R v ASP, 2023 ABKB 79

Court of King’s Bench of Alberta Citation: R v ASP, 2023 ABKB 79 Date: 20230210 Docket: 171147580Q1 Registry: Edmonton Between: His Majesty the King Crown - and - ASP Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify The accused, victim and witnesses must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. ______________________________________________________ Reasons for Decision of the Honourable Justice M. J. Lema

_______________________________________________________ I. Introduction [ 1 ] Did ASP (“AP”) sexually assault and sexually interfere with his common-law partner’s 11-year-old daughter AK on an occasion in late 2013 or early 2014? [ 2 ] That was the focus of this retrial held January 16-18, 2023 in Edmonton. [ 3 ] The Crown’s witnesses were the complainant (now 20) and an RCMP officer who took a statement from her in late August 2017. [ 4 ] The defence’s witnesses were the accused and the mother of the complainant. [ 5 ] For the reasons outlined below, I find AP guilty of sexual assault and sexual interference.

II. Synopsis [ 6 ] The accused (AP) became the common-law partner of the complainant’s mother (TK) in or around 2007, when the complainant (AK) was about five years old. The family then consisted of TK, AP, AK and OB (older brother of AK and son of TK). They were then living in a town in central Alberta. [ 7 ] After a move to another central Alberta town in 2010-2011, the family moved in 2012 to yet another central Alberta town. [ 8 ] By that time, OB was no longer living with the family (instead with TK’s parents).

As well, shortly after moving to the third town, TK gave birth to YB (younger brother of AK and son of TK and AP). [ 9 ] At the material time (September 2013 through April 2014, the indictment period), the family consisted of TK, AP, AK and YB. [ 10 ] AK testified in part that, one night between September 2013 and April 2014, when she was 11, AP entered her bedroom while she was asleep, woke her by shoulder contact, removed her bottom clothing, removed his bottom clothing, got on top of her (with her facing up from the bed), had penile-vaginal intercourse with her, got off her and the bed, put on his bottom clothing and walked out. [ 11 ] AP testified that the alleged event did not occur, that that he never entered her room late at night, and that he never had any sexual contact with her. [ 12 ] AK testified that she recounted this incident to work colleagues in summer 2015.

She later testified that, on September 20, 2017, she went to the local RCMP detachment and advised that she was moving in with a friend and that, accordingly any “missing person” report from her mother or grandparents should be disregarded.

Per her, she was then asked by the attending RCMP officer, who was aware of a third-party report of AP having sexually assaulted or sexually interfered with AK, apparently stemming from the 2015 disclosure to colleagues, whether she would provide a statement of the alleged assault, which she did. [ 13 ] A police interview of AP and charges of sexual assault and sexual interference then followed. [ 14 ] A preliminary inquiry was conducted on May 16, 2018 and a trial in November 2019, which resulted in an appeal directing a new trial, which was held before me January 16-18, 2023. [ 15 ] At the conclusion of the trial I reserved my decision, now provided via these reasons.

III. Legal framework [ 16 ] I adopt the following legal-framework review from Mandziuk J.’s recent decision in R v SGH , 2023 ABKB 39 : Burden and Standard of Proof SGH is presumed to be innocent. The presumption of innocence is connected to the requirement for proof of guilt beyond a reasonable doubt, a fundamental principle of our criminal justice system. The Crown has the burden of proving each element of an offense. That burden of proof rests on the Crown throughout the trial. The benefit of any doubt must be extended to the accused R v Lifchus , [1997] 2 SCR 320 ( Lifchus ) at para 36 .

Proof beyond a reasonable doubt is not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyond proof of probable or likely guilt: R v Starr , 2000 SCC 40 at para 242 ; Lifchus at para 32. Reasonable doubt can arise from the evidence or from the absence of evidence. It is grounded in reason and common sense, and determined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic, flights of imagination, or frivolous considerations: Lifchus at para 36.

SGH gave evidence at trial. Therefore, I must consider the Supreme Court of Canada’s direction in R v W(D), (SCC),[1991] 1 SCR 742 (W(D)) as interpreted by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (Ryon) and R v Achuil, 2019 ABCA299, leave to appeal dismissed (SCC). These principles were helpfully summarized by Renke J in R v Hermkens, 2021 ABQB 1016 at para 12, as follows: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt.

Additionally, the Court in Ryon at para 47 held that whether evidence exculpating an accused raises a reasonable doubt must be assessedin the context of the evidence as a whole. I will now turn to discuss the general principles of credibility assessment, myths and stereotypes and the particular considerations arisingfrom the evidence of children. Credibility Assessment Generally Witness credibility and reliability are the over-arching issues and challenges in this case. Credibility assessment is about witness’honesty and truthfulness. Reliability is about the accuracy of the witness’ evidence.

A number of factors require careful consideration when assessing the credibility of a witness. The uniqueness of each witness and thefacts of each case must be weighed and evaluated carefully. As Cory J observed in R v S (RD), (SCC), [1997] 3 SCR 484 (S (RD)) at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science.” The task of assessing credibilitycan be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed.

In making credibility findings, the evidence must be considered in its entirety. Each part of the evidence is part of the whole, and thoseparts interact and inter-relate. Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC),[1947] SCR 268 at 271; Ewanchuk at paras 29 – 30. The factors that can be considered in assessing credibility include the witness’s character, emotions and feelings, self-interest, hostility,attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior.

Additionally, evidence of bias ordishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R v Tash, 2013 ONCA380 at paras 40 – 43. Inconsistencies in the particulars and the whole of the evidence are certainly an important consideration. No singlefactor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive.

Additionally, the trier of fact’s life experience and common sense can weigh into the process, which necessarily involves the trier offact’s view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition: R vMarquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129. Myths & Stereotypes Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how human beingsbehave in certain situations. This is impermissible.

Such reasoning can undermine the fairness of the trial and distort the truth-findingprocess that is at the heart of the trial: R v ARD, 2017 ABCA 237 at paras 6 – 9 (ARD), aff’d sub nom R v AJRD, 2018 SCC 6. In short, myths, stereotypes, preconceptions and related irrelevant considerations must be strenuously avoided. Generalizations or other mattersthat are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129 – 130. In R v JC, 2021 ONCA 131 (JC), the Ontario Court of Appeal explained that stereotypical thinking is not to be conflated with theapplication of logic or common sense. First, judges must avoid speculative reasoning that invokes common-sense assumptions or humanexperience that are not grounded in the evidence or appropriately supported by judicial notice (JC at para 58).

Second, factual findings,including determinations of credibility, cannot be based on stereotypical inferences about human behaviour; it is an error of law to drawinferences about how a complainant or accused is expected to act based on stereotypical inferences (JC at para 63). Particular Considerations Arising From Child Witnesses In R v W (R), (SCC), [1992] 2 SCR 122 at 132 -133 (W(R)), the Supreme Court of Canada stated the following regardingthe evidence of children:

The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found atcommon law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with specialcaution…So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particularcase, it will have fallen into an error.

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. Wilson J. recognized this in R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, atpp. 54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of the complainant, she saidthat ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think hisconcern is well founded and his comments entirely appropriate.

While children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oathtaking and corroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before thecourts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing thecredibility of young children. [emphasis added] When dealing with the evidence of children, courts should not treat flaws and contradictions in a child’s testimony as having the sameeffect as they do in an adult’s testimony. Children perceive - and therefore describe - events differently from adults. Courts must assessthe flaws and inconsistencies in children’s evidence with this in mind.

The Supreme Court of Canada further expanded on the treatment of evidence of children in R v F (CC), (SCC), [1997]3 SCR 1183 (FCC), specifically the effect of subsequent contradictory evidence of a complainant after adoption of the initial videointerview. At trial, the complainant, who was six during the offence and the video interview, adopted her video interview during herexamination-in-chief. On a cross-examination, the complainant made statements which contradicted the video interview. For example,she testified differently about clothing of the offender and whether he was awake at the time of the offence.

It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more thanadults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The youngerthe child, the more pronounced will this be... It is a common experience that anyone, and particularly children, will have a betterrecollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, “Do ChildrenForget Faster?”, [1991] Crim.

L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the allegedoffence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later attrial. (FCC at para 19). The Supreme Court of Canada warned courts at para 48: A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistenciesin her testimony.

Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to theweight which should be attached to the videotape...

The Court further held at para 49 that the trial judge’s analysis of inconsistencies was reasonable: [The trial judge] applied the principles from B. (G.), supra, and W. (R.), supra, in holding that the minor inconsistencies regardingperipheral details were not of “great significance” and that they should not preclude her from relying on the videotaped statement as true.Furthermore, she found that the complainant’s evidence-in-chief and cross-examination were consistent with the evidence she gave in hervideotaped statement with respect to the essential elements of the assault. [paras 35-55] [17] I also note the following credibility-gauging guidance where an adult testifies to events experienced (or allegedlyexperienced) as a child, from R v DD, 2022 ONCA 786: In R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on acommon sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children mayexperience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missingfrom their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v.

W. (R.) toaccurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since achild may not attend to such details: R. v. W. (R.), at para. 30. Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant.This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later whiletestifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence.

Therefore, “the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age ofthe witness at the time of the events to which she is testifying” (emphasis added): R. v. W. (R.), at para. 27. However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should beassessed according to criteria applicable to her as an adult witness”: R. v. W. (R.), at para. 27. … [paras 4-6] [bold emphasis added]

[ 18 ] On the same aspect, see also R v LL , 2019 ONSC 3295 (Leroy J): CD is an adult testifying about events she says happened in her childhood. She is to be assessed as an adult witness recognizing that minor peripheral matters as time, place and antecedent are not central to the memory and that the measure of uncertainty and inconsistency in recollection on these details may not be a good barometer of plausibility or implausibility of the complaint .

The inconsistencies involving the chronology of places of residence, schools and CD’s age for the first incident in the truck do not reflect on her central memories. I don’t think that a pubescent female who is being sexually targeted by her stepfather would focus on age, time of year, school grade at the time, whether the incident happened during access travel or as part of the workday, whether there was one or two chairs, the details of transaction negotiation, or even variations in sexual order preliminary to sexual intercourse. [paras 150-151] [emphasis added] [emphasis added] IV. Credibility assessments A.

Credibility assessment of AP [ 19 ] I found AP to be a guarded, defensive, less-than-candid witness. [ 20 ] After saying that he had lost a particular job (circa 2011), he was asked (in direct) what caused that job loss. He replied that it was “due to a fatality at work.” He then described a tragic workplace accident in which a co-worker with whom he was close and had worked closely had died. After describing that incident in detail, he was again asked what led to him losing that job.

He answered: “[It was] readjusting to new rules and new ways [of] unloading rail cars … [it was] hard to readjust to the new rules of the facility.” [ 21 ] The understanding of TK, who testified for the defence, was that AP was “fired” from that job.

Asked if she knew the reason, she said “[It] was a mistake … a train went off the rails at [that worksite] … not quite sure exactly … not sure how it all works … that was the third mistake [AP had made at that worksite] since [his colleague’s] death … he had not made any mistakes [before that event].” [ 22 ] I find TK’s understanding to be accurate here, especially in light of this job loss coming very shortly (two weeks) before AP was to start a paternity leave coinciding with the anticipated birth of TK and AP’s son, who was indeed born at or around that time i.e.

I find it highly unlikely that AP would have resigned his position. And no evidence showed that without-cause layoffs were happening at AP’s workplace around this time. [ 23 ] I accept that AP was not himself after the workplace death. [ 24 ] The point here is that AP could not bring himself to say that he had been fired or to acknowledge that he had made mistakes at work that led to his dismissal.

Even acknowledging his position that the root cause of his mistakes and firing was trauma arising from the death. [ 25 ] When the subject of alcohol came up in his direct exam, he was asked “Do you drink.” He responded: “I do not drink.” After answering “no” to “do you drink regularly?”, he was asked (in leading fashion): “Does anything cause you to drink?” He then answered: “My birthday … very little.” Questioned “how much on your birthday?”, he answered: “A beer.” (The birthday-only drinking was confirmed by TK.) The point is not that AP is a heavy drinker or anything other than a once-a-year-one-beer drinker.

It is that his initial response was that he did not drink, full-stop i.e. in what I see as an attempt to burnish his image (to the extent drinking, at any level, is somehow subpar activity or, in any case, prejudicial to AP here, as will be discussed later [ 26 ] Referred in direct to his break-up with TK in 2014 and asked “what led to it?”, he said “[she] and I did not see eye-to-eye.” Per TK, who I believe on this aspect and elsewhere where his and her evidence differ (as discussed further below), it was because AP has suspected her of cheating on him, he had arranged a “hook-up” in Banff in response and had taken home-mortgage-payment money to fund that trip, and she had discovered his plan.

Here again, AP’s testimony was designed to gloss over details that would or might reflect poorly on him. [ 27 ] After he testified to “fights” and “shouting” in the period leading up to their break-up, he was asked “How bad did it get in terms of escalation?” He answered: “Bad enough to separate.” Defence counsel then said: “You’ve heard allegations [from AK] of punching doors … any comments?”, he then said: “Yeah.

It could get to the point where I [would have to] restrain [myself and] punch a door or wall, yeah.” Once again, AP could not bring himself (without prompting) to describe the “escalation state”, in another attempt to avoid possibly negative impressions of him. [ 28 ] Asked in cross-examination about his employment history after losing the above-noted job (in or around September 2012 i.e. shortly before YB’s birth in October 2012), he said that, after a one- or two-week gap, he had a new job with another employer for “about 8 months or so.” He then said that, after the second job (which, per his timeline, ended approximately May or June of 2013), he got another job (with only a week or two gap) with another employer that lasted “three to six months at most … closer to three months”, which would take him up to around early fall 2013.

He was then asked: “What was your employment after [the third employer]?” He answered: I started the rigs … oil rigs.” Asked what year, he said “2013/14.” He then paused, apparently thinking about his answer, and then said “Yeah, I would say that.” Shortly after, Crown asked “which job did you have when [YB] was born?” He answered, naming the second employer noted above i.e. the eight-month-or-so position.

Crown observed: “[YB] must have been young for the [second job] to [third job] to the rigs.” AP answered: “It was less than a year for all of them … [YB] was just a baby.” [ 29 ] Combined with his (later-in-direct) evidence that rig work involved a “lot of hotels” and thus being away from home a lot, and noting the indictment period of September 2013 to April 2014, this evidence may have been an attempt to show narrowed opportunities to have committed the alleged assault.

I do not decide either way. [ 30 ] However, in light of his clarified-in-redirect evidence that the rig work started in 2016 and no evidence of any in-between-

third-job-and-rig-work job, AP was apparently not employed from approximately fall 2013 to sometime in 2016 i.e. a period of at leasttwo years. Here again, while AP’s “next job” (after the third position) was apparently indeed rig work, he left the impression,particularly with his “all these job in 2013” evidence, that he had a continuous record of employment.

In other words, another instance ofan unwillingness to describe or acknowledge something that might reflect poorly on him or, in any case, left a material gap in hisemployment history. [31] Asked later in cross with his meth use “ever got out of control?”, he said no.

He was then directed to the first-trial transcript,where (as summarized by the Crown) he had testified that his “meth usage had gotten worse, it had progressed and gotten worse” and(after references to “screwing up at [the eight-month job] and screwing up the [next job]”) “it was out of control.” [32] Asked if that earlier testimony was correct, he said “not exactly, no.” Asked what he was referring to here, he said “notworking” i.e. apparently that his “out of control” comment referred to his employment life. Crown queried: “You were not referring tometh here?” AP: replied: “Not specifically.

I was still able to control the usage.” [33] His first-trial (“out of control”) answer can only be reasonably understood, in context, as referring to meth usage, all asidefrom “out of control” not normally used to describe one’s employment situation or, at least, a period of unemployment. I see this asanother effort to evade association with potentially problematic conduct [34] Later in cross, he was asked about his most frequent use of meth.

He answered: “It’s hard to say … it has been a while … say,from three to four times a month to … weekly.” Crown then took him to the first-trial transcript, where he testified to meth usage (at leastone point) of “daily.” He acknowledged that that answer was correct.

Again, an attempt to distance himself from possibly-reflecting-poorly-on-him conduct, with no explanation of the discrepancy. [35] Still later in cross, asked about whether an EasyBake oven had been thrown down the stairs of the family home (part of AK’sevidence and which AP said “may have happened”), he then said “if it happened, it would have been after three strikes [i.e. after he hasasked AK to put it away, after he had yelled at her to do so, and after TK had been called in for discipline] and after [TK] had said to [putit away i.e. off the kitchen counter] and [AK] had not done so.” Asked if he had become the “disciplinarian” and not TK, he said no.

Asked: ‘You would not call throwing an EasyBake oven not properly put away discipline?”, he said no. Question: “Really?” Answer: “Iwould not have done that.” [36] Here he declined to attach the label “discipline” to this apparently disciplinary consequence for house-rule breaching and, inany case, when asked to explain his response, declined (with his “not me” response): another attempt to put distance between himself andpossibly negative conduct, whoever threw the oven down the stairs. [37] Asked if he would describe himself as having a temper, he said no.

Q: “When on meth?” Answer: “No.” Question: “Youagree that you punched a hole in a wall and a door?” A: “I was not high, no.” Here he would not acknowledge seemingly temper-indicating behaviour.

And when confronted with it, his initial response was not an acknowledgement but “not high” i.e. more examplesof trying to distance himself from perceived-as-casting-a-shadow conduct. [38] Asked again if he had a temper, he answered: “After arguments … after heated arguments, yes.” Then asked: “You say thatthrowing an EasyBake oven down the stairs … does not constitute having a temper?”, he said “no” and he did not add anything about“not my conduct.” [39] Asked if he was “ever alone with AK in the house?”, he said “no” immediately i.e. without taking any time to think aboutwhether that had ever happened in the approximately two years he had lived with TK and AK in the house in question.

Asked then“[There] was never a single time in [that house] that you and her were alone?”, he said right away “never.” And again, Q: “Not onetime?” A (right away): “Not one time.” [40] Here it is not just the immediacy of AP’s rapid-fire responses. TK testified, in response to questions about when she was everaway from home (with an apparent focus on the indictment period), that aside from absences with AK herself (“dance” or to take her tothe maternal grandparents’ home), she was away at times with YB at swimming lessons.

TK gave no evidence that, at such times, AKwas at the grandparents or elsewhere, allowing me to infer that, indeed, there were times (albeit day times) when AP and AK wereindeed in the home in question with no others present. [41] In any case, I query the likelihood that, over the course of approximately two years, there was not one time that AP and AKwere alone in the house e.g. even if TK and YB were just sitting on the front porch or in the yard, at a neighbour’s place or walkingaround the block: see, for example, these cases where “never alone” evidence was rejected as implausible, most in long-running (multi-year) family settings: R v BB, 2018 ABCA 420 (paras 33, 34 and 37); R v.

SA, 2021 ONCA 434 (para 46); R v GW, 2020 ONCA 130(paras 2 and 3); R v GP, 2014 ONCA 39 (para 39); R v DT, 2014 ONCA 44 (para 52); R v SA, 2017 ONSC 3169 (B.A.

Allen J.) (paras83 and 94); R v KR, 2016 ONSC 2000 (Laliberte J.) (paras 389-400); and R v SS, (NL PC) (Gorman PCJ) (paras 94-97). [42] I also accept the Crown’s characterization of AP as only reluctantly acknowledging some particulars of his drug use over theyears. [43] Overall, AP took many opportunities to try to step around or over potentially concerning behaviour i.e. to paint himself (or atleast try initially) in the best possible light e.g. not responsible for job loss, almost continuously employed, in-control drug user, non-drinker, measured and proportionate around break-up (“not seeing eye to eye”), even-tempered, etc.

His “not out of control with meth”explanation was nonsensical. His highest-meth-use-frequency estimate (weekly) in the current trial was shown to be materially at oddswith his actual highest use (daily) which he acknowledged and with no explanation of the discrepancy.

And he rushed out his “neveralone” evidence without taking even a moment to ponder that wide-seeking inquiry, when it was clear he had been, in light of the YB-swimming-lessons evidence and what I see as the common-sense inference otherwise here. [44] Fundamentally, AP’s pattern of denying or diminishing behaviour potentially reflecting poorly on him showed an

unwillingness to be open with the truth i.e. to be candid. Same for his unwillingness to acknowledge even one moment (day or night) of “alone in house with AK” time. And his unexplained meth-use contradiction. [ 45 ] Collectively these give me concern about his credibility. B.

Credibility assessment of TK [ 46 ] I found TK to be a largely credible and reliable witness, answering questions in an open and unguarded fashion, acknowledging her own personal difficulties (one-time meth addiction, beaten for many years, relapse in face of serious health difficulties) with candour and insight, and offering an unvarnished account of AP’s own drug use, employment struggles, volatile temper and aggression towards her (TK), and the one-time warm relationship between AP and AK lapsing, after TK’s and AP’s son (AK’s half- brother) was born, to one of remoteness, criticism, and fractiousness. [ 47 ] It became clear, in light of TK’s overall testimony, that, in her view, AP could not have sexually assaulted or interfered with AK, largely on the basis that she was effectively always there i.e. that AP had no actual opportunity to commit such offences against AK, with a particular emphasis on what she described effectively as her heightened sensitivity to noise at night i.e. that with an infant sleeping nearby (albeit in a separate room) she was very easily awakened by any noise in the night and would necessarily have heard any floor creaking (from the family home’s creaky hallway floors) that would have been caused by AP walking in the hallway and into AK’s room. [ 48 ] In cross, TK acknowledged that she did sleep for “hours at a time” some nights and that her main conduit for “baby noise” was a baby monitor in YB’s room (although she countered that, many times, when she reported to AP that “the baby is awake”, even before hearing anything via the monitor, one or both of them would indeed find YB awake). [ 49 ] I do not find that TK would necessarily have heard any and all creaking noise that might have been caused by AP walking in the hallway in question or otherwise around the house, especially given AP’s evidence that, fueled by meth consumption, he was awake through the night many nights during the indictment period and the absence of evidence that, at such times, he stayed out of the house or, if in the house, did not move about (whether for fear of waking TK up or otherwise) or, in any case, that TK was continually waking up in the night on account of walking-around noise caused by AP at night. [ 50 ] Overall I conclude that TK was a committed parent to AK, that she did her best to respond to AK’s changing and (at times) distressing behaviours as she moved through her teenage years, that she tried to find resources to help AK throughout, and that her (i.e.

TK’

s) own (serious health) difficulties hampered her efforts to care for AK, with TK having to lean to a degree at times, sometimes heavily, on her own mother, to provide day-to-day care and guidance to AK. C. Credibility assessment of AK [ 51 ] I find AK a credible and overall reliable witness. [ 52 ] She tried to be precise with details, as much as she could.

She admitted when she did not know or could not recall things e.g. whether AP was employed at the time of the incident, whether she went back to sleep after the alleged incident, or who was in the house the morning after (saying she was up early, to catch the school bus, and did not check to see who was home before she left), and whether certain tenants had had keys to their home. [ 53 ] She did not “have an answer for everything.” She told us when she was making an assumption e.g. about how long she had been asleep (“only a few hours”) before being awakened on the night in question.

Same for whether the house doors were locked every night (“most of the time [they] were locked, as far as I was concerned”). [ 54 ] Demeanour-wise, defence characterized her as “dramatic.” I disagree: I find that points when she was crying or otherwise visibly upset corresponded to the distressing or frustrating events she was describing (e.g. various stages of the asserted sexual assault, AP’s asserted tendency to take a friend’s word over hers, perceived-by-her indifference or carelessness by CFS officials).

And the displayed emotions did not seem out of proportion or exaggerated. (I recognize that deameanour is not a decisive or even weighty factor here i.e. is only one element, and perhaps even a minor element, in the credibility equation.) [ 55 ] She seemed to be doing her best to be accurate e.g. in prefacing observations about which she was not entirely certain (e.g. what seemed to make AP twitchy at times) with “as far as I know.” After being asked how many steps one room was away from another and initially answering (“three to five steps”), she added, after a pause, “depending on the size of the steps.” Asked when the family moved into the house at which the incident allegedly occurred, and after answering (“2012 … at the end of Grade 4”), and a pause, she added “I remember going to my grandma’s funeral on the last day of school … [they] pulled me out of school.” [ 56 ] She was not “locked” into every (peripheral) detail e.g. acknowledging that she may have worn long pants or pajama bottoms to bed on the night in question (“could be … I was known for wearing shorts a lot of the time … depending on my mood … [it] could be pants I wore to bed”). [ 57 ] She made other acknowledgements squaring with common sense e.g. that “potentially there are keys to [the] house floating around [out in the world].” [ 58 ] The very fact she testified she could not see the person’s face at any point (owing to the darkness) signals what I see as her carefulness about providing an accurate account. [ 59 ] She was frank about personal shortcomings, for example, readily acknowledging her initiation and experiences with alcohol, marijuana and “mushrooms.” Key-wise, she testified: “I lost my [house] key pretty early on [after moving to the new home in [2012] …

It was the first time having a [house] key … it did not last long with me.” [ 60 ] She did not offer uniformly negative evidence about AP, acknowledging positive conduct at points e.g. a train ride at AP’s workplace. She said that, when he first came into her life, he was “nice at first … I was told by my grandma that, when I was younger, I wanted to be around him.

If Mom [had a] fight with him, I would say ‘let’s go see him … I like him … he takes me swimming … let’s go swimming’.” She said that, with reference to a certain point, “I had never heard him yell or swear before that.” She acknowledged that, around the time of her younger brother’s birth (when TK was hospitalized with complications in the lead-up), AP was “at the hospital most of the time, [going] back and forth from [home] … to get things for her.” [ 61 ] Her account of the central incident included some unusual or not-necessarily-expected details that seem to signal an accurate (versus fabricated) account e.g. the person’s hand slipping off the bed at one point, and neither party saying a single word during the encounter.

And her clock making a “beep once in a while.” And “every once in a while, the bed frame hitting the back wall”, which she attributed to the bed “moving from the sex.” [ 62 ] Same for fine-grained details provided by her (also seeming to reflect an actual account) e.g. her description of the removal of her bottom layer (“one of his hands [was] hooked into the waistband of my [bottoms] … his other hand was [pulling or drawing] the extra fabric, the “flowiness” of the leg parts.”).

And her evidence of the smells coming from the person or his clothes: “… like rubbing alcohol, and a bit of tobacco, and laundry detergent.” And his repositioning of her legs (“… separating them further or lifting one above the other instead of laying flat … into a triangle position.”) [ 63 ] Her descriptions of her emotions at the time of the incident squared with her account of this first-sexual-experience in the described circumstances: “panicked … shocked and scared … also really confused … and in pain … and like I did not want to be here anymore.” [ 64 ] One thrust of the defence position was that various inconsistencies between AK’s evidence at the current trial and her earlier (2017 police interview, 2018 preliminary inquiry, or 2019 first trial) evidence undercut both her credibility and reliability. [ 65 ] I agree that they made her less reliable, albeit about peripheral or minor details, but not to the extent of undermining her overall reliability when it comes to the core details (as discussed below). [ 66 ] As for credibility, as explained below, I do not find the inconsistencies marring. [ 67 ] What follows are excerpts of AK’s direct and cross evidence, aimed at showing the defence-emphasized inconsistencies ( bolded ) in context.

In direct examination, AK testified that, one night between September 2013 and her 12 th birthday in April 2014 (which was the year she was in Grade 6): • she was awakened in the middle of the night by movement on her bed : “I woke up to my bed moving and a hand on my shoulder and leaning [or placing] me on my back [from my side position]”; • “I remember having [my] blankets taken off”, “my shorts being pulled down”, “him standing up and getting off the bed”, “me looking at the clock and seeing red [i.e. the colour of the illuminated digits of the clock] because my eyes were watery”, “feeling the bed dip when [he] started to crawl on top …” [witness crying at this point – took break for her to compose herself]; • she was wearing “I assume pajamas … not exactly sure … normally shorts and tank-top or crop-top”; • it was “pitch black” in the room, albeit a “little bit” of light shone from her alarm clock [on a nightstand beside the head of her bed]. [While she mentioned in her testimony that her bedroom had a window to the exterior, it was not clear whether it had curtains or other covering or, if so, whether the covering was drawn or, if so, fully drawn]; • with the available light, she could see the [general shape and outline] of a person above her while she continued to lie in bed, however, she could not or at least did not see the person’s face or other identifying features: “Q: who was in the room with you?” A: “[AP].” Q: “how did you know?’ A: “By the movement and the shadow.

He could not be my little brother [YB] … too young. My mom had a different build and walks different and stuff.

And my older brother was not staying [in the house] then … he never came over.” … • Q: “Did the clock light illuminate … help you see?” A: “A little bit.” Q: “Are you mostly going off of feel?” A: “Yes.” … • Q: “How were your pajamas taken off?” A: “Only my pants were taken off .. [one of his hands] was hooked in the waistband … [his] other hand was getting [or grabbing] the extra fabric … the ‘flowiness’ of the leg parts … the [waist-band] hand also pulled my underwear too”; • Q: “Can you describe what state you think he was in at this time?” A: “uh … uh … normal … but doesn’t seem like a normal human … [he was] almost falling off the bed … his hand [slipped] and [he] was almost falling off the bed, and, like, moving weird … weird movements, like twitches almost.” Q: “Was this normal for him?” A: “For some of the time, yeah.” • [after saying again that, his hand slipped off the bed (“like his hand got sweaty or something”)] “he put his hand back on the bed and … proceeded to have sex with me, while I stared at the [INDECIPHERABLE], at the lines of the colour of red.” • Q: “did you smell anything?” A: “Smelled like rubbing alcohol, and a bit of tobacco, and laundry detergent.” • Q: “What were your arms doing [at this point]?” A: “ At my side .” Q: “[Were you] moving much? ” A: “[I] was frozen … [he] was moving … and every once in a while he would move my legs … his hands were above my head, or by shoulder and head, or [were] adjusting me on my legs … he was laying … hands and knees on top of me … he adjusted my legs once or twice … separating them further or lifting one above instead of laying flat … into a triangle position”;

• Q: “About how long between when you woke up with the bed movement and the sex started”? “A: “Probably a minute-30 or 2 minutes.” “Q: “How long did the sex last?” A: “uh … no idea [witness crying here … mention earlier too re composing herself]; • Q: “[What happened after it was over?]” A: “He got up … he left … pulled up his underwear and pants, and shorts … got up and left [the] room, and I just lay there.” Q: “Did you sleep that night [after that]?” A: “I don’t think so.” Q: “Do you remember what [the next day] was like?” A: [shook head ‘no’ … I remember feeling numb and wanting to die.” • Q: “Who was in the house before you went to bed that night?” A: “My mom and little brother and AP.” Q: “Do you know who was in the house when you woke up the next day?” A: “No … I always woke up before everybody else … I had to wake up around 6 a.m. to catch my bus … no-one else was ever up … I did not check the bedrooms.” • Q: “When he was kneeling over you, describe his legs [at that time or those times].” A: “They were … [pause] … inside my legs or on outside, depending on the time” [witness crying here]. • Q: “What direction was he facing?

A: “Towards me.” • Q: “Where are you looking while [this was] happening?” A: “At the clock.” • Q: “[Do you] remember any sounds that occurred?” A: “My clock made a beep once in a while … that’s it.” Q: “Was the bed creaky?” A: “A little bit … not much … I remember that every once in a while the bed frame hit the back wall.” Q: “You were not trying to move [at this point] … you were laying still?” A: “Yes.” Q: “The bed was moving from the sex.” A: “Yes.” • Q: “By sex, what do you mean?

Which body parts?” A: “Penis and vagina.” • Q: “How long [did it last]?” A: “I have no idea … felt like an hour … but probably not that long.” • Q: “Do you know if he ejaculated?” A: “No.” • Q: “Wearing a condom?” A: “I don’t know.” Q: “Know what a condom was then?” A: “No.” • Q: “Tell me [again] about the end.” A: “I do not remember much … I remember [it] being slow for a minute and then [it] stopped … for ten seconds, and then he got up and left.” Q: “Was he wearing clothes?” A: “His shirt … and when he left, he put back on his shorts.” Q: “And when you [first] woke up?” A: “He was wearing a t-shirt with [band graphic] [FTR] and [what looked] like jean shorts”; • “What was going through your mind while this was happening?” A: I remember being panicked, and I remember being shocked and scared, but also really confused … and in pain … and like I did not w ant to be here anymore.” • Q: “How is your vision [then]?” A: “Blurry … I was supposed to have glasses … [was not wearing them”; • Q: “You mentioned earlier a t-shirt [with a] graphic on it …” A: “[I could] not tell which [graphic].” Q: How could you tell [it had a graphic]?” A: “Because of the shirt itself … could tell [it had] a dark pattern on it.” Q: “What kind of clothing did he usually wear?” A: “some type of old t-shirt and pants or shorts …” Q: “ … his sleeping clothes.” A: “generally gym shorts and either tank top or t-shirt … tank top like a muscle shirt.” [ 68 ] AK did not disclose the incident to anyone until 2015, when, in a conversation with female workmates at a local recreational facility where she worked part-time, she recounted “[what had happened to her] in the incident in question. (AK’s evidence on this aspect is discussed in more detail in the “motive to fabricate”

section below). [ 69 ] Afterwards, some third party (possibly from that facility) made a report to the town’s RCMP detachment of the incident. [ 70 ] The RCMP opened a file but had not taken any investigative action until August 29, 2017, when AK and a friend of her attended at the station to report that AK was leaving the home of her maternal grandparents, where she had been living (with TK and YB), saying that she did not “feel safe there any longer” and that she would be staying with the friend and her family, also requesting that the RCMP not act on any “missing persons” report made by her maternal grandparents or her mother, since she would be safe and looked after at her friend’s place. [ 71 ] Cst JG of that detachment, who was on duty at the time and handled this attendance, recalled that a sexual-interference file had been opened concerning AK.

She asked AK if she wished to “make a statement.” AK said she would and did so. A day later, AK returned to the detachment and told Cst JG that she wished charges to be laid in respect of the statement-detailed incident. [ 72 ] Shortly after, AP was interviewed and then charged with sexual assault and sexual interference. [ 73 ] In cross-examination: • Q: “You agree that memory does not get better with time?” A: “Not really.” Q: “It fades with time?” A: “Depends on the memory.” Q: “In general, [memories] fade with time?” A: “Yes.” • Q: “You … told us [today] what you wore to bed in that [alleged incident] time.

Is it possible you wore long pants to bed, because it was winter?” A: “Could be … I was known for wearing shorts, even [in winter] because the house heater is on … my room could be cold … depending on my mood, it could be [that] I wore pants to bed.” • Q: “You mentioned your sight. When did you start to wear glasses?” A: “Grade 9 or 10, I believe [when] I got my glasses

prescription.” Q: “During the events in question, you were in about Grade 6?” A: Yes.” Q: “No issues with vision then?” A: “No.” • Q: “You testified previously [first trial] that it was 2 or 3 in the morning when this happened … recall that?” A: “I recall guessing that, yes.” Q: Do you recall telling the judge [that] because you had specifically glanced at the clock and recalled the time?” A: “I do not recall the exact words … I told him I looked at the clock …that’s why I assumed it was 2 or 3.

Q: “Do you recall saying that you just glanced at the clock, which is different from staring at it for a period of time?” A: “Yes.” • Q: “You told us today you were lying on your side.” A: “Yes.” Q: “And you felt a hand on your shoulder, right?” A: “Yes.” Q: “And the person pulled you onto your back.” A: “Yes.” Q: “And pulling implies gentle manipulation?” A: “I guess so, yeah.” Q: “Nothing to cause injury?” A: “No.” • Q: “You assumed [the person] was AP because the figure was not your [baby] brother or your mom … it must have been him, right?” A: “It could not have been my [baby] brother or my mom, and no one else was in the house, and this isn’t the first time he’s come into my room at night .

So, all of those combined made me assume, yes. Q: It was that more than being able to see his face or hear his voice that made you assume that? A: More that and his figure of his body .. like looking at the shadow around his body and being able to tell. …; • Q: “You told the previous judge that you think this person was under the influence of something.” A: “Yes.” Q: “You smelled alcohol on him, that correct?” A: Smelled rubbing alcohol.

Don’t know for a fact if it’s from cleaning, like a really strong cleaning solution or if it’s ‘alcohol alcohol.’” Q: “By ‘alcohol alcohol’, you meaning drinking alcohol?” A: “Yes.” QL: “But this was emanating from his body?” A: “Yes, his clothes specifically.” • Q: “You testified previously you did not recall what his “bottom clothing” was.” A: “Yes.” • Q: “So run through again what happened after [he got back on the bed i.e. after removing his bottom clothing].” A: “He got back on the bed and had sex with me.” Q: “What part of him touched you first?” A: “… I believe a hand and a knee … hand towards my upper arms … my shoulder and ahead … knee on sides of my legs”; • Q: “No kissing?” A: “No.” Q: “Always some space between faces?” A: “Yes.” Q: “And space between your chests?” A: “Some, yes.” • Q: [after directing her to a portion of the first-trial transcript] “You recall previously testifying that he began touching you with his legs, not with his hands? ” A: “It’s here, but I do not remember most of it now.” Q: “Do you agree this appears to be an accurate transcript?” A: “No, I said it, and it’s half accurate.

I don’t know what touched me first … he crawled on top of me … his legs and arms … they could touch me at the exact same time.” • Q: [after referring to another portion of the first-trial transcript] “You [see it refers to] legs touching legs.” A: “Yes.” Q: “Agree nothing about starting to touch with hands there?” A: “No”; • Q: “Do you recall telling police a condom was involved? ” A: “I remember telling Cst.

JG that I do not know … it could have been … he had time at the end of the bed, but I’m not sure … did not hear a wrapper or see anything.” Q: “You know what a condom is?” A: “Yes.” Q: “So, at the end of the day, you say there may or may not have been a condom, you’re simply not sure.” A: “Yes.” • Q: “You told us today that you had your hands at your sides for the entire incident … is that fair?” A: “Yes.” • Q: “You told us that when you spoke to police in 2017, you were being truthful.” A: “Yes.” • Q: “When you talked to the police, do you recall telling them you were wearing a sports bra and not a tank top?” A: “Yes.” • Q: “And you could not tell us today what this man in 2014 was wearing [as bottom clothing].” A: “Correct … not specifically, no.” Q: “But you told police in 2017 that he was wearing boxer shorts and a shirt.” A: “I believe so.” Q: “Agree that boxers and shirt is different from ‘I do not remember’, right?” A: “Yes.” • Q: “Do you remember telling the police that you were awakened by being shake violently?” A: “No.” [witness directed to police- interview transcript] Q: “Recall speaking with Cst.

JG …?” A: “Yes.” Q: “So, you refreshed your memory about telling the police about being awakened by being violently shaken awake ?” A: Yes.” Q: “And you told police it was so violent you thought you were going to be hit?” A: “That’s what made me think I was going to be hit, yes”; • Q: “[You told the police that] he started kissing you .” A: “Yes, I told the police that then.” • Q [after directing witness to police transcript] “So you recall telling the police you were trying to fight him back a bit?” A: “That I pushed his hands away, yes.” Q: “Right, ‘so his hands held my hands away.

I was trying to fight back a little bit.’” A: Yes.” “That is very different from what you testified to today.” A: “Somewhat, yes.” Q: “Violent awakening, with “hand fighting”, and kissing, right?” A: “Sort of, yes.” Q: “That’s what you told police in 2017, right?” A: “Yes.” Q: “You told us today you were being truthful with them?” A: “Yes.” Q: “Do you agree there is something totally different than being awakened by a hand on your shoulder and turned over, and keeping your hands by your sides? ” A: “I don’t think it’s completely different but understand that there are differences.

Just like how it’s been so many years. My brain has changed … my brain has stopped over the years … this is closer to the incident, so I believe myself more here than I am now, because right now, memories have been faded over time. This was three years after.

It was finally the time … I left, and I felt safe enough to tell someone, because I wasn’t in the house with him any more.” Q: “Sure, but you’d agree the statement is different.” A: “Yes.” Q: “Okay, and it’s not consistent, right?” A: “Yes … well, what?” Q: “Well, what you testified to in court what you told the police isn’t consistent, right.” A: “I don’t believe that, no.” Q: “Okay.” A: “I consistently have told the police and here what has happened, that I was raped.

That is consistent.” Q: “Okay but you told us also today that your memory has changed, right?” A: “Yes, that it’s faded.” Q: “Okay, and so perhaps it isn’t as reliable, right?” A: “Probably not, no.” [witness crying here] [10-minute break taken]

V. Analysis of inconsistencies [74] Here is my analysis of the effect of the highlighted inconsistencies, which the defence summarized as AK effectivelydescribing two distinct occurrences (“very different tenor”). [75] In the review below, I use the terms “core” and “peripheral” in the sense explained by Keith J. in R v Michaud, 2022 NSSC160: A difficult but practical question arises as to how “peripheral” issues are distinguished from those that are “core”. Evidence that clearlygoes to the elements of the offence must be considered “core” and approached with increasing scrutiny.

However, separating “core”from “peripheral” evidence is not always so obvious. There is no fixed list of issues deemed to be “peripheral”. Equally, there is noclear formula by which “peripheral” and “core” issues can be easily tagged or categorized. The analysis is more nuanced.

As Derrick, J(as she then was) observed in R. v A.W.H., 2017 NSPC 19, “The assessment of a child's evidence should not fall prey to rigidity andshould draw on common sense” (at paragraph 75). [para 35] [76] I also adopt the following guidance on reviewing inconsistencies from R v Hidalgo, 2019 ONSC 6596 (Leroy J.): Inconsistencies vary in nature and importance. Some are minor, others are not. Witnesses are not video recorders and will not beconsistent about peripheral events. As noted, a deliberate lie is always serious and may taint all of a witness’ evidence.

Where there isan inconsistency about a key fact, the trier will be unable to accept the witness’s testimony about this fact unless there is a rational basisfor preferring the in-court version to the prior inconsistent account. Where inconsistencies involve something material about whichan honest witness is unlikely to be mistaken, they may demonstrate a carelessness with the truth about which the trier of fact should beconcerned: R. v. G. (M.) (ONCA).

While minor inconsistencies may not diminish the credibility of a witness unduly, when a series of inconsistencies accumulate, thecumulative effect may cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no ruleas to when, in the face of inconsistency, such doubt may arise. The trier of fact should look to the totality of the inconsistencies in orderto assess whether the witness's evidence is reliable.

Explanations offered for inconsistencies are considered in assessing the impact of prior inconsistent statements on credibility andreliability. [paras 61-63] [emphasis added] A. Mode of being awakened and nature of shoulder contact [77] Was it “bed movement” or “being violently shaken by the shoulder”? [78] The defence sees this difference as reflecting materially different events i.e. the two different versions described by AK, one aviolent encounter or at least with opening violence colouring the whole encounter. [79] However, this was, by definition, a very limited-time aspect i.e. the moment of awakening.

No evidence showed thatwhatever shaking happened went on after the very moment of waking. [80] With no evidence of shaking or anything akin after that moment, the two descriptions (i.e. of the entire encounters) are verylargely congruent on the “violent encounter” spectrum i.e. after the moment of awakening, no acts of violence or at least anything akin toshaking. [81] As well, AK’s current-trial evidence was that AP put a hand on her shoulder and pulled her from her side-sleeping positiononto her back.

The differences are whether she was awakened by the shoulder movement or, presumably moments before, by movementon her bed. And whether the shoulder movement, at the point of wakening, was rough or not. [82] The momentary (at-time-of-awakening) shaking may also have caused some (even if limited) movement on or of her bed ormattress i.e. the shoulder contact and bed movement may have coincided. [83] The two accounts are not fundamentally incompatible: AP getting on the bed necessarily would have caused some movementof her bed or mattress. And in both AP put his hand on her shoulder and moved her.

Whether it was the bed movement that firstawakened her or the “shoulder handling”, and whether that handling was momentarily rough or not, are not radically different. [84] And whether it was the possibly rough momentary shaking that caused her to fear that she was going to be hit (to which fearshe noted in her police report) or “merely” the phenomenon of waking to someone on her bed over her (itself obviously a fear-causingevent) makes no fundamental difference. [85] Especially when the asserted incident happened at least 8.75 years ago (between September 2013 and April 2014), when AKwas 11 years old.

And with over three years between the first (November 2019) trial and the recent (January 2023) trial. And with AKacknowledging that her memory was better at the first trial. [86] And we do not have the phenomenon of a detail being added in the later account; instead, the rough-shoulder-contact notreferred to in the recent trial. [87] It is understandable that AK would or might have a less-sharp recall of the incident now e.g. whether the movement-by-shoulder was momentarily rough or, for that matter, what precisely woke her up (shoulder contact or bed movement). B. Resistance (“hand fighting”)

[ 88 ] In her police statement, AK said that, at one point after AP was on top of her and had his hands placed beside her shoulders or head, she used her hands to try to push his hands away from her.

At the recent trial, she testified that her hands and arms were at her sides throughout i.e. no attempted resistance via her hands. [ 89 ] Per the first-account evidence referred to, it is not clear how long AK initially tried to resist-- one attempt to push his hands away? a couple? continuing efforts to push him away? efforts throughout the encounter? – or how vigorously she made these efforts, or whether she achieved any results (moving his hands away at all). [ 90 ] AK testified at the current trial that she was not sure how long the sexual contact continued, saying at one point it may have been one hour but that it was probably less.

In any case, I conclude that it lasted for some minutes, if not longer.

It is understandable that after at least 8.75 years after the event, which (again) occurred when she was 11, AK would or might not recall a detail like trying to push AP’s hands away, especially given their age and size differentials and presumed materially superior strength of AP i.e. with AK apparently not succeeding with her pushing efforts. [ 91 ] As a result, her “hands at sides” evidence at the current trial is not materially at odds with her initial “hand resistance” evidence i.e. with it being possible, if not probable, that, at some point, AK abandoned any efforts at pushing AP’s hands away and repositioned her hands and arms to her sides i.e. that she experienced a material portion of the encounter with her arms in that position.

C. Body part(

s) making first contact [ 92 ] AK gave differing accounts on this aspect, saying at the first trial it was his legs that first made contact with her body and at the recent trial it was his hands, coming into contact with her shoulders or head. [ 93 ] In cross at the recent trial, AK said these contacts may have happened at the same time. [ 94 ] These are trifling differences, especially in the time circumstances here. D. Clock [ 95 ] At the first trial, AK said that, at the start of the incident, she “glanced” at her clock and noted the time.

At the recent trial, she said that she looked at it at the start of the encounter, that she could not read the time (“watery eyes”) and that she looked at it for the large part, if not almost all, of the encounter. [ 96 ] Another peripheral detail: defence did not refer to any first-trial evidence from AK that she never looked at the clock again after her initial glance or about what she was looking at throughout the encounter i.e. if other than the clock. [ 97 ] While defence did not emphasize this (glasses) aspect, I note that AK said at the recent trial that she also said that she could not see the clock numbers since she did not have her glasses on, with her then stating in cross that she did not need glasses or at least have glasses until years after the incident. [ 98 ] I do not see this as a troubling difference, again in the time circumstances here and also AK’s evidence that it was the state of her eyes (“watery”) that prevented her from seeing the clock numbers.

E. AK’s top clothing and AP’s bottom clothing [ 99 ] AK told the police in 2017 she was wearing a sports bra. In the recent trial, she testified that she assumed she was wearing pajamas (“not exactly sure”) and that, for top clothing, she “normally wore … a tank top or crop top.” [ 100 ] AK told the police in 2017 that AP was wearing boxer shorts as his bottom-level clothing.

At the current trial, she was she was not sure but that he usually wore some kind of shorts (“jean shorts”). [ 101 ] It is understandable that, at least 8.75 years after the incident and 5.5 years since the police statement, AK might not now recall precisely what she was wearing for top clothing and what AP was wearing for bottom clothing. F. Whether AP got off bed to remove his bottom clothing [ 102 ] Earlier accounts: no reference to this occurring.

Recent trial: AK said that, after being on the bed and over her at the start, AP got off the bed (to the foot of the bed), removed his bottom clothing, and got back onto the bed and onto her. [ 103 ] Unlike the other emphasized inconsistencies (largely, earlier-provided details not provided later), this was an added detail or apparently so. [ 104 ] The earlier-account excerpts did not include any questions asked or answers given on the subject of how or when AP removed his bottom clothing. (For instance, “he got off me, moved over on the mattress (i.e. while still on the bed), removed his bottom clothing, and got back on top of me.”) [ 105 ] It seems express or at least implicit that, in AK’s first account, AP was initially clothed with some kind of shirt and some kind of bottom clothing, the latter of which he removed at some point. [ 106 ] It may be that AK was not asked about those removal details first time(

s) around.

[ 107 ] She may have remembered that detail (“got off the bed to remove his bottoms”) at this trial.

Or she may have surmised that that is what he did, given it is one normal way of removing one’s clothing when one is initially clothed in or on a bed. [ 108 ] Or she may be mistaken on this aspect, with him having instead rolled off her (still on the bed), removed his bottoms, and then gotten back on top of her. [ 109 ] I realize there are other possibilities. [ 110 ] However, as with the other emphasized or asserted inconsistencies or differences and for the same (in-all-the-circumstances) reasons, I do not see this possible difference in the two accounts (again, it may have not been explored first-time around) as anything other than peripheral.

G. Whether AP had or used a condom [ 111 ] Police interview and first trial: AK testified that she thought he used a condom. Recent trial: not sure. [ 112 ] Same comment as immediately above. H. Kissing [ 113 ] Police statement: at the start of the encounter AP kissed her or tried to kiss her. Recent trial: no reference to kissing; in cross, AK said that their heads and chests were always apart. [ 114 ] Same comment as immediately above. I.

Assessment of inconsistencies as a whole [ 115 ] In some cases, the accumulated (or collective) inconsistencies give rise to credibility or reliability concerns, even if each on its own is insignificant. [ 116 ] I do not have such concerns here, for these reasons: 1. some likely attributable to memory-fading : some of the asserted inconsistencies are matters of peripheral detail mentioned in one or more of the police statement (September 29, 2017), preliminary inquiry (May 16, 2018) or first trial (November 2019) and not in AK’s account in the recent trial e.g. at-moment-of-waking-rough shoulder handling (“yes” per police statement; no mention of rough handling per recent trial); kissing (“yes” per police statement; “no” per recent trial); whether she tried to resist with her hands (“yes” per police statement; “hands at sides throughout” per recent trial); condom use (“thought so” per police statement; “not sure” per recent trial); and his bottom clothing (“boxer shorts” per first trial; “not sure” per recent trial).

Given the at least 8.75 years since the incident and the 5.5 years since the police statement and 3 years since the first trial, I see these differences as reflecting the asserted-by-defence and acknowledged-by-AK fading of memories, especially of such side details; 2. some inconsistencies likely more apparent than real : whether AK was awakened by momentarily shoulder shaking or “bed movement” shortly before some form of hand-to-shoulder contact, with both (shoulder contact and bed movement) occurring close in time and at the start of the incident, is not a material difference.

Same for the “glanced at clock” versus “kept looking at clock” testimony, with the earlier testimony not foreclosing the possibility of further clock-looking. And whether, as he moved on top of her, it was his “hands and knees” or his “legs” that first contacted her body; 3. “added detail” squaring with existing evidence : as I understand it, in all accounts, AP removed his bottom clothing at some point.

Even if his mode of doing so (e.g. whether getting off the bed to do so or staying on it) was not addressed earlier, AK’s recollection of this detail at the recent trial squares generally with this earlier (bottoms came off) testimony. In any case, it is not clear that she was asked about that at the earlier proceedings; 4. inconsistencies, not falsehoods : no evidence showed that, for any given inconsistency, one version was definitively true (versus uncertainty between the two) and that, in asserting the other version, AK was lying; 5.

AK’s age at time of asserted incident : AK was 11 throughout the indictment range (Sept 2013 to April 2014). It is to be expected that her memories of these peripheral details (i.e. details outside the core (offence element) allegations) would or may be imprecise. They are not time-and-place details but they are equally part of the background of the core event i.e. someone coming into AK’s bedroom in the middle of the night and having penile-vaginal intercourse with her.

In contrast to those central aspects (and above all, the latter sexual contact), how she was awakened, whether a kiss was attempted or effected, whether she initially tried to push at his hands, and so on, would not normally register or anchor in a child’s memory in the same way; 6. her willingness to acknowledge and explain the inconsistencies : defence put to AK that the shoulder-shaking-and-woken-by-it, hand-resistance and kissing account in her 2017 police statement were different from the bed-movement-waking, no shoulder-shaking, arms-and-hands-at-sides and no-kissing account in the recent trial.

AK acknowledged the differences and, in what I see as an extra burst of candour, said “I believe myself then”, in light of “memories fading.” On being confronted with these differences, she effectively adopted her first-time-round evidence on these points, saying they must be more accurate, being closer in time to the incident, which defence had earlier suggested to her and which she had accepted in the abstract. She did not deny the inconsistencies. She did not tell us that one version or another was simply made up by her. She did not say that she was guessing with her recent-trial evidence.

Indeed, she said that “her brain had changed”, which I understood to mean that, as she grew and matured from 11 to 20, and even from 17 to 20 (first trial to second), her memories were affected by the passage of time. Beyond that, as explained above, the noted inconsistencies here (in this paragraph) are all (effectively) of the “detail omitted” variety i.e. can be reconciled and understood as details once recalled but lost to

time; and 7. no inconsistency re core details : AK did not tell differing accounts of who sexually assaulted her and when, whether others were involved in the assault, the nature of the sexual contact (penile-vaginal intercourse) or anything akin regarding the essential-element details. [ 117 ] I believe we are in the same territory as that explored by Michalyshyn J. in R v DAH , 2017 ABQB 193 : As to the inconsistencies in the complainant’s evidence, I agree with the Crown that they do not affect the core of her testimony.

The core evidence is that of multiple occasions on which the accused touched the complainant’s vagina and buttocks with his penis; multiple occasions on which he kissed, licked and rubbed the front of her body and her vagina; multiple occasions on which he exposed his penis to her and on which she touched his penis; and finally, multiple occasions that he used sex toys on her.

The importance of “core” evidence is made plain by a number of cases referred to above, starting with B(G) , and W(R) , but including HSB , DJG, Barua , Hoyles , and DWS . … I find also that the distinction between credible and reliable evidence is in play here: Harden, citing HC .

To the extent the errors in the complainant’s evidence reflect her reliability for remembering ‘frequency’, I find they do not significantly diminish her overall credibility. [paras 111-113 and 116] [emphasis added] [affirmed R v DAH , 2019 ABCA 26 (paras 7-11 )] [ 118 ] And also in R v LL , 2019 ONSC 3295 (Leroy J.): CD is an adult testifying about events she says happened in her childhood .

She is to be assessed as an adult witness recognizing that minor peripheral matters as time, place and antecedent are not central to the memory and that the measure of uncertainty and inconsistency in recollection on these details may not be a good barometer of plausibility or implausibility of the complaint. The i nconsistencies involving the chronology of places of residence, schools and CD’s age for the first incident in the truck do not reflect on her central memories .

I don’t think that a pubescent female who is being sexually targeted by her stepfather would focus on age, time of year, school grade at the time, whether the incident happened during access travel or as part of the workday, whether there was one or two chairs, the details of transaction negotiation, or even variations in sexual order preliminary to sexual intercourse. [paras 150 and 151] [emphasis added] [ 119 ] And R v AGR , 2021 ONSC 8142 (Smith J.): More important, of course, is an assessment of her evidence.

Counsel for AGR has made forceful submissions respecting the weaknesses in SR’s evidence in several different areas, all relating to prior inconsistent statements made by this adult witness about events which occurred roughly two decades earlier when she was a child. In my view, having regard to the passage of time and the age of SR at the time of the alleged events, the various inconsistencies in her evidence are not dispositive of her credibility, nor of her reliability on the key points .

To be sure, there are reliability concerns with respect to SR’s descriptions of detail, but the core of her evidence, “what happened to [her] and who did it” ( Regina v. B.G. , at pp. 54 - 55) remains unshaken. SR gave differing descriptions of her encounters with AGR at his computer desk. She said that she stood before him and moved her clothing before he touched her vagina and breast but had earlier reported sitting on his lap while he moved her clothing and touched her. She moved her clothing herself only when trying to convince AGR that she was on her period.

In cross-examination, she maintained that she had said previously that she had stood before her father as she described. In any case, the setting, the rough time period, the areas touched, and the person who touched them, remained the same . I note, however, that when Crown counsel first asked SR to say what sexual abuse she had suffered at the hands of AGR, she said that he made her sit on his lap. Moreover, once in cross-examination and then again in re-examination, SR said that the touching happened when she was sitting and when she was standing.

The core of this evidence is that AGR touched his young daughter’s breasts and vagina and that he did so repeatedly some 20 years ago. Bearing in mind that “children may experience the world differently from adults” ( Regina v. R.W. , at para. 24 ) “a flaw, such as a contradiction” ( Regina v. B.G. , at pp. 54 – 55) may be of diminished significance. The inability to “recount precise details” ( Regina v. B.G. ) does not disqualify the evidence of an adult testifying about events which occurred when she was a girl.

While SR’s description of the mechanics of the touchings is not as peripheral as evidence about time and place, I am satisfied that these contradictions do not detract from the core of her story, which I accept, that her father touched her vagina and breasts, that he did so on multiple occasions, and that he told her not to tell anyone. None of the other key areas of cross-examination causes me significant concern about SR’s evidence.

As for the number of times she was touched while at AGR’s desk, although she had said the touching was weekly in-chief, she immediately retreated from that evidence when counsel pointed out that that would mean there were more than 150 such events. In other words, she was not deliberately exaggerating. Neither did it happen 100 times. While she said it might well have been 50 times, she did not commit to that number, saying only that she had been touched multiple times and that she had not counted the incidents as they were happening.

Her earlier estimate of 6 or 7 such events may be more accurate, but it still qualifies as “multiple times.” I am satisfied that there were multiple touchings. It is understandable that the witness was unable to say how many. With respect to the differences in SR’s descriptions of the bedroom incident, these inconsistencies do not detract from SR’s credibility or from the core reliability of her story. Indeed, the order in which the sexual violations of her took place seems to me

entirely insignificant, as do her lack of memory about whether AGR’s penis was hard or soft, or exactly what he was wearing, or who removed SR’s clothes, or how she knew it was WR on the phone, or where she went when she left the bedroom. The core of the story is the same: in her parents’ bedroom SR’s vagina was touched by AGR with both his hand and his mouth and SR touched AGR’s penis at his invitation; the event ended when the phone rang because WR was calling AGR.

I accept the core of SR’s evidence respecting this matter. [paras 135-141] [emphasis added] [ 120 ] And R v EAG , 2020 BCSC 1691 (Warren J.): In my view, the defence overstated the materiality of internal inconsistencies in J.A.G.’s account of the abuse. I have closely examined each of the inconsistencies identified by defence counsel and having done so I am satisfied that even considered together they do not suggest deception or misconception.

Rather, to the extent that there are actual inconsistencies in J.A.G.’s recounting of the details of the actual incidents of abuse, it is my view that they reflect the challenges of a teenaged girl attempting to recount details of several similar events, most of which occurred several years before, and all of which involved excruciatingly humiliating personal violations that most people, adults included, would find stressful to describe to strangers . Given the sheer number of similar incidents alleged, some inconsistencies in the recounting of the details is to be expected.

This is not a situation of a complainant claiming, at one time, that a certain type of sexual abuse occurred, and at another time, saying that particular type did not occur.

J.A.G. has been consistent throughout that the incidents of abuse involved touching, rubbing, licking, attempted and partial anal penetration, and the placing of E.A.G.’s penis in her mouth, but no vaginal penetration, either attempted or completed. … I am not going to address every supposed inconsistency identified by the defence but I will give several examples to illustrate why I have concluded that even taken together they do not undermine the credibility or reliability of J.A.G.’s core allegations.

Defence counsel submitted that there were inconsistencies in J.A.G.’s evidence about whether her eyes were open or closed during some or all of the incidents of abuse. To the contrary, while there were slight variations, overall her evidence on this point was consistent. She generally kept her eyes closed and pretended to be asleep, but she opened them from time to time, and when she did so she usually squinted. Defence counsel submitted that J.A.G.’s estim

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