R. v. A.R.B., 2023 BCSC 1638

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. A.R.B., 2023 BCSC 1638 Date: 20230728 Docket: 43383-2 Registry: Duncan Rex v. A.R.B. and B.K.S. Restriction on Publication: Ban on Publication S. 486.4(1) of the Criminal Code , R.S.C 1985, c. C-46 Before: The Honourable Justice Mayer Oral Reasons for Judgment Counsel for the Crown: J.L. Cameron Counsel for the Accused, A.R.B.: C.L. Hodson Counsel for the Accused, B.K.S.: P.A. Blokmanis Place and Date of Trial/Hearing: Duncan, BC April 17-21 and 24-25, 2023 Victoria, B.C. July 4-7 and 18-19, 2023 Place and Date of Judgment: Victoria, B.C.

July 28, 2023 Table of Contents INTRODUCTION .. 3 OVERVIEW OF THE CROWN’S ALLEGATIONS .. 3 THE CROWN’S BURDEN OF PROOF .. 4 ISSUES .. 5 BACKGROUND .. 6 EVIDENCE OF A.S. 7 EVIDENCE OF N.S. 12 EVIDENCE OF G.B. 14 EVIDENCE OF A.B. 15 EVIDENCE OF B.S. 16 ANALYSIS .. 17 Governing Legal Principles . 17 Credibility of B.S. 19 Credibility of A.B. 20 Credibility of A.S. 21 Credibility of N.S. 24

CONCLUSION.. 25 INTRODUCTION [1] The defendants A.B. and B.S. stand charged under a four-count indictment. The Crown alleges that between December 31, 2014and December 31, 2017, B.S. sexually interfered with and sexually assaulted his daughters, A.S. and N.S., contrary to ss. 151 and 271 ofthe Criminal Code.

The Crown alleges that A.B., the mother of A.S. and N.S., was a party to some of the offences committed by B.S. [2] The Crown alleges that a number of incidents of sexual touching, including digital penetration and oral sex, took place at variousfamily homes rented by the accused in the Duncan area and in Campbell River, British Columbia. [3] During the period of time set out in the indictment, A.S., who is currently 17, was between 9 and 12 and N.S., who is currently15, was between 7 and 10. [4] A.S. and N.S. provided statements to the RCMP in October and November 2020, which were admitted as evidence at trial andthey both testified by video link.

In addition to this evidence the Crown called evidence from their grandfather, G.B. [5] B.S. provided a warned statement to the RCMP which was admitted as evidence at trial for the purposes of hiscross-examination and both B.S. and A.B. testified in their defence. They both deny that the incidents of sexual touching or sexualassault occurred. OVERVIEW OF THE CROWN’S ALLEGATIONS [6] With respect to A.S., the Crown alleges that sexual touching by B.S began with him touching A.S.’s vagina when she was lessthan five years old, which progressed to him forcing her to touch his penis and performing oral sex.

The Crown alleges that theseincidents occurred in various locations including when A.S. was in the bath or shower, lying or sitting on the couch, or in her or theaccused’s bedroom. [7] With respect to N.S. the Crown alleges that N.S. was first sexually assaulted by B.S. when she was 3 years old when B.S.touched her thigh.

The Crown alleges that this progressed to incidents, when N.S. was older, including B.S. touching N.S.’s vagina andmaking her touch his penis. [8] The Crown alleges that after the family moved from Duncan to Campbell River, at a time when A.S. was 10 or 11 years old, andN.S. was 8 or 9, that A.B. became a party to the sexual interference and sexual assaults carried out by B.S. against A.S. and N.S. TheCrown alleges that this started when A.B. witnessed B.S. touching N.S. and failed to intervene.

In addition, the Crown alleges that A.B.instructed A.S. how to give B.S. blowjobs and watched her perform this act and the act of giving B.S. handjobs. [9] As already stated, B.S. and A.B. deny that the incidents of sexual touching occurred. They contend that the allegations of A.S.and N.S. are fabrications - which they suggest may have been made because A.S. and N.S. did not wish to return to their parents’ care,from foster care with their aunt and uncle.

THE CROWN’S BURDEN OF PROOF [10] B.S. and A.B. are presumed innocent and the Crown is required to prove their guilt beyond a reasonable doubt. [11] The charges of sexual interference under s. 151 of the Criminal Code and sexual assault, under s. 271, arise from the same seriesof incidents. [12] In order to obtain convictions against B.S. for the charges of sexual interference the Crown must prove beyond a reasonabledoubt that A.S. and N.S. were under 16 years old at the time of the offences, that they were intentionally touched by B.S., either directlyor indirectly, and that the touching was for a sexual purpose. [13] In order to obtain convictions against B.S. for the charges of sexual assault the Crown must prove beyond a reasonable doubt thatB.S. directly or indirectly touched A.S. and N.S., that the touching was intentional, that the touching took place in circumstances of asexual nature, that A.S. and N.S. did not consent to the touching (although pursuant to s. 150.1(1) of the Criminal Code consent is not adefence for sexual assault of a complainant under 16) and finally, that B.S. knew that they did not consent. [14] With respect to A.B., the Crown must prove beyond a reasonable doubt that she acted (which includes failing to act when sheshould have) with the intention of aiding or abetting B.S. in the commission of the offences of sexual interference and sexual assaultagainst A.S. or N.S. in order for her to be found guilty of these offences as a party: see s. 21(1)(

b) and (

c) of the Criminal Code and R. v.Dooley, 2009 ONCA 910 at paras. 118 and 123 [15] Identity of the accused is not at issue in this case. In addition, pursuant to s. 601(4.1) of the Criminal Code and the decision in R.v. B. (G), (SCC), [1990] 2 S.C.R. 3, a conviction is available in this case for events which occurred prior to the daterange set out in the indictment is available. Finally, it is admitted that A.S. and N.S. were under the age of 16 during the relevant periodof time.

ISSUES [ 16 ] Given the accused’s denials, the key question is whether the Crown has proven beyond a reasonable doubt that B.S. intentionally touched A.S. and N.S. in the manner alleged – that is, either for a sexual purpose (in respect of the charge of sexual interference) or touched them in circumstances of a sexual nature (in respect of the charges for sexual assault). [ 17 ] For the reasons that follow I do not find that the Crown has met its burden of proving beyond a reasonable doubt that B.S. sexually touched A.S. or N.S., as is alleged.

This does not mean that I disbelieve all of the evidence of A.S. and N.S. but rather, in consideration of all of the evidence I am left with a reasonable doubt as to whether the alleged incidents of sexual touching occurred. As a result, B.S. must be found innocent of the charges brought against him and there can be no finding that A.B. was a party to any offence. BACKGROUND [ 18 ] A.B. is currently 44 years old and B.S. is 47. They started a relationship in Duncan in approximately 2004.

A.B. has an older child from a previous relationship (born in 2003 or 2004), A.S. was born in 2005 and N.S. was born in 2007. [ 19 ] The family lived in various rental homes in the Duncan area until N.S. and A.S. were, respectively, approximately 8 and 10, when the family moved to Campbell River. During the time when the family lived in Duncan, A.B. worked intermittently at various occupations. B.S. worked full- time, primarily in the construction trades, including for a time running his own business.

Despite being employed, the accused struggled financially and were often late with their rent, resulting in evictions. [ 20 ] Throughout their relationship A.B. and B.S. struggled with drug addiction. A.B.’s drug use started with cocaine, which she says she stopped using while she was pregnant, eventually progressing to other drugs including opioids and crystal meth.

To begin with B.S. also used cocaine, opioids and crystal meth. [ 21 ] A.B. and B.S. used drugs consistently, albeit with varying regularity, other for a period of time when they say they were trying to stay clean after A.S. and N.S. were apprehended by the Ministry of Children and Family Development (MCFD) and placed into foster care for eight months, in approximately 2010.

At the time they were removed from their parents’ care, A.S. and N.S. were approximately 5 and 3. [ 22 ] A.B. and B.S. say that the loss of a family pet in 2016, which they say was caused by mold contamination at a rental home they were living in, caused them to relapse back into heavy drug use.

They say that they started using significant amounts of crystal meth and heroin around this time and moved to Campbell River in an unsuccessful attempt to get away from drugs. [ 23 ] MCFD was regularly involved in monitoring the ability of the accused to parent A.S. and N.S. since the children were first removed from their parents care in 2010. This resulted in temporary removals for short periods of time, a matter of days, until A.S. and N.S. were apprehended in December 2017, after B.S. was arrested for auto theft.

Since that time A.S. and N.S. have for the most part, lived with B.S.’s brother E.S. and his wife N.Y. [ 24 ] I intend to review the evidence of A.S. and N.S. in some detail, given that they allege a number of incidents of sexual touching over an extended period of time. EVIDENCE OF A.S. [ 25 ] A.S. provided two statements to the RCMP, the first on October 16, 2020 and the second on November 2, 2020.

Both of these statements were admitted as evidence at trial. [ 26 ] In her October 2020 statement, A.S. explained the timing of her report to the RCMP and discussions she had with N.S. and N.Y. regarding incidents of sexual touching by B.S. Near the beginning of her statement she stated that she had buried memories of being touched but around the beginning of the COVID-19 quarantine (therefore in March 2020), when she was reading a book about a girl who had been touched by her father, all her memories came “flooding back”.

She then stated that “the other night” (a day or two before she made her statement to the RCMP) she overheard N.S. telling N.Y. about being sexually touched by B.S. She said that when N.Y. asked her if she had been sexually touched, that she denied that this occurred. [ 27 ] Later in her October 2020 statement, A.S. said that N.S. had told her about being sexually touched by B.S. “like, a couple months ago”, and she was furious that N.S. had not told her sooner so that A.S. could have tried to put a stop to it.

She said that two days before making her first statement to the RCMP, she told N.Y. about an incident which occurred when she was hospitalized in Duncan after suffering a severe asthma attack, when B.S. touched her vagina.

This resulted in N.Y. making a report to the RCMP and the RCMP conducting interviews of both A.S. and N.S. [ 28 ] A.S. described a number of incidents of sexual touching which she said occurred over a series of years, starting in Duncan when she was 4 or 5 years old and then later when she was 10 and 11, after the family moved to Campbell River. [ 29 ] A.S. described an incident when she was 4 years old which occurred when the family was living in a green house in the Duncan area, which she initially described as the first incident.

She said that B.S. came into her room and started rubbing her legs and then moved up and started touching her vagina. She said that she started to cry and B.S. slapped her and told her that if she told anyone no one would believe her. [ 30 ] Later in her statement, when she was asked to describe the first incident of sexual touching, A.S. described a different incident at the green house. She said that she was sitting on a velvet couch watching TV and B.S. approached her, pulled his pants down and

grabbed her hand, moving it up and down on his exposed penis while simultaneously rubbing her vagina. She said that afterwards B.S. told her that she was a good girl, that he loved her, and told her not to tell her mother. [ 31 ] A.S. stated that approximately four other incidents occurred while they were living in the green house, during which B.S. touched or rubbed her vagina while bathing her.

She stated that all of the incidents at the green house occurred before she and N.S. were apprehended by MCFD and placed into foster care. [ 32 ] A.S. described an incident that she says occurred when she was either 5 or 6 years old, after she and N.S. had been returned to her parents and the family had moved to a blue house in Duncan. She said on this occasion she was home sick and B.S. gave her medicine as she lay on the couch. She said that she woke up to find B.S.’s penis in her mouth. [ 33 ] A.S. described another incident which occurred during the time the family was living in the blue house.

She said when she was in hospital receiving treatment for an asthma attack, at a time when A.B. and N.S. were not present, that B.S. rubbed his hand in the area of her vagina while giving her a bath. I note that earlier in her statement to the R.C.M.P. A.S. described this as one of the first incidents of sexual touching. [ 34 ] A.S. described an incident which occurred at another home in Duncan when she was 7 years old. She said that she was home sick and lying on the living room couch and B.S. gave her medicine and then, while she was unable to move, digitally penetrated her vagina.

She did not think that B.S. knew she was awake. [ 35 ] A.S. described an incident when she was 11 years old after the family had moved to a house in Campbell River. She said that on this occasion B.S. hopped into the shower with her and pushed her head down onto his penis, that she tasted something gross, and then ran out of the bathroom, eventually going to stay at a friend’s house for a couple of days.

A.S. said that she never told A.B. about this incident, but believes that A.B. suspected something had occurred – although she did not explain how she formed this belief. [ 36 ] A.S. described another shower incident at a different house in Campbell River, which she initially stated was the last incident. She said that she had started taking showers early in the morning to avoid B.S. She said that while she was in the shower, at around 5:00 am, heard him come into the bathroom and start to get undressed.

She said that she told him not to touch her or she would call the police and that he scoffed and walked out. [ 37 ] A.S. then went on to describe a further incident in which B.S. walked into her room wearing a towel, dropped the towel and then sat on her bed while she was in the midst of changing. She said that he lifted her up onto his bare legs and she punched him in the penis and B.S. then threw her to the floor and walked out of the room. [ 38 ] A.S. made a follow up statement to Constable Szalai in November 2020. This occurred after A.S. disclosed further alleged incidents to N.Y. involving A.B.

A.S. stated that A.B. did not sexually touch her, but she and B.S. would make her watch them having sex and then A.B. would watch A.S. either give handjobs or blowjobs to B.S. [ 39 ] In explaining why she did not report incidents involving A.B. when she made her October 2020 statement A.S. stated that she didn’t recall these incidents “until a while ago because I like didn’t really re-,like realize that, that actually happened.

I was kinda just like oh, no, that never happened, but I was like wait, that actually happened.” [ 40 ] A.S. said that the first incident in Campbell River involving A.B. occurred when A.B. walked into the bathroom while she was in the shower (with B.S.) and had her give B.S. a blowjob. A.S. stated that this sort of incident, that is where she gave either blowjobs or handjobs to B.S., occurred regularly, from every couple days to every couple months. [ 41 ] A.S. described an incident after she received an award at school. She said that A.B. and B.S. came into her room and got onto her bed and started to have sex.

She said that when she started to walk away B.S. got off the bed and struck her with the back of his hand and forced her to stay and watch. When she was asked to provide more detail about this incident A.S. stated that “Um, I don’t really like remember all, like sometimes, like I don’t know why, but sometimes like bits and pieces get into my mind and then they like leave.

It's like I don’t wanna think about them and like when I’m trying to think about them, I can’t remember but when I don’t think about them I remember …” [ 42 ] A.S. also described another incident when she walked into her parents’ room while they were having sex.

She said that she started to leave but was called back by A.B. who told A.S. that she did not give blowjobs properly and that A.B. proceeded to demonstrate how to do so on B.S. [ 43 ] Later in her statement, when asked if she remembered when the incident occurred during which A.S. was forced to watch A.B. give B.S. a blowjob A.S. stated that “[n]o, I just remember that it happened. That’s why like I didn’t know if it actually happened or if it was just like a dream in the first place because sometimes I don’t remember the details I just remember that it happened”.

A.S. then stated that the incident occurred in the kitchen and provided a description of the clothing worn by B.S. and A.B. [ 44 ] A.S. described an incident when she accidentally bumped B.S.’s penis with her hand as she passed him as she was walking into her bedroom. She said that B.S. followed her into her room and made her give him a handjob. She said that A.B. came into the room and watched this incident and did not attempt to stop B.S.

A.S. said that after this incident she ran away from home for a couple of days. [ 45 ] A.S. described another incident in which A.B. called her into the accused’s bedroom and asked her to give a blowjob to B.S. A.S. said that she complied, feeling as though she had no other option.

Later after being referred to notes she had brought with her to the RCMP detachment A.S. stated that this incident occurred in her bedroom. [ 46 ] A.S. stated that although she did not remember specifics, there were other occasions during which B.S. would digitally penetrate her or would force her to give him a handjob, which were observed by her mother. [ 47 ] During her direct examination A.S. revised some of, or added to, the evidence given in her October and November 2020

statements. [ 48 ] A.S. clarified that that the incidents at the Green house, when she was five or younger, occurred after she and N.S. were returned to her parents from foster care and not before. [ 49 ] A.S. testified concerning a new incident which occurred while the family was living at a home in Duncan. She said that on this occasion B.S. leaned over her while she was watching TV and digitally penetrated her. [ 50 ] A.S. testified concerning a new incident which occurred in Campbell River when she was 10.

She said that B.S. came into her bedroom, pulled back her comforter, digitally penetrated her and made her touch his penis. She testified that B.S. seemed unaware of his surroundings and “out of it” when this incident occurred. [ 51 ] A.S. testified, further to the evidence in her October 2020 statement concerning the shower incident which occurred in Campbell River when she was 11, that B.S. jumped into the shower with her and forced her to give him a handjob and digitally penetrated her.

She later testified that B.S. pushed her to her knees and forced his penis into her mouth. [ 52 ] During her cross-examination A.S. testified that prior to making the October 2020 statement, she initially only told N.Y. about the incident, which she says occurred when she was in the bathtub at a hospital in Duncan. She testified that after making the October 2020 statement, she told N.S. about incidents involving A.B. and that N.S. told N.Y., who then suggested that they speak to police a second time, which resulted in the November 2020 statement being taken.

She testified that she had initially blocked out her mother’s involvement in incidents of sexual touching when she gave her October 2020 statement to police and denied that evidence concerning her mother’s involvement was inconsistent in her statements. [ 53 ] During her cross-examination A.S. testified that before she provided statements to the police that she was aware of steps being taken by A.B. to regain custody of her and N.S.

She testified that she preferred living with her aunt and uncle, E.S. and N.Y., but denied that she made up her story in November 2020 to avoid having to move back with her parents. [ 54 ] During her cross-examination A.S. agreed that reading a book about sexual assault (some time around March 2020) helped her remember the incidents of sexual touching which occurred when she was younger.

She denied that she had difficulty separating reality from fantasy. [ 55 ] During her re-examination A.S. testified that the reason she did not initially disclose the incidents of sexual assault to N.Y. when asked, was because she was embarrassed and did not want people to know what had happened to her. EVIDENCE OF N.S. [ 56 ] N.S. provided a statement to Corporal Granneman on October 16, 2020. [ 57 ] N.S. said that the first time B.S. touched her was when she was approximately 3 years old, just after she and A.S. had been returned to their parents from foster care.

She initially stated that B.S. touched her thighs but nothing really happened. Later she stated that he touched her briefly on her left upper thigh when she was sitting on her bed. She stated that B.S. was “high” and she yelled out to A.B. who came in, but was too high to realize what was happening. [ 58 ] N.S. described a second incident which she stated occurred when she was 4. She stated that she was half asleep on the couch watching TV and B.S. walked over and touched her vagina area with his finger, underneath her underwear.

She stated that she pushed him off and told him that she was going to tell A.B. and he was not going to be happy with the consequences. She stated that she did not tell A.B. because she was concerned that A.B. would end her relationship with B.S. [ 59 ] N.S. stated that she thinks that B.S. touched her other times because she would go to bed with her nightclothes on and wake up with everything off. [ 60 ] N.S. described a third incident which occurred in Campbell River when she was 8 (around 2015). She stated that B.S. walked into her room while she was undressing, pulled her pants off and grabbed her butt.

She stated that while this was happening, A.B. walked in, became upset and started hitting B.S. [ 61 ] N.S. stated that she thinks a fourth incident occurred in B.S.’s shop in Campbell River although she was unable to recall any details, but rather felt that something had occurred. [ 62 ] N.S. stated, when asked whether any incidents had occurred in the shower, that B.S. would normally make her touch his penis for periods of up to a minute. She was unable to say how old she was when these incidents took place.

She testified that these incidents in the shower occurred approximately 10-15 times, in both Duncan and Campbell River. [ 63 ] During her direct examination N.S. testified that during the incident in which B.S. grabbed her buttox, she had actually removed her pants and put on pyjama bottoms and this is what B.S. removed, along with her underwear, before he started grabbing her. [ 64 ] N.S. testified that the incidents where she went to bed dressed and woke up with her night clothes off happened approximately 18-20 times. [ 65 ] During her cross-examination N.S. agreed that during the first incident when B.S. put his hand on her thigh, that nothing sexual happened.

With respect to the incident involving digital penetration while she was watching TV she agreed that she could not recall where this event occurred, was half-asleep, and that her memory of this incident was quite vague and that she had difficulty recalling details of the incident.

[ 66 ] N.S. testified that she had reported to a counsellor that she had been inappropriately touched by B.S. She testified that she could not remember how old she was when she made this report, but that somehow B.S. found out she had made it. [ 67 ] N.S. testified that the reason she delayed reporting the incidents of sexual touching to N.Y. was because she was still visiting with A.B. and B.S. (and I assume was afraid of their reaction). [ 68 ] N.S. denied that she made up the allegations of sexual touching by B.S. during her discussion with N.Y., as a way to avoid punishment for bad behaviour.

She agreed that living with B.S. and A.B. was unpleasant because her father was always getting in trouble and that she preferred living with E.S. and N.Y. EVIDENCE OF G.B. [ 69 ] The Crown called A.B.’s father, G.B., to testify at trial concerning an occasion when he says he observed B.S. in the shower with N.S. [ 70 ] In direct examination G.B. testified that on this occasion, which occurred approximately eight years ago, A.B. called to say that she and her family were coming back to the Duncan area from Campbell River and needed a place to stay for the night.

He testified that they arrived at approximately 8:00 or 9:00 pm and at some point, he heard laughing and giggling, looked down the hall and saw B.S. and N.S. together in the shower. [ 71 ] G.B. testified that the shower was small and that it would be difficult for a man of B.S.’s size to fit comfortably inside it. He testified that he did not report the incident to police because at the time, he did not think that anything sexual had occurred.

He testified that he decided to come forward only after learning that A.B. and B.S. had been charged with sexual offences. [ 72 ] During cross-examination G.B. agreed that it was possible that the shower incident took place up to 11 years ago. He again testified that he did not think anything sexual had happened in the shower. [ 73 ] I note that during her cross-examination N.S. testified that she did not recall an occasion where she stayed at her grandparents’ home with the rest of her family. As well, as is outlined below, A.B. and B.S. deny that this shower incident occurred.

EVIDENCE OF A.B. [ 74 ] A.B. denied that she participated in, witnessed or was told about any of the incidents of sexual touching described by A.S. or N.S. [ 75 ] A.B. agreed that B.S. showered with the girls when they younger (under 6), but testified that she did not have any concerns about this activity.

She denied, contrary to the testimony of G.B., that during one visit to her parents’ home, B.S. showered with N.S. [ 76 ] A.B. testified, contrary to the testimony of A.S., that on the occasion when A.S. was hospitalized as a result of an asthma attack and had a bath, that she was present. [ 77 ] A.B. testified that in general, when she was not using drugs she was able to provide a stable home for the children, but when she was using drugs had difficulty.

She admitted that when the family moved to Campbell River A.S. and N.S.’s needs were not being met including for example, not having consistent bed times, choosing to go to school when they wanted, eating whatever they wanted and staying at friends’ homes when they pleased. Despite this admission A.B. testified that she and B.S. had a wonderful relationship with both A.S. and N.S. until they were apprehended by MCFD in December 2017. She said they laughed together, did a lot of activities and were very close.

She described B.S. as an amazing father. [ 78 ] A.B. testified that after A.S. and N.S. were apprehended in 2017 that she worked on her sobriety. She says that she pushed for visits, which occurred under supervision organized by MCFD until they were suspended in early 2020, as a result of the onset of the COVID-19 pandemic. She testified that “a few days” before she and B.S. were arrested, she wrote to N.Y. attaching a copy of a letter from her probation officer which indicated that she and B.S. were starting to improve.

Her evidence was, essentially, that she sent this letter to express her desire to have A.S. and N.S. returned to her and B.S.’s care. [ 79 ] During her cross-examination A.B. admitted that there were occasions when B.S. was alone with either A.S. or N.S., and therefore had the opportunity to sexually touch them, although in my view, she sought to minimize the frequency of such occasions.

EVIDENCE OF B.S. [ 80 ] B.S. denies that any of the incidents of sexual touching occurred. [ 81 ] B.S.’s evidence concerning his and A.B.’s drug use, including the quantities and nature of drugs consumed, was generally consistent with that of A.B. He also testified, in

summary, that there were periods of heavy drug use interspersed with a few periods of relative sobriety. [ 82 ] B.S. denied that the showering incident described by G.B. occurred. He testified that although he showered with A.S. and N.S., that he stopped doing so when they were approximately five years old. [ 83 ] B.S. admitted that there were occasions where he would be alone with either N.S. or A.S., either when A.B. was out or when she was sleeping after a night of heavy drug use.

He testified that in general, he took care of most of the parenting duties for the children in the evenings and when he was not working, including making meals, taking the children to activities and bathing them.

[84] B.S. testified that on the occasion when A.S. was hospitalized in Duncan for an asthma attack that he did spend the night with herin hospital – but says that by the time he arrived after finishing work, A.B. and N.S. had already bathed A.S. [85] With respect to A.B.’s evidence he and A.B. were arrested within a couple of days after A.B. wrote to N.Y., suggesting that shewould be making effort to get A.S. and N.S. back, B.S. testified that A.B. had written to N.Y. a couple of months before.

ANALYSIS Governing Legal Principles [86] As I have already stated the Crown bears the burden of proving each element of the offences of sexual interference and sexualassault beyond a reasonable doubt. [87] All of the evidence in this case needs to be considered and it is inappropriate to engage in a simple credibility contest between thecomplainants and the accused: R. v. T.A.P., 2022 BCSC 2356, at para. 17. [88] It is not necessary for sexual interference or sexual assault to be corroborated as such incidents often take place in private,without the presence of witnesses.

However, where there is a lack of confirmatory or supportive evidence, that is corroborating evidence,a court may have difficulty concluding that the Crown has proven its case beyond a reasonable doubt. As a result, in situations where theonly evidence is that of the complainant and the accused, their credibility is critical in resolving the “he says/she says” conundrum facedby the court: R. v. F.(L), (ON SC), [2006] O.J. No. 4173, (O.N.S.C.), referred to at para. 27 of R.v.

T.A.P. [89] The approach to be applied in this case in determining guilt or innocence, given that credibility is clearly at issue, is as follows: a. First, if I believe the evidence of an accused I must acquit that accused; b. Second, if I do not believe the evidence of an accused, but am left in reasonable doubt by it, I must acquit that accused; c.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which Ido accept, I am convinced beyond a reasonable doubt by the evidence of the guilt of that accused and if not, I must acquit; and finally, d. After a careful consideration of all of the evidence it is not possible for me to decide whom to believe in respect of the chargesagainst each accused, I must acquit. [90] The approach described above does not prescribe the sequence of an analysis of guilt or innocence which must be followed.

Thisis especially the case here, where the evidence of A.S. and N.S. itself, gives rise to a reasonable doubt. [91] Some factors which may be used in assessing the credibility of witnesses include the demeanour of the witness, whether theirevidence makes sense, whether the evidence is internally consistent and has a logical flow, whether the evidence is consistent with priorstatements, whether there is independent confirming or contradictory evidence and whether the witness has an interest in the outcomeand motive to fabricate: R. v.

T.A.P. at paras. 40-43. [92] With respect to the last factor, motive to fabricate, the onus is on the Crown to prove an absence of a motive to fabricate. It isinappropriate to consider that the absence of evidence of motive to fabricate or that a proven absence of motive conclusively establishesthat a complainant is telling the truth: R. v.

T.A.P., at para. 44. [93] There is no question that the credibility of child witnesses, such as A.S. and N.S. must be assessed using a common-sense lens.This is because children do not recall the same details that adults do, because matters such as time and place may not be known by, or asimportant to them as they are to adults. As a result, the presence of inconsistencies, in particular with respect to time and place should beconsidered in the context of the age of the witness at the time of the events to which the witness is testifying: R. v. M.D., 2021 BCCA339, at para. 56.

Credibility of B.S. [94] I will begin with an assessment of the credibility of the evidence of B.S., primarily because it is alleged that he was theindividual responsible for carrying out the acts of sexual touching alleged to have occurred by both A.S. and N.S. I am aware of therequirement to assess B.S.’s evidence in the context of all of the evidence called in this trial. [95] With respect to demeanour I do not find that B.S. was evasive in providing answers to the questions put to him.

In addition, andthis goes to the issues of both credibility and reliability, his testimony demonstrated that he had a good recollection of relevant events,including the locations where the family lived and when. [96] B.S. made concessions on points which were arguably not in his interest. For example, he admitted that he had showered withboth A.S. and N.S., although not after they were 5, and that he bathed them. He agreed, that he was occasionally alone with each of A.S.and N.S., in effect conceding that he had the opportunity to sexually touch them – although he denies doing so.

He admitted that he useddrugs regularly. [97] His evidence was inconsistent with respect to whether he used drugs in the presence of A.S. and N.S. and the types of drugs heused. For example, in his statement to the RCMP made in November 2020, B.S. said that he never used drugs until his children weresleeping. At trial he admitted that he took drugs during the day. As well, his evidence was arguably inconsistent concerning to the type

and quantities of drugs he used.

For example, with respect to his use of opioids (Percocet) B.S.’s evidence at trial was inconsistent withrespect to whether he used more or less than the amount prescribed to him. [98] Although I agree with the Crown’s submissions that B.S. sought to minimize his drug use during trial, I do not find that this has aserious impact on his credibility concerning the allegations of sexual touching. [99] Other than his denials with respect to sexual touching, the only contradictory evidence which I consider to be material involvestestimony concerning the alleged shower between B.S. and N.S. at the home of A.B.’s parents.

Both B.S. and A.B. deny that this showerincident occurred. Although G.B. was confident that he saw B.S. and N.S. in the shower together, N.S. did not recall this incident. I amnot confident that this shower occurred and therefore do not take this into consideration in evaluating B.S.’s credibility in general. [100] The Crown submits that B.S.’s criminal record, which includes convictions for theft, robbery, possession of stolen property andbreach of conditions, demonstrates a lack of trustworthiness on his part. I do not agree with this submission.

The fact that B.S. has beenconvicted of unrelated offences does not support the proposition that he would be more likely to lie. I come to the same conclusionconcerning A.B.’s criminal record. [101] With respect to whether B.S. (or for that matter A.B.) has a motive to lie, there can be no presumption that, by virtue of theirstatus as the accused, that they would lie to escape conviction, as this undermines the presumption of innocence: R. v. Laboucan, 2010SCC 12 , [2010] 1 S.C.R. 397, at paras. 14-18 Credibility of A.B. [102] A.B.’s testimony raises some issues with respect to her reliability.

In general, A.B. had a poor recollection of dates and placeswhere various events occurred, including for example, the various homes where she and B.S. lived with A.S. and N.S.

In addition, shewas unable to remember details of A.S. and N.S’s. early life including the names of their teachers or friends. [103] A.B. was at times evasive in responding to some questions, including those relevant to whether B.S. was left alone with A.S. andN.S. and therefore had the opportunity to sexually touch them. [104] In my view, A.B. sought to downplay the impact of her drug use on A.S. and N.S. and to minimize the opportunities B.S. had tosexually touch either A.S. or N.S.

For example, she was reluctant to admit that her drug use caused her to sleep during the day, includingon weekends, thereby providing B.S. with the opportunity to be alone with A.S. or N.S.

In addition, A.B. testified that she onlyremembered one occasion where A.S. was required to stay home sick from school – which is difficult to believe given the frequency atwhich most children suffer from some ailment. [105] As was the case with B.S., G.B. made some concession which were arguably not in her interest including the nature of her druguse and her participation in criminal activity – such as stealing toys for her children. In addition, A.B. admitted that B.S. showered withA.S. and N.S., but as B.S. said, only until when they were very young.

Credibility of A.S. [106] First, with respect to demeanour, A.S.’s testimony at trial and her videotaped statement indicate to me that she is a very articulateand intelligent young woman.

She was clearly emotional at times when she made her statements and at trial. [107] The testimony of A.S. raises questions with respect to both the truthfulness of her statements to the RCMP and testimony at trial,that is her credibility, and the reliability of her evidence. [108] I am conscious that A.S.’s evidence with respect to events which occurred when she was very young (when she was between 5and 11 years old) must be considered from a common-sense perspective.

This is not the case with respect to A.S.’s evidence concerningevents which occurred around the time that she provided her statements to the RCMP, when she was 14. [109] I am not overly concerned about some inconsistencies in A.S.’s evidence concerning when and where the alleged incidentsoccurred when she was very young. For example, A.S. described a number of incidents of sexual touching as the first of such eventscarried out by B.S.

In addition, at trial she corrected the evidence in her statement that the first incidents of sexual touching took placebefore she and N.S. were first apprehended by MCFD. [110] A.S.’ evidence was that memories of being sexually touched by B.S. came “flooding back” after she read a book about a girl whohad been sexually touched by her father. She told the RCMP that she didn’t realize that the events had actually happened until a “whileago”. This raises a possibility that A.S.’s recalled memories, while not fabricated, are false memories which result from what she wasreading.

In this respect, this does not mean that I have concluded that A.S. was lying, but rather I have concerns with respect to thereliability of her evidence. [111] When describing an incident when B.S. and A.B. forced her to watch them have sex A.S. was quite forthcoming about the frailtyof her memory. She stated, in

summary, that sometimes bits of pieces of memories would get into her mind and then leave and that whenshe tried to remember events she couldn’t remember them, but when she wasn’t trying recalled events. Later, she stated, in effect, thatshe just knew that an incident in which she was forced to watch A.B. give B.S. a blowjob occurred – but also stated that she didn’t knowif it was a dream and could not remember details.

These events would have occurred when A.S. was 11, and therefore arguably, at thetime when she made her statement to the RCMP (3 years later) she would have had a better ability to recall the specifics of an incidentthan a very young child. Ultimately, I am not satisfied that A.S.’s evidence concerning these incidents is reliable. [112] The sequence of events leading to A.S. making her first statement to the RCMP raises some questions with respect to thecredibility of her evidence. Despite memories first “flooding back” to her in around March 2020, and according to her, being told by N.S.

that she had been sexually touched by B.S. some time during the summer of 2020 and being furious that she was not able to protect her sister at that time, A.S. did not report being sexual touched at that time. [ 113 ] I note that N.S. did not corroborate A.S.’s evidence that during the summer of 2020 she told A.S. that she had been sexually touched by B.S. and A.S. became frustrated. In October 2020, N.S. told the RCMP that she first disclosed that she had been sexually touched to N.Y. the week before, on a Friday.

N.S. did state at some point she had a discussion with A.S., but it is not clear if this occurred closer to the day when she and A.S. made their first statements to the RCMP or earlier. [ 114 ] A.S. did not report to anyone that B.S. had sexually touched her until after she overheard N.S. telling N.Y. that she had been touched, and initially denied that such events had occurred.

When she did tell N.Y. that B.S. had touched her, just a day or two before she gave her October 2020 statement, she only told her about the incident of sexual touching which she said occurred in the bath when she was in hospital. [ 115 ] In addition, there are inconsistencies in A.S.’s evidence which raise both reliability and credibility concerns.

In particular, I have some difficulty with A.S.’s explanation concerning why she did not report the involvement of A.B. in the sexual incidents involving B.S. in her first statement to the RCMP, but rather did so two weeks afterwards. [ 116 ] A.S. testified, in effect, that she had recovered memories of being sexually touched in around March, many months before she reported these incidents to police, and that she had a discussion with N.S. some two months before.

Despite this, A.S. did not report any involvement of A.B. until her second statement given just two weeks after her first. [ 117 ] Some of what A.S. told the RCMP when she gave her first statement is inconsistent with the involvement of A.B. in any of the sexual touching incidents reported by A.S. For example, in her first statement A.S. stated that B.S. would always tell her not to tell A.B. after he touched her because she wouldn’t believe her.

When asked by police if she had ever told A.B. about being sexually touched by B.S. she did not take the opportunity to describe the incidents when her mother was involved, but stated that she had always felt closed off from her mother and felt like she was the disappointment of the family”. In my view, A.S. did not provide a credible explanation why her evidence changed so dramatically between her first and second statements.

This is not a situation which I would describe as delayed recollection, given her statement that memories came flooding back and her discussion with N.S. months before the statements were made. I am left concluding that it is possible that A.S. fabricated evidence concerning A.B.’s involvement in incidents of sexual touching. Credibility of N.S. [ 118 ] Similar to her sister, N.S.’s testimony at trial and her videotaped statement indicate to me that she is a very articulate and intelligent young woman.

Nonetheless I have concerns with respect to the credibility and reliability of her evidence. [ 119 ] In her statement to the RCMP, regarding the incident which occurred when she was 4 when B.S. touched her vagina, N.S. stated that at the time, B.S. was high on drugs, that she pushed him off and told him that if he didn’t stop she would tell A.B. and he was not going to be very happy with the consequences. N.S. was very young when this event is alleged to have occurred.

I question whether a 4 year-old would have known whether or not B.S. was high or would use the language which N.S. recalled using when she says she warned B.S. During her cross-examination N.S. agreed that she could not recall where the incident occurred, was half asleep and that her memory of the event was quite vague. In my view, the reliability of N.S.’s evidence concerning this event is questionable. [ 120 ] N.S.’s belief that B.S. must have sexually touched her, on the 18-20 occasions when she woke up undressed, is not supported by any evidence that such touching occurred.

There may be other explanations why N.S. woke up undressed, including the possibility that she had taken off her night clothes on her own and did not recall doing so. [ 121 ] N.S. stated that B.S. forced her to touch his penis in the shower between 10-15 times, both in Duncan and in Campbell River, but was unable to provide any details. This is understandable with respect to events which occurred in Duncan when she was very young, but N.S. was between 8 and 10 years old when the family lived in Campbell River.

Given the lack of detail, I have some doubts regarding both the reliability and credibility of N.S.’s allegations concerning the shower incidents. [ 122 ] N.S. was unable to recall details of an incident in B.S.’s shop in Campbell river. Her evidence was that she thinks that these events occurred. The evidence of this event is not reliable. [ 123 ] N.S.’s evidence that at some point she told a counsellor that B.S. was sexually touching her is difficult to believe, given the lack of any corroborating evidence that such a report was made. I do not accept this evidence.

It is likely that if N.S. had made such an allegation her counsellor would have reported this to the police or MCFD. There is simply no evidence that the police or MCFD taking any steps to investigate such incidents. CONCLUSION [ 124 ] As I have stated B.S. and A.B. deny that the incidents of sexual touching occurred. As was stated by Justice Baird at para. 77 of R. v.

E.H. , 2014 BCSC 1747 , in oath-against-oath cases “the trier of fact must search for extrinsic or real world evidence that could break [an evidentiary] impasse”. [ 125 ] In this case there is insufficient reliable evidence corroborating the testimony of A.S. and N.S. with respect to the alleged incidents of sexual touching.

Although both A.S. and N.S.’s testimony included specifics with respect to, for example, what they were wearing or doing at the time that certain incidents occurred, I consider much of this testimony to be only marginally confirmatory. [ 126 ] The timing of A.S. and N.S.’s disclosure of alleged incidents of sexual touching by B.S., and in the case of A.S., the timing of her disclosure concerning A.B.’s participation as a party to some of these events, suggests a possible motive on the part of A.S. and N.S. to

make false allegations against their parents. B.S.’s testimony that A.B. wrote to N.Y. a couple of months before they were arrested is consistent with A.S.’s evidence concerning when she first discussed incidents of sexual touching with N.S. [ 127 ] I accept that in the case of A.S., she was likely not concerned about being forced to return to her parents care, given that she was 14 at the time that the complaints were made, and likely would have been able to decide on her own where she lived.

This is not necessarily the case with N.S. who was younger. [ 128 ] Although I am not certain if this was the case, I consider it to be possible that A.S. and N.S. fabricated the allegations of sexual touching because they were concerned that their parents intended to seek that they be returned to their care and wished to avoid this occurrence.

As a result, I have a reasonable doubt whether A.S. and N.S. were telling the truth. [ 129 ] Aside from possible fabrication of evidence, and in any case with respect to A.S.’s evidence, I am left with a reasonable doubt as to whether the incidents of sexual touching which she reported were recovered memories or were false memories.

With respect to N.S., much of her evidence was vague and inconsistent in many respects which impacts my assessment of the reliability of her testimony, giving rise to a reasonable doubt that the incidents she described occurred. [ 130 ] In conclusion, in consideration of all of the evidence in this case, I am not satisfied that the Crown has proven, beyond a reasonable doubt, that B.S. committed the offences of sexual interference or sexual assault.

As a result, A.B. cannot be found to have been a party to such offences. [ 131 ] The charges against B.S. and A.B. as set out in the indictment are dismissed. “Mayer J.”