R. v. A.J.J., 2020 BCPC 291

Citation: R. v. A.J.J. 2020 BCPC 291 Date: 20201016 File No: 101181 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.J.J. NOTE: S. 486.4(2) PUBLICATION BAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A BROWN Counsel for the Crown: K. Fast Counsel for the Defendant: M. Vayeghan Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: July 20, 21, August 13, 14, 20, 2020 Date of Judgment: October 16, 2020 A Corrigendum was released by the Court on June 24, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [ 1 ] A.J.J. is before the court on a 4-count Indictment, alleging sexual assault and sexual touching of his two nieces, J.J. (“J.”) and Z.J. (“Z.”) on December 4, 2018. At the time of the alleged offences, J. was nine and Z. was 13 years of age. [ 2 ] The Crown called as witnesses the three police officers involved with the investigation, J. and Z., their mother A.S. (“Ms. S.”), their father, N.J., Z.’s best friend L.L. (“L.”) and her mother J.W. (“Ms. W.”). The defendant Mr. J., testified in his own defence. Since there are two Mr.

J.’s who testified, to avoid confusion, hereafter I will refer to N.J. as N. and to the defendant as Mr. J. [ 3 ] Soon after the alleged incidents, J. and Z. were brought to the police station and each provided video-taped statements. Following a voir dire , J. and Z.’s statements were admitted as a part of their evidence at trial. Following his arrest on December 4, 2018, Mr. J. provided a statement to police. At trial, the voluntariness of the statement was admitted by the defence and portions of the statement were put to Mr. J. for the purposes of cross-examination. [ 4 ] Jurisdiction, date and Mr.

J.’s identity are not in dispute. It is also not disputed that Mr. J. entered Z.’s bedroom and was in bed with J. and Z. the evening in question. What is in dispute is the nature of Mr. J.’s contact with the girls and whether it was sexual. He says it was not. [ 5 ] The determinative issue is the credibility of the witnesses and whether, considering all the evidence, the Crown has proven the allegations against Mr. J. beyond a reasonable doubt. There is no burden on Mr. J. whatsoever to raise reasonable doubt. Family Background [ 6 ] Mr. J. is the brother to the girls’ father, N.

On December 3, the day before the alleged incidents, Mr. J. contacted N. and asked if he could stay with them for awhile, which N. agreed to. Mr. J. was set up with a bed in a small downstairs room, adjacent to a basement suite. The basement suite was not rented out at the time, and Z. used the bedroom as her own. J., whose bedroom was upstairs, would sometimes sleep downstairs with Z. in her room, as was the case on December 4, 2018. The basement suite’s washroom was available for the girls, as well as Mr. J.’s use. [ 7 ] Prior to then, Mr.

J. had stayed with the family for about six weeks during the summer of 2018 when he had badly broken his arm and leg. According to Ms. S., they were Mr. J.’s closest family and as a result of his injuries, Mr. J. was unable to work and needed help. He eventually moved out after N. said he needed to begin paying rent. [ 8 ] Ms. S. and N. described the relationship with Mr. J. as fairly good and that their girls got along fine with him. Ms.

S. disagreed on cross-examination that the girls did not like their uncle, said they did not really spend a lot of time with him, but enjoyed his cooking when he had stayed with their family previously. Ms. S. said that when Mr. J. stayed with them, including that last time on December 3 and 4, they would usually all eat dinner together as a family. [ 9 ] Ms. S. said that in the past, sometimes Mr. J. alone or with his former partner, would bring their two young daughters to the home and that her girls loved their little cousins. Ms. S. recalled shared holidays and birthdays with Mr.

J. and said although they sometimes had their ups and downs, she felt they were very close. [ 10 ] Mr. J. had a very different view of the family relationship which he described as complicated. He said there was no caring from them, they were cold and distant and his warm feelings toward the family were not reciprocated. [ 11 ] Mr. J. disagreed that his brother and sister-in-law had helped him out by giving him a place to stay, saying that all he had been given was a small room and there was no genuine caring from them. When he was pressed about his brother offering to rent him the entire basement suite, Mr.

J. responded his friends were surprised about that because he and his brother did not have the greatest relationship. [ 12 ] Mr. J. also disagreed that two families had spent much time together over the years. He said there was a pretence of closeness from his brother’s family, and though he had his heart on the table, their attitude and demeanour toward him changed with the seasons. [ 13 ] Ms. S., N., J., Z. and Mr. J. testified about a disagreement between Mr. J. and the girls on December 3 or 4, where he became angry at being called by his first name and not “Uncle” and said “call me fucking uncle!” Ms.

S. said the comment was directed at J. and that J. was frightened by his outburst. N. felt Mr. J.’s anger was directed at the girls and at him for not insisting they call his brother “Uncle”. [ 14 ] J. was cross-examined about her uncle cursing at her and agreed it upset her. She disagreed that Mr. J. cursed at her often and said it had not been a fight. J. testified that she liked her uncle and her sister did too. [ 15 ] Z. also recalled Mr. J. being angry and swearing because he wanted to be called uncle. She said his cursing did not really upset her because Mr. J. was not at their house that often.

Z. denied that she was uncomfortable with Mr. J. at their house at Christmas time because he had stayed with them previously. She also denied not liking her uncle. On cross-examination, her best friend L. denied ever hearing Z. say she did not like her uncle Mr. J. [ 16 ] Mr. J. said that he had only sworn once about not being called uncle and that his remark was directed more at the parents, especially his brother, than his nieces. Later in cross-examination, Mr. J. said that he felt J. was intentionally trying to provoke him.

He agreed he valued his relationship with his nieces and the whole family, but said that those feelings were not reciprocated. Mr. J. said he felt the relationship with J. had always been distant and that although he tried his best to spend time with them, the girls were always busy on their electronic devices. When Mr. J. was asked if he had a healthy relationship with J. and Z., he responded “not necessarily”. He said he tried his best to be a good uncle and acknowledged that the girls trusted him. Nudity

[ 17 ] The defence submits that an important contextual element is that Mr. J. is a nudist. Mr. J. testified that he is frequently at Wreck Beach and sometimes works there selling blankets and other items. Ms. S. testified that the family had gone to Wreck Beach a few times, the girls had seen their uncle Mr. J. naked there, but they stopped going around 2018 because the girls were getting older. [ 18 ] Mr. J. testified that because his clothes were dirty, all he was wearing the evening of December 4 after he had showered, was a bathrobe, given to him by his brother and a tank top.

He said the robe was too big, had no belt and it kept falling off him all night. Ms. S. testified the robe was a gift from the mall kiosk that she managed. Mr. J. said as a nudist, he does not use underwear. He said the robe flashed open a few times in front of the family during the evening and it did not seem to bother them. When the Crown suggested to Mr. J. that he could have asked for boxers, he said he had asked for a belt for the robe, boxers or pyjamas and was refused. [ 19 ] Mr.

J. testified that J. and Z. had seen him naked many times and that while that might seem unusual to some people, from his perspective as a nudist, it was not. Mr. J. said nudity is normal in his family, his nieces had seen him naked in his own home and because they were used to him and his ways, seeing him partially undressed in their home would not have made them uncomfortable. Under cross-examination, Ms. S. said the girls had only seen Mr. J. naked at Wreck Beach and disagreed that it was a normal event for the girls to see their uncle naked. She said they had never seen him naked at their home.

December 3 [ 20 ] N. testified that when he picked up his brother on December 3, he seemed distraught and needed help, and had only a few articles of clothing with him. Ms. S. recalled that Mr. J. and his girlfriend had gotten into a fight, he had been couch-surfing and needed a place to stay. She said that on December 3, Mr. J. seemed down and out, and was not his usual cheerful bubbly self. She recalled asking her husband what was wrong with his brother because he did not seem himself. [ 21 ] Mr. J. disagreed with most of his brother and sister-in-law’s testimony about his mood.

Even though he had been picked up by his brother with little if any belongings and nowhere else to stay, Mr. J. denied that he was feeling down, depressed, stressed or distant. He said it was the family that was acting unusual and they seemed distant with him. He said it was not true at all that he was unhappy, he was trying to be extra cheerful and that it was not being reciprocated. [ 22 ] Mr. J. disagreed with his brother’s observations that he seemed quiet, troubled, sad or distraught.

He said his mood was no different than on previous visits and that he was actually in a good mood because he thought he was in a safe place. [ 23 ] Mr. J. also testified that he was very tired, having just come off three days and nights of partying, using alcohol, marijuana and crystal meth. He described it as a “bender”. He denied using crystal meth after Saturday December 1 and said once he was at his brother’s home, he only used marijuana. Mr. J. was asked if he was still feeling the effects of the meth when his brother picked him up on December 3 and answered not really. December 4 – before and after Mr.

J. was in Z.’s bedroom [ 24 ] Mr. J. and N. spent the day of December 4 together. N. said Mr. J. still seemed troubled and distant and that when he asked him about how he was feeling, Mr. J. had nothing to say. [ 25 ] Ms. S. spent much of December 4 at work. She came home to make supper, which the family, including Mr. J., shared. Ms. S. recalled that Mr. J. still did not seem himself. At some point in the evening, the Christmas tree was decorated. Ms. S. returned to the mall to close her kiosk and prepare for the next day.

Before she left, she said goodnight to the girls who were in the living room on their devices and watching t.v. [ 26 ] N. said after the girls had gone downstairs to bed, he and Mr. J. were in the kitchen and talked about him moving into the basement suite. N. said during the conversation, Z. came upstairs to get herself some frozen mango dessert. [ 27 ] Mr.

J. testified that when Z. came upstairs to get her dessert, she lingered for a bit listening to the conversation, he estimated 5-10 minutes, and that she rolled her eyes and did not look too impressed by what she heard. [ 28 ] On cross-examination, Z. could not recall coming into the kitchen to get some frozen dessert. She denied overhearing or anyone telling her about her uncle moving into the downstairs suite. She said she did not know that there was a plan for Mr. J. to move in downstairs.

While Z. agreed that she liked her downstairs bedroom, she denied that she was upset about having to give up her room to Mr. J. In her evidence, L. recalled Z. saying her that her uncle was staying with them for Christmas, but had not said anything to her about him moving into the downstairs suite. [ 29 ] N. said that Mr. J. seemed thrilled at the prospect of renting the suite, that they talked about Christmas plans and hugged before saying good night, with N. going up to his room and Mr. J. going downstairs to his. [ 30 ] When Ms.

S. came home around 9:30-10:00 pm, the door to the basement suite was closed and she figured the girls were in bed downstairs, since they often sleep together. [ 31 ] Ms. S. got ready for bed and estimated it was about an hour later that she and N. heard banging at the front door, which turned out to be the police. [ 32 ] Ms. S. said they were asked by police if Mr. J. was there. He was called, came to the door and was told he was under arrest for sex assault. Ms. S. did not think this had anything to do with her daughters. Before Mr.

J. was taken out of the house in handcuffs, because it was cold out and he was barefoot, Ms. S. got socks and a jacket for him to put on. N. recalled Mr. J. had no shirt on, just jeans. Ms. S. described Mr. J. as appearing casual, nonchalant when he was arrested. N. said there was no visible reaction from Mr. J. when he was told he was under arrest for sexual assault. [ 33 ] In her testimony, Cpl. Senay recalled that when she attended at the house to arrest Mr. J., he came to the door wearing a white

tank top and jeans, and did not have socks or shoes on. She said Mr. J. had no visible reaction and described him as incredibly calm forsomeone who had just been told he was under arrest for sexual assault. [34] Prior to arresting Mr. J., Cpl. Senay had dealt briefly with J. and Z. While she was at the front door arresting Mr. J., J. and Z.were outside their house, inside Ms. W.’s vehicle with L. and her older sister E. [35] Cpl. Senay testified that when she arrived at the scene at approximately 10:40 pm, she saw two girls in pyjamas (J. and Z.) runfrom the house into Ms. W. and her daughters’ arms.

She saw that the girls were crying and appeared very upset. Ms. W. testified that Z.jumped into her arms crying and she held her close. J. ran to L. and E.’s arms. Ms. W. said it was freezing cold and because the girlswere in shorts and tank tops, she gave them jackets that she had in the car. [36] Cpl. Senay asked everyone to get into Ms. W.’s car to stay warm. She then spoke to Z. outside of the vehicle and asked whathappened. Next Cpl. Senay asked J. to step out of the car and spoke privately with her. She said both girls were upset but able to tell herwhat happened in a calm manner.

After speaking with J. and Z., Cpl. Senay went to the house to locate Mr. J. Ms. W. said that when thepolice walked by her car with Mr. J. in handcuffs, Z. started crying again and she had to calm her down. She said by the time they got tothe police station, both girls were very quiet. [37] Cpl. Senay said that because the girls seemed so comfortable with Ms. W. and to avoid delay, she asked her to bring them to thepolice station. Ms. S. and N. followed and brought the girls home following their interviews with police.

What happened in Z.’s bedroom? [38] In the early hours of December 5, 2018, J. and Z. provided videotaped statements to the police which the Crown applied to haveadmitted as part of their evidence under s.715.1 of the Criminal Code. The Defence did not oppose the admission of the statements. Avoir dire was conducted to determine whether the requirements of s. 715.1 had been met. [39] The legislative aim and purpose of s. 715.1 was explained by then Chief Justice Lamer in R. v.

L(D.O.), (SCC),[1993] 4 SCR 419 at p. 428 as follows: By allowing the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justicesystem less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and discovery oftruth. [40] In R. v.

F. (C.C.) (SCC), [1997] 3 SCR 1183, the Court noted at par. 19 that it is self-evident to observantparents and to anyone who has “…worked closely with young people that children, even more than adults, will have a better recollection of events shortly after theyoccurred than they will some weeks, months or years later….It follows that the videotape which is made within a reasonable time afterthe alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimonygiven later at trial.

Thus the section (715.1) enhances the ability of a court to find the truth by preserving a very recent recollection of theevent in question.” [41] At par. 21, the Court went on to describe the video-recorded capture of what is probably the best recollection of the event, as theprimary goal of 715.1. [42] The pre-conditions for the admission of a videotaped statement for the truth of its contents are to ascertain whether it meets thethreshold of reliability. These are

a) that the statement be made within a reasonable time after the event;

b) that the trier of fact can viewthe entire interview to assess the child’s demeanour, personality and level of intelligence while describing the event;

c) that the childconfirms that they were being truthful when giving the statement (F.(C.C.) at par. 44). [43] During the voir dire, J. and Z.’s videotaped statements were played in their presence. Each of the girls subsequently confirmed onthe record that they had been doing their best to be truthful during their police interviews. Having considered all the pre-conditions foradmission, I was satisfied that requirements of s. 715.1 were met and the videotaped statements became part of the evidence, along withthe J. and Z.’s viva voce testimony on direct and cross-examination.

J.’s Evidence [44] J. testified that on the evening in question, she was in bed with Z. Mr. J. looked into Z.’s bedroom to say good night, thenreturned about ten minutes later, came in the room and got in bed with them. The room was dark. J. said she and Z. were under theblankets and that Mr. J. was also under the blankets. He apologized for being a bad uncle, and J. said this was because of their earlierargument when he got upset because she had not called him Uncle. [45] J. said that Mr. J. had on a robe and he was naked underneath.

She said his robe was “kind of open”, but she did not see his penis.On cross-examination she agreed she had seen Mr. J. naked before, and said that was one time at Wreck Beach. [46] J. said when she was lying on her back, Mr. J. pressed his genitals against her leg and when she moved to her side, facing towardthe closet and away from Z., he squeezed her buttocks. J. described feeling shocked because Mr. J. had never done that before to her. Shesaid it made her feel sad. [47] In all her evidence – that is her videotaped statement, her direct and cross-examination - J. said that Mr.

J. touched her sexuallyfour times by squeezing both her “butts” as she put it, with his hands three times, and by pressing his penis and his testicles against herleg once. The touching was on top of her clothing. [48] J. was asked what she meant when she referred to Mr. J.’s private parts in her police statement and said she meant his penis and

testicles. J. was asked how she knew it was Mr. J.’s private parts pressing against her leg and she said she could feel his testicles - his balls - and his penis. [ 49 ] The order in which the four instances of touching happened is unclear. In her statement to police, J. at first says that Mr. J. pressed his “private part” against her leg and later she says that he touched her buttocks first. [ 50 ] J. testified that the touching made her feel really uncomfortable and she did not want to be around Mr. J., so she got out of bed and went to the washroom, although she did not really need to go. J. told Cst.

Lee during her interview that she was “weirded out” because she really did not know what Mr. J. was doing at first. J. said while she was in the washroom, she was trying to figure out what to do and how to get Mr. J. out of the room, estimating she was in there about two minutes. [ 51 ] On cross-examination, J. agreed that when she went to use the washroom, she was also worried for her sister’s safety. When asked why she did not just go upstairs and tell her parents what was happening, instead of going to the washroom, J. responded that she does not know why.

She was nine years old then and did not understand a lot. [ 52 ] J. told Cst. Lee that when she went back to bed, Mr. J. was in the middle of the bed, sitting beside her sister. J. said before she went to the washroom, he had been beside her. J. told Cst. Lee that after returning from the washroom, Mr. J. touched her butt again, then said he was going to go, they said bye and he left the room. [ 53 ] It was put to J. on cross-examination more than once that Mr. J. had jumped in from the foot of the bed, landing on his stomach.

J. said that was not how she remembered it and that he got in from her side, which was the side of the bed not against the wall. Another suggestion put to J. at another point during cross-examination and to which she agreed was that at first Mr. J. sat on the bed and then he laid down. [ 54 ] During cross-examination, J. did not agree that Mr. J.’s robe fell off when he got on the bed. She disagreed when it was suggested that Mr. J did not touch her sexually, or that if he touched her, it was only with his arm or leg and it was accidental or it was just a hug. [ 55 ] J. testified that Mr.

J. did not hug or kiss her or have any other sexual contact with her. She said she did not see what Mr. J. did to her sister. [ 56 ] J. denied knowing that Mr. J. was planning to move into the basement suite. She did not agree that while Mr. J. was in bed with them that he was talking to her and Z. about moving in. She also disagreed that she and Z. did not like Mr. J. being at their house and said they were fine with him there. When it was put to her that being sexually touched by Mr. J. was a lie to get him out of the house, J. looked surprised and firmly disagreed.

J. disagreed when it was suggested that her father had told her to lie to the police about what happened. [ 57 ] J. testified that when Mr. J. left the room, she and Z. panicked and tried to figure out what to do. Z. called her best friend L. and then she locked the door between the basement suite and the rest of the house. She did not recall Z. using snapchat to message L. before calling her. [ 58 ] Before going outside, J. put on Z.’s grey hoodie which was hanging by the sliding door they used to leave the house. She had flip-flops on her feet.

J. said she ran out of the house to L’s mom’s car without her jacket because they were rushing. [ 59 ] When asked why they did not just go upstairs to their parents, J. said because they did not know what to do. J. said when they got outside and were with L., her sister and mom, she felt safe. Z.’s evidence [ 60 ] In her videotaped statement and direct examination, Z. recalled that she and J. were in bed, on their phones just before Mr. J. came into her room. Z. said she was on Snapchat and she thought J. was playing a game. Mr. J. peeked his head into Z.’s room a few times before he came in. She said Mr.

J. was beside J. at first and that when J. went to the bathroom, he laid down in the middle of the bed. Z. could not remember if she, J. and Mr. J. were under the covers or not. [ 61 ] On cross-examination, Z. was shown photos of her bed and the pile of blankets on it. She was asked if it’s possible that she was under the sheets and she said yes, but she could not remember. Z. was also asked if it’s possible that Mr. J. was not under the sheets, and responded again that she could not remember. [ 62 ] Z. was asked in cross-examination if she called out to Mr. J. just before he came in the room.

At first she said she could not remember and when asked if it was possible that she did, Z. said no, because she had no reason to. When it was suggested to Z. later in cross-examination that she had called Mr. J. into the room and that she was upset because he did not respond, Z. said no. Z. also denied telling J. that Mr. J. did not like her just before he entered her room. [ 63 ] It was put to Z. that Mr. J. jumped on the bed from the foot of the bed and she said she did not remember. It was also suggested to her that Mr.

J. was on his stomach, lying in the middle of the bed and Z. said she did not remember him on his stomach, she only recalled him being on his side. [ 64 ] Z. told Cst. Lee in her videotaped statement that when Mr. J. came in, he said he was sorry he had been a bad uncle lately and she thought it was because he had not been around their family for awhile. Z. thought her uncle felt bad about that and things seemed normal to her until he started touching her in a way that made her feel uncomfortable. Z. told Cst Lee that the touching happened when J. got up to use the washroom.

During Z.’s direct examination, she could not remember if J. was in bed or in the bathroom when Mr. J. touched her. [ 65 ] During cross-examination, Z. did not agree that J. went to the bathroom 10-15 seconds after Mr. J. came into the room. She said

it was minutes, not seconds. She did not see Mr. J. touch J. [ 66 ] In her videotaped statement, Z. said that Mr. J. put his hand down her pants and was grabbing her skin aggressively. He pulled her in closer and was breathing heavily. She said Mr. J. pulled her underwear down so her butt was “kind of showing” and tried to put his penis in her butt. She said she felt his penis touch her for a second. In her direct examination, Z. explained that she knew it was Mr. J.’s penis touching her because she could feel it was hard. She did not see Mr. J.’s penis. Z. said that Mr.

J. grabbed her breasts under her shirt once. [ 67 ] Z. testified she said “Uncle T, stop and move away” and he did. She said Mr. J. said “sorry, I must have slipped” and “I must have read you wrong”. Z. said she felt like she had done something to make Mr. J. think that was what she wanted. She described feeling scared and confused. [ 68 ] It was put to Z. on cross-examination that Mr. J. did not touch her in any sexual way, that he did not try to put his penis inside her and that his penis never touched her. Z. disagreed. Z. also disagreed that if Mr. J.’s penis had touched her, it was only by accident.

Z. became emotional when it was suggested that she had made up the story to get rid of Mr. J. because she was upset about having to give up her room to him. Z. denied making up the story. She also denied that while Mr. J. was in bed with her and J. that he talked about his plan to move in. Z. denied making up that Mr. J. said he must have mis-read her. [ 69 ] Z. said after Mr. J. stopped touching her, she curled up on the side of the bed in a state of shock and began messaging her friend L, using Snapchat. Z. said she told L. that her uncle had touched her.

On cross-examination, Z. said that she did not remember exactly what she told L. but that she told her “a little bit” and “only some things” about what happened and that there had been touching. Z. was asked if she told Ms. W. what happened and she said no. [ 70 ] L. told Z. she was going to call the police and come pick her and J. up. Z. said Mr. J. was still on the bed while she was messaging L. She was facing away from Mr. J. and curled up towards her window and said she was trying to hide her phone from him. [ 71 ] When Cst.

Lee asked Z. why she called L. instead of her parents, she said she did not know and that she was panicked. When Z. was asked in direct why she did not text or call her mom, she began to cry and said she did not want her mom to know. She said she was scared and in shock and felt she was somehow to blame. [ 72 ] When Z. was asked in direct examination why she contacted L., she cried, saying she knew the touching was not right, but also was not sure if she was correct about what happened, or if maybe she was being delusional.

She said she was scared and that L. was the person she felt most safe talking to. [ 73 ] Z. was cross-examined about her use of the word “delusional”. It was put to her that it can mean that something did not really happen and she was asked if it’s possible that the sexual touching did not really happen. Z. said no, it happened and that maybe “delusional” was not the best word for her to explain the confusion she was feeling. When asked if she was not sure about the touching, Z. responded that she knew it was wrong. [ 74 ] Z. said Mr. J. stayed on the bed for about 10 more minutes and then left the room.

She denied leaving the room to go to the washroom during the time Mr. J. was in the room. Z. said that when Mr. J. came in the room, he had on a robe. She said the room was dark and she could not really see, but when he left the room it sounded like he was putting something back on. She believed Mr. J. had his robe off when he was in bed with her because it felt like he had no clothing on. She said on cross and in her other evidence that she could not tell when Mr. J. removed the robe because it was dark. [ 75 ] Z. testified that after Mr. J. left her room, she locked the door to the basement suite.

She called L. and stayed on the phone until she and her mom arrived outside. Z. grabbed a button-up shirt from her bedroom closet and ran out in the flip flops by the sliding door because her warmer shoes and jacket were by the front door. When Z. got to Ms. W.’s car, she was given a jacket to put on. [ 76 ] Z. said she and J. ran out the back sliding glass door instead of the front door because to access it they would have had to go through the basement suite door, which she had locked. .Z. said she did not want Mr. J. to see them. L. and Ms.

W.’s evidence [ 77 ] L. testified that she received a Snapchat message from Z. saying that she was scared and that she did not want to be in her house. They began talking on the phone about five minutes later and Z. said her uncle had tried to have sex with her. L. described Z. as sounding frantic, talking really fast and that her voice sounded shaky. L. said she asked Z. a few times if she wanted her to call the police, at first Z. said no and eventually said yes. [ 78 ] During cross-examination, L. was asked what Z. had told her. L. answered that Z. said her uncle had touched her with his penis.

She said she had not been told much detail. [ 79 ] L. ran to her mother’s room, told her that Z. needs help and Ms. W. called the police on her own phone. L. said she stayed on the line with Z. because she did not want her to be alone in case something happened. [ 80 ] In her evidence, Ms. W. recalled L. barging into her bedroom screaming that they needed to get to Z.’s house right away. She agreed on cross-examination that Z. told her that her uncle had touched her and J. sexually, but not in great detail. It was suggested that Z. told her that Mr.

J. exposed his penis and touched her or sister on their butt and Ms. W. agreed. It was further put to her that this was more than the bare minimum of detail and Ms. W. said Z. was frantic and it all came out. [ 81 ] Ms. W. took the phone from L. and could hear Z. crying very quietly. Ms. W. said she had to ask Z. to speak up and she did, speaking very fast and in a panicked tone. Ms. W. became very concerned and told Z. to not hang up the phone. She asked Z. where her parents were and Z. said she thought her mom was still at work and did not know if her dad was home. Ms.

W. said she thought the girls were home alone.

[ 82 ] L. testified that she, her sister E. and her mother drove to Z.’s house. She said E. was driving fast and her mom was “freaking out”. When asked why her mom was not driving, L. said because her mom had both phones, with Z. still on the line on L’s phone and the police on her mom’s phone. Ms. W. said that throughout the call, Z. was still crying, she could hear her voice shaking and she was speaking so fast, Ms. W. had to ask her to slow down so she could understand her. Z. gave Ms. W. the key code for the front door because she wanted her to come into the house to come get her and J. Ms.

W. said that when they got to the house, the police were already there and J. and Z. were running into the cul-de-sac. [ 83 ] L. said that once they were in the car together, Z. calmed down. She said that while in the car, Z. talked a little about what happened, and that L. still does not know everything because Z. does not want to talk about it. L. said that while they were in the car, J. did not talk about what happened. [ 84 ] Ms. W. said that when she heard Z. on the phone, she went into “mama bear mode”. During her testimony, Ms.

W. became emotional, saying it was awful seeing J. and Z. that night and that it is something she will never forget. She said thinking back to that evening still upsets her and she thinks about it every day. Mr. J.’s evidence [ 85 ] Mr. J. testified that on the evening in question, after saying good night to the girls through their closed bedroom door, he heard Z. say to J. that he did not like her. He testified that he felt he needed to address the situation since he was moving in and he wanted to smooth things over. [ 86 ] Mr.

J. said that he knocked, asked if he could come in and “plopped” himself on the middle of the bed. The girls were both on their devices. He said he had on a tank top and the bathrobe - the only piece of clothing he had been given by his brother after his shower, so he could change out of the stinky jeans and shirt he’d been wearing for two days. [ 87 ] Mr. J. said he released his hand from the robe as he lunged on to the bed from the foot end and the robe slid off his back and was hanging off his calves and feet and was partly on the floor.

He said as soon as the robe slid off, he put it back on, flipping onto to his back. Mr. J. said his butt was exposed for only a few seconds and the room was dark. When asked on cross why he got into bed with the girls that way Mr. J. said to avoid crawling over J. and because there was a space between the girls. [ 88 ] Mr. J. was shown photos from Exhibit 1 and agreed it was very difficult to get into the bed going over the footboard which was similar in height to a nearby chair. Mr. J. said that’s why the robe fell off, because of his long arms and legs.

On re-direct he added that he had scraped his shins on the footrail, getting onto the bed that way. [ 89 ] Mr. J. said he told the girls he knew he had not been the greatest uncle lately and before he could finish his sentence, J. got up to go to the washroom. Mr. J. said he was stunned that J. got up before he could finish his sentence. He described staring at the ceiling in silence, waiting for J. to return so he could continue the conversation about J. thinking he does not like her. [ 90 ] Mr.

J. said that once J. returned from the washroom, he continued the conversation, talking to the girls about moving in and that there would be a big change in their lives. He said he was on top of the covers with his robe closed and genitals covered. He said Z. then got up to use the washroom and when she returned, he said a few more things, which the girls did not seem interested in hearing so he wrapped things up by giving them a hug and left the room. [ 91 ] Mr. J. described the girls as unusually detached and that they seemed more interested in their devices than having a conversation with him.

He said Z. was on her device the whole time, did not even glance up and did not hug him back. Mr. J. said he left the bed the same way he entered, through the middle. Mr. J. estimated he was in the room for less than 10 minutes, mostly waiting for both girls to be in the room at the same time so he could talk to them both. He said he returned to his room and stayed there until the police came to the door. Mr.

J. was not asked why he was dressed in his jeans when the police arrived and no longer in the bathrobe and tanktop. [ 92 ] When challenged on cross-examination about his decision to go into his nine and thirteen-year old nieces’ dark bedroom on a school night wearing nothing but a tank top and a bathrobe without a belt, Mr. J. responded that they were all family and he had no reason to have his guard up. He said that at home, he should feel even safer being naked than at Wreck Beach. When it was pointed out this was the girls’ home, not his, Mr.

J. said it had been decided it would be his home too. [ 93 ] It was suggested to Mr. J. that it would have been most reasonable for him to not crawl between the girls at all and to have simply sat on the end of the bed, especially given his nudity. He disagreed and said he wanted to have a “personal, intimate’ conversation with the girls, to deal with the problem and the distance between them. Mr. J. said his family does not have issues with nudity, he was only partially nude, his intentions were not sexual and he was not being inappropriate.

He added what would have been inappropriate would have been for him to brush off the issue. [ 94 ] Mr. J. did not agree that the girls’ parents would have had a problem with him being in bed with them. When it was suggested to Mr. J. that he could have had the conversation with the girls at the bedroom door, he said that he could not show his love for them without jumping on the bed with them. He said it did not cross his mind that jumping into bed with them would make them uncomfortable. [ 95 ] Mr.

J. disagreed that he could have avoided the situation by waiting until the next day to apologize for being a bad uncle. Mr. J. said he needed to address the situation immediately and avoid further damaging his reputation. [ 96 ] When asked what was going through his mind while in bed with them, Mr. J. said he wanted to reassure his nieces that he loves them. He said he felt vexed with J. because she did not appear interested in having a conversation with him although he laid the groundwork. He said he felt confused that there was no reciprocity. [ 97 ] Mr.

J. denied that he touched either of the girls in a sexual manner. He said he was not aroused while in bed with them, that it was “not in his universe”. He denied touching Z. with his penis or pulling her aggressively toward him. He denied that Z. said “Uncle T.

stop” or that he said that he must have mis-read her. Mr. J. said it was not possible that his penis touched either girl when he hugged them nor did he touch their butts. He also denied touching either girls’ breasts or putting his hand under their shirts. [ 98 ] On cross-examination, Mr. J. denied going into the girls’ room because he was cold and lonely and that he became aroused once in bed with them and touched first J. and then Z. sexually. He disagreed that his mind and body were tired and that he could not restrain himself.

He denied touching Z. with an erect penis, saying there was no touching and his penis was not erect. He also denied hoping that Z. might be interested in his advances. [ 99 ] When asked if he had any regrets about that evening, Mr. J. said he regretted trusting his brother’s family and being fooled by them again. Mr. J.’s statement to police [ 100 ] As was noted by Judge MacCarthy in R. v. Jones ( 2017 BCPC 442 ) at par. 28, it is within the Crown’s discretion to stipulate that the statement of an accused is tendered only for the purposes of cross-examination. Here, Mr.

J.’s statement was tendered by the Crown only for that limited purpose. [ 101 ] Judge MacCarthy drew that authority from among others, the BC Court of Appeal’s decision in R. v. Groves ( 2013 BCCA 446 ). There at par. 24, the Court of Appeal quoted from its 1999 decision in R. v. Tran that: Prior inconsistent statements of an accused are treated differently from those of other witnesses.

Such a statement by an accused may be used by the jury as evidence going to the substantive issue of guilt and not just credibility… [ 102 ] Further Groves at par 37 confirmed that: …when an accused is cross-examined on a prior statement, the trial judge has a discretion to permit all or part of the statement to be marked as an exhibit.

In exercising that discretion, the judge will take into consideration the extent of the cross-examination…There is no rule that the whole of an accused’s prior statement must be placed in evidence if the Crown refers to parts of it in cross-examination. [ 103 ] When asked by the Crown about his statement to police, Mr. J. confirmed that he understood the importance of being truthful with the police, that it could be used as evidence and that he had tried to be as accurate as possible. [ 104 ] In cross-examining Mr.

J. about his statement, the Crown asked a number of questions going to his mental state and state of sobriety at the time of the alleged incident and when he provided his statement. [ 105 ] Mr. J. was asked about pg 13 of his statement where he said he gets anxiety randomly and it’s a terrible condition he’s lived with for many years. Mr. J. agreed that was true, but said he was not suffering anxiety at the time of the alleged incident. In response to his comment to the police “…I think I’m just gonna die”, Mr.

J. said he was feeling anxious about being interrogated for sexually assaulting his nieces. [ 106 ] The Crown cross-examined Mr. J. about his statements regarding his meth use and suggested that based on what he told police, he had used meth on December 3 rd and was still feeling its influence when he was arrested. Mr. J. said what he meant when he told the police officer he last used meth on the 3 rd , was his third day of partying, not the 3 rd of December. Mr. J. agreed that meth impairs a person’s ability to sleep and that even small amounts keep one awake and alert for long periods of time. Mr.

J. said by the time he got to his brother’s, he was very tired from partying and wanted a safe place to rest. [ 107 ] Mr. J. was also asked questions about where he tells the officer about crawling into the girls’ bed. Mr. J.’s attention was turned to page 42, lines 834-837, where in his words, he just crawled in (the bed), it was really dark, so he bumped everything and wacked and smacked. Mr. J. agreed that the room was very dark. He was asked if it was true that he crawled into Z.’s bed, as he told the officer, rather than lunging from the foot as he’d testified. Mr.

J. answered that he tripped climbing over the footboard, lunged and then crawled and pulled his body on the bed. He said this was when his robe came off. At this point in his cross-examination Mr. J. added that he had his robe draped over his body like a cloak, was not using the sleeves, was holding it shut from the inside and that is why it slid off when he released his hands as he lunged into bed. [ 108 ] Mr. J. was also brought to page 47 of his statement, lines 921-925 where he said: So I’m like, I’m gonna put my, oh ‘cause I took my robe off somehow. I went, I disrobed when I came in the room.

Okay right the robe, the robe came off but I had my shirt on because I was crawling into the bed and it was wacking, so I pulled it off, jumped inside s-, flipped, moved, she went to the bathroom. I was lying there with z-, ze-, uh Z. now and then I realized that I’m freezing again like uh… [ 109 ] Mr. J. was asked about telling the officer that he took off his robe. He said what he meant was that the robe came off when he crawled into bed, that the bed pulled it off and he did not remove it deliberately. Mr.

J. was asked why he did not mention to the officer about wearing the robe like a cape, or why he did not bring that up in his direct evidence. Mr. J. responded he did not realize then the level of detail that was needed when he was being interviewed, and that the family was on a lying escapade. He went on to say a liar would keep their statement short and that he tried to be as open and honest as he could in his statement. The Law The offences Sexual assault [ 110 ] The offence of sexual assault is set out at s. 271, but is not defined in the Criminal Code . Mr.

J. is charged by Indictment and in this regard, s. 271(

a) states:

Everyone who commits sexual assault is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10years, or if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimumpunishment of imprisonment for a term of one year… [111] Sexual assault is described by the Supreme Court of Canada in R. v. Chase (SCC), [1987] 2 SCR 293 at par 11 asan assault: …which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.

The test to be applied indetermining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all thecircumstances, is the sexual or carnal context of the assault visible to a reasonable observer”…The part of the body touched, the natureof the contact, the situation in which it occurred, the words and gestures accompanying the act, and all the other circumstancessurrounding the conduct, including threats which may or may not be accompanied by force, will be relevant… Sexual touching [112]

Section 151 (

a) sets out the offence of sexual touching as follows: 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 aperson under the age of 16 years, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years andto a minimum punishment of imprisonment for a term of one year. [113] Sexual touching is a specific intent offence (R. v.

Michel, 1994 Can LII 1336 (BCCA): “…which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of thequestioned act.” The offence of touching for a sexual purpose falls within that category of offence – namely, it is necessary to prove thatthe act of touching was accompanied by the intent or purpose that the act was done for a sexual purpose. (par. 4 – quoting with approvalthe

summary conviction appeal judge, Madam Justice Sinclair Prowse). [114] Mr. J. denies having had any sexual contact with J. or Z. Consent has not been raised, however for the sake of completeness, Inote that where complainants are under the age of 16 years, s. 150.1(1) precludes the defence of consent to charges under sections 151 or271, among others. W.(D.) [115] The Crown bears the burden to prove the guilt of the accused beyond a reasonable doubt. The Crown’s burden applies to theevidence taken as a whole and not individual pieces of evidence. The reasonable doubt standard is not one of absolute certainty.

Areasonable doubt is based on reason and common sense that is logically derived from the evidence or the lack of evidence. [116] The burden always rests with the Crown and never shifts to the accused. Where reasonable doubt exists on the evidence as awhole, the accused is entitled to the benefit of that doubt and is entitled to be acquitted. [117] Because Mr. J. testified, I must instruct myself in accordance with W.(D.). If I believe Mr. J.’s evidence, I must acquit him. If I donot believe his evidence but am left with reasonable doubt, I must acquit. Even if I am not left in doubt by Mr.

J.’s evidence, I must askmyself whether on the basis of the evidence that I do accept, I am convinced that the Crown has established his guilt beyond areasonable doubt. [118] A fourth step has been added to the W.(D.) analysis. That is, if I am unable to decide who to believe, I must acquit: R. v. C.W.H., (BC CA), 1991 68 CCC (3d) 146 BCCA 155. [119] As our courts have stated on numerous occasions, including by the late Judge Jardine in R. v. Singh (2008 BCPC 127 ,2008 BCPC 0127) at para. 34, “…a criminal trial is not a credibility contest.

The test is not which side I believe but whether, on the totality of the evidence viewed as awhole, the Crown has proven the offence beyond a reasonable doubt. The issue of credibility is one of fact and cannot be determined byfollowing a set of rules… [120] In R. v. Horton (1999 BCCA 150 , 1999 BCJ No. 545 CA), the court was required to consider competing versions ofwhat occurred between the complainant and the accused who testified.

The Court of Appeal said this: [20] It is not a question of asking “why would the complainant lie?” or “which witness do I prefer?” In the circumstances here, wherethere is no finding against the truthfulness of the complainant, the ultimate question becomes “having regard to all of the evidence, or thelack of it, can the trier of fact be satisfied of guilt beyond a reasonable doubt?” [21] Further, when it comes to assessing the credibility of children, the trier of fact should first assess the intelligence, maturity,experience and cultural background of the child, and then decide whether any of the alleged inconsistencies or inaccuracies in theevidence are of significance given the witness’s background that is before the court.

The mere fact that a witness is a child does notmean that inconsistencies or inaccuracies lose their significance. All of this of course, must be weighed in light of the evidence of theaccused and his or her witnesses. [121] In Horton, the Court of Appeal overturned the conviction finding that the trial judge did not adequately address some of thetroubling aspects of the complainant’s evidence, which amounted to an error in law.

This included significant differences between thecomplainant’s statement to the police, evidence at the preliminary hearing and his evidence at trial as to the details and circumstances ofthe sexual assaults.

[122] Mr. J. has raised what is sometimes referred to as a “flat denial” defence. In R. v. PW (2003 BCCA 542), Justice Lambert, as hethen was, said the following at par. 16 about the assessment of credibility in a case such as this: However, in cases where a judge is sitting alone the mechanics of thinking in a similar way to the way set out in R. v. W.(D.) are notnecessarily helpful and may be positively unhelpful.

A trial judge sitting alone would, I think, find his or her training and experience leadto looking at the ultimate question, namely has, on the whole of the evidence, the guilt of the accused been proven beyond a reasonabledoubt, without any intermediate fixed steps. The intermediate steps in each case will vary from case to case and bring on differentchallenges in different cases.

In every case each witness is tested and must be considered most carefully, but in the end, the overallquestion must be resolved on the whole of the evidence and seeking to place each part of the evidence in relation to the other part. [123] It is clear I cannot reach my verdict by choosing between Mr. J., and J. and Z.’s accounts of what happened. I must consider Mr.J.’s evidence within the context of all the evidence and after doing so, determine whether the Crown has met its burden of proof. Assessing credibility and reliability [124] R. v.

Tom, 2014 BCSC 2660 is instructive where at paragraph 6, Justice Donegan said: First, I will make some general comments about assessing credibility and reliability. It is trite to say that a court can accept some, all, ornone of the evidence of a witness. Assessing credibility can be a difficult task and involves examination of a number of factors.

Thefactors include the witness' ability and opportunity to observe events; the firmness of her memory; the ability to resist the influence ofinterest to modify her recollection; whether the witness' evidence harmonizes with independent evidence that the court accepts; whetherthe witness changes her testimony during direct and cross-examination; whether the witness has unexplainable differences between,perhaps, her statement to police or others and her testimony; whether the witness' testimony seems unreasonable, impossible, or unlikely;whether a witness has a motive to lie; whether a witness was under the influence of an intoxicant at the time of the events or suffered theeffects of a mental condition so as to render her recollections less reliable; and the demeanour of the witness generally.

I must add that Iam cautious about placing too much weight or emphasis on demeanour. The courtroom setting is often a foreign and stressful place for awitness and nervousness can manifest itself in a number of different ways which can be difficult to interpret. [125] Also of guidance are Judge Rounthwaite’s comments in R. v.

Parent (2000 BCPC 11 , 2000 BCPC 0011) where shenotes that the courts have recognized a number of factors when assessing credibility, including: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person toavoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive when assessing anaccused's testimony. 7. the attitude and demeanor of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessingdemeanor a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors,which may affect demeanor. Because of the danger of misinterpreting demeanor, I would not rely on this factor alone.

Assessing children’s credibility [126] Here, a further consideration is that the two complainants are children, testifying about events that occurred nearly two years ago. [127] It is well-understood that children’s evidence must be evaluated differently from adults and the special approach that must betaken has been commented on and considered by the courts on numerous occasions. [128] The courts have been directed to take a common sense approach to children’s evidence.

Regardless of the age of the child,credibility “…must be assessed by reference to criteria appropriate to the [witness’s] mental development, understanding and ability tocommunicate”. (R. v. W.(R.) (SCC), [1992] 2 SCR 122 at 134; also R. v.

B.(G) (SCC), [1990] 2 SCR30 at 54-55. [129] Although there is no lower standard of proof afforded to children’s testimony, “…a flaw such as a contradiction in the child’stestimony should not be given the same effect as a similar flaw in the testimony of an adult (B.(G.) at 54-55). [130] The late Justice Wilson in B. (G.) also noted at 54-55 that: While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does notmean that they have misconceived what happened to them and who did it. [131] Further, …the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context ofthe age of the witness at the time of the events to which she is testifying. (W. (R.) at 134.

The assessment of a video statement admitted under s.715.1

[132] After satisfying the threshold reliability requirements of s. 715.1, a child’s videotaped statement must be assessed, in tandem withthe viva voce evidence, to determine the weight to be given to the statement. [133] In R. v. DWL (2018 BCSC 2480), the accused was charged with sex offences against his daughter who was nine years old at thetime of trial.

Justice Armstrong heard viva voce evidence from the complainant and as in this case, a video-taped statement made to thepolice was entered into evidence pursuant to s. 715.1. [134] In DWL, the complainant’s statement to police was made two years before trial, when she was about seven years old.

She told theofficer about various events, including instances of sexual abuse by her father that took place between the time she was four and sevenyears old. [135] In considering the weight to be given to the videotaped statement adopted by the complainant, where it was inconsistent with orcontradicted her viva voce evidence, Justice Armstrong considered F.(C.C.) and noted at par 88 that: “If the child complainant contradicts her video statement in cross-examination, this does not automatically mean that the video is wrongor unreliable.

It is open to the trial judge to find: 1) that the inconsistencies are insignificant, and 2) the video evidence is more reliablethan the viva voce evidence at trial. [136] The Supreme Court of Canada in F(C.C.) at par. 9 reviewed the steps taken by the trial judge Justice Lane, in determining whatweight to give to a videotaped statement. Justice Lane noted that the complainant responded in a spontaneous way to open-endedquestions asked by the officer. The Complainant’s description of the essential details of the offence were consistent as between her videostatement and her viva voce evidence.

The trial judge found that the inconsistencies between the video statement and the complainant’stestimony related to peripheral details and that she was completely consistent in the essential details, even after a skilful and lengthycross-examination. Justice Lane concluded the video statement should be given considerable weight. [137] The Supreme Court of Canada explained at par 47 of (F.(C.C.) that where contradictory evidence is elicited during cross-examination, that does not render those aspects of the video statement inadmissible.

Although a contradicted videotape may be given lessweight, that does not mean the entire statement is unreliable. A trial judge may still conclude that the inconsistencies are insignificantand that the videotaped evidence is more reliable that the viva voce evidence. [138] As McLachlin J. acknowledged in the earlier decision of R. v. W.(R.), (SCC), [1992]2 SCR 122 at 132-34 (at par.48 of F.(C.C.)): …the peculiar perspectives of children can affect their recollection of events and the presence of inconsistencies, especially those relatedto peripheral matters, should be assessed in context.

A skilful cross-examination is almost certain to confuse a child, even if she is tellingthe truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which hasbeen contradicted, this is a matter which goes to the weight which should be attached to the videotape and not its admissibility. Assessing the credibility of J. and Z.’s evidence [139] As was noted by the defence and I agree, both J. and Z. came across as intelligent and mature for their age.

J. who was 11 at thetime of trial and Z. who was 14, did their best to answer the questions that were put to them truthfully. They were both thoroughly cross-examined. [140] Defence described J. and Z. as unreliable witnesses because according to his count, there were at least 11 times during the trialthat J. said she could not remember and at least 29 times Z. said she could not remember.

He said their testimony suffered from, in hiswords, “a litany of forgetfulness” and was full of inconsistencies. [141] I do not find it surprising that there are some inconsistencies in J. and Z.’s recollection of the exact details of what happened onDecember 4, 2018 and why, nearly two years later, there are gaps in their memory.

They displayed honesty on the occasions that theyresponded to Crown and defence that they could not remember, as opposed to making something up for the sake of having an answer. [142] Many of the questions to which J. responded she could not remember related to peripheral matters, for example if she had dinnerwith her parents earlier that night, what video game she was playing when Mr.

J. came in the room or if Z. was sitting right beside her atthe detachment while they waited for their police interviews. [143] Similarly, many of the instances in which Z. said she could not remember relate to peripheral matters, for example, if she, J. andMr. J. were under the covers or not, if she got frozen mango when she went upstairs to the kitchen, if she heard J. flush the toilet, if Mr.J. turned around and faced the ceiling and if she, J. and Mr. J. were under or on top of the covers and when. [144] Not every instance of J. and Z. saying they do not remember was non-responsive.

For example, as noted earlier, when it wassuggested to J. that Mr. J. jumped on the bed from the foot and was lying face down, J. didn’t say she did not remember, she said thatwas not how she remembered it. At one point during cross-examination, J. appeared visibly confused when it was suggested to her to thatMr. J. was face down on the bed when he said he wanted to be a better uncle. She said again, that was not how she remembered whathappened. When a similar suggestion was put to Z. she also said that she did not remember Mr.

J. on his stomach, she remembered himon his side. [145] The defence argued that the complainants’ evidence was not credible or reliable on the basis of internal and externalinconsistencies. This included whether J. was playing video games on her phone when Mr. J. entered the room, what exactly she had onwhen she ran out of the house and whether J. was falling asleep or just trying to, when Mr. J. was on the bed. The defence characterizedthis as J. being reluctant to be honest in her evidence as to how alert she was or not, when Mr. J. came in the room.

He says theinconsistencies in the girls’ evidence is significant, and raises reasonable doubt. [146] Z.’s use of the word “delusional” and her explanation of why she used that word was described by the defence as her attempt “to

steer away from the word because of its obvious implications”. He submits this is the mark of an unreliable witness who is thinking about the legal consequences of her answers. In my view, Z. was doing her best to explain that “delusional” might not have been the right word for her 13-year old self to use. Z. was clear on direct what she meant by delusional – she knew what happened wasn’t right, but was also questioning if she was correct about what happened.

Z. was equally clear on cross that she wasn’t imagining the touching and that that was not what she meant by delusional. [ 147 ] The defence described as a “critical moment” in the trial when L. was being cross-examined about what Z. told her over the phone and in the car about what happened. This evidence was not adduced for the truth of its contents, but rather that the words were uttered by Z. Defence argues that the inconsistencies between what Z. says she told L. and Ms.

W., and their evidence of what she said, further demonstrates that Z. was not a credible or reliable witness. [ 148 ] In my view, it would be unreasonable to expect a perfect standard of recollection of who said what to whom and the exact level of detail in a situation where emotions were running high, especially of the child witnesses – the complainants and L., starting from when she got the Snapchat from Z. and ran into her mother’s room. [ 149 ] J. and Z.’s evidence of how they were feeling and why after Mr.

J. left the bedroom, is externally consistent with the observations of the witnesses who saw them when they fled their house. L., Ms. W. and Cpl. Senay each gave evidence supporting the frantic nature of the situation and that J. and Z. were distraught, all of which was internally and externally consistent as between them and also externally consistent with J. and Z.’s evidence. [ 150 ] Circumstantial evidence such as the observations of witnesses is one of the factors a court may consider in weighing evidence ( R. v. James , 2014 SCC 5 ). This includes the following evidence: Cpl. Senay and Ms.

W. saw J. and Z. run from their home, on a cold winter evening in short pyjamas and flip-flops and that they were crying and appeared upset. They jumped into L., E. and Ms. W.’s arms. Ms. W. described the scene as awful. When Z. was on the phone with Ms. W. she was crying, sounded frantic and was speaking fast and so quietly that Ms. W. had to tell her to speak up. [ 151 ] These observations are consistent with J. and Z.’s testimony that they were responding to and running from a frightening situation, something one would expect of children.

Also of significance is J. and Z.’s testimony that they exited their house from the sliding door rather than the more direct front door which would have required them to go through the basement door that Z. locked when Mr. J. left the room. The evidence as a whole makes sense. [ 152 ] The defence said that the court must be cautious of placing too much weight on the evidence of the girls running and crying into the night, or crying on the stand and thereby risk making assumptions about credibility based on gender-related stereotypical thinking.

The Court of Appeal in Horton warned at par. 18 , that in cases such as this, where the evidence is mainly the allegations of a complainant and the denial of the accused, the trier of fact must avoid the pitfall of deciding whom to believe.

The Court said in part, …It is important to ensure that they (gender-related stereotypical thinking) are not replaced by an equally pernicious set of assumptions about the believability of complainants which would have the effect of shifting the burden of proof to those accused of such crimes. [ 153 ] Although I give little weight to demeanour given the well-understood pitfalls in doing so, Z.’s tears and both girls’ occasional looks of surprise appeared genuine and unrehearsed, triggered by the questions asked and responses they gave and added rather than detracted from their overall credibility.

I make this finding not based on their gender, but in the context of them as child complainants testifying at trial. [ 154 ] I do not agree that the inconsistencies in J. and Z.’s evidence are significant. Some of the inconsistencies are attributable to confusion during cross-examination, based on the girls’ puzzled looks and answers that were not responsive to the initial question, but were clear when defence counsel was asked to re-phrase the question.

Further, many of the inconsistencies relate to peripheral matters. [ 155 ] Despite the maturity and intelligence that J. and Z. displayed while they gave their evidence, they are children who were asked to recall in detail, exactly what transpired almost two years ago. Not surprisingly, there were very few instances that J. and Z. said they could not remember, in response to questions asked by Cst. Lee a few hours after Mr. J. was in Z.’s room. [ 156 ] As was noted by the Supreme Court of Canada in R. v.

F. (C.C.) , it is self-evident that J. and Z. would have a better recollection of what happened hours after the event, than years. I give their video statements considerable weight, when assessed in the context of all their evidence at trial. [ 157 ] While they were unable to recount certain details exactly at trial, both girls’ evidence as to what Mr. J. did to them was consistent with what they told Cst. Lee in their statements.

They each told the officer what happened in a straight-forward, careful manner appropriate for their respective ages and did so again during the trial. [ 158 ] J. corrected the officer when he mischaracterized what she had told him about the touching and that it was her leg, not her butt that Mr. J. had touched with his penis. Z. said Mr. J. grabbed her breasts once and touched her butt with his penis for a second.

In my view in their police statements and at trial, the girls did their best to accurately describe what happened, rather than seize an opportunity to embellish the nature of the touching. [ 159 ] J. and Z. delivered their evidence in a manner that rang true. They described the emotions they felt after being sexually touched by their uncle. They were shocked, confused and scared. Z. expressed self-blame and wondered whether she had done something to give Mr.

J. the wrong idea. [ 160 ] Both J. and Z. explained in a plausible way that made sense, why at the time, they didn’t do what one might have expected children to do – get their parents to help. As J. said, she was nine then and didn’t understand a lot. In Z.’s case, she said she was scared to text her mom, so she contacted her best friend, not a surprising thing for a young teenage girl to do. The Defence

Motive to Lie [ 161 ] The defence theory which was put to the girls and their parents on cross-examination was that J. and Z. did not like their uncle, especially because he’d gotten angry earlier that day. It was suggested to J. and Z. that they made up the story about Mr. J. sexually touching them to get him out of the house because Z. did not want to give up her room to him when he moved in. [ 162 ] Both girls denied not liking Mr. J. or knowing about the plan for him to move in. Z. said she wouldn’t have had a problem giving up her room in any event. The theory that the girls had made up the story to get Mr.

J. out of the house doesn’t make sense considering that they didn’t go tell their parents and at first Z. did not want L. to call the police. This behaviour is inconsistent with a planned intention by J. and Z. to lie to get Mr. J. out of the house. [ 163 ] Whether there is a motive for a witness to lie is one of the factors to consider when assessing credibility. As the Ontario Court of Appeal noted in R. v.

Batte ( 2001 OJ No. 2184 ) at par. 120: It is difficult to think of a factor, which as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence.

Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility. [ 164 ] At par. 121, the Court went on to caution that there is no onus on an accused to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a motive means there was no motive or that the absence of a motive conclusively establishes that a witness is telling the truth. [ 165 ] The Ontario Court of Appeal in R. v.

Czibulka (2004) considered the issue of motive to lie, where the Crown sought to tender a hearsay statement made by a deceased person. At par. 44, the Court re-stated the principle that “[l]ack of evidence of motive to fabricate is not equivalent to proved absence of motive to fabricate.” [ 166 ] Here, there is no evidence that I accept of J. or Z. having a motive to lie, however it is but one of the factors to consider in the overall assessment of their credibility. The credibility and reliability of Mr. J.’s evidence [ 167 ] Mr. Vayeghan submits that Mr.

J.’s evidence makes sense from his point of view as a nudist. There is no dispute that if Mr. J.’s version is truthful, while it may be considered unusual behaviour between family members for non-nudists, it is not unlawful behaviour. [ 168 ] The defence described J. and Z.’s family as tolerant of nudity. For example, Mr. J. testified that he had been invited to the family bed with the girls. He also testified that the robe he’d been given had no belt and was falling off in front of the family that evening and no one was troubled by it. This was a new robe gifted from Ms.

S.’s kiosk so it doesn’t make sense that it would not have had a belt or that Mr. J.’s request for one would have been refused. [ 169 ] Mr. J.’s testimony about his relaxed perspective of family nudity is at odds with his request for a belt, boxers or pyjamas which he said were refused by his brother. It begs the question why it would have mattered to Mr.

J. to not have boxers (he repeatedly testified he does not use underwear) or pyjamas. [ 170 ] Beyond them agreeing they had taken the girls to Wreck Beach where they had seen their uncle nude, these issues were not explored with the parents during cross-examination. Ms. S. however disagreed that it was normal for the girls to see their uncle naked and said especially not in their own home. She also testified that they stopped going to Wreck Beach in 2018 because the girls were getting older, so clearly her perspective on nudity was not as open-minded as Mr.

J.’s. [ 171 ] It was fairly pointed out by defence that some of the inconsistencies in Mr. J.’s evidence can be explained by the passage of time which affects not just the memory of child witnesses but adults as well. [ 172 ] I give little weight to some of the inconsistencies raised on cross-examination between Mr. J.’s statement to police and at trial, for example his meth use and the timing of it, whether his drug use had increased in the months prior to December 2018 and the extent of his anxiety. I accept Mr.

J.’s explanation at trial of when he stopped using meth and that he was very tired when he got to his brother’s house, which is consistent with not being high on meth. Although Mr. J. disagrees he was quiet or subdued, his own evidence that he was very tired and the observations of N., Ms. S. and Cpl. Senay are consistent with someone who was recovering from a 3-day bender. [ 173 ] In assessing the evidence, it is critical to subject the Crown and defence evidence to comparable levels of scrutiny. The defence argued that this logic applies where Mr.

J. has provided an explanation that makes sense to him, even if it does not make sense to others. An example of this would be Mr. J.’s unusual explanation of how he got into Z.’s bed. The lunging into the bed from the foot, arose only during Mr. J.’s testimony at trial. [ 174 ] As our Court of Appeal pointed out at par. 65 of the recent decision of R. v.

Roth ( 2020 BCCA 240 ), …although judges are entitled to rely on their human experience in assessing the plausibility of a witness’ testimony, they must avoid speculative reasoning that invokes “common sense” assumptions not grounded in the evidence. [ 175 ] Twice in the portions of his statement to police that Mr. J. was cross-examined on, he spoke of crawling into the bed which makes more sense than lunging over the foot-board. He said nothing about lunging as one might expect, given Mr. J.’s detailed evidence at trial about that method of getting into bed with his nieces.

Lunging onto the bed, wearing his robe as a cloak, supports Mr. J.’s version of how he came to be disrobed. J. and Z. were asked about Mr. J. lunging on the bed and their testimony was consistent and unshaken on cross- examination. J. said that was not how she remembered it and Z., said she couldn’t remember. Both girls said they did not recall Mr. J. lying on his stomach, which he says was the position he was in after lunging.

[ 176 ] J. and Z.’s evidence is internally and externally consistent that Mr. J. was initially beside J., which makes sense since, given the evidence that she was lying at the edge of the bed, with Z. on the side of the bed against the wall. After J. got up, Mr. J. moved to the middle of the bed where he was closer to Z. and between both of them when J. returned from the washroom. Their evidence is also consistent with what Mr.

J. told the officer a few hours after the incident when his memory would have been fresh, which was that he crawled into bed and that after “she” (J.) went to the bathroom, he was lying with Z. [ 177 ] The girls are both uncertain of Mr. J.’s exact level of dress or undress in the dark bedroom. J. did not agree that Mr. J.’s robe fell off when he got on the bed and Z. thought he was disrobed but wasn’t sure. Mr.

J.’s testimony of what he actually meant when he told the police officer about disrobing simply has no air of reality and I do not accept it. [ 178 ] The defence says that it does not make sense that neither of the sisters saw Mr. J. sexually touch the other. I do not agree. Z. was on her side, facing the window, away from J. and Mr. J. Whether Mr. J. was in the middle of the bed throughout as he has testified, or beside J. at first, and then got in the middle when she got out of bed to use the washroom as J. testified, he had the opportunity to sexually touch J. without being noticed by Z.

He also had the opportunity to sexually touch Z., without J. seeing while J. was in the washroom. Demeanour [ 179 ] The defence cautioned the court against making any adverse inferences based on Mr. J.’s demeanour in court, describing him as unsophisticated and eccentric. I did not find Mr. J’s demeanour eccentric, however much of his evidence went beyond what his lawyer described as his eccentricity and at times simply did not make sense from any perspective, other than Mr. J.’s. [ 180 ] Mr.

J. was frequently defensive and refused to agree with almost all of the propositions put to him by Crown, even those that were of no consequence to the defence theory of the case. He could not or would not acknowledge that his brother and sister-in-law had been kind to him by inviting him into their home and instead took every opportunity to be critical of them and the girls’ behaviour. The recurring theme in Mr. J.’s evidence was that he was the victim who had been mistreated. [ 181 ] Mr. J.’s attitude towards his brother’s family stood in sharp contrast to N. and Ms. S.’s testimony.

Despite the allegations of sexually assaulting their daughters, they did not denigrate Mr. J. or portray him in a negative light and their evidence was balanced and fair. I prefer N. and Ms. S.’s evidence in that regard over Mr. J.’s because if the relationship was as strained as Mr. J. portrayed, it defies belief that his brother and sister-in-law would have had him stay with them for six weeks during the summer and then helped him out again in his time of need in December – or that Mr. J. would have sought out their help – or that Ms.

S. had shown him the kindness of giving him a jacket and socks before he was taken into the cold by Cpl. Senay Mr. J.’s evidence does not make sense [ 182 ] It does not make sense given Mr. J.’s own evidence about the emotional distance and lack of relationship between himself and his nieces, that he was compelled to fling himself into bed with them in the dark, momentarily disrobed, in the late evening to try and make things right between them, and further that this would be considered normal and would not make the girls uncomfortable. Mr.

J.’s evidence is internally inconsistent, considering on the one hand he said he needed to be in bed with his nieces to have a ”personal and intimate conversation”, and on the other that the girls had always been distant with him, especially J. The distance and lack of reciprocity that Mr. J. complained of is also consistent with Ms. S.’s evidence that the girls were indifferent to their uncle. I accept Ms. S.’s unchallenged testimony that for her girls to see Mr. J. naked was not a normal event and they had not seen him naked in their home. Given this evidence, Mr. J.’s version defies logic. [ 183 ] Mr.

J.’s indignation as an adult, at being rebuffed by his 9 and 13 year old nieces, and that he was stunned by J. getting up and going to the bathroom while he was mid-sentence, and that he laid in bed in silence until she got back, also make no sense. Neither does Mr. J.’s evidence that he needed to address the situation immediately to avoid damaging his reputation further, considering the situation he described was a childish comment he says he overheard. [ 184 ] In all respects, Mr. J. has advanced a

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