R. v. D.M., 2021 NLSC 68

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.M. , 2021 NLSC 68 Date : May 26, 2021 Docket : 201901G7344 Her Majesty The Queen v. D. M. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the Complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Valerie L. Marshall Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: February 9-11, 2021; April 19-21, 2021; May 13, 2021 Appearances: Kathleen O'Reilly Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146, (B.C.C.A.); R. v. Vuradin,2013 SCC 38; R. v. Hoohing, 2007 ONCA 577; R. v. Kush, 2021 BCSC 175; R. v. S.S., [2021] N.J. No. 105 (N.L.P.C.); R. v. C.L., 2020ONCA 258; R. v. Smyth, 2019 NLCA 73; R. v. J.K., 2015 NLCA 14; R. v. Abramoff, 2018 SKCA 21; R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30; R. v. W.O., 2020 ONCA 392; R. v. W.O., 2021SCC 8; R. v. D.(D.), 2000 SCC 43; R. v.

P.(D.), 2017 ONCA 263 (leave to appeal refused 2017 S.C.C.A. No. 261); R. v. Batte (2000), (ON CA), 49 O.R. (3d) 321 (Ont. C.A.); R. v. T.(S.G.), 2010 SCC 20; R. v. Connolly, 2001 NLCA 31 , 2001NFCA 31; R. v. Ferris, (SCC), [1994] 3 S.C.R. 756; R. v. Ferris (1994), 1994 ABCA 20 , 27 C.R. (4th) 141(Alta. C.A.); Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: S. Casey Hill, Louis P. Strezos & David M. Tanovich, McWilliams’ Canadian Criminal Evidence, 5th ed.(Toronto: Thomson Reuters Canada, 2013+, looseleaf ), pt.

III, ch. 7 REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Accused was charged with eight counts under the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”): twocounts of sexual assault, pursuant to

section 271 of the Code; two counts of sexual interference, pursuant to

section 151 of the Code; twocounts of sexual exploitation by sexual touching, pursuant to section 153(1)(

a) of the Code; one count of invitation to sexual touching,pursuant to

section 152 of the Code; and one count of making sexually explicit material available to a person under 16 years of age,pursuant to sections 171.1(1)(

b) of the Code. [2] The Indictment describes the eight charges as follows: Count 1 THAT between the 1st day of February, 2018, and the 31st day of March, 2019, at or near Conception Bay South, in the Province ofNewfoundland and Labrador, did commit a sexual assault on E.K., contrary to

section 271 of the Criminal Code. Count 2 THAT between the 1st day of February, 2018, and the 31st day of March, 2019, at or near Conception Bay South, in the Province ofNewfoundland and Labrador, did for a sexual purpose touch directly or indirectly, E.K., a person under the age of sixteen (16) years,directly with a part of his body contrary to

section 151 of the Criminal Code. Count 3 THAT between the 1st day of February, 2018, and the 31st day of March, 2019, at or near Conception Bay South, in the Province ofNewfoundland and Labrador, being in a position of trust or authority towards E.K., a young person, did for a sexual purpose, touchdirectly the body of the said E.K., contrary to

section 153.(1)(

a) of the Criminal Code. Count 4 THAT between the 1st day of February, 2018, and the 31st day of March, 2019, at or near Conception Bay South, in the Province ofNewfoundland and Labrador, did make available sexually explicit material to E.K., a person under the age of sixteen (16) years, for the

purpose of facilitating an offence with respect to E.K. under

section 151 or 152 or subsection 173(2) or

section 271 , contrary to

section 171.1(1) (

b) of the Criminal Code . Count 5 THAT between the 1 st day of February, 2018, and the 31 st day of March, 2019, at or near Conception Bay South, in the Province of Newfoundland and Labrador, did for a sexual purpose invite, counsel or incite E.K., a person under the age of sixteen (16) years, to touch with a part of her body, the body of D. M., contrary to

section 152 of the Criminal Code . Count 6 THAT between the 27 th day of March, 2018, and the 30 th day of April, 2018, at or near Nain, in the Province of Newfoundland and Labrador, did commit a sexual assault on E.K., contrary to

section 271 of the Criminal Code . Count 7 THAT on or about the 27 th day of March, 2018, and the 30 th day of April, 2018, at or near Nain, in the Province of Newfoundland and Labrador, did for a sexual purpose touch directly or indirectly, E.K., a person under the age of sixteen (16) years, directly with a part of his body contrary to

section 151 of the Criminal Code . Count 8 THAT between the 27 th day of March, 2018, and the 30 th day of April, 2018, at or near Nain,, in the Province of Newfoundland and Labrador, being in a position of trust or authority towards E.K., a young person, did for a sexual purpose, touch directly the body of the said E.K., contrary to section 153(1) (

a) of the Criminal Code . [ 3 ] The Accused was the Complainant’s foster father when the offences are alleged to have taken place. The Complainant was 15 years of age when she testified at trial. Other Crown witnesses included police officers, and R.Y. At the time the offences were alleged to have been committed, R.Y. was the Accused’s spouse and the Complainant’s foster mother. [ 4 ] The Defence called two witnesses; the Complainant’s social worker, and the Accused.

SUMMARY OF THE EVIDENCE OF THE CROWN [ 5 ] A voir dire was held to determine the admissibility of the Accused’s audio/video statement to police on May 3, 2019. Following evidence and submissions, the Accused’s statement was ruled admissible as the Crown had established voluntariness beyond a reasonable doubt. [ 6 ] Counsel agreed that the voir dire evidence of Constable Kelly Ann Parsons and Constable Nicole Percey was to be blended as part of the trial evidence; Constable Parsons testified further after the ruling. The testimony of the Accused from the voir dire was not blended as part of trial evidence.

Constable Parsons and Constable Percey [ 7 ] Constable Parsons is a member of the Child Abuse Sexual Assault Unit of the Royal Newfoundland Constabulary (“RNC”). Constable Parsons’ evidence was that she had been requested to interview the Complainant, who had disclosed an allegation of sexual assault against the Accused through a journal entry [1] written by the Complainant to her foster mother. Constable Parsons’ evidence was that she interviewed the Complainant on April 26, 2019. She then interviewed the foster mother of the Complainant, R.Y., on May 1, 2019.

[ 8 ] Constable Parsons’ evidence was that she subsequently contacted the Accused on May 2, 2019, and requested a meeting. The Accused agreed, and on May 3, 2019 the audio/video statement was taken. The interview was conducted by Constable Parsons, and Constable Percey sat in on the interview. [ 9 ] According to Constable Parsons, part way through that interview the Accused’s jeopardy changed, and he was then placed under arrest. The portion of the interview (as transcribed) when the Accused’s jeopardy changed was when he admitted that he had touched the Complainant’s bum, outside of and under her clothing.

The exchange from pages 6 and 7 of the transcript, was as follows: Constable Kelly Ann Parsons: Did you at any point touch (the Complainant) um on her vagina outside of her clothing? D.M.: No Constable Kelly Ann Parsons: Okay did you at any point touch (the Complainant) on her vagina under her clothing? D.M.: No Constable Kelly Ann Parsons: Okay (clears throat) did you at any point touch (the Complainant) on her bum or buttocks same, same meaning outside of her clothing? D.M.: Yes Constable Kelly Ann Parsons: Kay and did you at any point touch (the Complainant) on her bum under her clothing?

D.M.: Yes Constable Kelly Ann Parsons: Okay so that’s gonna change things here now for ya alright so obviously that is inappropriate [ 10 ] Following the foregoing exchange, Constable Parsons arrested the Accused. After the Accused spoke to a lawyer, the interview continued but he made no further inculpatory statements to the police. The Complainant [ 11 ] When the Complainant testified at trial, she was 15 years of age (almost 16), having been born February 23, 2005. [ 12 ] The Complainant confirmed that she had given two statements to police.

The first statement was given on April 26, 2019, and the second was on May 9, 2019. The Complainant gave the second statement to police after contacting them, and indicating that she remembered more than when she had given her first statement. [ 13 ] In cross-examination, the Complainant indicated that she reviewed her statements to police in preparation for trial.

She acknowledged that alot of time had passed since she had given the two statements; and she agreed that her memory was better when she gave her statements to police, than when she testified in Court. [ 14 ] The Complainant’s evidence suggested that she started living with the Accused’s family in 2014, when she was 9 years of age.

According to the Complainant’s evidence, she and her older brother lived with the Accused and R.Y., and the son and daughter of the Accused and R.Y. Initially, they had all lived in Nain, but they moved to Conception Bay South in 2015. [ 15 ] The Complainant was asked to describe the layout of the house in which she lived with the Accused, and his family, in Conception Bay South. She described the layout and included that her bedroom was on the same floor as her foster parents’ bedroom, and their daughter’s bedroom.

Her brother’s bedroom, and the Accused’s son’s bedroom, were on the lower floor of the house. [ 16 ] According to the Complainant’s evidence, the Accused first started touching her in February of 2018. Initially, the Complainant said in cross-examination that she thought the first incident with the Accused occurred after her 12 th birthday. After being referred to her statement to police, the Complainant clarified that the alleged incidents started in February of 2018, around her 13 th birthday; she turned 13 in February of 2018.

The Complainant had told police in her statement that she remembered it was before or around that birthday, as she remembered she was in trouble and had her phone taken away at that time. [ 17 ] The Complainant could not specifically remember the first incident, but she elaborated on the numerous specific incidents which she said she did remember. She initially described the touching as consisting of the Accused kissing her on the lips, and touching her “butt”. [ 18 ] The Complainant was asked by Crown Counsel to describe the specific incidents when the Accused had kissed her on the lips.

The Complainant first described an incident which allegedly occurred in the downstairs laundry room of the home. She testified that the Accused came down to the laundry room, he put her up against the wall and started kissing her, and leaning on her. She said she tried to pull away, but the Accused pushed her against the wall. The incident stopped when the Accused’s son came downstairs, and the Accused then walked away.

She couldn’t specifically recall when this incident happened. [ 19 ] In cross-examination, Defence Counsel suggested to the Complainant that she had not described this incident in the laundry room in the same manner in her first of two statements to the police on April 26, 2019. Specifically, in her first statement to police, the Complainant did not say that the Accused had pushed her up against the wall in the laundry room. The Complainant explained this omission by saying that she didn’t recall being pushed up against the wall in the laundry room at the time she gave the statement to police.

She couldn’t say when that detail was remembered by her; however, the Complainant explained that she was thinking more of that particular incident today (in Court), than when she gave the statement to police. The Complainant also indicated in cross- examination that it was when she was reviewing her statement that she realized that the detail had been omitted. [ 20 ] Later in cross-examination, the Complainant suggested that the Accused had picked her up in the laundry room. Again, she hadn’t mentioned that detail in her statement; nor in her direct testimony.

When questioned on this, she explained that she had just remembered that detail in Court at the time of cross-examination; and she seemed to agree that she was describing another incident. [ 21 ] The Complainant also alleged in her direct testimony that the Accused had kissed her in her bedroom. She indicated that she was going to bed, and the Accused came into her room to say good night; he came over and kissed her on the lips. Crown Counsel specifically asked the Complainant if the Accused did anything else to her while kissing her on the lips; the Complainant said no.

She described the incident ending when she turned over. She was able to recall who was in the house when it happened. [ 22 ] The Complainant also described an incident where the Accused allegedly kissed her in the kitchen. Her evidence was that it was summer, she was sitting at the kitchen island, and the Accused came over and started to kiss her. She said she pushed him away. [ 23 ] The Complainant described another incident involving the Accused kissing her, which allegedly took place in the Accused’s bedroom. Her evidence was that her foster mother was not home, as R.Y. had gone camping with a friend.

The Complainant’s brother, and the Accused’s son, were downstairs. The Accused’s daughter was in her room asleep. The Accused went in the Complainant’s bedroom and asked her to go to his room. The Complainant said no. According to her evidence, the Accused subsequently came into the Complainant’s room, he carried her to his room, put her on his bed and started kissing her. The Complainant was asked if the Accused did anything else. The Complainant replied that the Accused was on top of her, he took off her shirt, and started touching her breasts. He did not touch her anywhere else.

The Complainant said she then rolled away, took her shirt and went back to her room. [ 24 ] The Complainant was questioned on this incident in cross-examination. The Complainant was referred to what she had said in her second statement to police with respect to the Accused picking her up. Defence Counsel referred the Complainant to part of her statement to the police where she was asked by the police officer what the Accused would do when he picked her up. In her statement, she had indicated that the Accused would lay one of his hands on her butt, and that she didn’t remember the other time.

The Complainant was asked by Defence Counsel why her description in her statement to police was different than her description in Court with respect to her being picked up. Her explanation was that she recalled all when preparing herself for court. [ 25 ] Further on this incident, in cross-examination it was put to the Complainant that her foster mother went on an overnight hike in 2017, not 2018. This timing would be inconsistent with the time when the Complainant alleged the first incident occurred, being around her birthday in February of 2018.

In response, the Complainant suggested that she was unsure. [ 26 ] The Complainant also described being kissed by the Accused in the rec-room of the home. She said she was downstairs watching Netflix when the Accused came into the room, sat on the couch next to her, leaned over and kissed her. Her evidence was that she shoved him back, and nothing else happened during that incident. Her evidence was that was the only time that happened in the rec- room. [ 27 ] The Complainant described another incident of kissing in the living room of the house.

She said she was sitting on a couch watching a movie; the Accused came home, he sat on the couch with her, and he tried to kiss her. She said she pulled away, and he then pushed her onto the couch and started kissing her. Her evidence was that she pushed him away, and went to the other couch. She couldn’t remember anything else happening apart from the kissing. [ 28 ] After describing the foregoing incidents, the Complainant’s evidence was that she could not remember any other incidents of

the Accused kissing her. Subsequently, she was asked by Crown Counsel if the above incidents she had described were all of the incidents of the Accused kissing her. The Complainant replied no, and she said that it would happen pretty much every day when he was home from work. She indicated that the Accused worked a two week on/two week off work schedule. [ 29 ] The Complainant was asked by Crown Counsel to elaborate on her evidence that the Accused would touch her butt. She was asked to describe specific incidents.

The Complainant’s evidence was that the Accused touched her butt most times when she would go to bed. [ 30 ] The Complainant first described an incident where she was in her bedroom, having gone to bed, and the Accused came in her room to say goodnight. Her evidence was that the Accused sat on her bed, and rubbed his hand on her butt, outside her clothing.

She recalled her foster mother, R.Y., coming in the room to say good night, and the Accused explained to R.Y. that he had come in the room to help the Complainant with the game she was playing on her iPad. [ 31 ] The Complainant recalled another incident when the Accused allegedly touched her butt. She said it was the summer, and she was in the kitchen sitting at the island eating breakfast. She recalled that the Accused came in the kitchen, and he started touching the top of her butt, outside her clothing.

When asked what happened then, the Complainant said she took the Accused’s hand away, and told him to stop. [ 32 ] The Complainant was asked if there were other incidents when the Accused touched her butt. She first said that she could not remember other incidents. Then in response to the Crown’s question of whether there were other times, the Complainant said that there were other times; and that it would happen a couple of days a week.

In cross-examination, she confirmed that this was the most frequent of activities. [ 33 ] Further in cross-examination, the Complainant agreed that in her police statement she had said that the Accused touched her butt by the tailbone area. She qualified this by saying in Court that he also touched her by the cheeks.

She agreed that she had described the Accused’s manner of touching her butt differently to police, than in Court where she had described the Accused rubbing her butt. [ 34 ] Later in her direct testimony, the Complainant described an incident in Nain in which her evidence was that the Accused had both kissed her and touched her butt. Her evidence was that in April of 2018 she and her brother went for a trip to Nain with the Accused where they stayed in CYFS housing.

She said that she was alone in a room, lying on a bed, watching a show on her phone, when the Accused came in the room and started kissing her, and touching her butt. She said she turned over, sat up and walked away. She was asked by the Crown what, if anything else, happened in Nain. The Complainant’s response indicated that she could not recall anything else happening in Nain. [ 35 ] In cross-examination, the Complainant was challenged with respect to her recollection of this incident in Nain.

The Complainant agreed that what she described to police regarding what had happened in Nain was completely different than what she had described in Court. To police, the Complainant had described different incidents in Nain, one of which allegedly involved the Accused touching her vagina over her snow-pants; and the other being an incident where he tried to hug and started to touch her.

When asked why she hadn’t described the above-described kissing/touching of her butt incident in Nain to police, she was not sure but suggested that she had been overwhelmed that day, and was not thinking of everything that had happened; rather, she remembered it later when preparing for Court. [ 36 ] The Complainant’s evidence was also that there were incidents when the Accused touched her vagina. The Complainant did not indicate that the Accused had touched her vagina in any of the above-described incidents involving kissing.

Yet, when asked by the Crown about when the Accused touched her vagina, the Complainant indicated that it happened pretty much when he would kiss her. Similarly, at another point in her evidence, the Complainant again suggested that the Accused touched her vagina any time he would kiss her. Later in her evidence, she said that he would touch her vagina two (or a few) times a week. The Complainant indicated that the Accused would touch her vagina when nobody was looking. She described the specific incidents that she recalled. [ 37 ] The Complainant recalled that the Accused touched her vagina in her bedroom.

Her evidence was that she was going to bed, and the Accused came in her room to say good night; he sat on the bed, and started touching her vagina with his hand, outside her clothing. Her evidence was that she pushed his hand away, and told him to get out; and that was the only time he touched her vagina in her bedroom. [ 38 ] The Complainant described an incident in the kitchen when she was getting water. Her evidence was that the Accused came in the kitchen, put her up against the fridge, and started touching her vagina with his hand, outside her clothing.

Her evidence was that he did not touch her anywhere else. The Complainant couldn’t recall any other such incidents in the kitchen. [ 39 ] The Complainant also described an incident in the living room. She said she was watching a movie, sitting on the couch, when the Accused came over and sat next to her. The Accused allegedly touched her vagina, outside her clothing, with his hand. She took his hand and pulled it away. [ 40 ] The Complainant couldn’t remember other specific incidents of the Accused touching her vagina in the house.

However, she described her specific recollection of it having happened outside the house. According to the Complainant, the Accused had picked her up by car. She sat in the front seat, and he put his hand on her thigh and started moving his hand up and down her thigh. [ 41 ] The Complainant was asked by the Crown if anything else happened outside the house; her answer was “no”. The Complainant also said that there were more incidents of the Accused touching her vagina, but that she couldn’t remember them. [ 42 ] Crown Counsel asked the Complainant if she had ever been touched inside her clothing.

The Complainant’s response was “no”. [ 43 ] In cross-examination, the Complainant agreed that she had not relayed in her police statement the above described incident of the Accused touching her vagina in the living room. Further, in cross-examination the Complainant seemed to agree that she had

suggested to police that there were just two times that the Accused touched her vagina. She had described to the police one incident of the Accused touching her vagina over her snow-pants in Nain, and another incident where he tried to reach down the front of her pants. Defence Counsel pointed out to the Complainant that in Court, that she had testified all touching by the Accused was over her clothing; whereas to police, she suggested that the Accused had tried to reach down the front of her pants.

The Complainant did not explain these suggested inconsistencies between her testimony in Court, and her police statement. [ 44 ] The Complainant’s evidence was also that there were times the Accused would take her hand and make her touch his penis. In direct examination, the Complainant indicated that she could not really remember a whole lot, and that it didn’t happen often. She was able to describe two specific incidents. [ 45 ] First, the Complainant described one such incident which she said took place upstairs in the living room, when she was on the couch watching TV.

She said the Accused came over, sat next to her, took her hand and made her touch him. Her evidence was that she pulled her hand away, and then she moved to the other couch. [ 46 ] The Complainant recalled another such incident occurring downstairs in the house, when she was again watching TV. Her evidence was that the Accused came over, took her hand and made her touch his penis outside his clothing.

She then described taking her hand away, and telling him to stop. [ 47 ] In cross-examination, it was brought to the Complainant’s attention that in her second statement to police she had indicated that the Accused made her touch his penis two or three times a month; however, in another part of her statement to police, she said it happened one time. Defence Counsel asked the Complainant to clarify if she was alleging that the Accused made her touch his penis one time, or two to three times a month. The Complainant’s response was that it was two or three times a month.

She was then asked why she had told police that she had touched him only one time. The Complainant explained that she was confused at that time; however, at the same time, she agreed that the officer’s question was clear. [ 48 ] The Complainant also relayed an incident that had allegedly occurred in the Accused’s bedroom. Her evidence was that the Accused had called her into his room, she went in to see what he wanted and he bent her over the bed. She said that his hands were on her upper back. She said she got up before the Accused did anything.

She couldn’t recall anything else from that incident. [ 49 ] In cross-examination, the Complainant acknowledged that she did not mention this specific incident to the police in her first statement to the police, but she did in her second statement. Defence Counsel proceeded to question the Complainant on the discrepancies with respect to her description of this incident in her second statement to police, versus her description of the incident in Court.

According to her police statement, the Complainant had indicated that she had come out of the bathroom, the Accused took her by the arm, turned her around, bent her over the bed, and started touching her butt. In her statement, she also indicated that the Accused took the bottom part of her neck, and pushed her upper body onto the bed.

Further, she had also told the police that the Accused had dragged her into the room by her wrists, and held her arms by her side. [ 50 ] Defence Counsel asked the Complainant to clarify if she recalled the Accused’s hands being on her upper back (as she had said in her testimony in court), or whether his hands were pinning her arms by her side (as she had suggested in her police statement). The Complainant replied that she recalled both. Defence Counsel put it to the Complainant that if the Accused was pinning her arms by her side, then his hands could not have also been on her upper back.

The Complainant agreed. Defence Counsel further put to the Complainant that if the Accused’s hands were on her upper back, or pinning her arms to the side, then he could not be touching her butt. The Complainant again agreed. [ 51 ] When pressed again by Defence Counsel on what her recollection of this incident was, and which description was accurate, the Complainant explained that there were two separate incidents she was describing involving the Accused bending her over the bed.

Her evidence was she just remembered now (in Court) that it was two separate incidents. [ 52 ] The Complainant also relayed in her evidence that there were times when the Accused would watch pornography on his phone, and he would put the phone in her face. Her evidence in Court was that this happened around February 2018, and only a few times. She also indicated that when this happened, she would push his hand away. [ 53 ] Further on this, the Complainant relayed a specific incident occurring prior to the touching incidents starting.

Her evidence was there was one time when the Accused was in the basement, he asked the Complainant to get his phone from his bedroom. The Complainant said she knew the Accused’s password; she went into his phone, saw pornography, and then turned the phone off.

In cross- examination, the Complainant agreed that the Accused did not tell her to open the phone, nor did he give her permission to do so; he had just asked her to get his phone. [ 54 ] In cross-examination, the Complainant was referred to her first statement to police in which she had described a second incident when the Accused showed her pictures of people in bikinis on Facebook. [ 55 ] Further on this and in cross-examination, Defence Counsel confirmed with the Complainant that she had indicated to police that the above-described were the only two times she could recall anything happening with the Accused and his phone.

The Complainant suggested to Defence Counsel that there were other times that the Accused would put his phone in her face. The Complainant was asked by Defence Counsel if she was lying to the police officer when she told the police officer that there were only two times she saw anything on the Accused’s phone. The Complainant’s response was that she didn’t tell the officer all of the truth. [ 56 ] Further in cross-examination, the Complainant agreed that in February 2018 she was in trouble at home because there had been pornography found on her phone.

She agreed that she later told her foster mother that she started watching it because the Accused had forced her to watch it. She also suggested to the officer in her statement that she got in trouble because the pornography came up from the Accused’s phone to her phone. However, she acknowledged in Court that it wasn’t true that it went from the Accused’s phone to her phone. [ 57 ] The Complainant didn’t seem to recall being in trouble again for inappropriate content on her phone in April of 2019, and at the

time when she wrote about the allegations in her journal. Her evidence was that she used the journal to communicate with R.Y.; and R.Y. found her journal while the Complainant was at cadets. Her evidence was that she was going to show R.Y. the journal a few days after writing in it. [ 58 ] The Complainant initially suggested that she was not aware that R.Y. was having issues with the Complainant’s behavior.

The Complainant subsequently seemed to agree that she knew that R.Y. was not happy with the Complainant’s behaviour around the time she wrote in her journal; and that Jessie Crosbie (the Complainant’s social worker) had told the Complainant this. She also agreed that she did not want to leave R.Y.’s house. [ 59 ] The Complainant’s evidence was that all the incidents came to an end after she wrote in her journal telling R.Y. what had happened. The Complainant also indicated the Accused had called on the Monday preceding R.Y. finding the journal.

In that conversation, the Complainant spoke to the Accused and told him that she needed to tell; she said he asked her not to and he’d give her anything. [ 60 ] In redirect, the Complainant was asked by Crown Counsel if she had covered off every incident that happened to her, in her statement to police. She said no. She was asked to explain why not. She said she was not sure, and suggested it was because she was nervous and scared. R.Y. [ 61 ] R.Y. had been previously married to the Accused for 13 years.

She confirmed that they have two children, a son and a daughter. [ 62 ] R.Y. referred to the Complainant as their foster daughter. She thought that the Complainant was around 9 years old when she came into their care, at which time they were living in Nain. She confirmed that the Complainant’s brother also came to live with them at the same time; and they all lived together for about 5 years. [ 63 ] R.Y. described how she became aware of the Complainant’s allegations. Her evidence was that on a Monday, (April 22, 2019), she checked on the Complainant in her bedroom.

She saw that the Complainant was crying and writing in her journal. R.Y. indicated that the journal had been used as a method of communication between R.Y. and the Complainant. [ 64 ] R.Y. noted that the Complainant did not give the journal to R.Y. on that Monday; she normally would give the journal to R.Y. to respond. The Complainant still hadn’t given R.Y. the journal on Tuesday. [ 65 ] When the Complainant went to cadets on the Wednesday, April 24, 2019, R.Y. went into her room to look for the journal and found it in its usual place, under the Complainant’s pillow.

R.Y. proceeded to read the journal which contained the allegations against the Accused. According to her evidence, R.Y. was shocked. She texted the Accused, who was working in Voisey’s Bay at this time, and she told him to call her right away. [ 66 ] When she eventually spoke with him, R.Y. told the Accused that she knew what he had done to the Complainant, and she knew what the Complainant had written in her journal. According to R.Y.’s evidence, the Accused was initially silent in response; he then repeatedly apologized and told her that he tried to stop, but he couldn’t.

He asked her not to call CYFS, and not to report it; and he said that he would come home to take his things, and he would send her money. R.Y.’s evidence was that she told the Accused that she had to report it. [ 67 ] In cross-examination, R.Y. confirmed that when she spoke to the Accused she didn’t read him the journal, and she didn’t talk to him about the specifics of what was contained in the journal. [ 68 ] That same evening, R.Y. picked the Complainant up from cadets; but she did not say anything to the Complainant at that time.

Later that evening, the Complainant came into R.Y.’s room to say good night, and R.Y. told her that she knew what the Accused had done, and that the Complainant was safe with her. [ 69 ] The next morning R.Y. spoke with her kids, and the Complainant, to inform them that she was calling CYFS. R.Y. proceeded to call CYFS, but their regular social worker, Jessie Crosbie, was not in the office. R.Y. reported that there were allegations of sexual abuse, and she asked that a social worker come to her house. A social worker came to her house, and R.Y. gave her the Complainant’s journal to read for herself.

R.Y. said after that it was all a “big blur”, as there were social workers involved, police reports, and several interviews, including interviews with the children. R.Y. gave her statement to police on May 1, 2019. [ 70 ] R.Y. was asked whether there was anything, when looking back, that may have raised red flags. She said that the Accused used to always go in the Complainant’s room at night, but that he said it was to check on her. At the same time, he would also check on their daughter.

Their bedrooms were side by side. [ 71 ] On this point, in cross-examination it was put to R.Y. that in her police statement she said that the Accused would more or less just open the door, look in the room, and come back out. She confirmed in her evidence that what she stated in her police statement was still accurate. She agreed that the Accused wouldn’t go in the Complainant’s room, he would just check on her, and come back out. [ 72 ] R.Y. was asked again if there was anything else in hindsight which caused her concern.

She said that the Accused always got the Complainant to bring him things if, for example, he was downstairs. [ 73 ] However, ultimately R.Y. clarified in cross-examination that she didn’t really see any red flags. The Complainant was not afraid of the Accused; and she did not appear to be avoiding him. [ 74 ] R.Y. confirmed there was a time when the Complainant, and her brother, went with the Accused on a trip to Nain. At the same time, R.Y. had taken their two children to B.C. for a vacation.

[ 75 ] Further, in cross-examination, R.Y. confirmed that when she went to give her statement to police, she was asked about the Accused’s relationship with the Complainant. In her statement she made it clear to the police that the Accused would tease, torment, and pick on the Complainant, and that the Complainant would get annoyed with him.

Further in cross-examination, R.Y. agreed that she had spoken to the Accused more than once about his teasing the Complainant, and that she told him it had to stop. [ 76 ] R.Y. confirmed that around March and April of 2019, she was contemplating having the Complainant placed elsewhere, and wanted her to be removed from the home because of behavioral issues; specifically, pornography and inappropriate content had been found on the Complainant’s phone. This behaviour started in February of 2018; and continued throughout the next year.

R.Y.’s evidence was that the Complainant lied to her about it, and how it got on her phone. She confirmed that at the time the Complainant wrote in her journal in April of 2019, her phone had again been taken because more inappropriate things had been found on her phone. [ 77 ] R.Y.’s evidence was that the Complainant was aware that there were issues; but R.Y. thought that the Complainant was not aware that R.Y. was contemplating giving her up. R.Y. confirmed that the Complainant didn’t want to leave the home. [ 78 ] In cross-examination, R.Y. was questioned on the dates when she went camping overnight.

She thought it was twice that she went, and she was asked whether it was the summer of 2017. However, she couldn’t recall the dates. [ 79 ] Further in cross-examination, R.Y.’s evidence was that she was told by CYFS that the Accused could not speak to his children, until he spoke to police. She confirmed that she told this to the Accused. Their son’s birthday was on May 4 th , and she wanted her son to see his father on his birthday.

The Accused did see his children after he had been arrested; but he did not see the Complainant. [ 80 ] R.Y. confirmed in cross-examination that she contemplated that if the Complainant was gone from the home, that the Accused could then come home; however, in June she decided that it would just not work.

SUMMARY OF THE EVIDENCE OF THE DEFENCE Jessie Crosbie [ 81 ] Jessie Crosbie was the first witness called by the Defence. She testified that she is a social worker with CSSD (formerly CYFS), and has been the Complainant’s social worker since 2018. [ 82 ] Jessie Crosbie’s evidence was that she regularly met with the Complainant once a month; and R.Y. once a month. Typically both R.Y. and the Complainant would be in attendance together at the meetings, although sometimes private meetings were held.

During the meetings, they would discuss any placement concerns, and whether there were any supports needed. [ 83 ] According to Ms. Crosbie’s evidence, on March 1, 2019 and March 11, 2019 R.Y. called her with concerns regarding the Complainant. R.Y.’s concerns were specifically with respect to pornography and inappropriate content found on the Complainant’s phone and laptop. R.Y. called again on March 14, 2019 with more concerns regarding pornography and concerns over the Complainant’s comments in her journal of self-harming and suicide. According to Ms.

Crosbie, R.Y. had expressed concerns in the phone call on March 14 as to the viability of continuing the Complainant’s placement with R.Y. and D.M. Around March 14, 2019 Ms. Crosbie met with R.Y. and the Complainant together, and discussed R.Y.’s concerns with the Complainant’s behaviour. According to Ms. Crosbie’s evidence, concerns as to the viability of the Complainant’s continued placement were discussed at that meeting, in the Complainant’s presence. Her evidence suggested that things settled down by March 15 th .

The Accused’s testimony [ 84 ] According to the Accused, the Complainant was his foster child for about six years. He indicated that she was like a daughter to him. He denied the Complainant’s allegations, and his evidence was that he never touched the Complainant in a sexual manner. [ 85 ] The Accused also confirmed that he and R.Y. had been living in Nain when the Complainant and her brother came to live with them.

In 2015, the family moved to Conception Bay South with the hopes of a better living environment for all their kids. [ 86 ] In direct examination, Defence Counsel put the allegations to the Accused and he denied the allegations. More specifically, he was asked whether there was a time when the Complainant was doing laundry that he pushed her against the wall, and kissed her. He said this never happened. It was put to him that the Complainant alleged one night she was going to bed, and he kissed her in a sexual manner. He said this never happened.

With respect to putting her to bed, he said he would just open her bedroom door and say good night and I love you, and he did the same with his own daughter. [ 87 ] The Accused was asked about the allegation that one summer he kissed the Complainant while she was sitting at the kitchen island; his response was that this never happened. [ 88 ] The Accused was asked whether one night R.Y. went camping, and whether he carried the Complainant into the bedroom, and started touching her. His response was that never happened. Further, his evidence was that R.Y. went camping in 2017, not 2018.

He provided photos of R.Y.’s two camping trips which had dates from 2017. There were varying dates on the photos; three of the photos had dates in August, 2017, and one was dated October, 2017. His evidence suggested the dates were contemporaneous with when he uploaded the pictures onto Facebook, and not when the photos were taken.

In cross-examination, the Accused confirmed that while he could not give the exact dates of R.Y.’s hikes/camping trips, the dates were in 2017. [ 89 ] Defence Counsel put to the Accused the Complainant’s allegation that she had been in the rec-room when he sat next to her, and kissed her, and that she pushed him away. He said this did not happen. [ 90 ] Defence Counsel put to the Accused the Complainant’s evidence of the incident in the living room, where he allegedly sat on the couch and tried to kiss her.

He said they often sat together to watch TV or a movie; however he denied ever having done anything of a sexual nature to her.

[ 91 ] The Accused was asked whether one night he entered the Complainant’s room, sat on the bed, and rubbed her butt; he said this never happened. [ 92 ] Defence Counsel asked the Accused about the Complainant’s allegation that one morning she was eating breakfast, and he touched her on the butt over her pajamas. He said that this never happened. [ 93 ] Defence Counsel asked the Accused about the Complainant’s allegation that he had touched her vagina over her clothes in her room; he said this never happened.

He was asked whether he touched her vagina over her clothes one time when she was getting a glass of water in the kitchen, and he said no, this did not happen. He was asked whether he had touched her vagina in Nain. He said no, this never happened. He was asked whether he touched her vagina when she was in the living room watching TV. He again stated they often watched TV together, but he would never touch her in a sexual manner. [ 94 ] Another incident put to the Accused was the Complainant’s suggestion that he had picked her up in a car, and rubbed her on the thigh.

He said he often drove the Complainant to her friends, or school, or the mall, but that he never touched her. [ 95 ] The Accused was asked whether he would ever make the Complainant touch his penis.

He said no, that never happened. [ 96 ] The Accused was asked whether he had ever watched pornography together with the Complainant, or whether he forced her to watch pornography, or sent it to her; he said no, never. [ 97 ] The Accused indicated that his phone was password protected, and if anyone put in his password no pornography would show up, but merely a picture of his kids. [ 98 ] Defence Counsel asked the Accused about the Complainant’s allegation that he had showed her pictures of people in bikinis on Facebook.

He suggested that he was often on Facebook, and there was probably pictures of people in bikinis, but his evidence was you can’t watch pornography on Facebook.

He suggested that maybe what the Complainant saw was a meme; he couldn’t recall for sure whether such was the case. [ 99 ] Defence Counsel put to the Accused that the Complainant had said she had been dragged in his room by her wrists, or that he asked her to come in, and that he subsequently bent her over the bed and touched her butt; his response was this never happened. [ 100 ] The Accused was asked whether he ever kissed the Complainant in an inappropriate sexual manner. He said no.

His evidence was that he kissed her on the cheek, or forehead, as a sign of affection, or love, to her as his foster child. [ 101 ] The Accused denied ever touching the Complainant’s vagina, outside or inside her clothing.

He also denied ever making the Complainant touch him. [ 102 ] With respect to touching the Complainant’s butt, the Accused did say that there was one time he and R.Y. and the Complainant were walking up the stairs, and he gave the Complainant a tap or a shove on her butt to go up the stairs; however, this was not done in a sexual manner. [ 103 ] The Accused was asked whether he ever touched the Complainant’s tailbone. His evidence was that if he had, then it was not sexual in nature.

He explained it was probably a little tap for the purpose of telling her to come on, let’s go, if they needed to go somewhere. [ 104 ] The Accused was asked whether he ever touched the Complainant’s butt underneath her clothing. He said no. Defence Counsel referred the Accused to his statement to the RNC where he was asked whether he had ever touched the Complainant on the butt over her clothes, and he had said yes. He was then asked by the RNC if he had ever touched her butt under her clothes, and he said yes in his statement. Defence Counsel asked why he said yes to touching the Complainant under her clothes.

The Accused’s explanation was that he thought if he gave the RNC what they wanted to hear, then he would be able to see his son for his birthday. His son’s birthday was the next day following the Accused giving his statement to police. [ 105 ] The Accused elaborated that he returned from Voisey’s Bay on April 26 th ; he lived in his car up to the day of his statement to police, being May 3 rd .

The Accused indicated that his understanding was that he could not see his kids until he spoke to the RNC; he understood that CSSD (CYFS) had the power to determine if he could see his kids. [ 106 ] The Accused’s evidence was also that he had a chance to see his kids if the Complainant was no longer in the house; because he was subject to a court order requiring him not to be around the Complainant. [ 107 ] The Accused’s evidence was that he and R.Y. had discussed his coming back home after he got out of jail, and until sometime in June. [ 108 ] The Accused’s evidence was that he had been aware of R.Y. having issues with the Complainant, and they discussed the placement a few months prior to the allegations. [ 109 ] The Accused recalled the conversation with R.Y. on the night of April 24, 2019, when he was at Voisey’s Bay.

At no time in the course of that conversation was he told by R.Y. what was in the journal. He confirmed R.Y.’s evidence that he said he had tried to stop. He explained the context of this as being that the only thing that came to his mind at the time was his excessive teasing of the Complainant. His evidence was that he thought that R.Y. was calling him because of this excessive teasing, and it was the only thing he could think of to explain why she would say she was going to call CYFS.

In the past they had talked a few times of his excessive teasing of the Complainant. [ 110 ] In cross-examination, the Accused was asked to elaborate on what he would do when he would tease the Complainant. He was only able to recall one example; he indicated that he used to call the Complainant a name which she did not like. His evidence was that

there were other types of teasing, but he could not recall other examples at the time of his testimony. The Accused recalled having conversations in 2019 with R.Y. about his excessive teasing of the Complainant, and that R.Y. asked him to stop the teasing. The Accused’s evidence was that he never did stop teasing the Complainant. His evidence was also that he couldn’t recall touching or poking her, when he teased her. [ 111 ] In cross-examination, the Accused confirmed that he knew R.Y.’s call on April 24 th was serious, as she wanted to talk to him in private.

It was put to him by Crown Counsel that when R.Y. told him that she knew what he had done to the Complainant, then that implied that she was talking about something other than what had happened in the past. However, the Accused was adamant in his response to cross-examination that his past actions of teasing the Complainant was the only thing that came to mind, when he was speaking with R.Y. [ 112 ] The Accused confirmed in cross-examination that in that phone conversation with R.Y., he asked her not to call CYFS.

Crown Counsel asked the Accused why he thought R.Y. would call CYFS about his teasing the Complainant. The Accused’s response was that he knew that if R.Y. went to CYFS, then his family would be jeopardized. It was put to him that he must have known she was talking of something other than teasing.

The Accused did not agree with the Crown’s assertion, and remained firm in his position that the only thing that came to his mind was the teasing. [ 113 ] The Accused could not recall the Complainant calling him on the Monday to say that she was going to tell R.Y. [ 114 ] The Accused was questioned by the Crown as to why he didn’t see fit to subsequently clarify with R.Y. that (in the telephone conversation) he had thought she had been referring to his calling the Complainant by a nickname.

The Accused’s evidence was that he didn’t subsequently talk to R.Y. about it because he thought she would use such conversations against him in court; and he never did clarify to R.Y. that he thought she had been talking about his teasing the Complainant. The Crown put it to him that teasing was not what he understood that R.Y. was talking to him about that day on the phone. Further, the Crown asked the Accused why he would be concerned if he thought R.Y. had only been talking to him about his teasing the Complainant.

The Accused insisted that teasing the Complainant was the only thing that came to mind in his conversation with R.Y. [ 115 ] The Accused confirmed that he had met with R.Y. on Topsail Beach, some time after he knew what the allegations were against him. The Accused said they discussed the children. The Crown asked the Accused why he didn’t then clarify with R.Y. that he had previously thought R.Y. had been talking about his teasing the Complainant. Again, the Accused said that he felt that whatever he said to R.Y. she would use against him.

Similarly, his evidence was that he also thought that if he said anything to CSSD, or to the police, then they would use it against him. The Crown pressed the Accused and put to him that despite the significant consequences of his not being allowed to see his family, and being kicked out of his house, and despite his knowing that there were sexual allegations against him, yet not once did he think to clarify with R.Y. that he thought that she had been talking in that April 24 th conversation about his teasing the Complainant.

Again, the Accused insisted that he thought that the conversation with R.Y. on April 24, 2019 was all about his teasing the Complainant. [ 116 ] In cross-examination, the Crown also questioned the Accused about what he had said to police in the statement about touching the Complainant on her butt, both inside and outside her clothing. The Accused confirmed that he understood that the police were talking to him about sexual allegations.

Crown Counsel put it to the Accused that it was hard to believe that if he thought the conversation with R.Y. had been all about his teasing the Complainant, that he would go to the police and admit to touching the Complainant. The Accused responded by again insisting that he felt if he gave the RNC what they wanted, then he could see his kids. Crown Counsel asked the Accused why he felt that admitting to touching his foster child on the butt under her clothing would help him with seeing his kids.

The Accused’s evidence was that he thought that if he admitted touching the Complainant’s butt under her clothes, then he would possibly get to see his kids. He confirmed that he lied to police when he said that in his statement. THE POSITIONS OF THE CROWN AND THE DEFENCE [ 117 ] In final submissions, the Crown acknowledged that based upon the evidence at trial, Count 4 of the Indictment was not established beyond a reasonable doubt. Count 4 was the charge that the Accused had made available sexually explicit material to the Complainant.

The Crown acknowledged that the two specific incidents described by the Complainant do not prove the charge. The specific incidents were that the Complainant was exposed to pornography when the Accused asked her to get his phone; and that he showed her pictures of people in bikinis on his phone. At the same time, the Crown asked the Court to accept the Complainant’s evidence suggesting that the Accused did put his phone (with pornography) in the Complainant’s face; but the Crown agreed that the charge had not been established.

Consequently, based upon the evidence and the submissions, I find the Accused not guilty of Count 4 as described in the Indictment. [ 118 ] The Crown further submitted that Counts 3 and 8 of the Indictment were not proven by the Crown beyond a reasonable doubt. This is because a young person is defined in section 153(2) of the Criminal Code as including a person who is at least 16 years of age; and the Complainant was not 16 years old when the offences were alleged to have occurred.

Consequently, based upon the evidence and the submissions, I find the Accused not guilty of Counts 3 and 8 of the Indictment. [ 119 ] With respect to the remaining Counts, being Counts 1, 2, 5, 6 and 7, the Crown submitted that based on the whole of the evidence, the Crown has proven the charges beyond a reasonable doubt.

The Crown’s position was that the Complainant was credible, and the Court must evaluate her evidence as a child witness, and consider the case law regarding delayed and incremental disclosure in cases of alleged sexual abuse. [ 120 ] Defence Counsel submitted that the Court cannot rely on the evidence of the Complainant. Rather, the Complainant’s evidence is full of inconsistencies that the Court cannot resolve. Defence Counsel submitted that the Accused must be acquitted, and that the Crown did not prove any of the charges beyond a reasonable doubt. ANALYSIS

Onus of Proof [121] The Crown bears the onus of establishing beyond a reasonable doubt that the Accused committed the offences charged. [122] The standard of “beyond a reasonable doubt” was described by the Supreme Court of Canada in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 36, as follows: 36 Perhaps a brief

summary of what the definition should and should not contain may be helpful.

It should be explained that: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guiltymust acquit. [123] In R. v.

Starr, 2000 SCC 40, the Supreme Court of Canada described the reasonable doubt standard as falling “much closer toabsolute certainty than to proof on a balance of probabilities”. [124] In this case, both the Crown and the Accused adduced evidence. When an accused testifies, his evidence is to be assessed inaccordance with the principles of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742; where the Supreme Court of Canadadescribed a three pronged analysis, and stated as follows, at pages 757 and 758: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well [page758] instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [125] In R. v.

C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146, (B.C.C.A.) at paragraph 24, the British Columbia Courtof Appeal suggested adding the following to the R. v. W.(D.) instruction: “If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit” [126] In R. v. Vuradin, 2013 SCC 38, the R. v. W.(D.) analysis was considered. At paragraphs 21 to 26, the Supreme Court of Canadaunderscored the principles that assessing the evidence at a criminal trial does not consist of choosing between an accused’s evidence andthe Crown’s evidence.

Rather, the whole of the evidence is to be assessed, keeping in mind that the onus of proof never shifts to an

accused. At paragraphs 21 and 22 of R. v. Vuradin, they stated, as follows: 21 The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the guilt of the accused: W. (D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses isinconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on achoice between the accused’s evidence and the Crown’s evidence: R. v.

Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 (S.C.C.), at paras. 6-8.However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. c. Boucher, 2005 SCC 72,[2005] 3 S.C.R. 499 (S.C.C.), at para. 29. 22 The trial judge adverted to the principles of W. (D.) at the outset of his reasons: W.(D.) requires me to attend to the evidence of the accused in a particular way. That does not mean, however, that the accused’sevidence is considered in a vacuum. The dangers that W.(D.) addresses are the potential for simply comparing stories and for shifting theonus to the accused.

However, the accused’s evidence is part of a body of evidence, all of which bears upon the credit that may be givento any portion of that evidence. One cannot determine whether the accused’s evidence is true or at least raises a reasonable doubt by simply considering his evidence andthe way he gave it. Doing so ignores one of the fundamental [tenets] of factfinding. It is not just internal consistency which lendscredence to testimony. External consistency is also part of the analysis.

Evidence inconsistent with found or admitted fact, may bediscounted, no matter what its source. [Emphasis added.] [127] At paragraph 25 of R. v. Vuradin, the Supreme Court of Canada endorsed the trial judge’s caution against assessing an accused’sevidence in a vacuum; as they stated that the trial judge was “merely articulating general principles of law that may be used in assessingthe evidence of the accused” (at paragraph 25). [128] Similarly, in R. v. Hoohing[2], 2007 ONCA 577, the Ontario Court of Appeal stated that the first two prongs of the R. v.

W.(D.)analysis requires consideration of the accused’s evidence in the context of the whole of the evidence. They stated this at paragraphs 14and 15, as follows: 14 The trial judge properly told the jury that they are not compelled to choose between the evidence favouring the Crown and theevidence favouring the accused on essential matters because the burden is on the Crown to prove guilt beyond a reasonable doubt. 15 He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation.

A jury does not consider anaccused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether it leaves them with a reasonabledoubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused in the context ofall the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.).

The evidence of any witness,including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on theaccuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or in the case of an accused, may no longerraise a reasonable doubt. [129] In R. v. S.S., [2021] N.J. No. 105 (N.L.P.C.), Judge Gorman provided a very helpful discussion of the law respecting R. v. W.(D.). At paragraph 46, he referred to R. v. C.L., 2020 ONCA 258, which refers to the three prongs of R. v.

W.(D.) as ‘total acceptance, totalrejection, or something in between’. Judge Gorman stated, as follows: 46 In R. v.

C.L., 2020 ONCA 258, the Ontario Court of Appeal considered W.(D.) and indicated that it describes "three general statesof belief a trier of fact may arrive at after evaluating credibility and reliability" (at paragraph 27): "... the W.(D.) formula seeks to ensure that the correct standard of proof is applied to credibility issues by describing the three generalstates of belief a trier of fact may arrive at after evaluating credibility and reliability in a case where there is evidence inconsistent withguilt, and directing the trier of fact to the outcomes that follow from each of those three general states of belief ... 'total acceptance, totalrejection, or something in between' ...

The first W.(D.) alternative describes total belief; the last, total rejection; and the middle alternativebeing the "something in between" where the trier of fact cannot decide whether to believe or disbelieve the exculpatory evidence". [130] Further, at paragraph 48 of Judge Gorman’s decision he referred to our Court of Appeal’s decision in R. v. Smyth, 2019 NLCA 73and he stated, as follows: 48 In R. v.

Smyth, 2019 NLCA 73, the Court of Appeal indicated that "even when a Judge does not accept the evidence of anaccused, he or she must be satisfied that the evidence they do accept supports convicting beyond a reasonable doubt" (at paragraph 36).The Court of Appeal also indicated that it "is it enough for the Judge to say that he did not believe [the accused person] in rejecting his

defence. While a trial judge is not required to address in his reasons each piece of evidence adduced at trial, a judge should consider'plausible theories' and 'reasonable possibilities' which are inconsistent with guilt" (at paragraph 41). [131] Finally, I add that a piecemeal approach to the evidence is not acceptable when considering whether there is a reasonable doubt;rather, the whole of the evidence must be considered. Judge Gorman discussed this principle at paragraph 42 of R. v. S. S. where herefers to R. v. J.K., 2015 NLCA 14, and R. v. Abramoff, 2018 SKCA 21. Judge Gorman stated, as follows: 42 In R. v.

J.K., 2015 NLCA 14, the Court of Appeal stressed the importance of trial judges applying the reasonable doubt standard"to the cumulative effect of all the evidence pointing away from the guilt of the accused, weighed against the cumulative effect of all theevidence pointing toward the guilt of the accused" (at paragraph 5). The Court of Appeal cautioned trial judges to refrain from applyingthe reasonable doubt standard "to items of evidence in a piecemeal fashion. It is settled law that this constitutes a legal error" (atparagraph 5). Similarly, in R. v.

Abramoff, 2018 SKCA 21, the Saskatchewan Court of Appeal indicated that the "standard of proofbeyond a reasonable doubt does not apply to individual items of evidence ... but rather to the total body of evidence upon which theCrown relies to prove the guilt of the accused" (at paragraph 51). Analysis of the Evidence [132] I have already summarized the evidence of the Crown’s witnesses, being the police officers, R.Y. and the Complainant. [133] The police officers’ testimony was credible and reliable.

As determined in the voir dire, the Accused’s statement was voluntarilyand properly obtained by the officers on May 3, 2019. The statement was entered in evidence. [134] R.Y. was also a credible witness. I find that her evidence was reliable, with one exception; her evidence suggested that theComplainant was not aware that R.Y. was contemplating giving her up. This evidence conflicts with the evidence of Jessie Crosbie. Jessie Crosbie’s evidence was that such discussions took place in the Complainant’s presence.

On this point, I prefer Jessie Crosbie’scredible and reliable evidence; she was objective and quite clear on this point. Otherwise, I accept R.Y.’s forthright testimony. [135] R.Y. explained how the Complainant’s allegations were revealed to her through the Complainant’s journal. She was shocked bythe allegations, as she had been completely unaware of what the Complainant alleged.

R.Y. also provided the evidence of the purportedinformal admission by the Accused in the telephone conversation on April 24, 2019. [136] The Complainant’s evidence is to be considered as the evidence of a young witness; she was 15 years old (almost 16) when shetestified. In R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 the Supreme Court of Canada referred to R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30, and provided guidance on how courts should approach the evidence of young witnesses.

At paragraphs24 to 27, they stated: 24 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach theevidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first isremoval of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable andtherefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed:s. 586 of the Criminal Code, R.S.C. 1970, c.

C-34, which prohibited the conviction of a person on the uncorroborated evidence of a childtestifying unsworn, was repealed by

An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effectiveJanuary 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c.110, have also been eliminated.

The repeal of provisions creating a legal requirement that children's evidence be corroborated does notprevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case.But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always lessreliable than the evidence of adults.

So if a court proceeds to discount a child's evidence automatically, without regard to thecircumstances of the particular case, it will have fallen into an error. 25 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like timeand place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), (SCC), [1990] 2 S.C.R.30, 77 C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask.

R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissionsregarding the Court of Appeal judge's treatment of the evidence of the complainant, she said that: [I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimonyof young children and not impose the same exacting standard on them as it does on adults.

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

While children may not be able to recount precise details and communicate the when and whereof an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years wehave adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and Ibelieve that this is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefullyassessed but the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of young children. 26 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the

evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. 27 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel.

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

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [ 137 ] A common sense approach is required when assessing the Complainant’s evidence. As stated, she was 15 years of age at the time she testified.

She indicated that the first incident occurred around February of 2018, and around her 13 th birthday; and the last incident was around March of 2019, when she would have been 14 years of age. [ 138 ] When testifying, the Complainant seemed to comprehend the questions, and was able to communicate her responses. Nevertheless, there were several inconsistencies in her evidence. Given her age, these inconsistences are to be assessed in light of the above comments of the Supreme Court of Canada in R. v. W.(R.) .

The Complainant’s young age must be taken into account with respect to inconsistencies, “particularly as to peripheral matters such as time and location” (paragraph 27 of R. v. W.(R.) . At the same time, however, I must be mindful that the standard of proof remains the same, regardless of the Complainant’s age. [ 139 ] The Crown suggested that when considering the R. v. W.(R.) approach to the Complainant’s evidence, the Court should find that the Complainant was credible.

The Crown noted that the Complainant’s evidence suggested that the incidents were numerous, occurring sometimes two to three times a week, and every time the Accused was home from work, over a period of more than a year. The Crown reasonably submitted that anyone who is asked to recount something which occurred with such high frequency cannot be expected to recall and describe each and every event. [ 140 ] Defence Counsel acknowledged that in accordance with R. v.

W.(R.), the Complainant’s evidence should not be subject to the same expectation of precision as one expects of an adult witness’s evidence; particularly with respect to time and place. Even so, Defence Counsel submitted that the Complainant was not a credible witness. [ 141 ] Specifically, Defence Counsel’s position was that the inconsistencies in the Complainant’s evidence were numerous and significant, unable to be resolved, and to the extent that her overall credibility was impugned.

Further, Defence Counsel submitted that the evidence established that the Complainant had a clear motive to fabricate. [ 142 ] Before reviewing the inconsistencies in the Complainant’s evidence, and assessing whether the Complainant’s credibility has been impacted, it is important to recognize that, as submitted by the Crown, a statement to police by any witness need not be exhaustive. A different description of the same incident is an inconsistency.

However, inconsistencies do not generally arise simply because information, and other incidents, may have been added in the Complainant’s testimony in Court; or that her description of incidents may have been amplified. [ 143 ] Moreover, delayed or incremental disclosure by a complainant is not unusual in sexual abuse cases, and is not necessarily an inconsistency. This was canvassed in R. v. W.O. , 2020 ONCA 392 ; (appeal dismissed at R. v. W.O., 2021 SCC 8 ) where the Ontario Court of Appeal referred to R. v. D.(D.) , 2000 SCC 43 , and R. v. P.(D.) , 2017 ONCA 263 (leave to appeal refused 2017 S.C.C.A.

No. 261), and they stated at paragraphs 10 to 12, as follows: 10 In D.D. , at para. 63 , the Supreme Court made clear that the significance of a complainant's failure to make a timely complaint must not be the subject of any presumptive inference based upon stereotypical assumptions about how persons, particularly children, react to sexual abuse. 11 In D.P. , the complainant failed to disclose all the assaults in his first interview with the police.

The trial judge in D.P. referred to D.D. and concluded that the complainant's explanation for his failure to disclose all the assaults in his first interview was "perfectly plausible". This court, at para. 30, quoted his observation that: The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [the complainant] more than one occasion to shed a burden that had been weighing on him for years. 12 This court found no error in the trial judge's assessment of the complainant's credibility.

It rejected the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. It concluded, at para. 31, that "[t]he comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case " (emphasis added). [ 144 ] After carefully considering and assessing the Complainant’s evidence, I find that some of the inconsistencies in her evidence

were minor in nature, or related to peripheral matters, or could be explained on the basis that the Complainant was a young witness, or were plausibly explained by the Complainant. Having said this, however, other inconsistencies were not plausibly explained by the Complainant; nor were they satisfactorily resolved or explained in submissions.

Further, at times the Complainant’s evidence was confusing, and at times she seemed careless with her evidence. [ 145 ] In cross-examination, Defence Counsel suggested to the Complainant that there were inconsistencies between her testimony in Court, and her police statement. However, some of these discrepancies were not inconsistencies; rather, although confusing at times, some can be explained as being additional incidents or details.

Further, some discrepancies were inconsistencies, but minor in nature. [ 146 ] For example, in cross-examination Defence Counsel referred the Complainant to her direct testimony regarding an alleged incident when the Accused carried her to his bedroom, put her on his bed, started kissing her, took off her shirt and touched her breasts. Defence Counsel brought to the Complainant’s attention how she had described that incident in a different manner in her second police statement.

Defence Counsel specifically referred the Complainant to the part of her statement to police when she was asked by the police officer what the Accused would do when he picked her up, to which the Complainant had responded that the Accused would lay one of his hands on her butt, and that she didn’t remember the other time. [ 147 ] When asked by Defence Counsel in cross-examination why her description of this above incident was different in Court, as opposed to what she had said to police, the Complainant’s explanation was that she remembered all when she was preparing herself for Court.

This response to Defence Counsel’s question was somewhat confusing. It was confusing because it was unclear whether the Complainant w

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