R. v. D.K.M., 2023 BCSC 1467

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.K.M., 2023 BCSC 1467 Date: 20230821 Docket: 36409-2 Registry: Fort St. John Rex v. D.K.M. Restriction on publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Walker Oral Reasons for Judgment Counsel for the Crown: D.M. Wightman Counsel for the Accused: E.K. Jones Places and Dates of Trial: Fort St.

John, B.C. April 11-14 and 17, 2023 Prince George, B.C. June 5-8, 2023 Place and Date of Judgment: Fort St. John, B.C. August 21, 2023 Table of Contents Introduction .. 4 What the Crown Must Prove .. 5

Section 151 Criminal Code . 5

Section 152 Criminal Code . 7 Section 160(3) Criminal Code . 11 Governing Legal Principles .. 12 The presumption of innocence, burden of proof, and reasonable doubt 12 Credibility and Reliability . 17 Witnesses .. 21 Background .. 22 The Complainants’ Accounts .. 26 The Charges Concerning C.M. 27 First Incident 27 Second Incident 28 Third Incident 30

The Charges Concerning C. (L.) M. 32 First Incident 32 Second Incident 33 The Charges Concerning K.M. 34 The First Incident 34 The Second Incident 35 Mr. M.’s Evidence .. 36 Overview .. 36 Pornography . 37 C.M. 39 Examination-in-chief 39 Cross-examination .. 42 C. (L.) M. 50 Examination-in-chief 50 Cross-examination .. 52 K.M. 54 Examination-in-chief 54 Cross-examination .. 56 Assessment 65 Assessment of the Complainants’ Evidence .. 66 Determination .. 69 Counts 1 and 2 . 69 First Incident 70 Second Incident 72 Third Incident 73 Count 3 . 73 Counts 4, 5, and 6 . 75

Summary .. 76 Introduction [ 1 ] D.K.M., to whom I will refer as “Mr. M.”, is charged with committing sexual offences, alleged to have occurred between 2005 and 2013, contrary to ss. 151 , 152 , and 160(3) of the Criminal Code, R.S.C. 1985, c. C-46 . He is charged with six counts. Counts 2 and 3 were amended at the close of the Crown’s case without objection from Mr. M. [ 2 ] For count 2, both the date range and offence provision in the Criminal Code were amended. The date range was originally August 1, 2007 to August 30, 2007; it was amended to January 1, 2005 to December 31, 2007.

As well, the impugned offence was amended from s. 151 to state “contrary to s. 151 or s. 152 of the Criminal Code ”. [ 3 ] For count 3, the date range, originally stated to be January 1, 2007 to April 30, 2008, was amended to January 1, 2004 to April 30, 2007. [ 4 ] Thus, the amended indictment reads as follows:

Count 1 [Mr. M.], from the 1 st day of January, 2005 to the 31 st day of December, 2007, inclusive, at or near [T.], British Columbia, did, for a sexual purpose, invite, counsel or incite C.M., a person under the age of 14 years, to touch, directly or indirectly, with a part of her body, or with an object the body of [Mr. M.], contrary to s. 152 of the Criminal Code . Count 2 [Mr.

M.], from the 1 st day of January, 2005 to the 31 st day of December, 2007, inclusive, at or near [C.L.], British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of C.M., a person under the age of 14 years, contrary to s. 151 or did, for a sexual purpose, invite, counsel or incite C.M., a person under the age of 14 years, to touch, directly or indirectly, with a part of her body, or with an object the body of [Mr. M.], contrary to s. 152 of the Criminal Code . Count 3 [Mr.

M.], from the 1 st day of January, 2004 to the 30 th day of April, 2008, inclusive, at or near [T.], British Columbia, did, for a sexual purpose, invite, counsel or incite C. (L.) M., a person under the age of 14 years, to touch, directly or indirectly, with a part of her body, or with an object, the body of [Mr. M.], contrary to s. 152 of the Criminal Code . Count 4 [Mr.

M.], from the 1 st day of April, 2013 to the 30 th day of June, 2013, inclusive, at or near [C.L.], British Columbia, did, for a sexual purpose, invite, counsel or incite K.M., a person under the age of 16 years, to touch, directly or indirectly, with a part of her body, or with an object, the body of K.M., contrary to s. 152 of the Criminal Code . Count 5 [Mr.

M.], from the 1 st day of April, 2013 to the 30 th day of June, 2013, inclusive, at or near [C.L.], British Columbia, did, for a sexual purpose, invite, counsel or incite K.M., a person under the age of 16 years, to touch, directly or indirectly, with a part of her body, or with an object, the body of K.M., contrary to s. 152 of the Criminal Code . Count 6 [Mr. M.], from the 1 st day of April, 2013 to the 30 th day of June, 2013, inclusive, at or near [C.L.], British Columbia, did incite K.M., a person under the age of 16 years, to commit bestiality, contrary to s. 160(3) of the Criminal Code . [ 5 ] Mr.

M. is 78 years old. The complainants, C.M., C. (L.) M., and K.M., are Mr. M.‘s biological granddaughters. The complainants are now adults and the offences are alleged to have occurred when they were between four and 11 years old. At the time of trial, C.M., the eldest, was 25 years old, C. (L.) M. was 23 years old, and K.M. was about to turn 20 years old. C.M. works in the oil and gas industry.

At the time of trial, C. (L.) M. planned to complete her course studies to obtain a Bachelor of Commerce degree by spring 2023 and was also engaged in a two-and-a-half-year course to obtain a certified professional accounting degree. K.M. works as a water technician for the pipeline industry. What the Crown Must Prove [ 6 ] It is useful at this juncture to set out each of the essential elements of each of the offences charged against Mr. M. which the Crown must prove beyond a reasonable doubt.

Section 151 Criminal Code [ 7 ]

Section 151 of the Criminal Code is often referred to as the “sexual interference” offence and provides the following: s. 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. [ 8 ] In order to prove the offence of sexual interference, the Crown must establish beyond a reasonable doubt the following elements:

a) the identity of the accused;

b) the time and place of the commission of the alleged offence as set out in the indictment;

c) that the age of the complainant at the time of the alleged offence was under 16 years of age;

d) that the accused touched any part of the body of a child, directly or indirectly, with a part of the accused’s body or with an object (the actus reus of the offence);

e) the touching was intentional (the mens rea of the offence); and

f) the touching was for a “sexual purpose” (also part of the mens rea of the offence). [9] The actus reus of this offence covers a wide array of conduct, which can include both active and passive contact on the part ofthe accused. By way of example, the Manitoba Court of Appeal said in R. v. Sears, (MB CA), [1990] M.J. No. 296at para. 6: In reading this

section as a whole, it is clear that an accused who intends sexual interaction of any kind with a child and with that intentmakes contact with the body of a child "touches" the child and is guilty of an offence. The

section addresses not the instigator of thesexual conduct but rather the adult who for his or her own sexual purposes makes contact, whether as a primary actor or not, with thebody of a child. [10] The offence of touching for a sexual purpose under s. 151 is a crime of specific intent: R. v. Bone, (MB CA),[1993] M.J. No. 222 (C.A.) at para. 15. [11] While the phrase “for a sexual purpose” is not defined in s. 151 of the Criminal Code, courts in Canada have held that if thetouching was done for the sexual gratification of the accused (see paras. 12, 15 of R. v.

Colley, 2009 BCCA 289, leave to appeal ref’d[2009] S.C.C.A. No. 358) or for the purpose of violating the sexual integrity of the child (R. v. Morrisey, 2011 ABCA 150 at para. 21), itconstitutes touching “for a sexual purpose”. The “sexual purpose” may be proven by direct evidence, inferred from circumstantialevidence, or from the nature of the touching itself: Morrisey at para. 21. [12] Identity of the accused, Mr. M., and the age of the complainant, C.M., as she was under 16 years of age at the time of the allegedoffence, are not in issue.

Section 152 Criminal Code [13]

Section 152 of the Criminal Code is often referred to as the “invitation to sexual touching” offence: s. 152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly orindirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels orincites and the body of the person under the age of 16 years, (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimumpunishment of imprisonment for a term of one year; or

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years lessa day and to a minimum punishment of imprisonment for a term of 90 days. [14] In order to prove the offence, and in addition to identity, time and place, and that the child was under 16 years old, the Crownmust also establish beyond a reasonable doubt the following elements:

a) that the accused invited, counselled, or incited the child, verbally or non-verbally, to touch the accused, the child, or another person,directly or indirectly, with a part of the child’s body or with an object (the actus reus of the offence); and

b) that the accused intended that his words and actions would be received by the complainant as an invitation to touch, directly orindirectly, the body of a person, including himself or the complainant, or was highly reckless (i.e., held a conscious disregard) as towhether his words or actions would be received by the complainant as counselling or an invitation to touch a part of the body of anyperson, including himself or the complainant, and for a sexual purpose (the mens rea of the offence). See, R. v. T.L.P., 2015 BCSC 618 at paras. 15-16; R. v. Legare, 2008 ABCA 138 at paras. 40-41, 45-46, aff’d 2009 SCC 56. [15] Similar but not identical to s. 151, for a “sexual purpose” means:

a) the sexual gratification of the accused, the complainant, or another person; or

b) the violation of the complainant’s sexual integrity; or

c) the sexual domination of the complainant. See, T.L.P. at paras. 15-16. [16] Identity of the accused, Mr. M., and the ages of the complainants (each under 16 at the time the offences are alleged to haveoccurred) are also not in issue. [17] Proving the actus reus of this offence does not require proof of actual physical contact between body parts or an invitation to thateffect. [18] For example, in R. v. Fong, 1994 ABCA 267, leave to appeal ref’d [1994] S.C.C.A. No. 523, the Alberta Court of Appeal heldthat this

section covers not only actual touching but “indirect” touching and thus includes an invitation by the accused to the complainantto hold a tissue onto which the accused ejaculated: paras. 9-10. Specifically, the Alberta Court of Appeal said that the

section should be“construed purposively in a manner consistent with the philosophy and rationale underlying Parliament’s objectives” of “[preventing the]sexual exploitation of and interference with young children” and the “broad wording of the section”: para. 10.

[19] Proving the mens rea of the offence requires the Crown to establish that the accused “intentionally” or “knowingly” invited,counselled, or incited the child “for a sexual purpose”: Legare, at paras. 41-46. [20] An accused charged with an offence under s. 152 may also be found guilty where the Crown cannot prove express intent butwhere it can establish the accused had a conscious disregard of the unjustified and substantial risk that their conduct entailed, asdescribed by the Supreme Court of Canada in R. v.

Hamilton, 2005 SCC 47: 27 And it seems to me that the plain meaning of the terms used by Parliament to achieve this purpose point to a fault element thatcombines advertent conduct with a "conscious disregard of unjustified (and substantial) risk" that it entails: L. Alexander and K. D.Kessler, "Mens Rea and Inchoate Crimes" (1997), 87 J. Crim. L. & Criminology 1138, at p. 1175 (emphasis in original). 28 The "substantial and unjustified risk" standard of recklessness has venerable roots in Canada and in other common lawjurisdictions as well: see, for example, R. v.

Leary, (SCC), [1978] 1 S.C.R. 29 (S.C.C.) at p. 35 (Dickson J., as he thenwas, dissenting on other grounds); and, generally, M.L. Friedland and K. Roach, Criminal Law and Procedure: Cases and Materials (8thed. 1997), at pp. 508 ff, where Herbert Wechsler explains, at p. 510-11, why the American Law Institute required in its Model PenalCode that the risk consciously disregarded be both "substantial" and "unjustifiable". 29 In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminaloffence.

And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustifiedrisk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, orknowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely tobe committed as a result of the accused's conduct. [Emphasis in original] [21] In Legare, the Court discusses conscious disregard in the context of s. 152 as follows: [40] The mens rea required by s.152 includes the “substantial and unjustified risk” standard described by the Supreme Courtin Hamilton.

This test of “substantial and unjustified risk” applies logically to crimes of communication and advocacy. There is adifferent test for crimes requiring proof of specific intent as to consequences. Ordinarily, in cases of specific intent as to consequences,the Crown must prove that the accused intended the consequences or at least intended to do conduct that the accused knew wassubstantially certain to produce such consequences: R. v. Buzzanga and Durocher (1979), (ON CA), 25 O.R. (2d) 705,49 C.C.C. (2d) 369 (Ont. C.A.) at pp. 381 to 382 (C.C.C.), [1979] O.J. No. 4345 (QL); R. v.

Harding, (2001) (ONCA), 160 C.C.C. (3d) 225, [2001] O.J. No. 4953 (QL), leave denied [2002] S.C.C.A. No. 95 (S.C.C.). Parliament has not signalledthat the test in Buzzanga need be proven by the Crown in relation to an offence under s. 152.

To the contrary, the approach takenin Hamilton more fits the language of s. 152. [41] For s.152, the Crown must show that the accused knowingly communicated for a sexual purpose with a child under the age offourteen, and that the accused either intended that the child would receive that communication as being an invitation, incitement orcounselling to do the physical conduct s. 152 would avoid, or that the accused knew that there was a substantial and unjustified risk thatthe child would receive that communication as being an invitation, incitement or counselling to do that physical conduct.

The actusreus and mens rea must co-exist, so in that sense the mens rea must be present when the communication occurs. … [45] It is not necessary or appropriate to read into s. 152 of the Code a requirement that mens rea include present intentfor imminent sexual touching of the child by the adult, or of the adult by the child, or of the child on herself. It would appear that the trialjudge found no need of imminence in paragraph 23 of his reasons. I would agree with this.

There is no indication by Parliament of anytime limit on how soon after the communication it must be that the accused is anticipating to have the contact happen.

Present intent doesnot require present action. [46] Nonetheless, the mens rea required must involve knowing communication for a sexual purpose, and either present intent that thechild receive the communication as an invitation, incitement or counselling to do that physical conduct, or a present state of mind that theaccused knew the substantial and unjustified risk that the child would receive the communication as being an invitation, incitement orcounselling to do the physical conduct.

Parliament was presumably conscious of the fact that a process of inviting, counselling orinciting a child may take time and may take different communications of varying forms. From the evidence, a trier of fact may infer thatthe requisite mens rea is present even if that state of mind happens to be accompanied by a longer view as to when any physical conductmight occur or by imprecision as to what form it might take or as to who might be involved. [22] To “incite” means more than “passive acquiescence in sexual touching”.

The act of “incitement” requires some positive conductby the accused to cause the complainant to engage in sexual touching: R. v. Rhynes, 2004 PESCTD 30 at para. 21, leave to appeal ref’d2004 PESCAD 15. Section 160(3) Criminal Code [23]

Section 160 of the Criminal Code is often referred to as the “bestiality offence”; the relevant portion is set out below: s. 160.

(1) Every person who commits bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceedingten years or is guilty of an offence punishable on

summary conviction.

(2) Every person who compels another to commit bestiality is guilty of an indictable offence and is liable to imprisonment for a term notexceeding ten years or is guilty of an offence punishable on

summary conviction.

(3) Notwithstanding subsection (1), every person who, in the presence of a person under the age of 16 years, commits bestiality or whoincites a person under the age of 16 years to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term notexceeding ten years or is guilty of an offence punishable on

summary conviction. (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of six months. …

(7) Definition of bestiality – In this section, “bestiality” means any contact, for a sexual purpose, with an animal. [24] To prove the offence of bestiality under s. 160, and in addition to identity and time and place, the Crown must establish beyond areasonable doubt:

a) that the accused committed bestiality in the presence of a child under the age of 16 years or incited a child under the age of 16 yearsto commit bestiality; and

b) that the accused acted intentionally. [25] Identity of the accused, Mr. M., and the age of the complainant, K.M., are not in issue in this case. [26] The actus reus of the offence of bestiality requires the Crown to prove, under subsection 7, that the sexual act involved both aperson and an animal. The provision is broad, and includes “any contact, for a sexual purpose” (supplanting R. v. D.L.W., 2016 SCC 22,which held that penetration was an essential element of the offence). [27] Bestiality is a crime of general intent: R. v. Triller, [1980] B.C.J. No. 2373.

Because it is a crime of general intent, recklessness orwilful blindness can also establish the mens rea for the offence. The mens rea of the offence requires the Crown to prove a subjective“intention” to have any contact for a sexual purpose with an animal with the “knowledge” a child was present, or, a subjective“intention” to incite a child to have any contact for a sexual purpose with an animal.

Governing Legal Principles The presumption of innocence, burden of proof, and reasonable doubt [28] The presumption of innocence is a foundational principle in our criminal justice system and guarantees that an accused ispresumed innocent until the Crown has proven each and every element of the offence beyond a reasonable doubt. This burden lies on theCrown and should never shift onto the accused: R. v. Morin, (SCC), [1988] 2 S.C.R. 345 at paras. 14, 19, 40, 70; R. v.Arp, (SCC), [1998] 3 S.C.R. 339 at para. 73; R. v.

B.J., 2020 ONSC 2596 at para. 6; R. v C.J.H., 2023 BCSC 441 atpara. 15. [29] The reasonable doubt standard is a single, objective, and exacting standard of proof. It is based on reason and common sense, andnot on sympathy or prejudice: R. v. Lavallee, 2018 ABQB 458 at para. 12, aff’d 2020 ABCA 464. The standard of proof is very high. Itis not enough for me to believe that Mr. M. is probably guilty. Proof beyond a reasonable doubt is not proof to a certainty, although it ismuch closer to that than to the civil standard of proof on a balance of probabilities: R. v.

Lifchus, (SCC), [1997] 3S.C.R. 320 at paras. 14, 36-37; C.J.H. at para. 16; R. v. Mallay, [2021] 177 W.C.B. (2d) 16 (N.L.P.C.) at para. 4; R. v. Starr, 2000 SCC40 at paras. 231, 236. [30] This case involves, in large measure, my assessment of the credibility and reliability of the evidence. However, as stressed above,the burden of proof never shifts to the accused. Nor is the standard of proof resting on the Crown any less. [31] Not every individual piece of evidence requires proof beyond a reasonable doubt; it is the elements of the offence that are subjectto the criminal standard: Morin at para. 66; R. v.

J.M.H., 2011 SCC 45 at para. 31; C.J.H. at para. 17. [32] As the Ontario Court of Appeal points out in R. v. B.D., 2011 ONCA 51, and reiterated in C.J.H. at para. 17, the standard of proofbeyond a reasonable doubt is not to be applied piecemeal to individual terms or categories of evidence, unless it involves conflictingevidence on an essential element of the offence: [96] As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categoriesof evidence.

The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unlessthat fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflictingevidence is presented to the jury on an essential element and the jury is required to make credibility findings with respect to thatconflicting evidence. [33] Since Mr. M. gave evidence in this case, it is essential that I consider the principles in R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742. A useful

summary is found in the reasons of the Court of Appeal in R. v. Tyers, 2015 BCCA 507, a case involvingsexual assault: [12] The Supreme Court of Canada established a framework in W.(D.) to assist the trier of fact to properly apply the reasonable doubtstandard on the whole of the evidence to the issue of credibility. Following the framework assists the trier of fact to avoid deciding a

case by simply choosing between the Crown or defence version of events: R. v. Vuradin, 2013 SCC 38 at para. 21. [13] The W.(D.) three-step analysis involves consideration of the following three questions: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. W.(D.) at 758. [14] To this analysis is added a fourth step: “if … you are unable to decide whom to believe, you must acquit”: R. v. C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) at 155. [15] These steps do not need to be followed religiously. W.(D.) does not dictate a “specific form or sequence of analysis”.

Further, inassessing the judge’s analysis of W.(D.), it is necessary to read the reasons for judgment as a whole: R. v. Mann, 2010 BCCA 569 atparas. 31-32. The order in which a judge makes credibility findings is “inconsequential” so long as the judge remains focused on theprinciple of reasonable doubt as the central consideration: Vuradin at para. 21. As Mr.

Justice Chiasson stated in Mann at para. 31, whatmatters is that: [a]t the end of the day, this Court must be satisfied that the analysis was done and that there was no compromise of the burden of proofthat remains throughout on the Crown. [34] Cases involving sexual offences often involve evidence where the complainant and the accused are the only witnesses to thealleged offence. It is essential that the accused is not found guilty because the trier of fact concludes the complainant’s version of eventsis more likely to be true: R v.

E.A.G., 2020 BCSC 1691 at para. 183. [35] This extract from the reasons of the Court of Appeal in R. v. Pangan (1996), 85 B.C.A.C. 54, , explains whythe trial is not a credibility contest between the complainants and the accused: [40] It is important to examine what we mean when we say that “a trial is not a credibility contest” because in some ways thatstatement can be misleading. The jury has two functions – to weigh the evidence for the purpose of reaching conclusions of fact, and, toapply the law to the facts that they find.

When the jury engages in the first function – weighing the evidence – a trial is, in a sense, a“credibility contest”. In a case such as this where the accused and the complainant give opposing versions of what occurred, the jurymust try to determine who and what to believe, and, who and what not to believe. The jury cannot convict unless it accepts the evidenceof the complainant as true, and rejects the evidence of the accused as untrue. The vital point is that the jury must not be left with theimpression that they have no choice but to pick one version of events over another.

The members of the jury are entitled to reach theconclusion that the issue of credibility cannot be resolved. Once the members of the jury have reached whatever conclusions they chooseto draw from the evidence they must then apply the law to their findings of fact or their lack of findings, as the case may be. It is herethat they must apply the law as expressed in [W.D.]. [36] Thus, from those remarks, and others like it in cases such as Morin at para. 28; R. v. B.J., 2023 BCCA 166 at para. 57 [B.J.BCCA]; T.L.P. at para. 24, R. v. O.M., 2014 ONCA 503 at para. 42; and R. v.

R.D., 2016 ONCA 574 at para. 16, and as Justice Kerpoints out in R. v. T.A.P., 2022 BCSC 2356 (excerpted below), where credibility is a key issue, as it is in this case, the evidence of theaccused must not be weighed against the evidence of the complainants. The finding of guilt or innocence is based on the application ofthe law to the findings of fact, or lack thereof, from the whole of the evidence: [17] The finding of guilt or innocence is based on the whole of the evidence.

In a case such as this – where credibility is the primaryissue – I must not weigh the evidence of the accused against the evidence of the complainants. A finding that the complainant is tellingthe truth, or a finding that the accused is not telling the truth, does not equate to a finding of guilt. Thus, the trier of fact cannot engage ina simple credibility contest between the complainants and the accused.

To resolve the outcome of a criminal trial simply by acceptingone version of events over another is inconsistent with the presumption of innocence and the requisite standard of proof. [18] To summarize Justice Cory’s findings in R. v. W. (D.) [citations omitted], if I believe the evidence of T.A.P., I must acquit, if I donot believe the evidence of T.A.P., I must still consider whether his evidence raises a reasonable doubt and, if it does, I must acquit. I addparenthetically that I do not, of course, consider his evidence in a vacuum, but in the context of the evidence as a whole.

Further, even ifT.A.P.’s evidence does not raise a reasonable doubt, I must still consider whether, on the whole of the evidence, the Crown has proved itscase beyond a reasonable doubt: W.(D.) at para. 11. … [23] What I cannot do in my role as trier of fact is assume I must choose to believe one witness over the other: Jeng at para. 37. Ajudge must not compare differing versions of events and select the one the judge prefers: R. v.

C.L.Y., 2008 SCC 2 at paras. 27-33. [24] Thus, I remind myself that when the accused and the complainants testify and provide conflicting evidence, the determination ofguilt or innocence does not devolve into a credibility contest: R. v. J.H.S., 2008 SCC 30 at paras. 9, 13. [37] In B.J. BCCA, the Court of Appeal considered whether the decision of the Alberta Court of Appeal in R. v. Ryon, 2019 ABCA 36,adds an additional element to the W.(D.) analysis.

Justice Voith noted at para. 64 that the Alberta Court of Appeal “ultimately proposedthat the three prong W.(D.) instruction be modified: at para. 48.” After remarking on the court’s repeated use of the words “exculpatoryevidence” in Ryon, Voith J.A. pointed out that the analysis must extend beyond the accused’s evidence to consider all exculpatoryevidence:

[69] Thus, read carefully, Ryon confirms that it is necessary for the trier of fact to consider all of the “exculpatory” evidence beforethem. The emphasis on “exculpatory” evidence flows from the recognition that at each stage of the W.(D.) framework the court isconcerned with evidence that is inconsistent with guilt. This is explained in a recent

article authored by Justice Paciocco (writingextrajudicially), and again relied on by trial counsel for the appellant before the judge, entitled “Doubt about Doubt: Coping with R. v.W.(D.) and Credibility Assessment” (2017) 22:1 Can. Crim. L. Rev. 31. [38] However, in his concluding remarks on the point, Voith J. said that Ryon did not change the W.(D.) analysis: [72] Thus, both Ryon and Justice Paciocco, in his article, explain what constitutes “exculpatory” evidence for the purposes of the W.(D.) framework.

However, none of Ryon, the cases that have followed it, or Justice Paciocco cast any doubt on Morin or W.(D.), broadlyspeaking. In R. v. Demirovic, 2021 BCCA 429, this Court said: [45] In Ryon, the Alberta Court of Appeal held that the exact wording in W.(D.) was misleading. In particular, the Court suggested thejury instruction should make it clear that when assessing exculpatory evidence the jury has three choices: it may accept the evidence; itmay reject the evidence; or it may be unsure whether the evidence is true or false.

The Court suggested a reworked W.(D.) instruction. … [48] In my view, the suggested reformulation of the W.(D.) instruction in Ryon has not changed the message in W.(D.), bearing inmind there is no ritualistic formula to explain the concept of reasonable doubt in the context a particular case. In any event, theinstruction in this case is not inconsistent with the Ryon reformulation. The judge set out where the burden of proof lay; he told the jury itmust acquit Ms. Demirovic if it believes her evidence or is unsure of whom to believe; and he clarified that the jury can only findMs.

Demirovic guilty if the evidence it accepts proves Ms. Demirovic’s guilt beyond a reasonable doubt, not simply by rejecting herevidence. Each of these is an essential aspect of the Ryon reformulation. [Emphasis in original] [39] Thus, all exculpatory evidence adduced at trial must be considered. I am not required to examine the evidence in any particularorder, but must consider the instruction provided from W.(D.): R. v. Turmel, 2004 BCCA 555 at para. 14; C.J.H. at para. 25. Credibility and Reliability [40] The principles of assessing credibility are summarized in Bradshaw v.

Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally…Ultimately, the validity of the evidence depends on whether the evidence is consistent withthe probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [41] In T.A.P., Justice Ker points out that assessing the credibility of witnesses is an intricate process: [36] Assessing the credibility of witnesses is an intricate process, involving simultaneous weighing of a multitude of factors.

One ofthe most important factors remains the assessment of whether the testimony seems plausible in terms of the inherent likelihood thatevents occurred as the witness described them. Therefore, included in this exercise is a measure of common sense and judicialexperience. [37] The trier of fact will inevitably consider the extent to which a particular witnesses’ evidence accords with other factual findingswhich either are not in dispute or are compelled by other evidence expected or considered reliable by the court.

The order in which awitnesses’ credibility is evaluated is not important, so long as proof beyond a reasonable doubt remains at the centre of the process: R. v.Vuradin, 2013 SCC 38 at para. 21; R. v. Gerrard, 2022 SCC 13 at para. 2. [42] At paras. 39-46, Ker J. outlines various factors that are used in assessing credibility of witnesses, including but not limited to thefollowing:

a) the demeanour of the witness, with the added caveat that findings of credibility should not be made on demeanour alone becausewitnesses come from different socio-cultural backgrounds which may cause them to react differently when giving testimony (see also, R.v. J.T., 2019 BCCA 180 at para. 31; R. v. A.F., 2021 BCSC 2662 at para. 14);

b) whether the evidence of the witness makes sense within the context of all the evidence (see also Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152 at para. 10 (C.A.));

c) internal consistency of the testimony;

d) prior inconsistencies; and

e) interest in the outcome and motive to fabricate; however, the court must not equate the mere absence of evidence that a complainanthas a motive to fabricate evidence with a proven absence of motive; the onus is on the Crown to prove an absence of motive to fabricate,which is a high bar, and it is always the case that the absence of evidence of motive to fabricate or a proven absence of motive does notconclusively establish that the complainant is telling the truth (see also, R. v. Swain, 2021 BCCA 207 at paras. 31-33, cited in T.A.P. at

para. 44). [43] Reliability, on the other hand, concerns the accuracy of the witness’ testimony and involves concepts such as the ability toaccurately observe, recall, and recount the events at issue. A witness who is credible may still be unreliable: R. v. Plehanov, 2019 BCCA462 at para. 51; Celones v. Chandra, 2023 BCSC 38 at para. 112; R. v.

H.C., 2009 ONCA 56 at para. 41. [44] The rule requiring corroboration in sexual offences was abolished on January 1, 1988, by virtue of s. 274 of the Criminal Code.Thus, it is possible to convict the accused on the evidence of a complainant alone, however, the assessment of credibility takes onsignificance: T.A.P. at para. 27. [45] As I have pointed out, I must be vigilant that my analysis does not turn into a “credibility contest”. Even if I find that thecomplainants’ version of events is more believable than Mr.

M.’s, I must still address the evidence as a whole to determine whether itraises a reasonable doubt as to Mr. M.’s guilt. If there is reasonable doubt, then Mr. M. must be acquitted: C.J.H. at para. 26. [46] R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122 is a leading case in which the Supreme Court of Canada discussed howto assess the evidence of witnesses who testify to abuse in relation to their age: [27] It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to"adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. [47] Although all three complainants in the case at bar are now adults, their evidence pertaining to what occurred in childhood shouldbe considered within the context of their ages at that time: W. (R.) at para. 134; R. v. Kush, 2021 BCSC 175 at para. 75; C.J.H. at para.33.

However, this does not mean that I am entitled to assess the entirety of the evidence as if the complainants are testifying as children:R. v. M. (A.), 2014 ONCA 769 at para. 25. A “solid foundation” in the evidence is required for a verdict of guilt, whether thecomplainant is an adult or a child; the burden on the Crown to prove the essential elements of each offence is not lessened and theevidence must continue to be carefully assessed to guard against a wrongful conviction: C.J.H. at para. 35; R. v. A.F., 2021 BCSC 2662at para. 26. A useful

summary of the overall approach is found in this excerpt from the reasons in W. (R.): [26] It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to"adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. [48] Nonetheless, and as Justice Hughes said in C.J.H. at para. 35, “[W]hile children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it: R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30 at 54-55.” [49] In R. v. D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275, the Supreme Court of Canada said that a delay in disclosure, on itsown, “will never give rise to an adverse inference against the credibility of the complainant.” The Court also held that “there is noinviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint,some will delay in disclosing the abuse, while some will never disclose the abuse.

Reasons for delay are many and at least includeembarrassment, fear, guilt, or a lack of understanding and knowledge”: para. 65. [50] Factual findings and credibility assessments must be context-specific and grounded in the case-specific evidence. Stereotypicalbehavioural generalisations should not be used: R. v. Campbell, 2023 BCCA 19 at para. 49. I must guard against impermissiblereasoning, such as credibility findings grounded in emotional evaluation, stereotypes, or guesswork: C.J.H. at para. 30.

This includesstereotypes about how a victim of abuse might or might not react, and conversely, it also includes stereotypes that improperly reverse thepresumption of innocence. Inferences must be tethered to the evidence: R. v. A.R.J.D., 2018 SCC 6 at para. 2; T.A.P. at paras. 64-66, 68,71-77, 81-87; C.J.H. at para. 32. [51] In T.A.P., Ker J. addresses circumstances where the accused’s evidence consists of a bare denial of allegations. Citing R. v.Garford, 2021 ABCA 338, R. v. Redden, 2021 BCCA 230, and R. v.

D.E., 2022 SKQB 58, she said at paras. 49-51 that the accused’sevidence of a bare or simple denial that they committed the offence must not be assessed in isolation but the context of the evidence as awhole as part of the court’s determination of whether the Crown has met its burden to prove the essential elements beyond a reasonabledoubt. [52] I have approached the assessment of credibility and reliability of the evidence and my findings of fact with all of these legal andevidentiary principles in mind. Witnesses

[ 53 ] Seven witnesses in all were called to give evidence. The Crown called the complainants, their mother, N.M., and a police officer to explain his involvement in the circumstances surrounding the report to the police. The defence called Mr. M. and his daughter, D.M. [ 54 ] The police officer’s evidence was brief, was not controversial in any respect, was not challenged in any respect by the defence, and did not add or detract from the credibility and reliability of the evidence of the other witnesses. [ 55 ] Mr. M. suggested in cross-examination that there was collusion amongst the complainants.

His suggestion was in the nature of speculation as it was not based on any personal knowledge or evidence adduced at trial. With respect to K.M. in particular, he suggested that her account of events was a possible attempt to emulate her older sisters’ disclosures and also possibly due to what he suggested was her embarrassment over an incident in his motor home involving K.M. and himself that concerns count 4 and count 6 (I discuss the incident in a later

section of these reasons). [ 56 ] Although D.M. testified about her discussions with N.M. immediately following the complainants’ disclosures to their mother, nothing about D.M.’s evidence supported, directly or indirectly, any suggestion of collusion or concoction. [ 57 ] Nor was any aspect of concoction or collusion put to the complainants in cross-examination. [ 58 ] However, in view of Mr.

M.’s suggestion of collusion, I view it appropriate to set out my findings of the background facts concerning each complainant’s disclosure and the discussions between N.M. and D.M. as part of my analysis of the whole of the evidence adduced at trial. Background [ 59 ] The first report of an offence was made by C.M. in November 2019, when she sent an image of a handwritten letter she had written by text to her mother, N.M., reporting that her grandfather had engaged in sexually inappropriate conduct towards her.

After sending the text with that image, C.M. testified that that she ripped up the letter and threw it in the garbage. The provenance of the image of the letter sent by text, marked as an exhibit at trial, was not challenged. C.M. was not living with her mother at the time (her father passed away in a tragic plane crash in 2016), as she was working in the oil fields. [ 60 ] C.M. testified that she sent the letter because she could no longer live with what had occurred.

She had repressed her anger and frustration for years, suffering from depression, but on seeing her grandparents at her mother’s recent surprise 50th birthday party, she said in answer to the question, “What was it that prompted you to do that?”: A Seeing them recently just had brought it back up and it just had been eating away at me for so long and it was a lot of weight on my shoulders and I felt like it was just a lot for me to handle and I couldn’t take holding it in any more and not saying anything and just getting depressed and anxiety from all of it all of the time. [ 61 ] Upon receiving that letter by text, N.M. spoke with C.M. by telephone, and learned that Mr.

M. had engaged in inappropriate sexual conduct with C.M. [ 62 ] N.M. testified that C.M. told her that Mr. M. exposed himself to her and told her to “do things” while speaking with her but never touched her; otherwise C.M. did not provide N.M. with any further details. Nor did N.M. press for them as she decided she would let her daughter discuss them when she was ready to. Upset by what she had just learned, N.M spoke with her other two daughters, and asked them if their grandfather had ever done anything to them.

At that point, C. (L.) M. and K.M., each separately from the other – C. (L.) M. by telephone, and K.M. in person (after K.M. finished work later that evening) – told their mother that he had, when they were young children. Like C.M., they did not tell her specifically what occurred, only that Mr. M. had engaged in inappropriate sexualized conduct in front of them but had not touched them. N.M. did not press them for details. [ 63 ] N.M. said she called D.M. after speaking with C.M. to tell her what she had just learned and asked her to meet her en route as she drove to Mr. M.’s home to confront him.

N.M. said that D.M. agreed but when they met at an arranged meeting point, N.M. learned that D.M. did not want to go with her and wished her well. N.M. carried on, and before speaking with K.M., N.M. drove to her in-laws’ home, confronted Mr. M., told him what she had learned, and told him to stay away from her family. N.M. testified that Mr. M. denied that he had engaged in sexualized behaviour with C.M. but admitted he was drunk on the day of an incident involving a crash of a quad vehicle while C.M. was riding as a passenger (discussed in a subsequent

section concerning C.M.’s evidence). [ 64 ] N.M. then contacted the police a few days later. A police investigation ensued, followed by the charges against Mr. M. [ 65 ] Up until that point, N.M. and her family and Mr. M. and his spouse had been a close-knit family, although less so after N.M.’s husband died in 2016. [ 66 ] D.M. corroborated much but not all of N.M.’s account of their discussions that day.

D.M. described N.M. as highly distraught (D.M. described N.M. as “screaming” and “hysterical” during their initial phone call, to the extent that D.M. initially had trouble understanding what N.M. was saying) and that she, D.M., did her best to try to comfort her, “mostly trying to listen to her,” since, D.M. said, she had gone through “something similar” with her own daughter about a year-and-a-half earlier. D.M. testified that she was empathic towards N.M. and tried to “validate” N.M.’s frustration. D.M. did not try to dissuade N.M. from going to Mr.

M.’s home and instead, she said, only asked N.M. “not to touch him”. D.M. said that when she met up with N.M. that day, both she and N.M. were crying and hugging each other “as mothers”. [ 67 ] D.M. testified that she has no “first-hand” knowledge of any incidents involving sexually inappropriate behaviour between her father and her children (and said she never suspected it) and does not know, and has made it clear that she does not wish to know, any of the details concerning the charges against her father. She said all she could do was speak to her experience and what she understood of her children’s experience.

[ 68 ] Some of the evidence adduced from N.M. and D.M. constituted inadmissible hearsay. For N.M., it concerned her discussions with D.M.’s older sister and a discussion N.M. had with her husband. For D.M., the defence conceded D.M.’s brief evidence it led in her evidence-in-chief about a recent discussion she had with her now adult children was inadmissible hearsay. I have disabused myself of all of such evidence and have not considered any of it in reaching my determination of the charges against Mr.

M. [ 69 ] There were some differences in the accounts given by N.M. and D.M. of the words each used during their discussions over that day (including whether D.M. said anything to cause N.M. to believe that D.M. suspected Mr. M. of having engaged in sexually inappropriate behaviour in the past), the specific sequence of some of their discussions, and whether D.M. had agreed to meet N.M. en route or whether they met after N.M. left Mr. M.’s home, none of which I found surprising or to detract from their evidence given their current recollections of the highly emotional nature of their interactions that day.

What I find from their evidence is that: (

a) N.M. called D.M. in extreme dismay at what she had just learned; (

b) N.M. told D.M. about the letter she received from C.M. and that Mr. M. had “molested” C.M. by exposing himself to her; (

c) N.M. told D.M. she was driving to Mr. M.’s house to confront him and later, told D.M. that when she got to Mr. M.’s home, she told Mr. M. about C.M.’s letter, told him she knew what had happened, yelled at him and left; and (

d) D.M. tried to comfort and calm N.M. and, as D.M. said in her evidence, “validate” N.M.’s concerns during their conversations as best she could. [ 70 ] The evidence of the complainants and N.M. in respect of the circumstances leading up to the report to the police was clear, forthright, consistent, and not challenged by the defence. I found their accounts, in these respects, both credible and reliable.

I did not find the differences in the account of the interaction between N.M. and D.M. in the highly charged, emotional circumstances immediately following the initial disclosure to N.M. by her eldest daughter, the complainant, C.M., to affect my assessment that N.M. and D.M. were each endeavouring to provide what they perceived to be truthful evidence to the best of their recollection. [ 71 ] The evidence of N.M. and D.M. corroborates the evidence of the complainants that their family had a close relationship with Mr. M. and his wife. In particular, N.M.’s evidence confirmed that her family and Mr.

M. and his wife lived close to each other for significant periods and participated in many activities together. In other words, N.M.’s evidence confirmed that there were opportunities for the incidents described by each complainant in their evidence to have occurred. [ 72 ] Other than N.M.’s evidence that Mr. M. said he was drunk on the day of the quadding incident, neither N.M. nor D.M. gave evidence of any admissions against interest made by Mr. M.

In terms of the complainants, N.M. testified that shortly after the quadding incident, and following a brief discussion she had with D.M. (which D.M. was not asked about in her evidence; nor was N.M.’s evidence about that conversation challenged), she asked C.M. if Mr. M. had ever done anything to her or touched her, to which N.M. testified that C.M. said no (my assessment of C.M.’s response is discussed in a subsequent

section of these reasons). [ 73 ] All of that said, the evidence of N.M. and D.M. does not otherwise impact my assessment of the credibility and reliability of the evidence of Mr. M. and the complainants. N.M. and D.M. were not witnesses to or have any personal knowledge (beyond hearsay) concerning any specific incident involving Mr. M. described by each complainant. [ 74 ] As mentioned above, identification and age are not in issue. Each complainant readily identified Mr.

M. as the individual who they testified engaged in uninvited and inappropriate sexualized conduct with or towards them when they were each under 16 years old. The Complainants’ Accounts [ 75 ] In this section, I set out each complainant’s separate account of the incidents giving rise to each of the charges against Mr. M. [ 76 ] Before I do, I wish to emphasize that in setting out their evidence, I am not, at this juncture, intending to make specific findings concerning the essential elements of each offence. My assessment of the evidence of the complainants and of Mr.

M., and my findings in respect of the essential elements are set out in subsequent sections. The Charges Concerning C.M. [ 77 ] Counts 1 and 2 concern C.M. They arise from three alleged incidents involving Mr. M. that C.M. described in her evidence. The first two incidents concern count 1 and the third incident relates to count 2. First Incident [ 78 ] C.M. testified the first incident occurred around 2006, when she was 9 years old and in grade 4. As she had done in the past, C.M. rode her pedal bike to her grandparents’ home, which was close by where she lived with her parents. Mr.

M. and his wife were the sole occupants of their home, which was a “single wide”, pink-coloured residence (Mr. M. described his various residences as trailers sitting on lots that he owned; I will refer to them as a “mobile home”). She walked up the deck to the front door. No one was inside. From her vantage point on the deck, C.M. could see out to the wooden shed in the backyard. The large door (big enough to allow easy access for a quad to be stored inside the shed) to the shed was open, and she could see Mr. M. moving about, working on his quad sports vehicle.

She walked through a gate, to the backyard and to the shed, and walked into the shed as she watched her grandfather moving tools around while working on the quad. [ 79 ] Mr. M. asked C.M. what she was doing and from there, C.M. described a normal, casual conversation ensued that lasted for a few minutes. At that point, Mr. M. started touching himself over the top of his pants and then began rubbing his hand on top of his pants over his genital area. She testified that this lasted for a couple of minutes before Mr. M. undid his pants. She could not remember if he was wearing underwear.

He unclipped the top of his pants (she described them as a combination of a dress pant and a sweat pant), lowered the zipper, pulled his pants down partway (C.M. said a couple of inches), and exposed his penis in front of C.M. who was standing near the shed’s entrance way, approximately a couple of child’s arm lengths away from Mr. M. She could not recall how much of his penis was exposed. C.M. could see the tip of Mr. M.’s penis as he was holding it. She did not know if it was erect or flaccid, stating that she

was not focused on that. Mr. M. then started masturbating in front of her, as he was facing his granddaughter, rubbing his hand up and down his penis. As he did, Mr. M. tried to engage C.M. in casual conversation. She testified she was trying to look away but her grandfather kept talking to her, nothing sexual in nature, just general questions, such as asking how her parents were. [ 80 ] C.M. felt very uncomfortable. She told her grandfather she should not be there, and tried to make excuses to leave, saying at one point that her parents must be wondering where she is. While Mr.

M. was masturbating, he asked C.M. if they should go for a quad ride instead of her leaving, to which she told him, “no, I have to go”. C.M. then ran out of the shed (as Mr. M. continued masturbating), through the backyard to her pedal bike, and rode home. In cross-examination, she said she thought the “whole event” took no more than ten minutes. Second Incident [ 81 ] C.M. testified that the second incident occurred a couple of months later, on a weekend, at her grandparents’ home (the same mobile home where the first incident occurred).

It was close to the end of C.M.’s school year and followed closely after a school class trip. She rode to her grandparents’ home on her pedal bike expecting to see both at home. She knocked on the front door and Mr. M. told her to come inside. Her grandmother was not home. C.M. recalls it being during lunch time or the very early part of the afternoon. Mr. M. was cooking fish in the kitchen. She remembers the “disgusting” smell of the fish as it was being cooked. She declined her grandfather’s offer to eat some of the fish due to the smell. After he finished cooking the fish, Mr.

M. told C.M. he wanted to show her something and said to follow him to his bedroom. [ 82 ] The two of them walked down the hallway of Mr. M.’s mobile home into the bedroom. When they got into the bedroom, C.M. sat on the bed. She saw Mr. M. put something into the television, either a VHS tape or DVD, and saw him fast forwarding the video (she saw images moving quickly on the screen). Mr. M. stopped it at a certain point to play that part of a pornographic video showing two people having sex. Mr.

M. then left the bedroom and shut the door behind him while the video was playing. [ 83 ] Alone in the bedroom, C.M. hid under the bed covers for five or ten minutes and covered her ears. She said she was scared to leave because she did not know what her grandfather would do if she left right away. C.M. waited for about ten minutes before leaving the bedroom (while the video was still playing). She testified that as soon as she walked through the bedroom door, she could see, from the opening to the bedroom door, directly into the kitchen and see the kitchen table. C.M. saw Mr.

M. sitting on a chair at the kitchen table, facing the kitchen, with the table to his right side, such that C.M. had an unobstructed view of his left side. Mr. M.’s dark navy- blue pants (same type she said he wore during the first incident in the shed) were pulled down a few inches below his waist, around his thighs, with his penis exposed. He was holding his penis with his hand, masturbating. C.M. believes his penis was erect because he was holding it with one hand. She does not know if Mr. M. was wearing underwear.

She said there was a bottle of lotion sitting on the table. [ 84 ] C.M. walked down the hallway to the living room to the living room couch. The kitchen adjoined the living room and was in plain view as there are no walls separating the two rooms. The only way to get the living room was to walk directly past Mr. M. As she did, Mr. M. said to her, “now you know what to do, so you can do it”. At other points in her evidence, she said Mr. M. said, “now you know what to do, you can do it for me.” C.M. said, “no”. She walked to the living room and sat on the couch. Mr.

M. continued to masturbate while C.M. sat on the couch in the living room and tried to concentrate on the television (which was on, tuned to a news network). She avoided eye contact as best she could, all while her grandfather was talking to her, asking her questions, including whether she had ever seen anyone else’s penis before (including her father’s), to which she said “no”. When Mr. M. finished, he stood up, pulled his pants back up, and began to walk around near the kitchen counters. C.M. thinks approximately ten minutes elapsed from the time she left the bedroom to the point when Mr. M. finished.

Thinking of an excuse to tell him why she had to leave, C.M. told her grandfather she needed to go home, and left. She said did not leave before then as she was scared of what her grandfather might do if she left while he was masturbating, particularly since she would have to walk past him to get to the door leading outside. Third Incident [ 85 ] According to C.M., the third incident occurred in the spring of the following year, when she was on a family quadding/camping trip with her family and members of her extended family, including Mr. M. and his wife. She was, or was close to, ten years old at the time.

C.M. recalls it was late spring, although she remembers there was still some snow on the ground. [ 86 ] During the multi-day family event, C.M. and the other children took turns riding on quads (four or five in total) with different adults. C.M. was well used to riding on quads and had no fear of them, a fact she said was known to Mr. M. [ 87 ] At one point during the day, C.M. went on the vehicle being driven by Mr. M. She sat on the back seat. After riding for a short while, approximately 15 to 20 minutes, while Mr.

M. was driving at what C.M. said was a “medium to slow speed” on trails and in riverbeds (she estimated 10 to 15 km/h), the quad in front sped away from them. She said she clearly remembers Mr. M. reached his left arm and left hand around, touched C.M.’s left hand, and tried to pull it away from the side rail she was holding onto, towards his waist and upper thigh near his genital area. It appeared to C.M. that he was trying to pull her hand to put it on top of his pants over his genital area. She pulled her hand away from him each time he tried.

She said this happened a couple of times, and each time he pulled her hand away as it was holding on to the railing. At one point, her hand came into contact with Mr. M.’s pants. [ 88 ] Her grandfather then pulled over, off to the side of the trail in the riverbed, stopped the quad, turned around (a three-quarter turn) to face C.M., and reached over to pull C.M.’s hand away from the rail she was holding towards him, and said to C.M. that she could hold on to him while he was driving, to which she said she did not want to. C.M. does not believe that her grandfather’s hand made contact with hers at that time.

She said the area they were riding in at the time was a riverbed and not rough terrain. While this was happening, C.M.’s aunt, D.M., who is, as I have mentioned, Mr. M.’s daughter, drove up beside them. As soon as she did, Mr. M. stopped, turned around, and drove away. A short time later, Mr. M. and the rest of the group met up, at which point C.M. changed quads to ride with someone else. There was no contact between C.M.’s hand and Mr. M.’s genital area.

D.M. was not asked about nor did she give any evidence concerning C.M.’s testimony. [ 89 ] C.M. said she did not fall off the quad at any time; nor did she ever have a discussion with Mr. M. about falling off of the quad.

[ 90 ] Later that day, closer to the evening, C.M. found herself on a different sports vehicle, called a “side-by-side”, with Mr. M. She said he was drunk (she had observed her grandfather drinking throughout the day and immediately before this incident), and he was laughing continuously as he was driving. He was speeding, driving recklessly given the terrain. C.M. was scared and could hear her parents, who were racing towards him in another quad, yelling and screaming at Mr. M. to stop. Mr. M. lost control, crashed his quad, and was ejected from it. C.M. was trapped underneath the front dash and she blacked out.

Her next memory is of her mother pulling her out of the side-by-side. Fortunately, she had no broken bones. Coincidentally, a medically trained person was near the area and examined C.M. and determined that she likely suffered from a concussion as well an indentation to part of her forehead caused by her sunglasses hitting her head during the crash. C.M.’s parents were encouraged to have their daughter medically assessed, which they did. The Charges Concerning C. (L.) M. [ 91 ] Count 3 concerns C. (L.) M. and arises from two alleged incidents.

First Incident [ 92 ] C. (L.) M. testified that the first incident occurred at Mr. M.’s mobile home in the Fort St. John area. She was about four years old. She cannot remember why she was at her grandparents’ home that day or where her parents were. She remembers staying at her grandparents’ homes from time to time when she was not well.

She does not know if anyone else was in the house when the incident occurred but testified that she did not see anyone inside. [ 93 ] C. (L.) M. walked into house from the outside and into the living room, and saw her grandfather, who had just come out of the shower (his hair, she said, was wet and styled as if he had just come out of the shower), wearing a robe and sitting on the living room couch, with his feet on the floor, slightly spread apart. She remembered the robe being light brown in colour and made of a “fuzzy terrycloth material”. When she first walked into the living room she saw Mr.

M. reaching under his robe, then pull his robe back, and begin rubbing his penis in an “up-and-down motion”. As she stood at the opposite side of the room a few feet away from him, near the coffee table, with her back to the kitchen, and as she was asking Mr. M. something, and as she saw his hand on his penis stroking it, she said Mr. M. pulled his robe back from his leg and asked her to come closer and touch his penis. He asked her if she knew what it was.

From where she was standing on the far side of the coffee table, she could see his bare legs fully exposed (and he was not wearing any clothing under his robe that she could see). C. (L.) M. remembers just saying “no”, walking away, and going outside to the yard. [ 94 ] Although C. (L.) M. did not know at that time what it meant, she remembers seeing his penis was hard. Mr. M. asked her to come closer, to come and feel it, and asked her if she knew what it was. C. (L.) M. thinks the elapsed time from first seeing her grandfather rubbing his penis to her walking away was approximately one minute.

Second Incident [ 95 ] C. (L.) M. testified that the second incident occurred approximately three or four years later, in the spring or summer (she recalls it being warm outside) when she was seven or eight years old and in grade 3, after her grandparents moved to another mobile home in Fort St. John.

She recalls it occurred some time after her seventh birthday party that took place at her grandparents’ home (her birthday is in January and C. (L.) M. recalls having her friends over for a tobogganing birthday party because there was a large hill in her grandparents’ backyard that was ideal for tobogganing). [ 96 ] On the day the second incident occurred, C. (L.) M. said she was with her family, who were all outside at the time getting ready for a camping trip. C. (L.) M. was speaking with her grandmother and saw Mr. M. walk into his home (it was a different mobile home at this time). Shortly after Mr.

M. did, C. (L.) M. followed to see if he needed any help. She saw Mr. M. standing in his bedroom, facing the television. She stood at the door to the bedroom and asked him what he was doing. Mr. M. told C. (L.) M. he was getting a video ready for the camping trip and rewinding it (she does not know if the video was a VHS tape or DVD). C. (L.) M. saw her grandfather holding a remote-control device in his hand and using it to rewind the video. Mr. M. told her to come into the bedroom to look at what was on the television screen.

She walked in, turned to look at the screen, and saw a pornographic video playing on the television, showing a female performing oral sex on a male. C. (L.) M. looked down, and as she moved to walk away, Mr. M. held her shoulder to stop her from leaving the room and told her to look at the video. He held her shoulder until she looked at the video. C. (L.) M. looked at the screen for a moment, then looked down because she did not want to watch it, and remembers as she was trying to pull herself away from her grandfather’s hold on her, Mr. M. laughed “a little bit” at her and asked her if she liked the video.

She eventually freed herself, left the bedroom, and went outside. The Charges Concerning K.M. [ 97 ] Counts 4, 5, and 6 concern K.M. and arise from two separate incidents. The First Incident [ 98 ] K.M. testified that the first incident, relating to counts 4 and 6, occurred in late spring when she was in grade 5 and either 10 or 11 years old. She was with Mr. M., checking on the well-being of K.M.’s family’s pregnant horse, whose name she said was “Princess”, who was in the midst of foaling. Although she cannot recall the reason why, K.M. specifically remembers walking into her grandfather’s motor home (Mr.

M. referred to it as a “motor home” as opposed to a mobile home/trailer, and for convenience, I will do so as well) which was parked in front of the shop located at her parents’ home. She walked into the motor home with Mr. M. Once inside, K.M. walked over to and sat on a love-seat style couch facing the entrance door. K.M. testified that Mr. M. sat down on a reclining chair close by, three to four, possibly five feet away and across from the couch. While he was sitting, Mr. M. asked K.M., repetitively, to take her pants off, telling her, “You should take your pants off”, without telling her why.

She ultimately complied with his request. [ 99 ] Once K.M. removed her pants (she cannot recall if she removed them part-way or altogether) and her underwear, Mr. M. asked

her to touch her vagina. He told her to use her two fingers and to rub her vagina (she cannot recall if he used the word “vagina” specifically or a slang word) in a circular motion, and she complied, all while her grandfather directed her on what to do and how to do it. She recalls Mr. M. telling her to touch her clitoris (she does not think that he used the word “clitoris” specifically as K.M. said she was too young to know what that was). Mr. M. sat and watched. [ 100 ] While K.M. was engaged in doing what Mr.

M. asked her to do, he walked over to the refrigerator and took a tub of margarine out of it and then brought it over to K.M. Initially, K.M. said that Mr. M. applied the margarine to her vagina, but then immediately corrected herself to clarify that she complied with his instruction and applied the margarine to herself. K.M. testified that when Mr. M. held the tub of margarine in front of K.M., he told her to take some margarine out of its container and put it on her vagina. She complied, and took out approximately a tablespoon of margarine with her fingers and placed it on her vagina. Mr.

M. then took a hold of his small dog (a chihuahua mix) off of the floor and “cornered” (K.M.’s word) the dog, placing the dog on the couch near to K.M.’s vaginal area. Mr. M. then used his arms to guide his dog to smell the margarine. He held his arms out to keep the dog on the couch and to prevent him from jumping off and running away. The dog then licked the margarine off of K.M.’s vagina while Mr. M. watched as he sat on the couch facing K.M., with his legs extending below the couch, angled towards her. [ 101 ] K.M. thinks the incident lasted up to five minutes.

Once the incident concluded, K.M. put her pants back on and she and Mr. M. walked out of the motor home and met up with Mr. M.’s wife and K.M.’s parents and sisters. The Second Incident [ 102 ] K.M. said the second incident, relating to count 5, occurred a couple of days later, while she was in the boot room of her parents’ home. K.M. recalls she was wearing black sweats, underwear, and a grey t-shirt with a Minecraft logo on it. She was sitting on one of two benches in the boot room at the time (she believes that she was getting ready to go and see the pregnant horse) when Mr.

M. (whose motor home was still parked in front of the shop at her parents’ home) walked into the boot room and closed the door to the outside. One of two other doors to the boot room (to the garage) was closed; the other door to the main part of the house was open. K.M.’s middle sister, C. (L.) M., was downstairs in her room and her mother and father were up at the horse pasture checking on their pregnant horse. Mr. M. asked K.M. to take her pants off, and repeated his request several times.

He kept saying to her words such as, “You’ve done it once, why does it hurt to do it again” and “Come on, take your pants off, you’ve done it once, why not do it again.” K. M. testified that he asked her to take her pants off seven to eight times. K.M. knew what he meant, i.e., that Mr.

M. wanted to watch her rub her vagina again. [ 103 ] She eventually acquiesced, lowered her pants (she cannot recall if she fully removed them or only lowered them part-way and believes, although cannot specifically recall, she moved her underwear to have access to her vagina), and rubbed her vagina, including her clitoris, in front of her grandfather in circular motions in the same way he had told her during the first incident, which she did for approximately five minutes, all in front of Mr. M. who was standing in front of her, at an angle, watching.

According to K.M., given his proximity to her and the manner in which he was facing as he was standing right across from her, and also that she had no clothing covering her vagina at this time, she is certain that Mr. M. could see her vagina as she rubbed it. The entire incident lasted for approximately ten minutes. Mr. M. then left before K.M.’s parents came inside the house. K.M. pulled up her pants as Mr. M. was about to leave and then went to her room. Mr. M.’s Evidence Overview [ 104 ] The contrast between Mr.

M.’s evidence-in-chief that focused on the incidents described by each complainant, and his cross- examination was striking. With only a few exceptions, which are identified in the excerpts set out below (the underlining in the excerpts is my emphasis), when the complainants’ version of events was put to him in his examination-in-chief, Mr. M. did not provide his own account of what occurred or deny it. His responses were that he had no recollection. When asked whether the incidents the complainants described in their evidence occurred, Mr. M. responded at times that “anything was possible”.

However, during cross-examination, his evidence became more definitive, often argumentative and confrontational (sometimes resorting to foul language), at times internally inconsistent with his other evidence in cross-examination, often evolving, when pressed in questioning, to outright denials. [ 105 ] The stark differences in Mr.

M.’s testimony between examination-in-chief to cross-examination, inconsistencies in evidence in cross-examination, and his approach to answering straightforward questions are critical factors in my assessment of the credibility and reliability of his evidence and my ultimate determination that his exculpatory evidence cannot be accepted as credible and that much of his evidence was not reliable. [ 106 ] For those reasons, I have included a number of examples from Mr. M.’s evidence in these reasons. Inclusion of these extracts should not be interpreted to mean that I engaged in greater scrutiny of Mr.

M.’s evidence than all other evidence, including the complainants’ evidence. I have reviewed all evidence with the same scrutiny, including a search for candour and inconsistencies affecting credibility and reliability. Pornography [ 107 ] Before I review Mr. M.’s evidence, including the contrast between Mr. M.’s evidence-in-chief and his cross-examination, I will begin with Mr. M.’s evidence corroborating the evidence of C.M. and C. (L.) M. that he kept pornographic videos in the bedroom of his home. [ 108 ] Before Mr.

M. was asked in his evidence-in-chief about the individual alleged incidents involving the complainants, he was asked about adult pornography. He testified that he possessed two videos that he and his wife watched on their bedroom television:

Q Now, before I get into these individual incidents, we heard some discussion about, if I can call it, legal adult pornography. Did you and your wife enjoy pornography from time to time? A From time to time, yeah. Q Okay. And what would be the -- how would that be played? Like, would it be Internet, or DVDs or -- A DVDs. Q DVDs? Okay. And, generally, where would that activity take place? A At home. Q At home, but, I mean -- A In the bedroom. Q In the bedroom? Was that something that, generally, people were aware of?

A Well, it was no big secret, that's for sure. [ 109 ] When asked about the extent of others’ knowledge of his interest in pornographic videos, Mr. M. said he did not keep it a big secret: Q And, now, you had said -- my friend had asked you -- I think he had asked you if this is something that people were aware of. A People knew about it. I didn't keep it a big secret. Q Okay. And when you say that people knew about it, who are we talking about? A Oh, I don't know, lots of people, probably, by the end, when they're mouthing off about things. I mean, I'm not -- not hanging flags out saying, "Free Porn." Q Right.

Okay. And so the people that knew about it, would they have been your neighbours? A Friends, not -- no neighbours that I know of ever watched it, but -- Q Okay. They're -- your friends might have known that you watched it? A Yes. Q Okay. And is there anyone else that you -- that might have known that you had pornography? A Oh, it could be anybody, I have no idea. Q Okay. And those would have been people you -- they knew because you told them that, right? A Well, somebody must have told them. Q Okay. And it was -- are you the one that told them? A I don't know who you're talking about.

Q Well -- A I probably told someone. Don't have a clue. Q Okay. Now, if you didn't tell them, who else would tell them? A Christ, do I know. Q Now, none of those people would have been in your bedroom to know? A Oh, maybe we might be a threesome in there, you never know, eh? Q Well, I'm -- I'm -- A Keep your -- keep your ears and eyes open. Q I'll just ask you to ask -- answer the questions in a serious manner. A Well, ask them in a serious manner. [ 110 ] He also said that he only watched pornographic videos in his bedroom. [ 111 ] I will now turn to Mr.

M.’s evidence concerning the incidents described by each complainant.

C.M. Examination-in-chief [ 112 ] Mr. M. was taken in his examination-in-chief to count 1, specifically, the evidence that C.M. gave, beginning with the first incident where C.M. testified that Mr. M. was masturbating in his shed in front of her. He said he recalled it being brought up but could not recall any such event having occurred: Q Okay. Now, I want to talk to you about the evidence that [C.M.] gave, all right? She talked about the first incident, and apparently she said that she went to the door of a shed, where you were working on a quad. Do you remember her saying that?

A I remember it being brought up the last time we were in court, yeah. Q Do you remember any event like that? A No, I don't remember that at all. Q All right. She told Mr. Justice that she saw you touching yourself, and then she described you masturbating. Was that something that you recall? A No, it ain't. Thank you. CNSL K. JONES: I'll let you get that on. THE COURT: I'm sorry, the last part of his evidence trailed off, and he said "n

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