and trusted them completely. That regard was reciprocated. The Complainants were well aware of the very close friendships between their parents and Mr. and Ms. M.

They were brought up to view the M. home as a safe place and to regard Mr. and Ms. M. as kind, generous and trustworthy.

SUMMARY OF THE EVIDENCE Testimony of Complainant #1 [ 11 ] Complainant #1 testified that when she was about 6 years old her family and the M. family were always together like really good family friends. Mr. M. was a parental figure, kind of like an uncle. Ms. M. was like a second mother. She would take care of them when their Mom wasn’t around. Her mom and Ms. M. were very good friends; as were her dad and Mr. M. [ 12 ] She recalled being alone in the kitchen with Mr. M. The other kids were outside. It was at the M. townhouse.

He picked her up and put her on the counter so she was sitting with her legs dangling off. He asked her if she wanted a piece of candy and she said yes. He reached up into the top cabinet and pulled out a bag of gummies and put it on the counter. They were blue and shaped like sharks or whales. He sat on the counter beside her with his legs dangling off. He put a gummy on top of his jeans just below the fly and so just over the area of his penis and told her that she had to grab it off him if she wanted it. He grabbed her hand and put it on the candy on top of his penis. She grabbed the candy and ate it.

He took another candy out and put it on the same spot but this time he told her that she had to grab it with her mouth. She did what he said. He then said something like it was his turn and he put a candy on top of her clothes where she was sitting, where her vagina would be. He got off the counter and stood in front of her and she started squirming and he put his hands on her shoulders and leaned his head towards the candy and then she did not remember what happened after that. [ 13 ] She then remembered him closing the candy bag and putting it back up into the cupboard where she couldn’t reach it.

He told her not to tell anyone about this because they did not want to have to share the candies. She did not see anyone else around while this was happening.

[ 14 ] While they were all still at the townhouses, he would also pick her up in weird ways, holding his hand on her bum or her crotch. He would also pull her aside into rooms where nobody was and hold her there and put his hand up her shirt and down her pants and grab her bum and rub her vagina. This happened in all three townhouses and at the new M. house. [ 15 ] It never happened in front of anyone else. He would pull her into a room where no one was. She estimated that it happened about once a week. He touched her under her clothes, under her underwear as well. She felt scared and she did not know what to do.

At first she tried to squirm away but eventually she would just go numb and try not to think about it. [ 16 ] She was about age 6-12 when this happened. [ 17 ] The incidents did not last long – about 3 minutes. Other people were around but not in the room where they were. She had no specific memories of any particular incident. [ 18 ] She was taught to trust Mr. M. She grew up with him and her parents trusted him with their children and when her parents weren’t around Mr. M. and Ms. M. were in charge. [ 19 ] She had a specific recollection of an incident at the new big house.

The families were having dinner together. She did not feel well and so she went downstairs and laid on a couch and watched TV. He came into the room and laid down behind her on the couch, kind of spooning her. He wrapped his one arm around her chest to hold her in place and then he put his other hand up her shirt and down her pants. [ 20 ] The big couch in the rec room was orange. This was a much smaller black leather couch. She thought that it was in their suite because it wasn’t in the rec room. She was watching TV and could see her surroundings by its light as the room was dark otherwise.

She is familiar with the couch because Mr. M. gave it and another to her father and it ended up in her garage a couple of years ago. [ 21 ] She described that the door to the room was closed, then it was opened and Mr. M. walked in. She could see him by the light from the other room and from the TV. She recalled that she was wearing a green shirt with a graphic design. He closed the door behind him. He used his left hand to go up her shirt and down her pants. He first put his hand on her bare breast area and moved it around in circles and up and down and back and forth. No one said anything.

She just crunched up in a ball and pretended that it was not happening. That lasted about 3 minutes. Then he moved his hand and put it down her pants, under her underwear and grabbed her bum for about a minute. Then he started to rub the outside of her vagina under her underwear. It stopped when he got up and left and the whole incident lasted about 8-11 minutes. [ 22 ] She was around age 12 at the time of this incident. She did not mention it to anyone because she did not think that anyone would believe her because everyone liked him and trusted him.

She was also scared of what he would do to her if she told anyone. After a while she just tried to forget about it, but that did not work. [ 23 ] Nothing of this nature happened after she was about age 12 but sometimes when she was older he would linger too long over a hug or brush up against her leg while walking by to remind her of what he had done and his power over her. She told her mom about it for the first time in February 2020 because she just could not deal with it anymore.

It was really bad for her and she thought that if she didn’t say anything she would not be here anymore – she would try to hurt herself. She now feels a lot of relief. [ 24 ] In cross examination Complainant #1 was asked about her police statement where she told the police that she could not remember whether the candy incident happened in the townhouse or the new big house. She explained that she was nervous and flustered at the police station and in the moment she could not remember where this happened.

She confirmed that because she remembered being around six at the time it must have happened in the townhouse but that she also had a specific memory of it being there, now that she is no longer flustered. The countertop was on a kitchen peninsula. Her parents were not at the M. home and Ms. M. was also not there. [ 25 ] In cross examination Complainant #1 confirmed that she was certain that she was six, not five or seven, although it was not because of any particular association. She could not recall what she was wearing. She thought it was warm out and between spring and fall.

The other children could have walked in on them but they didn’t. Mr. M. was in charge of looking after them that day. She agreed that Mr. M. did not do that very often. [ 26 ] In cross examination she was asked about her description in her police statement of one of the encounters where he pulled her into a room where no one was and described it as lasting about 5 minutes. She was asked why she testified that it was about three minutes. She said that “today I’m certain it was three”.

She confirmed that while she had described these encounters as lasting about five minutes in the police statement, she stated: “I know now that it’s three minutes.” [ 27 ] In cross examination she said that it was not uncommon for Mr. M. to be away a lot of the time in his room or downstairs. She told the police that these events occurred about once a week and confirmed that would be about 50 times a year over five years or about 250 times. He would do that in the homes of all of the families. Sometimes he did it when she was fetching beer for one of the parents. They all had beer fridges in the basement and Mr.

M. would sometimes come down with her. She confirmed that no one ever commented on how long she and Mr. M. were gone from the company of the others. [ 28 ] In cross examination she was unable to confirm with certainty that she was in the suite but it was not the rec room and she was certain that it had the black couch and a TV. The TV was on. She could not recall what she was watching. She confirmed that it was 8- 11 minutes, not 7 or 12. She did not have a watch on but she was 12 and knew what time felt like. [ 29 ] In cross examination she confirmed that she thought that Mr.

M. would hurt her physically if she told anyone but he never hurt her during the incidents or after the incidents. While he stopped molesting her, he did not stop seeing her at the family gatherings. [ 30 ] In cross examination she confirmed that she had counselling for a short time before disclosure and then after disclosure.

[ 31 ] In cross examination she confirmed that her sister was best friends with Mr. M.’s daughter and that Mr. and Ms. M. took her sister to Hawaii in April 2019. The trip was her Christmas present. She denied that she wanted to go to Hawaii because of everything that had happened to her. She initially denied that she said that she wanted to go to Hawaii too in front of Mr. M. and Ms. M. but then said that she might have said it in the moment. [ 32 ] In cross examination she confirmed that Mr. M. and Ms.

M. had a fridge in their garage in the basement of the townhouse where the kids also got popsicles and at the big house it was in the garage on the main or middle floor. Testimony of Complainant #2 [ 33 ] Complainant #2 is the youngest of three children and a very close friend of the daughter of Mr. M. Her family moved into the Pemberton townhouse complex in 2008. Her parents quickly became very close to Mr. M. and Ms. M. and the parents of Complainant #1. [ 34 ] After Mr. M. and Ms. M. moved to the big house the friendship continued and Complainant #2 was up there quite a bit, after school and on the weekends.

The three families regularly had dinners together at the new house. She described her father and Mr. M. as “super close” and her mother and Ms. M. as good friends. [ 35 ] She often had sleepovers with the M.s’ daughter, perhaps about twice a month over a period of years until Mr. M. and Ms. M. moved to Whistler. They slept in the big bed, a queen or a double in the daughter’s room.

She wore her own pyjamas or the daughter’s pyjamas if the sleepover was unplanned. [ 36 ] She recounted that one night when she was sleeping with her friend in her friend’s bed at a sleepover, she woke up in the middle of the night to find Mr. M. in the bed with her. Her friend was not there and she did not see her again until she saw Mr. M. and her friend the next day downstairs. [ 37 ] When she woke up she was lying on her stomach on the left side of the bed wearing the same pajamas but with the pants pulled down below her bottom. Mr. M. was lying to her right. She had one hand under her body.

The other hand was on Mr. M.’s bare penis. She described his penis as “not soft”. She was scared and did not know what to do. [ 38 ] She next remembered that he was above her on the bed with his hands supporting the weight of his body. She could not recall how he got into that position. She could feel him thrusting and his penis was moving on top of her back and her butt and so she clenched her buttocks together very hard. She was frozen and just waited for him to stop. When he stopped she went back to sleep and when she woke up Mr. M. was not in the bed and her friend was not in the bed.

She joined them for breakfast and Mr. M. acted like normal. [ 39 ] On other occasions when they were momentarily alone Mr. M. would grab her from behind with his hands on her waist or torso and hump her. This would happen often, once every few times she was at his house. Each incident would last only a few seconds. They would both be fully clothed and she would try to get away. These incidents occurred when she was likely between ten and 12 years old. [ 40 ] Three particular incidents stood out in her memory. On one occasion she and her friend had been playing in the master bedroom and were leaving it. Mr.

M. was inside the walk in closet near the bedroom door. After her friend had walked out and Complainant #2 was walking out behind her he grabbed her as she was walking past the closet and humped her. [ 41 ] On another occasion she was in the main floor bathroom with the door open washing her hands. He walked into the bathroom, grabbed her from behind and humped her again. It only lasted a few seconds. [ 42 ] The other specific occasion that she remembered also took place in Mr. M.’s bedroom. She had been in there with her friend who left the room leaving Complainant #2 in the bedroom. Mr.

M. grabbed her from behind again and pushed her onto his bed. He humped her again from behind while she was lying on her stomach on the bed. It was quick and then she got up off the bed. [ 43 ] Complainant #2 described her friend as usually getting up and leaving the bed before Complainant #2 was awake. She did not know where her friend went when she got up earlier than Complainant #2. She thought that she slept with her mom sometimes. [ 44 ] Mr. M. and Ms. M. also owned a property in the Pemberton Valley that they called the farm and where they would go dirt biking.

She had used a smaller dirt bike a few times and Mr. M. and her father wanted her to try Ms. M.’s bigger dirt bike. She was older, 12 or perhaps 13. She got on the bigger bike with Mr. M. sitting behind her to help her drive and change gears. [ 45 ] At one end of the property was an area where they had fires on one side of a large rock mound. On the other side of the rock mound was a big open field where they drove around on the dirt bikes. She and Mr. M. took off on the bike with Mr.

M. riding behind her and did laps around the field, sometimes in sight and sometimes out of sight of the other members of her family and the M. family. Mr. M. initially helped her drive the bike but then put his hand on her waist and then down the front of her pants, first on top of her pants and then between her pants and her underpants on top of her vagina. He moved his fingers around a bit but not a lot. As they got closer to the rock mound where they could be seen he stopped.

She could not recall which hand he used. [ 46 ] She was scared and annoyed because she was just trying to learn how to drive a bigger dirt bike. [ 47 ] Another incident occurred in the rec room on the ground floor. She was watching a movie, probably a cartoon movie, sitting on the L shaped sectional couch with Mr. M. and his two other children. She could not recall if her friend was there or not. She was sitting directly to the right of Mr. M. She thought that the boys were sitting on his left side. She and Mr. M. had a fluffy red blanket on their laps. It was daytime outside.

The boys would have been seven or eight and four or five. She did not think that the boys were also under the blanket. You cannot see up the stairs from the couch. [ 48 ] She recalled that he grabbed her hand and put it down his pants. She could not remember which hand he grabbed. But he put it between his outer pants and his underpants. She could feel his penis. It was erect. This was not the first time she had felt his penis so

she knew that this incident happened after the sleepover incident. [ 49 ] All of this happened under the blanket. When she tried to remove her hand he held it in place. It lasted about 5 minutes while she tried to pull her hand away. Eventually she was able to pull her hand out of his pants. She was scared and really uncomfortable. And then his hand went down her pants. First he place his hand on her vagina outside her pants and then between her pants and her underpants. He moved his fingers around again like on the dirt bike. It did not last long because she grabbed his wrist and was able to pull his hand away.

She left and went looking for her friend. [ 50 ] She did not tell her parents about any of these incidents. She did not know what they would think and she was scared to tell them. Her relationship with Mr. M. would have looked normal to other people. As families they did a lot of fun things together and so, besides these incidents, it wasn’t weird at all. [ 51 ] She knew that it was wrong but not to the degree that she now knows it is wrong. She did not know it was wrong to the degree of coming to court. She now knows that it is really messed up. She had trusted Mr. M.

He was like a second Dad to her and they spent so much time at their home. The large get togethers have completely stopped. [ 52 ] She decided to come forward and tell someone and talk to the police when Complainant #1 came forward. Her parents sat her and her other siblings down and told them that Mr. M. had been accused of child molestation. They provided no details except that it was Complainant #1. She thought about it for a few days and decided to also come forward.

She had no idea that anything was happening to anyone else. [ 53 ] She decided to come forward because she was having a hard time keeping it to herself. After the news about Complainant #1 she could not think about anything else. She knew that Complainant #1 needed the support and that she would feel better if she told someone. She did not talk to Complainant #1 before she told the police. She still does not know what happened to Complainant #1. [ 54 ] In cross-examination she agreed that she had never noticed anything untoward between Mr.

M. and Complainant #1. [ 55 ] In cross examination she repeated that she came forward for herself and to support Complainant #1. [ 56 ] In cross examination she said that she was probably ten or 11 at the time of the sleepover incident but could not remember exactly. She was the oldest at the time of the bike incident. [ 57 ] In cross examination she confirmed that when she woke up on the night of the sleepover her right hand was grasping Mr. M.’s penis. She stated that she did not put it there because she was sleeping. She did not know and could not say where her friend had gone.

She did not know which way her head was turned when she woke up. [ 58 ] In cross examination a portion of her police statement was put to her. She stated that Mr.

M. often fell asleep on the couch watching TV but that she did not know where he had been before he came into her friend’s bedroom on this occasion. [ 59 ] In cross examination she stated that she did not describe his penis in her statement because she was not asked that question but that it was not soft and that was about all she could know at that age. [ 60 ] In cross examination she stated that she did not know when her pajamas were pulled down but that when he got on top of her she became aware that they were down and she had not felt him pull them down.

She surmised that he had pulled them down while she was sleeping. [ 61 ] In cross examination she confirmed that she was awake to experience what she described but had been asleep before it happened and fell back asleep again almost immediately.

She testified that she was scared but did not know what to do because she was a little girl and he was a grown man on top of her. [ 62 ] In cross examination she agreed that her parents told her that inappropriate touching was wrong but that she could not recall a conversation where they told her to tell them about it if it happened, at least not when she was that young. [ 63 ] In cross examination she estimated that Mr.

M. could have been about a foot and a half taller than her when these events occurred. [ 64 ] In cross examination she described that she had stood up by the bed to follow her friend out of the master bedroom when Mr. M. pushed her face down onto the bed. This incident lasted longer than the other two incidents that lasted only seconds – perhaps ten seconds. [ 65 ] In cross examination she estimated that she was about five feet tall and weighed 95-100 pounds at the time of the bike incident. She confirmed that only she and Mr.

M. were on the bike on this occasion but that on at least one other occasion she rode the bike with Mr. M. and her friend. She denied that Mr. M. was driving the bike because she remembered controlling it herself. She confirmed that she was wearing long pants – probably tight jeans. [ 66 ] In cross examination she confirmed that others could be dirt biking in the area at the same time but not at this time. She confirmed that she could not remember who participated in dirt biking that day but at the time this occurred the only bike riding around was the one she was on with Mr.

M. [ 67 ] In cross examination she agreed that it was cold in the TV room so they hunkered down under the blankets. She was not sure whether her friend was there but she knew that she was not sitting right next to her. [ 68 ] In cross examination she testified that she was not sure of the order of the various events that she described. She agreed that touching while watching TV could have happened more than once but that she could only clearly remember the one time. She probably

would not have, but she might have got under a blanket with Mr. M. after the other things had happened because it was a normal thing to do – to watch a movie with a blanket. [ 69 ] In cross examination she testified that she knew it was wrong but that she did not fully understand it either. If she was left alone with Mr. M. she would try and leave but she still wanted to go to their house to hang out with her friend. Testimony of the Accused, R. A. M. [ 70 ] Mr. M. is 51 years old with a grade 12 education and two years of college. He was married to Ms.

M. in 2002 but they separated, it was later established, in November, 2020. They have three children including a daughter. He has worked for many years for Sabre Transport, a construction company. [ 71 ] They moved to a townhouse complex in Pemberton in 2003. Over time their family became very close friends with the families of the Complainants. [ 72 ] Mr. M.’s typical work week included waking up at 5:30 a.m., walking the dog, on the work site by 7:00 a.m., working till around 5:30 p.m. and getting home around 6:45 p.m., in time for dinner. He normally worked five days a week, often six.

In preparation for the Olympics in February, 2010, roughly 2007-2010, he usually worked six days a week. [ 73 ] In 2010 they started building the new big house in Pemberton with excavation in May/June followed by construction. They moved there in March, 2011 and moved from there to Whistler in 2016. [ 74 ] Mr. M. never looked after children other than his own, alone, and even hardly ever looked after his own children because they had nannies and Ms.

M. was usually at home. [ 75 ] He could recall being alone only once with Complainant #2, when he drove her home from the new house to her townhouse. [ 76 ] He denied that he had ever grabbed and humped Complainant #2, including the three specific incidents described by Complainant #2. [ 77 ] He described Complainant #2 as a smaller kid, smaller than his daughter. He is 5’10”/5’11”. [ 78 ] He slept with his wife in the main floor bedroom. Their daughter never came into their bedroom at night.

His youngest child did that. [ 79 ] When asked “Did you ever get into your daughter’s bed to – and fondle [Complainant #2]”, he answered “no”. [ 80 ] Mr. M. described the couch in the rec room as a brown sectional with a floral pattern. After a while they got a kids couch of brown leather. He recalled Complainant #2 being there when he watched a movie with his three children. He did not recall Complainant #2 sitting beside him under a blanket. [ 81 ] They had two TVs in the new house: initially one in the rec room that they put in the suite when they got a new TV for the rec room.

The suite TV was never hooked up. He described the downstairs level. You came down the stairs into the big rec room that they called the toy room. Directly to the right was a storage room. “There was a powder room right in front of us, a mechanical room, and then the rec room itself and then just the suite”.

As you walked into the suite there was a green Ikea cloth couch to the left. [ 82 ] He denied that he ever put the hand of Complainant #2 on his penis or fondled Complainant #2 while watching TV under a blanket. [ 83 ] The only time that he recalled being on a motorcycle with Complainant #2 was when both his daughter and Complainant #2 were on the motorcycle, Complainant #2 in front, his daughter behind, with him operating the controls. They were wearing helmets that kept smashing together and he was afraid of losing his teeth if he had to brake quickly.

The bike probably weighed 250 pounds and the seat was 34-36 inches high. A young girl could not operate that bike and he would never allow Complainant #2 to operate that bike while he was on it because of its weight and the need to be able to touch the ground. [ 84 ] He denied that he had ever pulled Complainant #1 into a secluded area in one of the three families’ townhouses and fondled her. [ 85 ] He denied that there was ever a black couch in the suite. The suite was conforming.

They had a TV service to the rec room and they “paid to the main house” but they never hooked up cable to the conforming suite because of the additional monthly charge. [ 86 ] He denied that he ever spooned and fondled Complainant #1 on a black couch in the suite. [ 87 ] He denied that he ever had Complainant #1 grab or bite blue whale candy from where he placed it at the end of his zipper. [ 88 ] He recalled that in December, 2018 he and Ms. M. gifted a flight to Hawaii in April 2019 to the sister of Complainant #1 so that she could accompany them on their trip because she was their daughter’s best friend.

Complainant #1 blurted out that she wanted to go to Hawaii, too. [ 89 ] Mr. M. denied that they ever had a downstairs beer fridge at their townhouse. He also did not remember the two other families having beer fridges at their homes at that time. He did not recall going to their beer fridges. At the big new house they had a beer fridge in the garage on the main floor. He denied that he ever accompanied Complainant #1 to get beer on any occasion. [ 90 ] In cross examination Mr. M. agreed that he tried to spend as much time as he could with his kids. They took a lot of vacations.

When they were old enough they cycled together. He described his job at a family business. While his father–in-law owned it when he started working there, he became a part owner in 2012.

[ 91 ] Ms. M. always worked, usually from 9-2:30 in her home office and took primary responsibility for the children with outside help from nannies and cleaners. His kids could be at any of the homes of the 3 families. They had a high level of trust in the parents of Complainant #1 and Complainant #2. [ 92 ] In cross examination he stated that he was unaware that Complainant #2’s parents had a beer fridge in the downstairs area of their townhouse. He thought that it was a freezer for game meats.

They had a fridge in the garage of the new house, just to the right of the man door as you entered the garage from the interior of the house. It was stocked with drinks. [ 93 ] In cross examination Mr. M denied that the children would be at his place without their parents, at least not when he was home which was on the weekends. [ 94 ] In cross examination Mr. M. stated that he always did the dishes after big dinner parties. He did not recall any of the children at any time ever getting a drink for an adult although it could have happened and it made sense if it did. [ 95 ] In cross examination Mr.

M. stated that they had a snack drawer in both homes that had fruit sticks and fishy crackers in them. The kids had unlimited access to the snack drawer. It was at waist level. [ 96 ] In cross examination Mr. M. identified his second child as a deep sleeper who never came downstairs to the master bedroom. Their youngest would definitely get up and come to their bedroom. Their daughter also came into their bedroom and into their bed at the townhouse but they would have to kick her out because she kicked. She would go back to bed on her own.

He had no recollection of their daughter coming down to their bedroom at the big new house. He agreed that he was usually dead tired and a deep sleeper: “when I sleep I sleep”. He agreed that it was possible that their daughter came to their bedroom and bed and he slept through it. [ 97 ] In cross examination he agreed that most of the sleepovers were at his new big house. He approved of his daughter’s friendship with Complainant #2. She was not a bad influence. He had no reason to think that Complainant #2 was dishonest.

He did not think that he had ever been mean to Complainant #2. [ 98 ] In cross examination he answered “no” to this question about Complainant #2: “are you aware, or have you seen anything, heard anything that to your mind would give rise to these kind of allegations?” [ 99 ] In cross examination he stated that he worked harder than his wife wanted him to. He sometimes passed out on the couch. If he did, it would be the couch on the main floor living room, not the beige flowered sectional downstairs. He would sleep in his bed at night.

He would go to bed before his wife sometimes and pass out looking at his iPad or watching CTV news before she joined him. [ 100 ] In cross examination he confirmed that the suite had a big heavy Sony Trinitron TV that sat on a blanket box. It had no hookup to it. It was never in service.

If you plugged it in, it would turn on. [ 101 ] In cross examination when asked whether he had done anything to cause Complainant #1 to hate him, he said no but added that there was one kid he remembered scolding and it would have been Complainant #1 when she was younger. [ 102 ] In cross examination he confirmed that between 2008 and 2014 he could only recall being alone with Complainant #2 on one occasion when he drove her home from the father-daughter dance and with Complainant #1 on one occasion when he drove her to a guitar lesson.

He was not prepared to admit that there could have been other times that he could not remember and said: “Well, I’m going to go with what I know, and that’s it, that’s exactly those dates and those times I kind of remember”. [ 103 ] In cross examination he agreed that it was common to introduce children to dirt bikes in Pemberton, that he had them for his children and that as the kids got older he introduced them to bigger bikes and that he’d ride with kids in front of and behind him on a big bike.

He also agreed that you could not see through the rock pile and a bike could be out of sight from the other side of the rock pile where people would gather. [ 104 ] In cross examination he stated that he had a CD player that was hooked up to the TV in the rec room. It can be disconnected and moved. Kids were not allowed to play in the suite. It was only occupied for a short period of time by a nanny and by in-laws. Testimony of Ms. M. [ 105 ] Ms. M. is a certified professional accountant who has worked for many years in the family business. She married Mr.

M. on Sept. 21, 2002 and they separated on November 3, 2020. They had been living apart since April, 2020 in compliance with Mr. M.’s bail conditions. They also separated for 6-8 weeks in March, 2017 when Ms. M. wanted to move to Whistler and Mr. M. did not. [ 106 ] They moved to the townhouse on November 1, 2003. They met Complainant #1’s family shortly after they moved in and Complainant #2’s family shortly after that family moved to one of the townhouses in 2008. [ 107 ] When she was working and not home, their three children were looked after by a series of homecare providers.

She usually worked three days a week from a home office for the family business. Mr. M. worked 5-6 days a week, from before the kids got up until dinner time. [ 108 ] She recalled one occasion when Complainant #2 and her sister stayed with them when her parents were out of town and Mr. M. spent some time looking after them but otherwise he was not with the kids frequently because he was often working. [ 109 ] She never observed Mr. M. paying special attention to Complainant #1 or Complainant #2.

She was asked whether their daughter ever came into her room in the new big house and she said ”she came into our room, but didn’t sleep with us frequently”. She could not recall their daughter leaving her room at night to come into their bedroom to sleep in their bed. [ 110 ] The couch in the rec room was a brown floral sectional. There was no other furniture in that room.

[ 111 ] The suite had one bedroom with a queen bed, a kitchen, a dining room table up against the wall, a green couch, a TV to watch movies on a blanket chest and a brown corduroy chair. The TV was not hooked up to cable. She recalled it as a small TV with a built in VCR hole in the bottom. They never owned a black couch. [ 112 ] Downstairs there was also a storage room, a mechanical room that provided access to the suite, and a powder room. [ 113 ] She never saw Mr. M. paying special attention to or having unusual contact with Complainant #1. She never saw Mr.

M. being alone with either of them. [ 114 ] She never bought any blue whale or shark candy. She only bought candy for birthday party goodie bags. She bought everything for their household. She confirmed that Complainant #1 commented that she would like to go to Hawaii when Mr. and Ms. M. bought a plane ticket for her sister as a birthday gift. [ 115 ] They did not have a basement fridge at the townhouse. They had a beer fridge in the garage in the new big house. It was not downstairs. [ 116 ] They occasionally asked the kids to get them beers from the fridge but she could not recollect Mr.

M. accompanying Complainant #1 to do that. [ 117 ] In cross examination she agreed that the children of the three families spent a lot of time at each others’ townhouses, particularly at the home of Complainant #1, less so her home because she was particular about a clean house. [ 118 ] In cross examination she stated that she had no recollection of her children coming into their bedroom during the night although they had nightmares from time to time “but not overly”.

If they were having an issue they could usually hear them and go to them because the great room was open to the upstairs and the children would have had to walk down a set of stairs. [ 119 ] In cross examination she agreed that Mr. M. was more likely to watch movies downstairs with the children than her. They had a green, a beige, and a red blanket on the couch. She had no recollection of buying whale candy but she could not say with certainty what was in her pantry ten years earlier. [ 120 ] In cross examination Ms. M. was unable to estimate how often Complainant #2 was over for sleepovers.

She was unable to say whether the other families had beer fridges in their garages although she had dinner at their homes many times. She was unable to say whether they gathered more often at the new big house or at the townhouses of their friends.

She was unable to say whether adults ever helped the kids get drinks for the adults. [ 121 ] In cross examination she recalled that the couch in the suite was a dark green three seater from Ikea. [ 122 ] In cross examination she agreed that it would have been obvious to the Complainants that she was a very close friend of their mothers. [ 123 ] In cross examination she confirmed that she worked three days a week from after drop off at school or daycare until pickup after school or from an activity. [ 124 ] In cross examination Ms. M. stated that for fun she ran and worked out.

She started training for half marathons in 2010. That involved shorter runs and longer runs. Some stretched over an hour. She ran at least a few days a week. She also went to an outdoor fitness class two or three days a week in the early mornings. Those classes lasted 45 minutes to an hour. She did most of her working out before work and before school. She usually gets up at 5:15 a.m. She did not train on Sundays because they attended church but she usually went for a long run on Saturday mornings. She slept in on Saturday mornings and ran at about 8:00 a.m. She would leave the house and Mr.

M. or her mom would be there with the kids. [ 125 ] In cross examination Ms. M. was asked if she wanted to have Mr. M. in her children’s life and she answered: “I think that it’s important for them to have a father.” When asked if it would be difficult for her children if their father is convicted of sexually assaulting children she answered “I think it would be difficult for many people”. When asked if it would be very difficult for her to tell her children that their father is a convicted sex offender she answered: “It wouldn’t be difficult”.

She explained that they were “aware of what’s going on” and “what lies before us.” When asked if she thought it would hurt or be difficult for them to know that their father was a convicted sex offender she answered: “I can’t speak to how they would absorb the information”. She also said “Will it make their lives harder? Potentially”. When asked “But maybe not?”, she answered “I can’t predict the future”. When asked if the best outcome for her children is an acquittal for Mr. M she answered “I suppose that would be true.” Testimony of Crown Witness 1 [ 126 ] Witness 1 is the father of one of the Complainants.

He described how the children of the three families that were very close would go back and forth all the time amongst the three townhouses. It would not be unusual for any of the kids to be alone with any of the parents. He had a beer fridge in his garage downstairs and it would not be unusual for the kids to get more beer or wine or other beverages from the fridge for the adults. They could be accompanied by one of the adults including Mr. M. [ 127 ] He grew very close to Mr. M. They trusted each other and helped each other like brothers. Mr.

M. was like an uncle to his children and his daughter was very close to Mr. M.’s daughter. They participated in sports together, played together and had many sleepovers. In turn, he was very close to Mr. M.’s children and felt loved by them. [ 128 ] The M.’s big new house was a regular gathering place for dinners for 15 on the main floor. Appies were followed by dinner and then by cards. The kids would be with them for dinner but would often head to the rec room in the basement to play or watch TV after dinner.

Adults would come and go from the table on the main floor that was the centre of their socializing, including to check on the kids in the basement. That included Mr. M.

[ 129 ] On April 12, 2020 he met with his wife and children. He told them that Mr. M. was being investigated for child molestation. He did not define the term. He told them that the victim was Complainant #1. He did not tell them anything else because he did not know any other details. [ 130 ] On April 14 the topic came up again and Witness 1 said “If Mr. M. did this, that fucker better pay.” That same night Complainant #2 spoke to her siblings about what had happened to her and told them they could disclose it to their parents the next day, April 15.

Complainant #2 disclosed to her parents that day and Witness 1 told her that if this had happened to her they needed to go to the police right away. It took them awhile to track the police down but Complainant #2 gave a statement to the police that day. [ 131 ] In cross examination Witness 1 agreed that what he heard about Complainant #1 was completely out of the blue and 180 degrees from everything he had known about Mr. M. He had never seen anything that caused him any concern for any of the children. He never singled out any child for special attention. [ 132 ] In cross examination he agreed that Mr.

M. was busy with his business, his shop and the property that he called the farm. He also agreed that he was not a touchy/feely kind of guy. [ 133 ] He observed that Mr. M. spent a lot of time on the downstairs couch watching movies with the kids but could not recall if Mr. M. ever went down to check on them. [ 134 ] In cross examination he agreed that primarily his wife had had some conversations about inappropriate touching with Complainant #2. Witness 1 had spoken to her about the creepiness of guys. Testimony of Crown Witness 2 [ 135 ] Witness 2 is married to Witness 1. She looked after Mr.

M.’s younger children when they were very young. At the townhouse complex her children were usually playing outside or at the home of one of the other 2 families. [ 136 ] They became very close to Mr. M. and Ms. M. and were asked to be guardians of their children if something happened to the two of them. [ 137 ] She estimated that Complainant #2 had sleepovers at the M. home once or twice a month. [ 138 ] When they told Complainant #2 about the investigation of Mr. M. they did not provide any specific details because they did not know any. They used the word “molest”.

The topic came up often in the family as they tried to put it all together but they did not have any specific information except that Complainant #1 was the victim and that it was over a range of years and that Mr.

M. put his hands on Complainant #1. [ 139 ] She confirmed that she had talked to Complainant #2 that the part of her covered by her bathing suit shouldn’t be touched by anybody else. [ 140 ] In cross examination Witness 2 said “yes” when asked about a discussion with Complainant #2 at a very young age about “inappropriate touching by strangers and things of that nature” and that she had told Complainant #2 if that happened she should tell somebody. [ 141 ] In cross examination she confirmed that they spoke to Complainant #1’s parents on April 11, 2020 who told them about the time frame but were not given any information about specific events.

Testimony of Crown Witness 3 [ 142 ] Witness 3 is the mother of Complainant #1. [ 143 ] One of Complainant #1’s sisters was very close to the Mr. M.’s daughter. The families became very close and did a lot together. When the children from the other families were at her house she would watch out for all of the kids and she assumed that the other parents did the same. [ 144 ] It would not have been unusual for Mr. M. to be alone with one of her children. She described Mr. M. as a good friend and Ms. M. as a great friend. Ms. M.’s daughter was great friends with one of Complainant #1’s sisters. [ 145 ] After Mr.

M. and Ms. M. moved to the new big house their family was at their new home frequently. There was no knocking on doors and they walked back and forth between their homes. Her friendships with Mr. M. and Ms. M. would have been very obvious to Complainant #1. [ 146 ] She spoke to all of her children when they were little that their vaginas should not be touched by anyone, not even their parents, except a doctor when necessary. They would have been very young – two, three, four years old. [ 147 ] She had no concerns about Mr. M. and her children. She trusted him 100%.

He was kind of like a second Dad to her children, especially the daughter who was great friends with Mr. M.’s daughter. [ 148 ] In early February, 2020 Complainant #1 spoke to her and showed her a text message about things that had happened. Witness 3 put her in touch with some medical professionals. Complainant #1 spoke to the police in March, 2020. [ 149 ] She is no longer friends with Mr. M. The children still talk at school or on social media. [ 150 ] In cross examination she confirmed that she had no recollection of Mr. M. having any creepy or unusual contact with Complainant #1.

The children were quite self-sufficient and older kids looked after younger kids.

[151] In cross examination she agreed that she also told her kids to talk to her or their Dad if inappropriate touching happened to them. [152] In cross examination she confirmed that in 2018 when Complainant #1’s sister got a plane ticket to Hawaii for a Christmas giftand Complainant #1 got a water bottle, Complainant #1 remarked “I wish I got a ticket to Hawaii”. Testimony of Crown Witness 4 [153] Witness 4 also testified about the close relationship amongst the 3 families in the townhouses. He was close to Mr. M. but closerto Ms. M. He had no concerns or worries about Mr. M. and his children.

All of the children were in and out of each other’s houses. Itwould not be unusual for Witness 4 to be alone with the M. children or for Mr. M. to be alone with his children although he had nospecific recollections. [154] At dinner parties in the townhomes it would not be unusual for the adults to send the kids to the downstairs garage to grab drinksfor the adults. The three families had beer fridges in their downstairs garages. [155] In cross examination he answered that he had never observed Mr. M. pick Complainant #1 up in an unusual way. Nor did heobserve Mr. M. pay any sort of special attention to her.

He was aware that Mr. M. had a bad back because he would complain about it. LEGAL PRINCIPLES [156] This is a criminal trial and so the accused is presumed to be innocent and the burden is on the Crown to prove all of the elementsof each offence to the standard of beyond a reasonable doubt. That is a very high standard. Believing that an accused is probably guiltyis not enough to convict. While the standard is not an absolute certainly, it is closer to an absolute certainty than to a balance ofprobabilities. R. V. Starr, 2000 SCC 40 , [2000] 2 SCR 144 at paragraph 242.

That burden of proof on the Crown never shiftsto the accused. [157] The accused also has the right to remain silent. There is no requirement for the accused to testify. In this case the accused choseto testify. He also called a witness to testify on his behalf. [158] Like many sexual offence cases, this is a he said/she said where the only witnesses to a large number of incidents wereComplainant #1 and the accused or Complainant #2 and the accused.

But it is not a credibility contest because treating it that way shiftsthe burden of proof to the accused who is not required to tell his story at all. [159] In 1991 in the case of R v. W(D), (SCC), [1991] 1 SCR 742 the Supreme Court of Canada devised a frameworkfor deciding whether the Crown had met its burden when the accused does testify, as he did in this case:

a) if I believe the evidence of the accused, I must acquit the accused.

b) if the evidence of the accused raises a reasonable doubt in my mind, even if I don’t believe some or most of his evidence, I mustacquit the accused.

c) even if the evidence of the accused does not raise a reasonable doubt, I must be convinced of the guilt of the accused beyond areasonable doubt by the evidence that I accept. [160] In the case of R. v. CWH (1991), 68 (3d) 146 the British Columbia Court of Appeal added an additional scenario.

If after carefulconsideration of all of the evidence I don’t know who to believe, I must acquit. [161] The purpose of this test is to remind the trier of fact that even if the accused testifies, the burden of proof remains on the Crown atthe very high standard of beyond a reasonable doubt. [162] I can accept none, part or all of a witness’ evidence. [163] When I decide what evidence I should accept I am assessing both the reliability and the credibility of a witness.

Reliability isinfluenced by factors such as the witness’ opportunity to observe an event, the amount of attention the witness is paying to an event,whether the witness’ powers of observation are strong or weak including whether they are impaired by lack of sleep or use of asubstance, the witness’ memory including whether it was impaired, and the witness’ ability to accurately and precisely recount what theyobserved.

A witness can be honest but mistaken. [164] Witness credibility involves an assessment of the truthfulness or veracity of a witness. [165] Factors that have been recognized in assessing credibility include: the consistency of the witness’ account from one telling to another; the consistency of the witness’ account with other evidence including testimony, documents and physical evidence; the existence of prior inconsistent statements; evidence of previous untruthfulness; the existence of a motive to lie although this factor must never be used against the accused and a distinction must be made between theproven absence of a motive to lie and the absence of a proven motive to lie; the manner in which the witness testifies including whether the witness is prone to embellishment or exaggeration, whether the witnessis candid and forthright, whether the witness is rigid or willing to admit mistakes, whether the witness is careful about what is

remembered and what is construed; and the inherent plausibility of the evidence in the context of all of the evidence – does the witness’ story add up or make sense. [166] The inherent plausibility of a story relies upon a judge’s common sense based on life experience. Again, this factor must beapproached with caution and not given undue weight, particularly in a criminal context.

The maxim “truth is stranger than fiction”captures the anomaly that a plausible story can be untrue and a “you can’t make this stuff up” story can be true. [167] In cases of sexual assault, reliance on common sense and life experience must be placed with utmost care to insure that reliance isnot in fact being placed on myths and stereotypes about, for example, how a female victim of sexual assault would or would not behave.

In precisely the same way, myths and stereotypes about male sexual behaviour must not be relied upon to assess the testimony of, forexample, a male accused. [168] This case involves the assessment of the credibility of complainants who were children at the time the alleged offences werecommitted. The Supreme Court of Canada has recognized that the testimony of children, including adult witnesses who were children atthe time of the incidents, can be as reliable and credible as the evidence of adults but that children may perceive and remember eventsdifferently from adults. [169] In the case of R. v.

RW, (SCC), [1992] 2 SCR 122 the Supreme Court of Canada wrote at paragraph 26: “In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying.” [170] The recollection of children can often lack details such as the time when an incident occurred or its placement in a sequence butbe otherwise vivid and, in some cases, reveal knowledge of subjects that a child would not otherwise be expected to have. In other words,a childhood memory is often selective.

An unusual, traumatic or important event is clearly remembered while its more mundane contextis forgotten. [171] In the Supreme Court of Canada case of R. v.

B(G), (SCC), [1990] 2 S.C.R. 30 at paragraph 55, Justice Wilsonremarked: “[W]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened to them and who did it.” RELIABILITY AND CREDIBILITY OF THE WITNESSES Testimony of Complainant #1 [172] I will start with the evidence of Complainant #1 respecting the incident with the blue whale or shark candies. [173] Defence counsel argued that the claim was implausible because the testimony of Mr. M. and Ms. M. established that Mr.

M.never looked after the children of others on his own. Mr. M. and Ms. M. did state categorically that Mr. M. never looked after thechildren of others on his own. Several other witnesses stated that Mr. M. did look after the children on his own but were unable toprovide specifics. This apparent conflict in the evidence needs to be considered in the context of other parts of Complainant #1’stestimony that Mr. M. was the only parent in his townhouse at the time. It was daytime and the weather was fine. Other children wereplaying in the yard outside the M. townhouse. The incident lasted for a short period of time.

It is quite plausible that Ms. M. was awayfrom the townhouse for a short period of time and comfortable leaving Mr. M. briefly in charge of the children without Mr. M.’sresponsibility rising, in the minds of Mr. M. and Ms. M., to the level of a formal babysitting assignment. [174] The story told by Complainant #1 was full of convincing detail. When she could not remember something she said so. She didnot try to fill in the blanks or invent what probably happened. She vividly remembered that Mr. M. lifted her onto the counter of thepeninsula and then sat beside her.

She could not remember what she was wearing but she could remember that he was wearing jeans. [175] The defence argued that if the candy was placed at the end of the zipper the candy would have fallen off. I disagree. Mr. M. isdescribed as sitting with his legs at a 90 degree angle to his torso which could have easily provided a small shelf at the end of the zipperon which a small candy could lie. She could remember that their legs were dangling off the side of the counter. [176] She could remember almost exactly what the candy was like. That is consistent with what a child would likely remember asimportant.

If Mr. M. is lying, he would have no trouble testifying that he never bought blue whale or shark gummies. As for Ms. M.,she admitted that although she had healthier treats accessible for her children in a treats drawer, she also bought other candy for birthdayparty treat bags.

While the specific memory of the blue whale gummies enhanced the credibility of Complainant #1, I consider itimplausible that a busy mother of three children would remember exactly the kind of candy she bought for goodies bags more than 10years earlier and in cross examination she admitted as much. [177] The defence argued that it is implausible that such an event would occur out in the open. Again, I disagree. The other childrenwere outside. Complainant #1 and Mr.

M. were fully dressed and nothing about the scene would be likely to arouse suspicion in theminds of young children about a trusted parent. [178] Defence counsel argued that Complainant #1’s testimony was inconsistent as to whether this event occurred in the townhouse orthe new big house. In her police statement she stated that she could not recall but stated with certainly at trial that it took place in thetownhouse. She attributed her failure to remember at the time of her police interview as arising from being flustered and nervous.

Theseevents occurred many years ago and some aspects of her memory were vivid while others had disappeared entirely. When she could not

remember she said so. She was very certain that this incident occurred when she was six years old. In my view, the worst that can be said about her memory of the location is that, upon thinking about it, she concluded that it must have occurred at the townhouse based on what she could clearly remember. [ 179 ] It must also be remembered that the complainants were not children but they were still very young when they gave their statements. They had no experience of the process of criminal investigation and prosecution and the level of detail that is sought as part of that process.

I am not surprised that, upon reflection in a safe and comfortable place, more detailed memories are accessible to a witness or that, in some cases, remembered details can assist in the determination of other details that, while not remembered but reconstructed, may still be reliable. [ 180 ] Defence counsel also argued that the non specific allegations of touching were implausible because they happened too often, literally hundreds of times if Complainant #1’s estimate of once a week is to be believed, lasted too long – three or five minutes - and were never witnessed in any way by anyone, although 13 adults and children were usually not far away.

Complainant #1 was also unable to recall a single incident with the kind of precision that she used when describing the whale candy incident. [ 181 ] While Complainant #1 was able to describe that these events usually involved Mr. M. pulling her into a place where they could be alone and touching her breasts, buttocks and vagina, she was unable to recall and recount any particular incident. I accept that it can be a challenge to clearly remember specific incidents when conduct is repeated so frequently that the events blur together in a witness’ memory.

Complainant #1 also testified that when these events occurred she would go numb and try to imagine that it was not happening. Case law is replete with victims of sexual assault describing a similar dissociative state of mind. Such a state does not permit the individual to accurately record in memory what is happening to her. If events are not reliably committed to memory in the first place they cannot be recalled and recounted later. [ 182 ] I am left suspecting that Complainant #1 probably endured this form of sexual molestation from Mr.

M. but her memories are too vague and imprecise for me to find that this testimony, standing alone, is reliable as proof beyond a reasonable doubt that these incidents happened and that the elements of the offences with which Mr. M. has been charged based on these incidents have been proved beyond a reasonable doubt. [ 183 ] Although I cannot and do not find this testimony to be sufficiently reliable to form the basis for a conviction, I also do not find that Complainant #1 has fabricated this evidence.

As a result, her honesty has not been undermined with respect to the two incidents that she can clearly remember. [ 184 ] I turn next to the incident on the couch in the downstairs suite. The defence pointed out that the location of this incident had not been categorically established as the suite. Complainant #1 was certain that it was downstairs, not in the rec room, and in a room with a door, a black leather couch and a TV set. The set was on but she could not recall what she was watching. [ 185 ] The defence attacked her testimony primarily on the basis that she got several extraneous details wrong.

She clearly remembered that the couch was black, not green, contrary to the testimony of Mr and Ms. M. that was consistent with each other and who could be expected to know the colour of the couch in the suite in their home. She also remembered that the TV set was on but I accept the testimony of Mr. and Ms.

M. that the TV set in the suite was disconnected from cable, a conscious choice that they had made to not pay the additional monthly fee required if they put in an extra cable line into what was a conforming suite. [ 186 ] I accept the defence testimony on both of these matters but the mistakes made by Complainant #1 on these extraneous matters is not sufficient to discredit her testimony about what happened to her and who did it.

Her testimony in that regard was clear, vivid and consistent, and unshaken by skilled cross-examination. [ 187 ] The defence attempted to discredit Complainant #1’s testimony on the basis that she insisted in her testimony that the incident lasted 8-11 minutes, not seven and not 12 minutes, and that she told the police that it lasted about 10 minutes. She also testified that after the police interview she had broken the incident down into its sequence of event and thought carefully about how long each event lasted.

As I see it, having gone through that careful exercise, she became dug in on her calculation. [ 188 ] Complainant #1 testified that she had two reasons for not disclosing what Mr. M. had done to her earlier than she did. Her hesitancy was supported by not only her delay in coming forward but by the way in which she disclosed initially to her mother through the more detached medium of a text message. I fully accept that she was afraid that she would not be believed. Mr. M. was a very close and absolutely trusted friend of her parents. He had parent-like and adult authority over her.

Her disclosure would jeopardize the intertwined and deeply rewarding and supportive extended family that the three couples had created. No one would want to believe her. That was reason enough to delay in coming forward. [ 189 ] However, she added what seemed to be an embellishment – that she was afraid that if she told anyone about what Mr. M. had done to her that he would hurt her physically. I accept that there was no rational basis on which she could believe that, but I also accept that a fear can be unfounded but still genuine. [ 190 ] In

summary I found Complainant #1 to be a credible witness and also a reliable witness to the blue candy incident and the couch in the downstairs incident and I accept all of her evidence respecting those two incidents. Credibility of Complainant #2 [ 191 ] The defence argued that Complainant #2’s credibility was negatively impacted by her inability to anchor her allegations in time. That is only partially true. She testified that the final incident involved the dirt bike and that she was about 12 or 13 years old at that time.

She was unable to say with certainty whether the couch incident preceded or followed the sleepover incident although at one point she stated that she thought that the couch incident followed the sleepover incident. She described the humping incidents as occurring on many occasions over a period of years but was unable to place the order in which the three clearly remembered incidents occurred. [ 192 ] The Supreme Court of Canada has observed that memories from childhood that are otherwise credible are often not anchored in

time and can still be considered worthy of belief. [ 193 ] The defence argued that the sleepover incident is implausible. If I accept the testimony of Mr. M. and Ms. M. as truthful, I agree that a number of unlikely circumstances would need to co-exist in order for this opportunity to have presented itself to Mr. M. [ 194 ] Mr. M. testified that he always slept in his bed at night but also agreed with Complainant #2 that he regularly napped on the leather couch in the living room area of the main floor. It is plausible that on one such occasion, he fell asleep on the couch later than usual. [ 195 ] Mr. M. and Ms.

M. testified that their daughter never ever visited her parents’ bedroom in the new big house to sleep there at night. Their daughter would have been 8 years old when they moved into the new big house. That testimony may be true but it is also somewhat implausible. [ 196 ] I do not consider walking up the stairs and past the bedrooms of the other children to present any kind of significant impediment to Mr. M. [ 197 ] Entirely plausible is that this one time incident occurred in the early morning. Ms. M. was an early riser who went for a long run or a workout at about 5:30 a.m. every weekday morning.

She would usually be gone for about an hour. Mr. M. was also an early riser. Ms. M.’s daily absence from the home for a prolonged period of time would certainly have presented an opportunity for Mr. M. to enter his daughter’s bedroom on an occasion when Mr. M. observed that his daughter had left her bedroom. Complainant #2 testified that her friend usually got up before she did. [ 198 ] The defence argues that Complainant #2 failed to testify about how her hand came to be on Mr. M.’s penis. I disagree. Complainant #2 was quite clear that she woke up to find her hand on Mr.

M’s penis and so she could not have known how it got there because she was asleep. [ 199 ] The defence characterized Complainant #2 as attempting to add certainty to her evidence when she identified her right hand as holding his penis after having been unable to identify the hand in her police statement. I agree that Complainant #2 added greater clarity and certainty to her testimony in court but that certainty arose from revisiting her clear recollection of the position of her body when she woke up. She always slept on her stomach with her hands under her body and that was how she was sleeping on this occasion.

She recalled that Mr. M. was lying to her right. A moment’s thought would have made clear that it was her right hand on Mr. M’s penis. [ 200 ] The defence argued that her description of Mr. M.’s penis as “not soft “ in her testimony when she had not described his penis in her police statement was another example of Complainant #2 shoring up her evidence to project greater reliability. I disagree. As Complainant #2 explained on several occasions, she omitted some details from her police statement because she was not asked specific questions aimed at eliciting those details.

This is a good example of such an omission and it can hardly be surprising that a young woman would be unlikely to volunteer this kind of discomfiting information to a police officer unless asked. [ 201 ] The defence argued that Complainant #2’s evidence about her state of sleepiness or alertness before, during and after this incident also undermined her credibility. If she was half asleep, her capacity to observe and record in memory was impaired.

If she was sufficiently awake to be a reliable witness, it was not credible that she would quickly fall asleep right after what she described as a frightening incident. Again, I disagree. Complainant #2 only described what she could specifically recall as she awakened from sleep to find herself with Mr. M.’s penis in her hand. She described a frightening but very short lived incident of Mr.

M. rubbing his naked penis against her back and naked buttocks that she rebuffed by clenching her buttocks and, when it was quickly over, sleep overcame her again. [ 202 ] This incident occurred during a very short period surrounded on both sides by sleep. Although Complainant #2 was in a drowsy state, her observations and her memory of this disturbing incident were sharp, consistent and compelling. I have also observed that children can and do fall asleep quickly after a traumatic incident. [ 203 ] The defence also argued that Complainant #2’s testimony about the humping incidents was implausible.

All of the witnesses testified that they never witnessed any unusual behaviour between Mr. M. and Complainant #2. At any time when the two of them were in the new big house together, many others would have been close by. It strains credulity that Mr. M. would dare to perpetrate this conduct where detection was so likely and that none of these incidents would ever be observed by others. [ 204 ] Yes, it is surprising but case law is replete with similar stories. As Justice Marchand observed in the case of R. v.

CCC , 2020 BCSC 1367 at paragraph 95 : “History has shown that adults who perpetrate sexual abuse on children find their opportunities and avoid detection.” [ 205 ] Complainant #2 testified that these encounters only lasted a matter of about 10 seconds. Both parties remained fully clothed. In the walk in closet incident, both parties were already alone in the master bedroom when Mr. M. pulled her into the walk in closet and so their presence there together could be easily explained away. The bathroom incident was fleeting. The incident on the bed in Mr.

M.’s bedroom was certainly bolder and riskier but it also did not last long – about a minute - and occurred immediately after Complainant #2 had been in that location with her friend for a completely innocent purpose. While her friend may have been expected to return to the bedroom to look for Complainant #2, her return would not have necessarily been immediate. [ 206 ] The defence also argued that the size difference between Mr. M. and Complainant #2 rendered this testimony implausible. I disagree. Mr. M. was about 5’10” tall.

Complainant #2 would likely have been between about 4’ and 5’ tall between the ages of 8 and 12. Many adult couples have a difference in height of a foot or more. The Complainant testified that the humping was against her back. Mr. M. could have bended his knees. [ 207 ] As for the dirt bike incident, the defence argued that it is implausible that she, as a small 12 or 13 year old girl, was on a full sized motorcycle and operating it. That was not the evidence. First, she described herself as about 5’ tall and weighing 95-100 pounds. Adult

females can be that size. Secondly, she had some experience driving smaller dirt bikes with gears and so this was only a step up in size. Thirdly, they were riding on a familiar off road location and with no one else riding at the time, and so driving conditions were about as simple and safe as learning to drive the family car on an empty Safeway parking lot. Finally, she was not alone on the bike. Mr. M., a dirt bike enthusiast and experienced driver was with her and able to instruct her, supervise her driving, and intervene if necessary. [ 208 ] I accept that it is less plausible that Mr.

M. was able to get his hand down the front of her tight jeans but this alone does not discredit her testimony. [ 209 ] The defence argued that Complainant #2’s testimony of the incident downstairs under the blanket was insufficiently precise and insufficiently consistent to be believed. I accept that Complainant #2 was unable to anchor this incident in time. However, she recalled that it was probably during the day because it was light outside. While she could not remember whether her friend was with them, she recalled that the boys were with them, sitting on the other side of Mr.

M. [ 210 ] The defence argued that if Complainant #2 removed Mr. M.’s hand in the obvious way that she demonstrated in her testimony, that it would have been detected by others in the room. I disagree. Only other children were in the room. Many TV shows or movies can be so entrancing to young children that they are entirely unaware of anything going on around them. [ 211 ] The defence pointed out that Complainant #2’s clear testimony of the singular incident was at odds with her police statement where she suggested that similar incidents happened in the rec room when watching TV.

Complainant #2 explained that this was the only occasion where she had a clear recollection. [ 212 ] Finally, the defence argued that Complainant #2’s testimony about whether her parents talked to her about inappropriate touching was contradicted by her parents. I do not think that their testimony was inconsistent. Complainant #2 agreed that her parents had talked to her about inappropriate touching. Witness1 testified that he left that topic to Witness 2, Complainant #2’s mother. Witness 2 testified that she told Complainant #2 that the parts of her body covered by a bathing suit should not be touched by others.

She also agreed in cross examination that she spoke to Complainant #2 about “inappropriate touching by strangers and things of that nature” and that she had told Complainant #2 to tell someone if that happened. I do not see a contradiction in the testimony. Clearly, inappropriate touching was a topic of conversation as agreed by all of these witnesses. What is less clear from the evidence was whether Complainant #2’s mother urged her to tell them if a trusted uncle like Mr.

M., not a stranger, touched her inappropriately. [ 213 ] Before I leave my assessment of Complainant #2’s credibility, I wish to comment on the manner in which she gave her testimony. I would describe Complainant #2 as an exceptionally careful witness. The care she took to be precise about what she remembered bolstered her credibility. On many occasions she carefully distinguished what she thought had happened or surmised had happened from what she recalled as a clear memory. A good example is her testimony about whether her parents had spoken to her about inappropriate touching.

While she agreed that they had done so, she later was extremely precise as in this passage: “Q. By that age I take it your parents had talked to you about inappropriate touching by strangers or other people. A. Not at – like, not a specific conversation, but I just knew it was wrong, but my parents had never actually sat me down and had a conversation with me about that. Q. Right. They never talked to you when you were a little kid that you don’t let people touch you inappropriately? A.

Well, they did, but there – I don’t remember, like, a specific time where I had gotten satten down and they had a conversation about that. Q. Okay. It may not have been formal, but that was certainly knowledge to you imparted by your parents, correct? A. Yeah, I knew it wasn’t right.” [ 214 ] Her evidence was full of other examples of Complainant #2 taking great care to distinguish between what probably happened and what she could precisely remember. She clarified that she did not recall her pyjamas being pulled down but woke up to them already pulled down.

She could not remember if she was wearing underwear but, if she was, it was also pulled down. She thought that the boys were not under the blanket when they were watching TV together but she could not be certain. She was certain that the only other people in the house on the night of the sleepover incident were the M. family, but she could not recall what time she went to bed and could only estimate that it was between nine and 10 based on when they usually went to bed. [ 215 ] In cross examination of the humping incident on the bed in the master bedroom, she stated that Mr.

M. was probably already in the bedroom when her friend left but that she had no specific recollection of him being there or of him coming into the bedroom. When asked if Mr. M. grabbed her and put her facedown on the bed she testified that she was already standing by the bed because she had been sitting on it with her friend and she was pushed on the bed from that position. She was unable to recall the order of the three humping incidents. [ 216 ] During cross examination of the blanket incident when asked if her friend was sitting on the other side of Mr.

M. she answered: “she could’ve been, but I don’t remember her being there.” [ 217 ] In

summary, I found Complainant #2 to be a credible and reliable witness and I accept all of her evidence. The Absence of a Motive to Lie [ 218 ] I wish to briefly address the apparent absence of a motive to lie on the part of Complainant #1 and Complainant #2. In doing so, I must be careful to distinguish between the absence of a proved motive to lie and a proved absence of a motive to lie. [ 219 ] The only evidence of a motive to lie that was presented in this case was that Complainant #1 did not receive a Christmas gift of a

trip to Hawaii with Mr. M.’s family in December, 2018 and made a comment to the effect that she would like to go to Hawaii or would like to get the gift of a ticket t

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