R. v. G.M., 2013 BCSC 1258

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. G.M., 2013 BCSC 1258 Date: 20130716 Docket: 26239-2 Registry: Vancouver Regina v. G.M. Pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, information that couldidentify the complainant in this matter shall not be published in any document orbroadcast or transmitted in any way. Before: The Honourable Mr. Justice Fitch Corrected Judgment: The judgment was corrected atparagraphs 19, 35, 107 and 130 on July 18, 2013 Reasons for Judgment Counsel for the Crown: Lori AshtonCounsel for the Accused: John W. GreenPlace and Date of Trial: Vancouver, B.C.

June 17-19, 2013Place and Date of Judgment: Vancouver, B.C. July 16, 2013 A. Introduction [1] G.M. stands charged in a three-count indictment alleging that he: Count 1 From the 1st day of January, 1974 to the 7th day of March, 1976, inclusive, at or near West Vancouver, Province of British Columbia,being a male person, did have sexual intercourse with a female person C.G., who was not his wife and who was under the age of 14years, contrary to Section 146(1) of the Criminal Code.

Count 2 From the 8th day of March, 1976 to the 7th day of March, 1978, inclusive, at or near West Vancouver, in the Province of BritishColumbia, did have sexual intercourse with C.G., a female person, not his wife, who was under the age of 16 years and over the age of 14years, contrary to Section 146(2) of the Criminal Code. Count 3 From the 1st day of January, 1974 to the 7th day of March, 1982, inclusive, at or near West Vancouver, in the Province of BritishColumbia, did have sexual intercourse with C.G., a female person who was not his wife, without her consent, contrary to

Section 143(a)of the Criminal Code. [2] The Crown called two witnesses at trial, the complainant, C.G., and Det. Michael Bruce to whom Mr. M made a brief statementfollowing his arrest on February 2, 2012. Mr. M's statement to Det. Bruce was ruled voluntary and admitted at trial. [3] Mr. M testified in his own defence. [4] C.G. was born on March 8, 1962. Mr. M is her stepfather. He married C.G.'s mother on August 12, 1976 when C.G. was 14years of age. [5] C.G. testified that when she was 12, 13 and 15 years of age, Mr. M had sexual intercourse with her. Mr.

M testified that he began having intercourse with his stepdaughter shortly after her 19th birthday and that all of the acts were consensual. [6] Following the analysis set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, the Crown invites me to reject theevidence of the accused, conclude that his evidence does not raise a reasonable doubt about his guilt and come to the conclusion that the

evidence of the complainant is credible and reliable and establishes beyond a reasonable doubt his guilt on all three offences charged. [ 7 ] Counsel for the accused invites me to critically analyze both the credibility of the complainant and the reliability of her evidence and suggests that her evidence is so fraught with inconsistencies, uncertainties and improbabilities that I must be left at the end of the day with at least a reasonable doubt as to his guilt on all three counts. B. The Evidence of C.G. [ 8 ] C.G. is now 51 years of age. She is a registered nurse. [ 9 ] She testified that Mr.

M married her mother in 1976. They were together until her mother's death in 1995. [ 10 ] C.G. initially testified that Mr. M and her mother met in 1973 when she was 11 years of age and that they were together for two years before they married. When Mr. M and her mother met, she was living with her mother on Marine Drive in West Vancouver. She testified that Mr. M began living with them on Marine Drive about six months after she was introduced to him. She testified that she had a friendly relationship with Mr. M and got along quite well with him. C.G. lived with her mother and Mr.

M in the Marine Drive residence for approximately six months before they moved to a house on Jefferson Avenue in West Vancouver. She testified that no inappropriate sexual behaviour by Mr. M towards her occurred while they were living on Marine Drive. C.G. testified that they moved to the Jefferson Avenue residence in 1974 when she was 12 years of age and enrolled in Grade 6 at Pauline Johnson Elementary School ("Pauline Johnson") in West Vancouver. She testified that the family lived in the Jefferson Avenue residence between 1974 and 1978.

In 1978, the family moved to a house on Duchess Avenue in West Vancouver for about a year before moving back to a different house on Jefferson Avenue. [ 11 ] C.G. testified that Mr. M knew how old she was when they lived in the first house on Jefferson Avenue and that she was an elementary school student at Pauline Johnson. She testified that the family would celebrate birthdays together. [ 12 ] C.G. testified that the first incident happened in 1974 when she was 12 years of age, in Grade 6 and living in the Jefferson residence with Mr. M and her mother.

She testified that she was sick and lying on her back in bed. No one else was in the house. She was wearing a knee-length nightgown and no underwear. Mr. M came into her bedroom wearing a navy blue robe with a white and yellow pattern. He approached her bed, pulled the covers back, lifted up her nightgown and undid the front of his robe. He was not wearing any undergarments. He got on top of her while still wearing the robe. The next thing she knew his penis was inside her vagina. She remembers his legs straddling either side of her own and visualizes it as him kneeling over her.

She testified that intercourse occurred for no more than five minutes. There was no kissing or touching between them and no words were exchanged. She does not know whether he ejaculated. When Mr. M got up, he headed towards her bedroom door and said in a normal tone of voice, "Don't say anything to your mom." [ 13 ] In cross-examination with respect to the first incident, C.G. was taken to a portion of her statement to Cpl. Fraser where she was asked, with reference to the first incident, if she could recall "how long this lasted".

She replied, "No." She agreed that five minutes was an estimate and explained her earlier statement by saying that her memory of events was better now than when she spoke to Cpl. Fraser and that it had been enhanced by reading her statement and the transcript of her evidence at the preliminary hearing. [ 14 ] C.G. testified in chief that she did not experience pain nor was she injured by this act of intercourse. She testified that she was scared and in shock, had no power in her voice to say anything as the act was occurring, and no strength to push Mr. M away.

In cross- examination she testified that none of the acts caused pain or discomfort that she could remember. [ 15 ] C.G. testified that after the first incident Mr. M was more controlling and protective of her. He wanted to know where she was going with her friends. He would take her out for lunch and advise her not to tell her mother. [ 16 ] C.G. testified that the second incident occurred one year later in 1975 when she was 13 years of age and just starting Grade 8 at West Vancouver Secondary School. She could not say which day or month the incident occurred but remembered it being sunny. Mr.

M approached her in the downstairs of the Jefferson Avenue residence and said he "wanted me". He led her upstairs to the bedroom he shared with her mother on the second floor. As he was leading her upstairs he said to her, "It's okay. It's okay that we are doing this". The complainant emphasized in cross-examination that she was led, not pulled, up the stairs by the accused. There was a red, open- weave blanket on the bed. He asked her to remove the lower half of her clothing. She complied. He removed the lower half of his own clothing. C.G. was lying on her back sideways on the bed.

The pillows were to her right at the top of the bed. Mr. M got on top of her. His legs straddled her own. He put his penis in her vagina. Again, no words were exchanged during the act of intercourse, which lasted for about five minutes. C.G. testified that she recalled no kissing or other touching during this second incident. She was unable to recall whether Mr. M ejaculated. When Mr. M got up, they both got dressed. Before leaving he said to her in a normal speaking voice, "Don't tell your mother". [ 17 ] C.G. testified that the first two incidents occurred before Mr. M married her mother on August 12, 1976.

I note that the complainant would have turned 14 years of age on March 8, 1976. [ 18 ] C.G. testified that Mr. M became more controlling of her after the second incident. He wanted to know what C.G. did with her day and who she was spending time with. He continued to take her to lunch and tell her not to tell her mother about these get-togethers. C.G. testified that she began lying to her mother as a result. [ 19 ] C.G. testified that a third incident occurred in 1977 when she was 15 and still living on Jefferson Avenue. She testified that she would have been in Grade 9 or 10.

This third incident took place in the basement of St. Stephen's Anglican Church in West Vancouver. It is common ground that Mr. M volunteered in those days as a night watchman for the church and would occasionally ask C.G. to go to the church with him in the evenings to ensure that the building was secure. C.G. testified that on this occasion they drove to the church together between 9:00 and 10:00 p.m. They checked upstairs first. They then went downstairs to a gathering room or church hall which had a carpeted stage.

The lights were off and the hall was completely dark except for some light from an adjacent hallway. C.G. testified that Mr. M said he "wanted me". He led her over to the stage and asked her to remove the lower half of her clothing. She

complied with his request and was lying on her back on the stage. He lowered his trousers to his ankles, kneeled over her and put his penis inside her vagina. There was no conversation between them. She does not think that Mr. M ejaculated on this occasion. She testified that about five minutes into the act of intercourse they heard a noise in the hallway and that both of them got dressed very quickly. She testified that the noise they heard was a woman named M.B. who had arrived at the church. M.B. was a Sunday school teacher and member of the choir.

It was not unusual for her to be in the church in the evenings. C.G. testified that they had a casual conversation with M.B. before going home. She testified that Mr. M again told her not to tell her mother. [ 20 ] C.G. testified that she did not consent to intercourse with Mr. M on any of these three occasions. [ 21 ] C.G. testified that she and Mr. M never spoke about these incidents in her teenage years.

She testified that she told no one what had happened until much later in her adult life because she was frightened, embarrassed, fearful of the consequences that might ensue, and unwilling to upset her mother by disclosing what had occurred. [ 22 ] C.G. testified that when she was 18 years old she began dating a man who was 10 years her senior. Mr. M was not pleased with this relationship. C.G. testified that he tore up a wallet-sized picture the complainant had of this individual and left the torn pieces lying on her bedroom floor. She confronted Mr.

M about this and he admitted tearing up the photograph. [ 23 ] C.G. testified in cross-examination that on 10 to 12 other occasions when she was between 12 and 25 years of age Mr. M approached her for sex. She refused. She testified that Mr. M would become angry and give her the "cold shoulder" after she rejected his propositions. [ 24 ] C.G. testified that the last time she had sexual intercourse with Mr. M was when she was 25 years old and living on Nelson Avenue in West Vancouver. Her mother was out for the evening. Mr. M said he wanted her and led her into her bedroom.

He asked her to remove all of her clothing. The complainant testified that she was uncomfortable but went with him into the bedroom and removed her clothing. There were no threats or violence on the part of Mr. M that accompanied this event. Mr. M removed all of his clothing. C.G. was on the bed with her head on the pillow. The accused kissed her and touched her breasts. He then got on top of her and intercourse occurred. As this was happening, they heard a car door and steps on the gravel path leading to the house. It was her mother returning home. She testified that both of them got dressed and that Mr.

M told her not to say anything to her mother. This incident is not reflected on the indictment. In cross-examination, the complainant was asked whether she described this incident as a rape. She testified that she would refer to sexual intercourse without consent as a rape. [ 25 ] After this event, the complainant determined that she could not do this anymore, as the behaviour was wrong and amounted to a betrayal of her mother. As a result, she had no further sexual contact with Mr. M. [ 26 ] C.G.'s mother passed away in 1995. C.G. continued to live alone with Mr.

M until 1997, when he went to live with his current wife. C.G. attended the wedding of Mr. M and his current wife in September 1997. She visited both of them frequently after the wedding. She acknowledged sending letters and cards to Mr. M and his current wife expressing her love and fondness for them up until 2010. She testified that when you have been groomed and manipulated as she was you do things to survive and achieve some normalcy in your life. [ 27 ] C.G. testified that she sent Mr. M an email in March 2010 asking him not to contact her. She confronted him in December 2010 about what had occurred.

She testified that they did not discuss the incidents in detail but she expressed to him the impact his manipulation and sexual abuse had on her life. She testified that she never had any long-term relationships or children because of these events. She intimated to Mr. M that she was inclined to tell his current wife what happened. Mr. M told her not to say anything, that he would take off and she would not see him again or he would kill himself. He also said that he wanted to personally tell his current wife what had happened but did not want C.G. to discuss it with her. C.G. terminated contact with Mr.

M after this conversation. [ 28 ] C.G. agreed in cross-examination that Mr. M came into her life 18 months before he married her mother. On this timeline, she would have been introduced to Mr. M in about February 1975. For the first six months, Mr. M did not live with C.G. and her mother. After six months, he moved into the Marine Drive residence with them. On this timeline, that would have occurred in about August 1975. They resided there for six months before moving into the Jefferson Avenue house. Accordingly, the three of them would have moved into the Jefferson Avenue residence around February 1976.

Six months later, on August 12, 1976, Mr. M and her mother married. [ 29 ] When it was suggested to her that, on this timeline and given her birthdate of March 8, 1962, she would have been 13 or 14 at the time of the first incident she described on Jefferson Avenue, C.G. testified that she remembered being 12. Later, C.G. testified she was certain she was 12 years old when the first incident occurred. [ 30 ] C.G. testified in cross-examination that when she was 12 to 15 years of age, Mr. M was over six feet tall and weighed 200 pounds. [ 31 ] When asked to confirm in cross-examination that Mr.

M penetrated her while he straddled both of her legs, the complainant testified that she did not recall how his penis entered her vagina but that she knew it occurred and that he was on top of her. She was unsure whether he entered her before straddling her legs. [ 32 ] C.G. testified that she met with an individual at the Anglican diocese in Victoria before going to the police on November 25, 2011. C.G. disclosed to this person she had been sexually abused but did not recount individual incidents nor did she go to the police interview with the four specific incidents summarized earlier in mind.

She testified that when she met with the police she had not thought about these individual incidents but just about the years of abuse she had endured. [ 33 ] C.G. was then cross-examined on the following evidence she gave at the preliminary inquiry: Q. And so you had thought a lot about this incident, these incidents prior to -- in November, October 2010.

A. Yes, that is correct. Q. Right? And you'd carefully reconstructed in your mind what had occurred. That is, you attempted to recall clearly to the best of your ability what had occurred. A. Yes, that is correct. Q. And all that took place a month or two before you spoke to Corporal Fraser. A. That is correct. Q. So you had mulled over the history for a significant length of time -- A. Mm-hmm. Q. -- and ordered the events in your mind. In other words, you had thought out what had occurred and what you are going to tell the police officer. Right? A.

She asked me questions and I answered her questions to the best of my ability. I did not go there with a set plan. Q. Well, you were going to tell her about the four incidents that we've discussed, weren't you? A. I answered her questions to the best of my ability. Q. Well, what did you think was going to happen when you went there? You thought you were going to tell her about the four incidents, didn't you? A. Yes, I did. Q. All right. And you'd thought about them and what you were going to say. I'm not saying you made them up. A. No. Q.

But I'm saying you thought about what had occurred before you went to the police station. A. My answers were prompted by her questions. I did not go in -- in my head to say I'm going to go speak to the police officer about four incidents that I recurred -- recalled. Q. You had thought about these four incidents and when they had likely occurred before you went to the police station. Right? A. No, I did not. She asked if I had remembered any incidents and I answered her questions, but I didn't know what I was going to say to her before I got into the interview room. Q. All right.

So you didn't say to her, for example, about these dates, the later teens issue with the red blanket incident, "I'm not sure whether I was 13 or 18, but I remember the red blanket," for example. A. I remembered some specifics. I may not have remembered my ages to the correct specifications, but I remembered snippets.

But when somebody is traumatized you cannot recall fully what happened. [ 34 ] C.G. testified at a later point in cross-examination that she knew before speaking to the police what the four incidents were, but did not know the details she would go into until she was prompted by their questions. [ 35 ] With respect to the second incident, which allegedly occurred in Mr. M's bed on top of the red, open-weave blanket, the complainant confirmed in cross-examination her evidence that she was then 13 years of age. C.G. was then cross-examined on this portion of the statement she gave to Cpl.

Fraser on November 25, 2011 which addresses the timing of the second incident alleged: Cpl. Fraser: Can you recall how long was it between the first incident and the second time there was any inappropriate conduct on behalf of [G.M.] at all. C.G.: I would say maybe a year, I can't say for sure. Cpl. Fraser: And do you recall that incident and the specifics of it? C.G.: No, no. Cpl. Fraser: Are there any other instances in which you can recall specific details of inappropriate behaviour by [G.M.]? C.G.: Probably in my late, probably in my later teens um upstairs in their bedroom upstairs he coerced me upstairs.

Cpl. Fraser: Okay, tell me about that. C.G.: Coerced me upstairs um we, we had, we had sexual intercourse um I remember there was a red blanket on the bed. Cpl. Fraser: And that's your mother and stepfather's bed? C.G.: Mm mmm ( affirmative ).

Cpl. Fraser: Okay, C. I want you to just, just… C.G.: Yeah. Cpl. Fraser: Think about um go back and think about and try and provide me with as many details as you possibly can that… C.G.: Mm mmm ( affirmative ). Cpl. Fraser: Pertain to ( unintelligible ). C.G.: Mm mmm ( affirmative ). Mm mmm ( affirmative ). Um coerced me upstairs you know told, told me that this was an okay thing to do again told me not to you know say anything to my mom. Um we were both just had street clothing on be - before the incident occurred. Um any other details, no. Cpl.

Fraser: Okay, when you say coerced you upstairs, can you describe to me what you mean by coerced, or what, what words were spoken or how do you know you were coerced. C.G.: Was led upstairs um you know then the next thing I know we were lying on the bed and he's, he, he's kissing me and, and then the next thing I remember is you know having the bottom half of my clothing off I still had my top half of my clothing on. [ 36 ] When it was put to G.C. that the second incident involving the red blanket happened in her later teens, she denied this and said that it happened when she was 13 years old.

She explained that going to the police station was a huge decision in her life, that she was nervous, embarrassed and upset and that for these reasons her memory may not have been as good then as when she testified. She said that while she answered Cpl. Fraser's questions to the best of her ability, she knows now that she was 13 years of age when the second incident occurred. [ 37 ] With respect to the second incident, the complainant confirmed in cross-examination her evidence-in-chief that she does not recall any kissing taking place. She was then cross-examined on that portion of the statement she gave to Cpl.

Fraser (excerpted above) wherein she advised that Mr. M did kiss her while she was on the bed. The complainant testified that the answer she gave to Cpl. Fraser was true, that there was kissing, and that some of the details are sketchy. She attributed this inconsistency to the emotional trauma associated with these incidents. [ 38 ] With respect to the third incident and the complainant's evidence-in-chief that the act of intercourse was interrupted by the unexpected attendance of M.B. in the church basement, defence counsel put to C.G. this portion of her statement to Cpl. Fraser: Cpl.

Fraser: Can you recall or are able to describe any other specific acts, inappropriate sexual acts with um [G.M.].

C.G.: We had gone um I don't know what year it was we had gone down to the ( sigh ) ah our church which was down the street and he, he was the night watchman for the church and I had gone down with him to you know help them check the doors and check the windows and that kind of thing and we were in the basement of the church and again he su… suggested to me that um we have intercourse and we now again it was a take your bottom half of your clothing off and that was um that occurred and then shortly after that occurred another person arrived at the church so the incident you know occurred but it, it wasn't interrupted by the person that arrived at the church.

Cpl. Fraser: It was interrupted? C.G.: It wasn't. Cpl. Fraser: It wasn't. C.G.: It wasn't. Cpl. Fraser: Okay. C.G.: Wasn't interrupted but somebody arrived shortly after. [ 39 ] C.G. testified that the incident in the basement was interrupted in that both she and Mr. M had the bottom half of their clothing down or off when they heard M.B. in the hallway. She testified that Mr. M jumped up. She said she could not remember if the act of intercourse was finished when they heard the noise but she remembers lying on her back naked from the waist down.

When it was put to her in cross-examination that intercourse was occurring when she heard the noise in the hall and that this caused the intercourse to end, the complainant agreed that the sexual act was interrupted by the arrival of M.B. She testified that what she told Cpl. Fraser was her best recollection at the time but that her memory is better now that she has had a chance to review her statement and the evidence she gave on the preliminary hearing. [ 40 ] As noted above, the complainant testified that the third incident occurred in the basement of St.

Stephen's Anglican Church in West Vancouver when she was 15 years old. In cross-examination, the following portion of her statement to Cpl. Fraser that relates to this third incident was put to her: Cpl. Fraser: Now do you recall um, what year, month or day this might have occurred? C.G.: No. Cpl. Fraser: How old were you approximately? C.G.: How old was I then? I was probably in my middle to late teens.

Cpl. Fraser: Mid to late teens? C.G.: Yeah, I think so. [ 41 ] It should also be recalled that, on the complainant's timeline, about three years passed between the first and third incidents. [ 42 ] The complainant confirmed in cross-examination that no physical force or threats were used in any of the incidents. [ 43 ] The complainant rejected a suggestion put to her in cross-examination that the first time she engaged in intercourse with Mr. M was after her 19 th birthday. [ 44 ] In re-examination, C.G. testified that Mr.

M was in a relationship with her mother for two years before they were married and that they moved into the first residence on Jefferson Avenue in 1974. While this version conflicts with the evidence she gave in cross- examination, the effect of which was to situate the move to Jefferson Avenue around February 1976, C.G. testified that she was able to determine this because she attended school across the road at Pauline Johnson for two years after the move to Jefferson Avenue. She further testified that Mr.

M and her mother must have been together for two and a half years, not eighteen months, before they were married. C. The Evidence of Det. Michael Bruce [ 45 ] Det. Michael Bruce attended at Mr. M's residence on February 2, 2012 to arrest him on these charges and effect his release on a promise to appear. [ 46 ] Det. Bruce testified that as part of the arrest procedure, he provided Mr. M with a

summary of the allegations against him, including that he had sexual intercourse with his stepdaughter when she was 12, 13 and 15 or 16 years of age. [ 47 ] Having imparted this information and as he was leaving the residence, Mr. M said to Det. Bruce, "I did have sexual relations with her but it was when she was older. I think eighteen." D. The Evidence of G.M. [ 48 ] Mr.

M is an 81-year-old retired firefighter. [ 49 ] As noted earlier, he married the complainant's mother on August 12, 1976. [ 50 ] He testified that he met the complainant's mother and that they dated for about six months before he moved in with her and the complainant on Marine Drive in West Vancouver. They lived on Marine Drive for about six months before moving to the Jefferson Avenue residence. About six months after the move to Jefferson Avenue, he married the complainant's mother.

He testified that the family lived on Jefferson Avenue for about two years before moving to Duchess Avenue. [ 51 ] On this evidence, Mr. M and the complainant's mother would have started dating in about February 1975, moved into the Marine Drive residence in about August 1975, and lived with the complainant and her mother at their first Jefferson Avenue residence between about February 1976 and February 1978. Between February 1976 and February 1978 the complainant would have been between 13 years of age (very close to 14 years of age) and 15 years of age (very close to 16 years of age). [ 52 ] Mr.

M testified, as did C.G., that C.G. started calling him "Dad" after he married her mother. He further testified that he and the complainant's mother were always interested in what C.G. was doing and where she had been. This never changed throughout her teenage years. He testified that he never told the complainant to conceal from her mother the lunches they had together. [ 53 ] With respect to the torn photo issue, Mr. M testified that C.G. was seeing a person 10 years her senior and that C.G.'s mother was not happy about the relationship.

He testified that C.G.'s mother found this person's photograph in the complainant's room and tore it up. Mr. M testified that he told complainant that he tore up the photograph because he did not want her to be in conflict with her mother about what her mother had done. [ 54 ] In examination-in-chief Mr. M testified that he had sexual intercourse with the complainant six or seven times commencing in 1981 two weeks after she turned 19 years of age.

He testified that he knows this because the first sexual encounter occurred after the complainant's "coming of age" dinner - an event that prompted some disagreement between Mr. M and his wife as to how or whether the occasion should be marked. [ 55 ] Mr. M testified that at the time of the first sexual encounter, the complainant had graduated from high school and was in the Naval Reserve. He testified that this encounter occurred in the first house on Jefferson Avenue. I pause to note here the conflict inherent in Mr. M's evidence on this point.

If the first sexual encounter occurred during the family's first stay on Jefferson Avenue, it must have occurred between February 1976 and February 1978, when the complainant was 13 to 15 years of age, not in 1981. On the evidence of both Mr. M and the complainant, the family would have been living in a different residence in 1981. This inconsistency was not addressed at any subsequent point in the evidence. [ 56 ] In any event, Mr. M testified that the first sexual encounter occurred in the evening while the complainant's mother was out. They were watching television together.

He said both of them started drinking, that "petting" occurred and the two of them ended up in bed in the upstairs master bedroom. There was a red, open-weave throw or blanket on the bed. He testified that C.G. consented to this act of intercourse and to all such acts that followed. With respect to the first incident, he testified they both enjoyed having sex and that C.G. "didn't say no". [ 57 ] Mr. M testified that he last had sexual intercourse with the complainant in the second house on Jefferson Avenue in 1987.

[ 58 ] He said that all of the acts took place either in the master bedroom or in C.G.'s bedroom. He testified that no force or threats of force were ever used and the complainant never demonstrated her unwillingness to participate in the sexual conduct. [ 59 ] Mr. M denied ever having sex with the complainant when she was 12, 13 or 15 years of age. [ 60 ] He testified that the sexual activity between them stopped when it "crossed his mind" that it was not right and he told C.G. that it had to end. [ 61 ] Mr.

M confirmed that C.G. confronted him in 2010 about what she alleges he did to her as a teenager and said she was going to tell his current wife. [ 62 ] He testified that Det. Bruce showed up on February 2, 2012 without notice. He admitted that Det. Bruce accurately recounted what he said after he was informed of the nature of the allegations. [ 63 ] After Det. Bruce left, Mr. M reported to his current wife that he was not feeling well and testified that he woke up in the hospital having been transported there by ambulance. He was discharged later that evening.

He testified that he was told that he had an anxiety attack, a stroke and possibly a heart attack. [ 64 ] Mr. M testified of his relationship with C.G. that he is thoroughly ashamed and knew that what he was doing was unacceptable. [ 65 ] With reference to the first incident, Mr. M testified that, while he does not remember, it is possible that he owned a blue robe with a yellow and white pattern. He acknowledged looking after the complainant on days she was home sick from school. [ 66 ] With reference to the second incident, Mr.

M acknowledged that their first residence on Jefferson Avenue was across the street from Pauline Johnson, that the master bedroom was on the second floor, and that the bed was covered with a red throw or open-weave blanket. He testified that C.G. was 12 years old when they moved into the first Jefferson residence and that this occurred in 1974. He testified that they lived on Jefferson for about two years and that as far as he could recall, C.G. was in Grades 6 and 7. I note that this testimony conflicts with the timeline provided by Mr.

M in his evidence-in-chief that the move from Marine Drive to Jefferson Avenue would have occurred in about February 1976. [ 67 ] With reference to the third incident, Mr. M agreed that he was a volunteer night watchman at St. Stephen's Anglican Church in West Vancouver and that when the complainant was a teenager, possibly as young as 13, he would take her with him in the evenings to ensure that the church was locked up. He testified that she always checked the upstairs of the church while he checked downstairs.

He was adamant in his testimony that the complainant never went with him into the downstairs of the church to check the doors. Mr. M testified there was a 6-inch plywood platform (not a stage) in the downstairs of the church and that he knows this because he helped bring it in and take it out. He could not remember whether the platform had carpet on it but testified that it possibly did. He agreed that M.B. was a member of the church who would also have had keys to the building. [ 68 ] Mr.

M also acknowledged that there was a gravel walkway from the driveway to the entry of their home on Nelson Avenue but denied ever having intercourse with C.G. in that house. [ 69 ] In cross-examination, Mr. M was asked to further describe the first occasion upon which he had sexual intercourse with C.G. He testified that they were watching television in the early evening and having a few drinks. He testified that he could not remember the month but knows that it was two or three weeks after C.G.'s birthday in March 1981. He remembers both of them drinking beer and gin.

He testified that she had maybe two beers and one gin and that he had three or four beers and one gin and tonic. Neither of them was intoxicated, but both of them were getting there. [ 70 ] He testified that he initiated the sexual contact by putting his arm around C.G., caressing her breasts and "necking" with her. He testified that she got up first and that he followed her upstairs to his bedroom with the red blanket on the bed. He testified that while he remembered the drinks they were having, he could not remember any conversation the two of them may have had before engaging in sex.

He testified that the encounter was spontaneous and that he doubts saying to C.G., "It's okay that we do this." He testified that the encounter upstairs was her idea and consensual. He then testified that as they were kissing, she stood up and said, "Let's go upstairs". He replied, "Okay" and followed her to the bedroom. He gave this testimony despite testifying moments earlier that he was unable to remember any conversation between them. [ 71 ] Mr. M testified that he was "pretty sure" that the act of intercourse was accompanied by kissing and touching.

He then clarified that he was sure about this, that every time he had sex with C.G. they caressed one another. Then, when asked whether he had a specific recollection of kissing and touching occurring on the first occasion, Mr. M said, "No". [ 72 ] With respect to birth control, Mr. M testified that he had a vasectomy by the time this encounter occurred and that the complainant never asked him about birth control. He testified that after the act of intercourse, the two of them went back downstairs and continued to watch TV. He testified that he does not recall the complainant saying anything to him after the act.

He testified that he was certain he did not say to her, "Don't tell your mother". Mr. M testified that because the act was consensual he never thought C.G. would tell her mother. He then testified that he thought she might tell her mother but maintained that he never told her not to do so. [ 73 ] Mr. M testified that he was a parental figure to C.G. and knew that what he was doing was wrong. [ 74 ] When asked when the second act of intercourse between them occurred, Mr. M testified that he could not remember and did not know what year it happened.

He then testified that he was certain that it was a year later, in 1992. From all of the evidence, I think it is apparent that Mr. M misspoke on this occasion and meant to say 1982. When asked how certain he was that the second act occurred a year later, Mr. M admitted that he was not certain and that he could not remember. [ 75 ] Mr. M testified that he could not remember when the third act of intercourse occurred. He testified that all of the acts occurred in the master bedroom or in C.G.'s bedroom. He testified that he could not say when they had sex in C.G.'s bedroom.

[ 76 ] When asked how he knew he had intercourse with the complainant on six or seven occasions, Mr. M testified that this is what he thought and that it came to him as an idea in his head. He agreed that there could have been 12 occasions but doubted that there were as many as 20 acts of intercourse. He admitted his evidence-in-chief that intercourse occurred on six or seven occasions was a guess. [ 77 ] Mr. M testified in cross-examination that the last time he had sex with C.G. was in 1987.

He denied, however, that this last act occurred in the Nelson residence and was interrupted by the arrival home of C.G.'s mother when they heard her footsteps on the gravel drive. He testified that he believed the last act of intercourse occurred in the second residence on Jefferson Avenue. He testified that he told C.G. on this occasion that their behaviour had to come to an end, that he was ashamed, and that they would get in trouble if his wife (the complainant's mother) found out what they were doing.

He testified that C.G. was unhappy about this but does not remember what she said. [ 78 ] When pressed to explain why he felt the sexual behaviour had to come to an end at that point, Mr. M explained that it was because the complainant had turned 19 years of age and referred back to the coming out party. He then corrected himself saying that she was not 19 when the behaviour ended, but 25 or 26 years of age and that the first time they had sex together was when she was 19. Mr.

M explained that he was confused about dates. [ 79 ] Having testified that he believed the last act of sexual intercourse occurred in the second Jefferson Avenue residence, he then agreed that this was a pivotal conversation and guessed that it did occur in the Nelson Avenue residence. [ 80 ] Mr. M testified that it was not possible that C.G. was younger than 19 years of age when he first had sex with her. When asked why he told Det. Bruce that she was 18 years of age when they first had sex, Mr. M said it was because he was nervous, scared and confused. E.

The Legislative Framework [ 81 ] The Criminal Code provisions in force at the time and applicable to this case are: Consent of Child Under Fourteen No Defence s. 140 Where an accused is charged with an offence under

section 146 ... in respect of a person under the age of 14 years, the fact that the person consented to the commission of the offence is not a defence to the charge. Rape s. 143 A male person commits rape when he has sexual intercourse with a female person who is not his wife, (

a) without her consent ... Sexual Intercourse With Female Under Fourteen/Sixteen s. 146 (1) Every male person who has sexual intercourse with a female person who (

a) is not his wife, and (

b) is under the age of fourteen years, ... is guilty of an indictable offence and liable to imprisonment for life.

(2) Every male person who has sexual intercourse with a female person who (

a) is not his wife, ... (

c) is fourteen years of age or more and is under the age of sixteen years, ... is guilty of an indictable offence and is liable to imprisonment for five years.

(3) Where an accused is charged with an offence under subsection (2), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is more to blame than the female person. [ 82 ] Should this Court find that Mr. M had sexual intercourse with C.G. when she was between 14 and 16 years of age, it is conceded that he is more to blame. F. Discussion and Analysis [ 83 ] A criminal case is not a credibility contest, the resolution of which determines the outcome. [ 84 ] I must acquit Mr.

M on all three charges if I believe his evidence that he had consensual sexual intercourse with the complainant only after she turned 19 years of age. Even if I do not believe Mr. M's testimony, I must acquit him if I am left with a reasonable doubt about his guilt after considering his evidence in the context of the evidence as a whole. Finally, even if I am not left in doubt by the evidence of Mr. M, I must be satisfied beyond a reasonable doubt on the basis of the evidence I do accept that he is guilty of any one or more of the offences charged.

[ 85 ] The events underlying these counts are alleged to have occurred as far back as almost four decades ago. It is not surprising memories have faded in that time and both Mr. M and the complainant provided evidence that was, in some respects, internally inconsistent with respect to when and where specific events occurred.

Subject to what I will say below about time being an essential element of the offences charged in counts 1 and 2, my assessment of their evidence, particularly as it pertains to details surrounding the incidents each of them addressed, must take into account this extraordinary passage of time. [ 86 ] In addition, some allowance is due the accused in the assessment of his evidence as a result of his age and apparent frailty. On at least two occasions, I am satisfied that the accused misspoke out of genuine confusion.

Specifically, the accused gave evidence that his first sexual encounter with C.G. was in 1981 at the first Jefferson Avenue residence (it could not have been) and that the second act of intercourse occurred in 1992 (in context, the accused must have meant 1982). With respect to these two occasions, it would be unfair to the accused to make an adverse credibility finding by concluding that this evidence emerged as a consequence of his inability to keep an untrue story straight.

Although neither point was corrected, I would attribute this evidence to simple inadvertence arising out of the stress of the moment. [ 87 ] But even allowing for memory difficulties associated with the passage of time and Mr. M's age and health-related issues, I do not believe his evidence, nor does it leave me with a reasonable doubt. [ 88 ] Quite apart from memory-related issues respecting the details of when he met C.G.'s mother and moved with them into the first Jefferson Avenue residence (1974 or 1976) Mr. M was not a credible witness.

His evidence, in the context of the evidence as a whole, is not believable and I reject it. [ 89 ] I do so for a number of reasons. First, Mr. M's evidence-in-chief was, on critical issues, contradicted by the evidence he gave in cross-examination. The number of occasions on which this happened undermined his credibility as a witness. For example, he asserted in his evidence-in-chief that he had sexual intercourse on six or seven occasions with C.G. between 1981 in 1987.

In cross-examination, he acknowledged that this figure just came to him as an idea in his head and it could have been 12 occasions but he doubted that it was as many as 20 occasions. He admitted that his evidence in-chief on this point was just a guess on his part. [ 90 ] Mr. M's testimony that he never advised the complainant not to tell her mother about their sexual relationship defies belief, as does the evidence he gave in cross-examination on this point that, "Why should I?" Why he would have done so would be apparent to any reasonable person in the circumstances.

Furthermore, his explanation that he never thought the complainant would tell her mother was almost immediately contradicted by his evidence that he thought she might but never instructed her not to do so. [ 91 ] Mr.

M's evidence that the complainant never went with him to check the lower doors of the church was, I am satisfied, a self- serving artifice presented by him as a way of answering the complainant's evidence with respect to the third incident. [ 92 ] His evidence respecting the circumstances surrounding the first act of sexual intercourse - that some five years after marrying the complainant's mother he initiated sexual contact with her while the two of them were watching television by caressing her breasts and kissing her without any conversation he can remember being exchanged between them - is preposterous and I reject it.

It also conflicts with Mr. M's self-serving evidence which immediately followed his description of this first sexual encounter that words were, in fact, exchanged when the complainant said to him in response to his advances, "Let's go upstairs". [ 93 ] Mr.

M's recollection of when the first act of intercourse occurred (two or three weeks after the complainant's 19 th birthday) and exactly what they were drinking and how much each of them had consumed before having intercourse is inconsistent with his professed inability to remember very much else about the first occasion on which he had intercourse with his stepdaughter. [ 94 ] His evidence that he knows pretty much exactly when the first act of intercourse took place by reference to events surrounding the complainants 19 th birthday is contradicted by the statement he made to Det. Bruce. [ 95 ] Much of Mr.

M's evidence reflected concoction on his part. He testified with respect to the first sexual encounter that he was "pretty sure" kissing and touching occurred preliminary to the act of intercourse. That evidence was most immediately followed by an affirmation that Mr. M knew that kissing and touching occurred before intercourse. Having given this evidence, Mr. M then conceded that he had no specific recollection of whether kissing or touching occurred preliminary to the act of intercourse on the first occasion. I do not consider this to be a detail explainable by the passage of time.

To the contrary, I note that the entirety of his story with respect to how the first act of intercourse came about is premised on his initiation of kissing and touching the complainant. [ 96 ] Mr. M provided very few details in his evidence-in-chief about his sexual relations with C.G. To the extent that details emerged at all, they emerged only in cross-examination. Making due allowance for the passage of time, I am satisfied that Mr. M withheld information respecting the details of his sexual encounters with C.G.

That he did so seriously undermines his credibility as a witness. [ 97 ] Further, I do not accept Mr. M's evidence in cross-examination that he was unable to recall virtually anything about any of the subsequent sexual encounters he had with his stepdaughter. I am satisfied he deliberately declined to provide any details to avoid being cross-examined on the specifics of the encounters. [ 98 ] Mr. M's testimony that it "crossed his mind" at some point that having sexual relations with his stepdaughter was not right also defies belief. As Mr.

M subsequently acknowledged in both his evidence-in-chief and on cross-examination, he knew all along that what he was doing was profoundly wrong. This is not something that could possibly have just crossed his mind one day. That he would give such evidence seriously undermines his credibility. [ 99 ] Mr. M's testimony that he believed the last occasion on which he had sexual intercourse with the complainant (when she was 25) occurred on Jefferson was immediately contradicted by his evidence that he guessed or thought this event, and the pivotal conversation that followed it, occurred on Nelson.

I am satisfied Mr. M was reluctant to situate this event and conversation on Nelson to avoid giving evidence that might be perceived as confirming the complainant's account that the last act of intercourse occurred on Nelson

Avenue when she was 25 years of old and her mother came down the gravel driveway startling both of them. [ 100 ] Having rejected Mr. M's evidence and concluded that it does not leave me with a reasonable doubt, I must, however, be satisfied of his guilt beyond a reasonable doubt on the basis of the evidence I do accept. [ 101 ] The Crown submits that some of the details of C.G.'s account are confirmed by Mr. M's evidence.

She references points in respect of which the complainant and the accused are agreed: they lived on Jefferson Avenue across from Pauline Johnson; that the complainant went to school there; the master bedroom in the Jefferson Avenue residence was on the second floor; the bed was covered with a red blanket; the accused was a night watchman at the church; and M.B. also had a set of keys to the church. In my view, while these points provide some limited confirmation of the reliability of the complainant's memory on contextual issues, they go no further.

Specifically, none of this evidence confirms the complainant's testimony that she was sexually abused in the Jefferson Avenue residence by the accused when she was a teenager.

That evidence is unconfirmed and, as there is no supporting evidence on the central issue in this case, I am obliged to critically assess the cumulative impact of alleged inconsistencies in the complainant's evidence to determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt. [ 102 ] Before turning to consider those inconsistencies, I wish to make one additional point in response to the Crown's reliance on R. v. R.D ., [2004] O.J. No. 2086 (C.A.) , in support of its position that Mr.

M's acknowledgment of inappropriate sexual conduct with his stepdaughter when she was older tends to confirm the complainant's account. [ 103 ] R.D. is a case in which the accused admitted highly unusual and sexualized behaviour with the complainant when the complainant says the assaults occurred. While the accused denied the assaults, his admissions of inappropriate behaviour covered the same time and addressed the same events giving rise to the sexual assault allegations.

It was in this context that Rosenberg J.A., for the Court, concluded that it was open to the trial judge to regard the accused's admissions of inappropriate behaviour as being capable of confirming the complainant's account. [ 104 ] In my view, the Crown seeks in this case to extend the reasoning in R.D. beyond where it legitimately goes. In R.D , the accused's admission of inappropriate, sexualized behaviour with the complainant ran concurrent with the sexual assault allegations. In this case, Mr.

M's admission of inappropriate sexual behaviour with his stepdaughter is not concurrent with the allegations, but relates to events that started years later when she was 19 years of age. In my view, the gap in time is where the analogy between R.D. and this case breaks down. Further, extending the rationale in R.D . as the Crown suggests comes perilously close to adopting reasoning that the accused is, by virtue of his admission, the sort of person more likely to have engaged in the charged conduct.

That line of reasoning is, of course, prohibited and I decline to rely on R.D. for the purposes identified by the Crown. [ 105 ] The complainant was a credible witness who gave her evidence in a straightforward and compelling way. No motive to fabricate upon which a reasonable doubt might be based arises on the evidence. It was apparent to me that C.G.'s life has been profoundly affected by the sexual experiences she had with Mr. M. Further, and for reasons I will express, I am satisfied that she had the first of those experiences with Mr.

M when she was in her teen years. [ 106 ] In addition to finding the complainant to be a credible witness, I must also, however, be satisfied that her evidence is reliable. That further analysis will often be important in historical sexual assault cases but it is essential where, as here, the timeframe within which events occurred is not simply a detail against which the complainant's credibility might be measured, but an essential element of two of the counts. The complainant's account of when these incidents occurred was, in some significant ways, contradicted by statements she made to Cpl. Fraser.

I will return to consider the impact of these inconsistencies after I deal with other alleged infirmities in her evidence stressed by counsel for Mr. M in his closing argument. [ 107 ] In essence, counsel for Mr. M asserts that there are too many inconsistencies, points of confusion and improbabilities in the evidence of the complainant to find guilt beyond a reasonable doubt on any of the counts. [ 108 ] I will deal with each of the points made by counsel on behalf of Mr. M individually.

In doing so, I have not lost sight of the need to consider the cumulative impact of any inconsistencies I find in the testimony of the complainant and the impact they have on my assessment on both her overall credibility as a witness and the reliability of her account. [ 109 ] Counsel for Mr. M asserts that the complainant was unable to provide much detail with respect to any of the incidents and, in particular, the first incident. I do not agree.

To the contrary, the complainant did provide an account fairly rich in detail with respect to the circumstances surrounding the first, and subsequent, incidents. [ 110 ] Counsel for Mr. M submits that it is implausible and contrary to human experience and common sense that the complainant, given her age, the age and size of the accused and the context in which the acts occurred, was not physically hurt by the events she described. I would note in this regard the complainant testified in cross-examination that the acts caused no pain or discomfort that she could remember .

I accept her evidence on this point. [ 111 ] Counsel for Mr. M submits the complainant's description of the first three acts of intercourse and, in particular, that the accused's legs straddled hers, is inconsistent with the acts of penetration she describes. In my view, it would be unfair to regard the complainant's evidence on this issue as an assertion that the straddling of her legs by the accused and the penetration were acts coincident in time. The complainant was specifically asked in her evidence-in-chief how the accused's penis entered her when he was straddling her legs and kneeling over her.

She testified the events happened quickly and those were the details she could remember. When asked to confirm in cross-examination that penetration occurred while Mr. M's legs straddled hers, the complainant replied she did not recall how his penis entered her vagina but knows that it occurred. She testified that he was on top of her and she is not sure if he penetrated her before straddling her legs. I do not regard her evidence on this issue as something that negatively impacts my assessment of her credibility. [ 112 ] Counsel for Mr.

M submits that the complainant's evidence is also inconsistent with respect to how long the first incident lasted. In her evidence-in-chief, the complainant testified the incident took about five minutes. She confirmed in cross-examination "five minutes" and "no more than five minutes" were estimates that reflected her current recollection. As noted earlier, C.G. told Cpl. Fraser that she was unable to recall how long the first incident lasted. I make two points about this evidence and why I have concluded that it

does not negatively affect my assessment of the complainant's credibility. First, it is clear from her evidence that the complainant was doing no more than providing an estimate of how long the act of intercourse lasted. Second, the inconsistency, if one exists, is with respect to a detail concerning a traumatic event that occurred a very long time ago. Importantly, and apart from critical questions going to when the incidents occurred, the complainant was largely unshaken in cross-examination with respect to the substance of the incidents.

In light of these considerations, I am of the view that this issue is of very little moment in the context of this case. [ 113 ] I have come to the same conclusion with respect to the assertion of counsel on behalf of Mr. M that the complainant's evidence with respect to the third incident in the church reflects an inconsistency as to whether the act of intercourse was interrupted by the arrival of M.B. The complainant testified in relation to this incident that she did not think the accused ejaculated, that they heard a noise in the hallway, and that they dressed very quickly. In her statement to Cpl.

Fraser the complainant said the act of intercourse was not interrupted by M.B.'s arrival and that M.B. arrived shortly after it occurred. In her evidence, the complainant testified the act of intercourse was interrupted by M.B.'s arrival. The complainant explained in cross-examination the incident was interrupted in the sense that they heard M.B. in the hall while she was still lying on her back on the stage and before either of them had dressed. She then testified that she could not remember if the act of intercourse was finished when they heard M.B. arrive, but that the sex was interrupted.

This alleged inconsistency involves parsing out a moment in time from an event that is said to have occurred about 35 years ago. While I recognize it is essential that the credibility and reliability of the complainant's evidence be tested in light of all the evidence presented at trial, I do not regard this issue as at all consequential in assessing the credibility of the complainant or the reliability of her testimony. It is, at most, an inconsistency in relation to a fine detail in the context of otherwise largely unshaken evidence with respect to the substance of this incident. In fairness, Mr.

M's counsel did not present this issue as the biggest inconsistency or most significant problem with the complainant's evidence. [ 114 ] Counsel for Mr. M also points to an inconsistency in the complainant's evidence with respect to whether the accused kissed the complainant during the second incident. In her evidence-in-chief, the complainant testified that she could not recall whether the accused kissed her during the second incident. At the preliminary inquiry, she testified that she did not believe there was any kissing, touching or fondling prior to or during that act of intercourse. In her statement to Cpl.

Fraser she said that the accused did kiss her during this incident. The complainant testified that she remains emotionally traumatized by these events and some of the details are sketchy. Counsel for Mr. M argues that while the inconsistency may be "no big deal" in and of itself, it suggests the complainant's ability to recall events is limited. Although the complainant was inconsistent on this detail, it does not, in the context of all the evidence, lead me to the conclusion that her ability to recall the critical events underlying these incidents is limited, nor does it shake my confidence in her testimony.

As noted above, the complainant related an account fairly rich in detail with respect to each of the three incidents she says occurred while she was in her teenage years. [ 115 ] Counsel for Mr. M also argues that the complainant's non-disclosure of these incidents until decades later, coupled with her continuing close connection with Mr. M after her mother's death, are inconsistent with her narrative of abuse.

He suggests that it is inconceivable the complainant would continue to live with her abuser into her adult years. [ 116 ] The law recognizes that individuals who are abused do not respond in a predictable or uniform way. The significance of delayed disclosure and evidence of continuing association with an alleged abuser can only be assessed in the context of a particular case. In some cases, considerations such as these may give rise to a reasonable doubt. In this case, I am satisfied that when the complainant was a teen she was sexually abused by her stepfather, a trusted, much-needed and loved authority figure.

I am satisfied that her subsequent behaviour is a function of their unique relationship, her long-harboured embarrassment and fear resulting from these incidents, and the pathologically distorted entanglement she developed with the accused as a consequence of his decision to impose upon her (in her teenage years) an inappropriate sexual relationship. Her failure to make earlier disclosure of the fact that her stepfather sexually abused her is neither unique to her nor is it particularly surprising given their relationship and her dependence on him.

Further, I am satisfied that her behaviours later in life, including the last act of intercourse that occurred when she was 25 years old, are attributable to the pathologies inherent in the relationship - pathologies for which the accused is solely responsible. [ 117 ] Counsel for Mr. M also submits that the complainant's suggestion that the last act of intercourse when she was 25 years of age was without her consent is, in the context of her evidence as a whole, unbelievable. He submits that this seriously undermines her overall credibility and should give rise to a reasonable doubt.

I do not consider the complainant's evidence on whether this last act of intercourse was with or without her consent to be as clear and definitive as counsel for Mr. M suggests. Even assuming, however, that the complainant's perspective is that this act occurred without her consent, it does not undermine my assessment of her credibility or the reliability of the evidence she gave with respect to the three incidents described above. I am satisfied that her perspective with respect to this incident is shaped by the pathologies inherent in her relationship with the accused.

As is apparent from my recitation of the evidence, in no sense was this relationship a normal one, nor is it a relationship from which normal inferences about human behaviour are easily drawn. [ 118 ] With respect to the third incident, counsel for Mr. M submits it is unlikely the accused would voluntarily assume the risk of being discovered in the church basement engaging his stepdaughter in sexual intercourse. With respect, I do not think there is anything inherently implausible about the complainant's account with respect to this incident.

On her evidence, the incident lasted less than five minutes and occurred in a darkened church basement at a time in the evening when it might reasonably be supposed that no one else would be in the building. [ 119 ] Finally, counsel for Mr. M submits that C.G.'s evidence at trial about whether she thought about these four incidents before speaking to the police must be untrue. In support of this submission, he relies upon alleged inconsistencies in the complainant's trial evidence on this point, and on conflicts between that evidence and the testimony she gave on the preliminary inquiry.

The evidence the complainant gave on the preliminary inquiry on this point is excerpted at para. 33. That evidence is to the effect that she mulled these events over for a significant time and knew she was going to tell the police about the four incidents she testified to during the trial. [ 120 ] With respect, I do not agree with the defence position on this issue, nor do I ascribe to this evidence the significance counsel for Mr. M placed upon it in his closing submissions. [ 121 ] First, viewed in context, it is apparent that C.G.'s evidence at trial was that while she knew about the four incidents before

speaking with the police, she did not know the details she would go into about each of them, and that some of those details emerged in response to police questioning. The evidence she gave at the preliminary inquiry was not, in my view, inconsistent with the evidence she gave at trial. She acknowledged on both occasions thinking about these incidents before going to the police but testified that details with respect to them only emerged in the course of the interview. In other words, she did not go there with a prepared script.

Further, I note that in cross-examination on the preliminary inquiry the complainant was asked two things in one question - whether she had thought about these four incidents and whether she thought about when they occurred before she went to the police station. In response to that question, the complainant replied, "No, I did not." The ambiguity of the complainant's response is attributable to the double-barrelled question she was asked.

In the context of all that preceded and followed this question, it is clear to me that all the complainant was saying was that while she was well aware of the four incidents before attending at the police station, she had not focused on exactly when they occurred or on the details associated with them until this information came out in the course of the interview. [ 122 ] When the complainant testified at trial that she had not thought about the four incidents before going to the police, it is clear from the context in which her evidence was given that she was referring to the details of those incidents that only came out in response to police questioning.

One of the "details" was her exact age when each incident occurred. That the complainant would not appreciate the significance of time as a result the age proscriptions set out in the Criminal Code before she spoke with the police is understandable. I do not regard C.G.'s evidence on this point as telling against her credibility as a witness.

It is however, an aspect of her testimony that does go to the reliability of her account with respect to when these incidents occurred. [ 123 ] In short, I am satisfied the three incidents described by the complainant occurred and that they occurred as she described them in her testimony.

My faith in her testimony is not undermined by the inconsistencies reviewed thus far nor do they, individually or collectively, give rise to a reasonable doubt. [ 124 ] I turn now to the essential element of time and the need to examine not just the credibility of the complainant's evidence, but the reliability of her testimony as to when these incidents occurred. These are separate issues. Before convicting Mr.

M on either of these counts, I must be satisfied beyond a reasonable doubt that one or more of these incidents occurred when the complainant was under the age of 14 years (count 1) or when she was between 14 and 16 years of age (count 2). [ 125 ] The complainant testified that she remembered being a 12-year-old, Grade 6 student at Pauline Johnson when the first incident occurred in the Jefferson Avenue residence. She testified that she attended Pauline Johnson for Grades 6 and 7. Mr.

M gave the same evidence and agreed that C.G. would have been between the ages of 11 and 13 in those years. [ 126 ] Despite this evidence, on the timeline accepted by the complainant in cross-examination, she would have moved into the Jefferson residence with Mr. M and her mother in February 1976. She would have been about a month shy of her 14 th birthday.

The complainant gave no evidence as to when the first incident occurred in relation to the move to Jefferson Avenue. [ 127 ] I note that the complainant's timeline also shifted in the course of her evidence and she appeared to become more certain about her age at critical times after she reviewed transcripts of the statements and evidence she gave at an earlier juncture. I have given close consideration to whether C.G.'s shifting evidence respecting when these incidents occurred undermines her credibility or the reliability of her account regarding the incidents themselves.

Having done so, I am satisfied beyond a reasonable doubt that these incidents occurred as she described them in her testimony. [ 128 ] As noted earlier, time is an essential element of the offences charged in counts 1 and 2.

While I do not doubt the honesty of the complainant's asserted belief that she was 12 years of age when the first incident occurred, in light of the passage of time, the complainant's reliance on transcripts as a memory aid and, in particular, her adoption of the timeline put to her in cross-examination, I am not satisfied beyond a reasonable doubt that the first incident occurred when she was under 14 years of age. As a consequence, Mr.

M is acquitted on count 1. [ 129 ] I am, however, satisfied beyond a reasonable doubt that the first act of intercourse occurred in the first Jefferson Avenue residence when the complainant was home sick from school and between 14 and 16 years of age. Accordingly, Mr. M will be convicted on count 2. [ 130 ] With respect to the incident which occurred in Mr. M's bedroom on top of the red blanket, the complainant testified that this occurred one year later when she was 13 years of age and a Grade 8 student at West Vancouver Secondary School. In her statement to Cpl.

Fraser, the complainant said that another incident occurred maybe a year later but she could not say for sure and could not recall the specifics of it. She then described to Cpl. Fraser what has been described in these reasons as the second incident (the one in Mr. M's bedroom involving the red blanket). C.G. told Cpl.

Fraser the "red blanket incident" occurred "probably in my late, probably in my later teens..." [ 131 ] Once again, while I do not doubt the sincerity of the complainant's belief that she was 13 years of age when the second incident occurred and suspect that this second incident also occurred when C.G. was between the ages of 14 and 16, I am not satisfied that this essential element of the offence charged in count 2 has been established beyond a reasonable doubt. [ 132 ] Similarly, with respect to the third incident that occurred in the church basement, I am not satisfied beyond a reasonable doubt that it occurred before the complainant's 16 th birthday.

I note that in her statement to Cpl. Fraser the complainant said that she was probably in her "mid to late teens" when this incident occurred. While I accept the complainant's evidence that her decision to go to the police was a "huge" one, that she was upset and nervous when she gave her statement and that this may have affected her memory and the way in which she recounted the events at that moment in time, the contradiction between her evidence at trial and her statement to Cpl.

Fraser is such that I cannot be satisfied to the criminal standard of proof that the incident in the church occurred when the complainant was between 14 and 16 years of age. [ 133 ] With respect to count 3, I am satisfied that all three incidents occurred, that they occurred without the complainant's consent and that Mr. M knew the complainant did not consent to his sexual advances. In the first incident, I am satisfied that Mr. M simply imposed himself upon the complainant when she was sick in bed. In the second and third incidents, I am satisfied that the complainant did not

consent but merely submitted to her stepfather's declaration that he "wanted her" and to his instructions that she remove her clothing to facilitate the act of intercourse. In no sense did the complainant consent to any of the first three incidents she described in her testimony. I am satisfied beyond a reasonable doubt that Mr. M knew this on each of these occasions. He will, accordingly, be convicted on Count 3. [ 134 ] In

summary, Mr. M is acquitted on count 1 but convicted on counts 2 and 3. "FITCH J."