R. v. E. H., 2021 NLSC 64

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. E. H., 2021 NLSC 64 Date : May 12, 2021 Docket : 202006G0012 Her Majesty The Queen v. e. H. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Katherine O'Brien Place of Hearing: Clarenville, Newfoundland and Labrador Date(

s) of Hearing: December 15-18, 2020, January 18-20, 2021, January 25-26, 2021 and March 10, 2021 Date of Oral Judgment: May 12, 2021

Summary: Following trial, EH was found guilty of two counts of sexual assault, two counts of sexual interference, once count of invitation to sexual touching, and one count of sexual exploitation. The victims were his granddaughters and the abuse happened while they were children. EH was found not guilty of other sexual offences alleged in relation to two other complainants.

Appearances: P. Cory Binderup Appearing on behalf of the Crown Philip C.W. Whalen 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. Gagnon, 2006SCC 17; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; R. v. Neary, 2000 NFCA 22; R. v. Laboucan, 2010 SCC 12; R. v. H.(C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.); R. v. K.P., 2019 NLCA 37; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Dinardo, [2008] SCC 24; R. v. Chase, (SCC), [1987] 2 S.C.R. 293; R.v.

Litchfield, (SCC), [1993] 4 S.C.R. 333; R. v Ewanchuk, 1999 SCC 711; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] EH is charged with sexual offences related to two of his granddaughters and two of his granddaughters-in-law. Thegranddaughters are referred to as “Ann” and “Belle” in these reasons and they are sisters. Ann and Belle have other siblings. Theireldest sibling is a brother, who is referred to as “Chris”. Chris is married to “Daisy”, who is one of the granddaughter-in-lawcomplainants.

The other granddaughter-in-law complainant, referred to as “Edith”, is married to another brother of Chris, Ann andBelle. [2] EH is charged with nine offences. Four are in relation to Ann. These are: i. That, on or between January 1, 2004 and September 1, 2017 he did commit a sexual assault on Ann contraryto

section 271 of the Criminal Code, R.S.C. 1985, c. C-46; ii. That, on or between January 1, 2009 and December 31, 2013, he did for a sexual purpose incite Ann, aperson under the age of sixteen years, to touch directly with a part of her body, being her hands, the body of EH contrary to

section 152of the Criminal Code; iii. That, on or between January 1, 2004 and February 4, 2015, he did for a sexual purpose touch Ann, a personunder the age of sixteen years, directly with a part of his body, being his hands, contrary to

section 151 of the Criminal Code; iv. That, on or between February 5, 2015 and September 1, 2017, being in a position of trust or authority towardsAnn, a young person, he did for a sexual purpose, touch directly the body of Ann with a part of his body, being his hands, contrary tosection 153 of the Criminal Code. [3] Two are in relation to Belle. These are: v. That, on or between January 1, 2010 and December 31, 2012, he did commit a sexual assault on Bellecontrary to

section 271 of the Criminal Code; vi. That, on or between January 1, 2004 and December 14, 2016, he did for a sexual purpose touch Belle, aperson under the age of sixteen years, directly with a part of his body, being his hands, contrary to

section 151 of the Criminal Code. [4] Two are in relation Edith. These are: vii. That, on or between January 1, 2013 and December 31, 2015, he did commit a sexual assault on Edith contraryto

section 271 of the Criminal Code;

viii. That, on or between January 1, 2004 and December 31, 2012, he did for a sexual purpose touch Edith, a personunder the age of sixteen years, directly with a part of his body, being his hands, contrary to

section 151 of the Criminal Code. [5] Lastly, one is in relation to Daisy. This is: ix. That, on or between June 15, 2014 and January 31, 2017, he did commit a sexual assault on Daisy contrary tosection 271 of the Criminal Code; [6] The offences are alleged to have taken place in the community in which EH lives, except for one offence related to Belle,which is alleged to have taken place in a larger community in the province. [7] The Crown called six witnesses: the investigating police officer, Chris, and the four complainants. EH testified on his ownbehalf. To begin, I will give a

summary of the most relevant evidence of each witness, other than the police officer. I will review theirevidence in more detail when I analyze each group of charges. [8] Ann was born in 1999 and, at all relevant times, she lived with her family in a neighbouring community to that of EH. Anntestified to sexual abuse that happened from the time she was a young girl, in grade two or three, until she was 18 years old. She testifiedgenerally to sexual touching by EH that she said happened throughout her childhood and also to several specific events.

The touchingincluded touching of her vagina and breasts and kissing on the mouth. In one incident, Ann testified that EH had made her squeeze hispenis over his pants. [9] Belle was born in 2000 and grew up in the same home as Ann and Chris. Belle also testified generally to sexual touching byEH that she said happened throughout her childhood and to specific events. The touching included touching of her buttocks, tickling ofher thighs near her vagina, and kissing on the mouth. [10] Daisy testified to two specific events of touching by EH that she said occurred when she was an adult.

Daisy testified that onboth occasions EH had touched her buttocks, over her clothes. Daisy also testified about statements Ann had made to her about the abuseAnn alleged against EH. [11] Edith testified to sexual touching by EH that she said happened when she was a child. The touching was generally touching ofher buttocks over her clothes and one incident of touching her buttocks under her clothes. Edith also testified to being touched by EH onher buttocks as an adult. [12] Chris testified that he had never seen EH inappropriately touching his sisters or his wife.

He testified to family history andrelationships and to Ann’s first disclosure of her allegations and how events unfolded after that. [13] EH denied all of the allegations against him. He testified to his personal history and family history and to his relationships witheach of the complainants. EH testified that the complainants were lying about the allegations and about certain other aspects of theirtestimony. LAW The burden and standard of proof [14] The onus is on the Crown to prove all the elements of the offences charged beyond a reasonable doubt. That onus never shifts(R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt is closer to absolutecertainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40). [15] Each allegation against EH will be considered separately. I will not assume that if one allegation is proven then EH is the typeof person who would commit another offence or that it is more likely that another allegation has been proven. Credibility and reliability of witnesses [16] In R. v. Gagnon, 2006 SCC 17, the Supreme Court of Canada stated at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [17] In assessing a witness’ testimony, a judge has to consider a number of factors, including: 1. The witness’ ability to observe or experience events; 2. The witness’ ability to recall and describe what happened accurately; 3.

Whether the witness’ evidence changed during direct examination and cross-examination or whether it is inconsistent withstatements the witness made on previous occasions; 4. Whether the witness has previously been untruthful in court or committed crimes of dishonesty; 5. Whether the witness’ evidence is consistent (or not) with other independent evidence, which is accepted by the court[1]; 6. Whether the witness has any motivation to be untruthful, although in the case of an accused witness the trial judge must not makethe impermissible assumption that an accused will lie to secure an acquittal[2];

7. Whether the witness’ evidence makes sense as a matter of logic, human experience and common sense; and 8. The attitude and demeanour of the witness. For example, the court may assess whether a witness appears forthright or evasive,overly confident or overly vague. In assessing attitude and demeanour, however, a judge must be careful and consider all possibleexplanations for the witness’ presentation, including individual and cultural factors.

Demeanour alone, is not a sufficient basis to convictan accused where the allegations are credibly denied or there is other contradictory evidence[3]. [18] Because three of the witnesses, all now young adults, testified to events that happened in their childhood, the followingdirection from the Supreme Court of Canada from R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122 at paragraph 134 applies: … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference 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 criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. [19] Finally, in assessing a witness’s testimony, the trial judge may accept all, some or none of their evidence (see R. v. K.P., 2019NLCA 37, at paragraphs 42 and 47). Evidence of the accused [20] Evidence of an accused person raises unique considerations.

I must analyze EH’s evidence as the Supreme Court of Canadadirected in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 and R. v. Dinardo, [2008] SCC 24. [21] At paragraph 11 of W. (D.) the court set out a three-step framework for the trier of fact analyzing whether an accused whotestifies in his own behalf is guilty beyond a reasonable doubt: 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. [22] In Dinardo, the Supreme Court of Canada revisited this framework and rejected a formalistic or rigid approach to itsapplication: 23 ...[T]here is nothing sacrosanct about the formula set out in W. (D.).

Indeed, as Chamberland, J.A. [of the Quebec Court of Appeal]himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instructionbe respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt... . Sexual assault,

section 271 [23] The elements of the offence of sexual assault have been considered by the Supreme Court of Canada in a number of casesincluding R. v. Chase, (SCC), [1987] 2 S.C.R. 293, R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 and R. vEwanchuk, 1999 SCC 711.

The actus reus of sexual assault is established by proof of three elements: i. voluntarily or intentionallytouching; ii. touching of a sexual nature; and iii. the absence of consent. [24] Sexual assault is a crime of general intent, which means that to establish the required mens rea element, the Crown need onlyprove that the accused intended to touch the complainant. The Crown does not need to prove that the accused intended the touching tobe sexual. The sexual nature of the assault is determined objectively. [25] In accordance with

section 150.1(1) of the Criminal Code, the defence of consent is not available for any of the charges allegedagainst Ann or Belle because of their young ages during the relevant period of time. Nor it is available for charges in relation to Edithalleged to have happened when she was a child. For the other charges, I note that there is no evidence that would support a finding ofconsent. Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. The consent must be toeach and every act that occurred, so consent to a hug is not consent to sexual touching of one’s buttocks.

A complainant is not obliged toexpress a lack of consent either by words or conduct. Invitation to sexual touching,

section 152 [26] Invitation to sexual touching is committed by a person who invites, counsels, or incites a person under the age of sixteen yearsto touch the body of a person, directly or indirectly, with a part of the body or an object for a sexual purpose. Here, EH has been chargedwith inciting to touch. To “incite” means to encourage or urge someone, by words or gestures, or both, to do something. Invitation tosexual touching is a specific intent offence which means that the Crown must establish that the incitement to touch had a sexual purposein that it was done for the accused’s sexual gratification or for the purpose of violating the complainant’s sexual integrity.

Sexual interference,

section 151 [ 27 ] Sexual interference is committed by a person who intentionally touches any part of the body of a person under the age of 16 years old, directly or indirectly, with a part of his or her body or with an object for a sexual purpose. Sexual interference is a specific intent offence which means that the Crown must establish that the touching had a sexual purpose.

Sexual exploitation, section 153(1)(a) [ 28 ] To establish guilt, the Crown must prove that the complainant was a “young person”, that the accused was in a position of trust or authority towards her, and that the accused intentionally touched her, either directly or indirectly, for a sexual purpose. This is a specific intent offence which means that the Crown must establish that the touching had a sexual purpose. [ 29 ] Section 153(2) of the Code defines a “young person” as someone who is sixteen years old or more, but under the age of eighteen years.

An individual is in a position of trust towards a young person when the relationship between them creates an obligation or responsibility on the adult. An individual is in a position of authority towards a young person if that person has or exercises the power or right to enforce obedience by the young person, or the power to influence the conduct and actions of the young person. ISSUES [ 30 ] With respect to each charge, I must decide whether the Crown has proved each element of the offence beyond a reasonable doubt. I will organize my review and analysis of the evidence under the following headings: 1.

Charges in relation to Ann 2. Charges in relation to Belle 3. Charges in relation to Daisy 4. Charges in relation to Edith [ 31 ] In each case, I will breakdown the analysis further with reference to the general and specific incidents alleged. For each incident, I will review the relevant evidence of each witness and make findings of fact.

I will then assess if any of the charges have been proven beyond a reasonable doubt based on those findings. [ 32 ] Some of the evidence is of a general nature, for example, testimony about the family history and relationships and testimony about a pact or agreement between Ann and Belle regarding EH’s abuse. Because I will deal with the charges related to Ann first, I will deal with this evidence then. [ 33 ] Similarly, EH’s testimony bears on the allegations of all four complainants. Again, because I deal with them first, I will consider EH’s testimony in most detail in the

section involving the charges related to Ann. Although there is no burden on EH to establish anything, my analysis and findings with respect to his credibility are relevant to all of the allegations against him. ANALYSIS Issue 1. Charges in relation to Ann Issue 1.A. The evidence in relation to the charges involving Ann Evidence of Ann regarding general incidents [ 34 ] Ann recalled that the first time she can remember “sexual abuse” by EH was when she was in primary school, maybe grade two or three.

She said that EH would only ever touch her in this way when it was just her and him, and that it would happen “pretty much” every time she was at his house. She described the touching as taking place at his house, on the couch, in his living room. Although her grandmother, EH’s wife, was always around, she would often be in a different room, doing things around the house. The amount of time that Ann spent at her grandparents’ home varied. To the best of her memory, when she was younger she was there once, maybe twice a week, but that a couple of weeks could go by with her not being there at all.

As she got older, she visited less frequently. [ 35 ] Ann described different types of touching. She described EH touching her vagina. She testified that they would be sitting on the couch together and he would take her legs and start tickling them, which she described as normal, and then he would give her a “sly look” and take his hand put it down her pants and on her vagina. She testified that he would never go “up” her vagina, he would just rub it. She said this type of touching stopped as she got older and stopped going to her grandparents as much.

She said it was hard for her to pinpoint when it stopped, but maybe it was when she was in grade 11 or between grades 11 and 12. [ 36 ] Ann described EH touching her breasts by putting his hands up her shirt and rubbing them. She recalled this happening when she was so young she was not wearing a bra. She recalled that she started wearing a training bra because she thought this would stop him from touching her breasts. On cross-examination she testified that she did not ask for training bras but that she found them among bags of clothes passed on from cousins or friends.

Ann testified that her wearing a bra did not stop EH and that he just went up the bra to

touch her breasts. She did not recall an exact time when he started feeling her breasts, but believed it was when she was in the primary grades. Again, she testified that this happened when they were alone and EH had the opportunity. She said it continued for years. [ 37 ] Ann described EH kissing her on the mouth. She said he would stick his tongue “down her throat” and “swish it around” in her mouth. She specifically remembered that one time he did it she said, “eww, stop that” because she thought it was disgusting. In response, she recalled EH saying, “Pop loves you”.

Ann testified that this kissing began when she was so young she did not realize why he was putting his tongue in her mouth, as she did not know “that was a thing”. She estimated she may have been six years old. Again, she recalled the kissing taking place on his couch. [ 38 ] Ann also described EH touching her in his vehicle when he was driving and she was in the passenger seat. She described him putting his hand on her thighs and rubbing up towards her vagina. She also said there were several times he asked her to sit on his lap while he was driving.

Ann testified that eventually she started pretending to be on a phone call in the car because if she was on the phone he would not try to do anything. She testified that this would have started when she received her first cellphone in grade 7 or 8. She would also put her lunch bag or book bag or whatever she had on her lap so that he would not have access to her legs. She recalled one time when she sat in the backseat because she “could not handle” sitting with him in the front.

She said he got upset and said something to the effect of: you don’t want Pop now, you got the boys rubbing your legs. [ 39 ] Ann testified as to the types of things her grandfather would say to her. She said that “countless times” he would tell her that she was his “special girl” and that they had a “special relationship”. He would refer to her as “Pop’s girl” and tell her that she was his “favourite”. Ann testified that he would say these things in front of other people. She said it didn’t matter because to others it looked as if he was being sweet to his granddaughter.

Ann testified that as she got older EH would make comments about how she did not need him anymore because she had a boyfriend and how she didn’t need him rubbing her now because she had the boys doing it for her and other things like that. Evidence Chris regarding general incidents [ 40 ] Chris testified generally to growing up with Ann, Belle and their other siblings and to their relationship with their grandfather. He confirmed that the children, including Ann and Belle, spent considerable time at their grandparents’ home growing up.

Chris testified that he had seen EH tickling Ann on the arms and legs on numerous occasions and that, generally, Ann liked to be tickled. Chris testified that that he never saw any inappropriate touching and did not witness any of the allegations underlying the charges. [ 41 ] Chris testified that Ann first disclosed her abuse to him in the summer of 2017 and he was instrumental in encouraging her to report it to the police. Ann also told Chris that Belle had been abused and Chris spoke to Belle directly as a result. Chris was involved in informing other members of the family. He testified to these events.

Chris was cross-examined on statements that Ann had made to him regarding her allegations. Ann’s statements to him were not admitted for the truth of their contents. Evidence of EH regarding general incidents [ 42 ] EH testified to his work history and family life. He confirmed his relationship to the complainants and Chris and that he has lived in the same community his whole life. His wife of 52 years died unexpectedly in January of 2016. [ 43 ] When asked generally about the allegations against him, EH replied that the complainants were lying.

When asked about the specific allegations, he responded similarly for each one. For example, when asked about Ann’s allegation that he would kiss her on the lips with his tongue, he replied, “That is a lie, that is false, I would never do that.” He answered similarly for each alleged incident using phrases such as “that is a complete lie” and “I never did that”, repeatedly. He also repeatedly stated that he did not touch any of the complainants sexually. [ 44 ] EH testified that he only ever kissed his granddaughters on the cheek, forehead or the top of their head.

When asked how he would kiss them on the cheek, he said their cheeks would come together and he would make a kissing sound. EH denied ever asking his grandchildren for a kiss. He testified that he did not have to because his grandchildren always ran toward him, put their arms around him and kissed him. He never had to ask for a kiss. [ 45 ] EH said that the grandchildren would all come and give him and his wife a hug before they left from a visit. He said the hugs would not last long and would be accompanied by a kiss on the cheek.

He described putting arms around people’s necks. [ 46 ] On cross-examination, EH was asked if he ever touched Ann on her legs. He said it was possible when getting in the car or in the house but not to touch her sexually. He denied that he ever tickled her legs or ever tickled her at all. When the evidence of Ann, Belle and Chris that he used to tickle Ann’s legs was put to him, he again denied it saying it never happened. He also denied that he ever tickled Belle. [ 47 ] When asked if he was ever alone in a room with Ann or Belle, he said no.

When it was put to him that he had testified that he babysat these children frequently over the years, he repeated that he had never been alone with them. When asked who else would be there he said his wife usually and often they had a friend with them. Evidence of Ann regarding the incident on a walking trail [ 48 ] Ann testified about a specific incident, which she says happened on a walking trail near her grandfather’s house. The trail was identified. She said it was a warm, summer day when she was maybe 11 years old, although she was not certain of her age.

She went for a walk with her grandfather and her cousin who she described as “really young”. Ann testified that her cousin was of an age to be able to go for walks but too young to understand if he “saw anything”. She did not know if he would have been in school yet. Once they got to a part of the trail away from where others could see them, she testified that her grandfather turned to her, took her hands, put them on his penis and told her to squeeze him. Specifically, she recalls EH saying, “you got to squeeze me”. His pants were on, so the touching was over his pants.

She testified that she said “no” and asked him to let her go, but that he would not until she squeezed. She said she did squeeze him so that he would let her go. She then returned to her grandparents’ house, and called her parents to ask for a ride home.

[ 49 ] When asked about her grandfather’s reaction after this event, Ann testified that he just smiled “as usual”. When asked about her reaction, she testified that she did not think she was ever more scared in her entire life. When asked to explain, she stated that this was the first time that EH would not let her go and that every other time she had just let the touching happen but this time it was EH making her touch him. It was also the first time that she ever said vocally that she did not want to do something and, even though she said “no”, he made her do it by not letting her go.

She was adamant that this was an event that she would never forget. [ 50 ] On cross-examination, Ann was questioned about how exactly her grandfather had touched her, turned her, and held her hands on his crotch area. She could not recall whether he had held her in place with his hands on her wrists or her arms, although she believed they were on her wrist. She was asked if her grandfather had kissed her during this incident. She said no. She also did not recall her grandfather saying anything before he turned her and testified that they did not hug.

Defence counsel then put to Ann her police statement wherein she had said that her grandfather had asked her for a hug and had hugged her. Upon reading the statement, Ann recalled that her grandfather had asked for a hug. She testified that the hug did not happen, or it was a brief hug, because he just put his hands around her then grabbed her arms to put her hands on his penis as she had described. [ 51 ] When it was put to her that she had told the police that this event had happened, to her best estimate, when she was in grade 7 or 8, she agreed.

She acknowledged that she does not remember specific dates or times and so she could only give an estimate. [ 52 ] On cross-examination, Ann was also asked to confirm that she had not told the police that EH had tried to kiss her on the walk. She confirmed that she had not. She did not say he had kissed her in her direct examination either. She said that she did not now remember whether EH kissed her on the walk but that he kissed her all the time.

When it was put to her that her sister-in-law, Daisy, reported that Ann told her that EH had kissed her on this walk with her younger cousin, Ann agreed that she could have said that and she may have remembered that detail then, but she did not remember it now. [ 53 ] When it was put to her that she had not told Daisy that EH grabbed her hands and made her touch his penis she replied, “Do you know how hard this is to talk about?” She was adamant that there were not two different versions of events, but that she may have forgotten him kissing her.

She recalled him hugging and making her touch his penis, but she did not remember a kiss. She also did not recall what she had told Daisy. She again noted that kisses happened all the time but the penis touching happened only once and it was much more significant to her. [ 54 ] When it was put to her that her brother, Chris, had reported that she told him that her grandfather had driven them to the trail, Ann was certain that her brother had made an error. She was certain that they had walked to the trail.

Evidence of Daisy regarding the incident on a walking trail [ 55 ] Daisy was questioned about her conversations with Ann and what Ann had reported to her about EH’s touching her. This evidence was not admitted for the truth of Ann’s statements. Daisy had initially received some information about Ann’s allegations from Chris. Then, in late August 2017, Ann came to visit Daisy in St. John’s and Daisy had some direct conversation with Ann.

As a result of this conversation, Daisy urged Chris to ensure that matters got reported to the police soon. [ 56 ] On cross-examination, Daisy was asked to describe in detail what she recalled Ann had told her in late August 2017. Daisy had reported some of the details to the police in her statement to them. As noted above in the

summary of Ann’s evidence on this issue, Daisy reported that Ann had told her about an incident on a walking trail with EH and her younger cousin during which EH had kissed Ann on the mouth with his tongue. Evidence of EH regarding the incident on a walking trial [ 57 ] EH testified that he was never on the trail that Ann identified with his grandson, Ann’s younger cousin, and that he would not take a small child on that trail because it is too dangerous with high cliffs and large drops. When it was put to him that Ann had said that they were on a trail close to his house, he again denied the allegation as a lie.

He also said that whenever he or his wife took their grandson they always held him by the hand. [ 58 ] On cross-examination, EH was asked about a road by which one can exit the walking trail about halfway along. EH confirmed that this road was very close to his house, about 100 feet. When I asked him some questions to clarify this evidence, he testified that this road formed part of the trail until three or four years ago when the trail was further developed and expanded.

Evidence of Ann regarding the incident after her grandmother’s death [ 59 ] Ann testified about a specific incident which she says happened at her grandfather’s house in the days following her grandmother’s death in January 2016. EH was upset because of her passing so family members were taking turns staying overnight with him. Ann testified that she and her sister, Belle, took a turn. Ann testified that she thought EH would be different because his wife had just died. [ 60 ] Ann described being in the living room with Belle and EH. The sisters were doing homework and the television may have been on.

Ann got up to go to the kitchen to make a cup of tea. As she was entering the kitchen, which is down a hall from the living room, EH was following right behind her. Ann testified that when she arrived at the kitchen counter, EH turned her around and put his hands up her shirt, rubbing them over her stomach and breasts. She recalls him saying, “You’re the one for me, baby, you’re the one for me” while he was “feeling her up”. She recalls the encounter ending abruptly with EH acting as if nothing was wrong. She said that is how things usually ended.

She recalls returning to the living room and talking to her sister, trying to act normal. She recalls later that evening EH saying multiple times to her and her sister that they could come sleep with him. They did not. Instead, they slept in another room. Ann recalls talking with her sister about what EH had done but her sister telling her to stop talking about it because it scared her when they spoke about EH in that way.

Ann recalled she and Belle taking turns staying awake to make sure EH did not try and come to them. [ 61 ] On cross-examination, Ann testified that she did not recall exactly how EH turned her around. She could not recall the exact

position of his hands. When asked whether he lifted her shirt she said it was maybe a mixture of both, pulling the shirt up and slipping his hands under it. She said that when it happened she was frozen. When it was put to her that she was in a sense “speechless”, she agreed that was a good word. Defence counsel then put Ann’s police statement to her. Upon reading it, Ann confirmed that she had forgotten that she had told EH to stop. This was recorded in her statement. Ann agreed that the police statement was accurate and said that she had not reviewed it prior to testifying.

She acknowledged that her memory was not perfect. Evidence of Belle regarding the incident after her grandmother’s death [ 62 ] Belle recalled that after her grandmother died, she and Ann went to EH’s house to spend the night. She recalled them being in the living room, with the TV on. She testified that they may have been doing homework. She recalled her and Ann leaving the room at some points.

She thought they were in a bedroom together when Belle heard EH talking on the phone with someone saying that it was so good that his granddaughters were spending time with him and that they would be coming over all the time now. That made Belle uncomfortable. She also recalled him saying that they could sleep with him. He did this more than once. She testified that she “knew” this was more toward Ann. She did not explain how she knew this. Belle testified that she did not see anything “inappropriate” happening that night.

Evidence of EH regarding the incident after his wife’s death [ 63 ] EH did not recall Ann and Belle staying at this house, although he said he was in shock at the time and was not paying much attention to the “comings and goings”. He only recalled another grandson spending the night during this period. However, he specifically denied Ann’s allegations. Evidence of Ann regarding the incident on Father’s Day or EH’s birthday [ 64 ] Ann testified about a specific incident which she says happened at her grandfather’s house in 2017 on either Father’s Day or EH’s birthday, which both occur in the summer.

Ann testified that her whole family, including her parents and siblings, were there. Ann took her own vehicle because afterwards she was going to another community to see her boyfriend. The family was in the living room when Ann decided to leave. Her sister, Belle, was going to walk her out but Ann did not believe that was necessary as the whole family was there and she did not think EH would do anything. She said her goodbyes and went down the hallway toward the backdoor. The backdoor is in a porch off the kitchen. As she was going down the hall, Ann testified that she heard EH coming behind her.

She said she tried to move faster. Ann said that she was in the porch, next to the door, when her grandfather turned her around, “grabbed” or “squeezed” her “butt”, and told her that she needed to come over for a sleepover, just her and him. She did not respond to what he said, but wished him happy Father’s Day or happy birthday, and left. As she was leaving she heard him telling her to remember to come over for a sleepover.

She testified that there was no one else present at the time, adding that he would not have done it if anyone else was there. [ 65 ] According to Ann, this was the event that led her to disclose EH’s abuse. After she left his house that day, she had what she described as a panic attack and had to pull her truck over because she could not drive. While in the truck she called her boyfriend and told him. Disclosure to other family members followed. [ 66 ] On cross-examination, Ann could not remember exactly how EH had turned her around or exactly how he had grabbed her. She said it all happened quickly.

She could not remember if he squeezed her with one hand or two hands and she could not remember if he touched other parts of her body, for example her thighs or hips. Ann was then shown her police statement. There was some question as to whether the transcript was accurate and so, ultimately, the relevant portion of her videoed statement was played for Ann. In that statement she said that EH “grabbed me behind, grabbed my hips”. Ann acknowledged that she did not use the word “squeeze” when speaking to the police.

She said it was all the same to her really, EH had his hands on her “butt” where they should not have been. She apologized if it was misleading not to use the word squeeze with police, but she was adamant that her testimony was accurate. Evidence of EH regarding the incident on Father’s Day or his birthday [ 67 ] In addition to denying these allegations, EH denied that Ann or any of her family visited his house during this period. EH testified that after his wife died no people came over to his house other than one of his sons and one of his daughters and their families.

Neither of these were the family of the complainants. He specifically stated, “the rest of them, no”. Evidence of Ann regarding a pact with Belle [ 68 ] Ann testified that she did not tell anyone, other than her sister Belle, about her experiences with EH until after the Father’s Day or birthday incident, although she had given some indication to her boyfriend earlier than that. Ann testified that she and Belle had known that each were experiencing sexual abuse from EH since some time in their childhoods.

She does not remember when they shared the information with each other, they were young, but she recalls that they talked about it and that together they made a little pact or agreement that they would not leave each other alone with EH, if at all possible. Ann testified that she had told Belle that EH touched her and made her feel uncomfortable and that Belle had said that he touched her as well. Ann said the sisters did not like to talk about it in detail, and that it made Belle scared to talk about it. They did not tell anyone else.

Evidence of Belle regarding a pact with Ann [ 69 ] Belle testified to a time when she and Ann were young and Ann was upset. She recalled that they both wanted to stay outside their grandparents’ home until it was time to go home. She testified that they were so young, they did not know right from wrong. Belle recalled that was when she and Ann started keeping an eye on each other. Belle testified that they considered it a “pact” and not something that they spoke about, or had to talk about, but they knew they had to watch out for each other.

She said they would never leave the other alone with EH, if there was any way around it. If there was a situation that became uncomfortable for one of them with EH, the other would try to get in the middle. Belle testified that they could not protect each other from everything as there were some situations they could not get out of. Belle recalled talking with Ann once about EH kissing her with his tongue and Ann saying that he did that to her too.

Issue 1.B. Analysis of the charges involving Ann Consideration of EH’s evidence [ 70 ] EH adamantly denied all allegations against him. He also adamantly denied a number of events and circumstances that were peripheral to the allegations. His denials of several of these peripheral events were significant in my assessment of his credibility. [ 71 ] For example, EH denied ever being alone in a room with Ann or Belle. Given that these children were at his house frequently, without their parents, throughout their childhood, I do not believe that EH was never alone in a room with them.

His assertion simply does not make sense as a matter of human experience and logic. He also testified that he never touched Ann’s legs except maybe getting into the car or house. I did not find this statement credible either. A grandfather who spends regular time around a house with young grandchildren is bound to touch their legs. EH denied ever tickling either child. Again, I did not find this credible. Ann, Belle and Chris all described tickling by EH. Chris, who denied ever seeing sexual abuse of his sisters, testified that EH would regularly tickle Ann on her arms and legs.

I found this evidence credible and did not believe EH in his denial. EH denied ever asking his grandchildren for a kiss. Again, I did not find this statement believable given the closeness of the relationship EH described as having with his grandchildren and the testimony of the other witnesses who described him asking for kisses and whose evidence I believed. [ 72 ] EH testified that the family of his son (the father of Ann, Belle and Chris) never came to his house after his wife died. He offered no explanation for this. His wife died in January 2016.

Ann did not come forward with her allegations against him until the summer of 2017. It does not make sense that his son’s family, who visited regularly while his wife was alive, would stop all visits after her death without cause. While that cause likely arose in the summer of 2017 when the allegations were made, I did not believe EH when he denied all visits after January 2016 (except in the immediate aftermath of his wife’s death). Chris, Belle, and Ann all testified to the family being at his home during this period.

It was immediately after such a visit that Ann first disclosed her abuse and so the events of that time would have particular significance for the family and be more likely to be remembered. [ 73 ] EH described hugging family members but in doing so he was careful to note putting his arms around the recipient’s neck. He did this in words and in gestures. I found EH emphasis on hugging around the neck, to be an implicit denial of hugging in a manner that could allow him to touch someone’s buttocks. The evidence struck me as artificial.

I do not believe that in hugging family members EH only put his arms around their necks. [ 74 ] Nor did I believe EH’s denial of the allegations. While it is difficult to articulate why a straightforward denial is not credible, having listened to EH carefully and having assessed his evidence in its entirety, I did not believe him when he said, “that did not happen” or “that is a lie” or similar. Furthermore, where his evidence conflicted with that of the complainants, it did not raise a reasonable doubt in my mind. This does not end matters, of course.

I must still assess all of the evidence to determine if the Crown has met its onus to prove all elements beyond a reasonable doubt. Charges related to Ann [ 75 ] Ann testified to events that happened over a long period of time and mostly when she was a child. There were particular events about which she recalled a lot of detail and other events about which her memory was unclear. She was candid about the frailties of her memory and articulated why certain events stood out for her. She admitted when she was unsure about or had forgotten something.

She was a child when most of the events took place and I would not expect her to remember all details, particularly peripheral ones. [ 76 ] Certain aspects of Ann’s testimony of general events stood out for me in my assessment of her evidence. For example, Ann described wanting to wear a training bra because she thought this would stop her grandfather from touching her breasts. While an adult would be unlikely to think that a bra could prevent a sexual assault, I have no trouble accepting that a prepubescent child could think this way.

As another example, Ann testified to her reaction to her grandfather putting his tongue in her mouth. She recalled saying “eww, stop that” because she thought it was disgusting. At the time, which she estimated to be when she was six years old, she did not understand that kissing sometimes involves tongues. I found her reaction believable as that of a child and it is the type of detail I would expect would be remembered well into adulthood. [ 77 ] Ann was emotional at times during her testimony and at times expressed anger and frustration, particularly when her veracity was challenged under cross-examination.

I found her reactions to be natural and understandable in the circumstances. She testified to the pain and hardship that her revelations caused to her and her family and expressed a number of times that she had made the difficult decision to come forward to prevent others from being hurt. While there is no right or singular way for a victim of sexual abuse to act, I found Ann to be sincere. [ 78 ] I have considered Ann’s counselling and that she testified to having been diagnosed with depression, anxiety and Post Traumatic Stress Disorder as a result of the abuse.

Ann started counselling following her disclosure of EH’s abuse to her family. She testified to it being initially difficult to talk about the events with a counsellor whom she had just met but as time went on she could talk more. She said that as she spoke about events, she remembered more details. There was no evidence that any counselling techniques were used to trigger or enhance memories, other than Ann simply talking about what happened.

Ann said that talking about things did not change any details about what she remembered and that, although she may have remembered something new as a result of talking, the allegations she made before she started counselling did not change. She also testified that she could always remember very clearly what had happened to her as a child but she supposed talking to a counsellor did help. Ann also described having “flashbacks”, which she described as very vivid memories. [ 79 ] Victims of sexual abuse often suffer negative mental health effects and often benefit from counselling or other professional support.

They should be encouraged to seek such help and judges should be very careful about drawing negative conclusions about credibility from a complainant’s mental health effects or treatment. In this case, Ann’s mental health and treatment raise no concerns for me about her credibility. This was not a case of recent recall or one where specialized techniques were used to enhance or recall memory. That a person remembers more details about childhood abuse as a result of talking with a counsellor is not enough to raise a reasonable doubt when the significant elements of the abuse were never forgotten.

Ann had always communicated in limited way to her sister about what was happening and she had communicated significant details of the abuse prior to receiving any counselling.

[ 80 ] I will turn now to a more detailed assessment of the specific incidents alleged. Incident on the walking trail [ 81 ] I accept Ann’s evidence that this incident took place on the walking trail near her grandfather’s house.

Ann recalled the incident in detail with a focus on the fear she felt when her grandfather forced her to touch him and would not let her go. [ 82 ] I have considered that in her direct testimony Ann had not said that EH had asked her for a hug but that when it was put to her on cross-examination that she had mentioned this detail to the police, she acknowledged it happened and that she had forgotten it in her direct evidence.

The request for a hug and the exact way that EH placed his hands on her were peripheral details to what was significant for Ann about this day, specifically, that this was the only time that EH had ever made her touch him and he would not let her go until she did. I did not find these frailties in her memory affected her credibility or reliability. [ 83 ] I have considered the potential inconsistency raised by Daisy’s evidence. Daisy reported to police in January 2018 that Ann had told her in August 2017 that while on a walking trail with her cousin, EH had kissed her and put his tongue in her mouth.

According to Daisy, Ann did not tell her that EH forced her to squeeze his penis. This did not affect Ann’s credibility in my assessment. I note that Daisy did not record what Ann told her in August 2017. When she relayed that conversation to the police in January 2018, Daisy may have misremembered the details. Unlike the request for the hug, which Ann readily recalled as true when her memory was refreshed with her police statement, Ann did not change her evidence when Daisy’s statement was put to her. She was certain that she did not remember any kiss on that day.

I believed her. [ 84 ] I have already indicated that EH’s straight forward denial of the allegations did not raise a reasonable doubt for me. Nor did his evidence that he would not have taken his young grandson on the trail due to the high cliffs. I accept Ann’s testimony that this incident took place fairly close to EH’s home. EH testified that there was an old road near his house that up until three or four year ago formed part of the trail.

I find that this is where the events took place and not near any high cliffs. [ 85 ] Considering all of the evidence, I am satisfied beyond a reasonable doubt that this incident on the trail took place as described by Ann. [ 86 ] The facts as I have found them support a finding of guilt for the offence of invitation to sexual touching, pursuant to

section 152 of the Criminal Code , and for sexual assault pursuant to

section 271 of the Criminal Code . Forcing a child to squeeze one’s penis, even over clothes, is sexual touching on an objective standard and I have no trouble finding that EH’s specific sexual intention is established as well. There is simply no other explanation for such conduct. Incident after her grandmother’s death [ 87 ] Ann’s evidence as to this incident was detailed and believable. That she did not recall in direct examination that she had told EH to stop but that she recalled that fact after her memory was refreshed in cross-examination did not affect her credibility in my assessment.

I accept that she could have a feeling of shock and a sense of speechlessness as to what was happening yet still speak. Her statement to EH was peripheral to what was significant for her, which was her grandfather sexually touching her immediately following his wife’s death, when she thought he would be grieving, and his statement to her that she was “the one for him”. [ 88 ] I have considered the evidence of both Ann and Belle about this visit. The two sisters were generally very consistent about the nature of their visit, where they spent their time with EH, and where they slept.

Both recalled EH suggesting that they could sleep with him. There were minor inconsistencies between their testimonies but, given the passage of time, I would not expect both sisters to recall this evening in the exact same way. [ 89 ] There was one significant inconsistency between them. Ann recalled talking to Belle about what happened that evening and Belle telling her to stop talking because it scared her. Ann recalled the girls taking turns staying up that night. Belle did not recall these details.

The specifics of Ann’s evidence were not put to Belle, but in her direct examination of the events of the evening she did not mention the same details. [ 90 ] Although one might expect the detail of taking turns staying awake would have stuck in Belle’s mind, having considered it, I ultimately do not find this inconsistency detracts from Ann’s credibility as to the events in the kitchen. Both sisters testified on numerous occasions that they did not like talking about what happened with EH and avoided talking directly about events.

Even after they disclosed what happened to their family and the police, the sisters did not spend any significant time talking with each other. They both testified to finding it difficult to speak about the details. Generally, their isolating themselves from each other added to their credibility because it helped ensure their evidence was independent. I did not have any concern that there was collusion between them. [ 91 ] Although I am unable to make a finding about what the sisters discussed that evening or whether they stayed awake, I do not need to.

Considering all of the evidence, including the inconsistency and EH’s denial, I am satisfied beyond a reasonable doubt that this incident in the kitchen took place as described by Ann. [ 92 ] These facts support a finding of guilt for the offence of sexual exploitation, pursuant to

section 153 of the Criminal Code , and for sexual assault pursuant to

section 271 of the Criminal Code . Ann was 16 years old when her grandmother died and in the weeks immediately following her death. It has been established that EH is Ann’s grandfather and that throughout her youth he regularly took care of her, drove her places and purchased clothing and such for her. The nature of their relationship gave EH power to persuade and influence Ann and exercise authority over her and I find that he was in a position of authority and trust towards her.

Given the area of the body touched and what EH said at the time of the touching, I am satisfied beyond a reasonable doubt that the touching was objectively sexual and that EH’s specific sexual intention is established as well.

Incident on Father’s Day or EH’s birthday [ 93 ] I found Ann’s testimony about this incident to be credible. She described it in detail and also described her reaction in the immediate aftermath. This event lead to Ann disclosing her abuse and so it would have had particular significance for her. She described the aspects that stood out in her memory as EH grabbing her “butt” and talking to her about having a sleepover. She also recalled in some detail having to pull over her truck and calling her boyfriend.

Her description was believable. [ 94 ] Ann was cross-examined at some length regarding how she had spoken about EH’s touching of her in her police statement compared to how she had described it in court. She did not use the words “butt” or “squeeze” in her police statement, as she did in court. She used “grabbed me behind” and “grabbed my hips”. In court, she did not recall if he had touched her hips. I did not find that these differences negatively affected her credibility. They were not significant and the nature of the touching was generally the same in both descriptions.

Several years had passed since Ann had given her police statement and she said that she had not read it before she testified. The cross-examination did not shake Ann’s conviction in her reporting of events.

I find that EH put his hand or hands on Ann’s buttocks and applied pressure and that the touching was of a sexual nature and intentional. [ 95 ] As already noted, EH’s denial of touching Ann inappropriately and his denial that Ann or other members of her family visited his house during this period did not raise any reasonable doubt for me as to Ann’s description of events. [ 96 ] The facts as I have found them support a finding of guilt for the offence of sexual assault pursuant to

section 271 of the Criminal Code . In the summer of 2017, when this event occurred, Ann was 18 years old, and thus not a “young person” as per

section 153 of the Criminal Code so it is unnecessary to consider that charge further. General allegations of sexual touching [ 97 ] In addition to the specific events above, I found Ann’s testimony about EH’s touching her repeatedly when she was a child on the breasts, buttocks, vagina and of kissing her on the mouth with this tongue to be credible. I did not believe EH’s denials and I find that he did touch her in this way. This supports a finding of guilt for the offence of sexual interference pursuant to

section 152 of the Criminal Code , and for sexual assault pursuant to

section 271 of the Criminal Code . The touching attested to by Ann is sexual touching on an objective standard and I have no trouble finding that EH’s specific sexual intention is established as well. Issue 2. Charges in relation to Belle Issue 2.A. The evidence in relation to the charges involving Belle Evidence of Belle regarding general incidents [ 98 ] Belle described her grandfather touching her inappropriately generally. She recalled her grandfather kissing her on the mouth.

She could not say exactly when it started but she knew it was before she was in grade six or seven, because at around that age she started realizing that things were “inappropriate” and she knew it was happening before that. She testified that this type of kissing would happen any time it was just her and her grandfather, or just them and younger children around. She said it happened as frequently as it could. She remembers her grandfather putting his tongue in her mouth during these kisses three to five times at least.

She recalled the last time being when her grandmother was still alive, but she did not know exactly when. She said she did not allow it to happen when she got older. [ 99 ] Belle described her grandfather touching her “butt” regularly. She said that whenever she gave her grandfather a hug goodbye, he would have one hand higher up and one hand on her butt. Sometimes the hand on her butt was at the top and sometimes it was in the middle.

She said that he would do this with all females, although for adults it would be more like the back and butt area but for her and her sister, those younger, his hand would be fully on their butts. She does not know when this started but recalled watching as she got older to see if it was happening to others too. She described the touching as making her feel uncomfortable, disgusted and anxious. The last time she remembers it happening was the morning after she and Ann had spent the night at EH’s house after their grandmother had died. [ 100 ] Belle testified that her grandfather was always trying to touch her.

She testified that any time they were on the couch, or especially driving in his car, he would put his hands on her legs. She said the touching would be different at different times. She said it might be a pat on the leg and he might try to keep his hand there. She said that it happened less as she aged. Evidence of Belle regarding the incident of kissing on mouth with cousins present [ 101 ] Belle recalled one specific incident of EH kissing her on the mouth and putting his tongue in her mouth. She testified that it occurred at his house.

Belle recalled her grandfather sitting at one end of the couch in his living room and her young cousins being at the other end. She said at least two, but possibly three, of her younger cousins were there. She recalled that her grandmother was in the kitchen and, although she was not sure, she thought that Ann was also in the kitchen. Belle estimated that she was about 11 years old, and said with more certainty that she was between 9 and 12 years old. Belle testified that she went to say goodbye to her grandfather.

She said that she leaned over to give him a kiss on the cheek but that he turned his face saying that she had to give Pop a “real kiss”. She recalled trying to argue that what she had done was good, but that he insisted and she kissed him in order to get out of there sooner. She recalled his tongue inside her mouth. She estimated that the kiss lasted a few seconds. She left directly after.

Evidence of Belle regarding the incident in a parking lot [ 102 ] Belle testified about an incident that she says happened when she and Ann were going back-to-school shopping with their grandparents in a larger town. Belle was not certain but thought she was between grade 6 and 7 at the time. She recalled that she and her grandfather had returned to the car in the parking lot and were waiting for Ann and their grandmother to finish shopping. EH was in the driver’s seat and Belle was in the front passenger’s seat while they waited. She recalled she was wearing jeans.

Belle testified that EH started to tickle her on her legs, over her jeans. She was not laughing because she was frightened. She then recalled EH saying something to the effect of him knowing a way to make her laugh. She said that he then put his right hand down inside her pants. She recalls that her jeans were tight and she had to suck in her stomach. She recalled him saying, “That’s Pop’s girl”. She said he started tickling her left leg inside, under her pants, extremely close to her “private area”.

She described the tickling as similar as to what he had done outside her jeans but in a much tighter space so he could not move his fingers as much. She recalled making herself laugh because she thought if she laughed, it would be over. After she laughed for a while, he took his hand out. Her grandmother and Ann returned not long after.

Belle testified that the incident lasted a couple of minutes. [ 103 ] Although Belle initially thought that they might have been in a mall parking lot, on cross-examination, Belle testified that she recalled that she had gotten a yellow T-shirt shopping that day at Walmart and was then certain that the incident happened in the Walmart parking lot. [ 104 ] Belle was questioned on direct examination about the nature of the touch. She testified that EH used one hand, his right, and that, as he was tickling the inner thigh of her left leg outside of her jeans, his hand also touched her right leg.

She described the area being touched this day as being different from the general area of her leg that EH usually touched. This was close to her crotch, and on the inner thigh. In court, she demonstrated the area of the touching, which was high up on her left leg, close to her vagina. [ 105 ] On cross-examination, it was put to her that she described a different area in her police statement. The relevant portion of her videotaped police statement was shown to her. In it her legs are crossed, right over left, and she touches her right leg as she is talking.

Belle explained that she was not asked to demonstrate where she was touched during the police statement. She said that when she touched her leg during the police interview, she was nervous and not doing a demonstration or a reenactment. She was adamant that the touching was in the area that she had demonstrated in court.

Evidence of EH regarding the incident in a parking lot [ 106 ] EH testified that he and his wife would take Belle and Ann back-to-school shopping in this town almost every year but he said the girls would always take hold of their grandmother’s arms, one on either side, and he was never alone with the girls on these trips. As already indicated, he denied this incident or ever tickling Belle’s legs. Evidence of Ann regarding the incident with Belle on the way to a youth event [ 107 ] Ann testified about an incident that she says she witnessed between EH and her sister, Belle.

EH was driving the sisters to a youth event in a nearby town. Ann had a picture from the event. She thought she was in grade 10 at the time. Ann recalled that EH was driving, her sister Belle was in the front passenger seat and she was in the back seat, behind her sister. She thought her grandfather may have thought she was sleeping or something. She saw him reach his hand over and start rubbing Belle’s thighs. She recalled leaning to the left to see this.

Ann testified that she knew or assumed that it would be making her sister uncomfortable, so she immediately asked a question to let EH know she was awake, and he quickly moved his hand back to the steering wheel. She felt the incident happened about 20 minutes into the drive. She testified when it first happened that she was sitting up looking out the window. She recalled noticing EH’s arm reached over and she could just see his hand going up and down on Belle’s thigh. Her thought was, “that has to stop”. [ 108 ] On cross-examination, Ann was questioned about her position in the car.

During the course of that questioning, she had a thought that she may have been laying down in the back seat when she saw it. When she was questioned about this change or uncertainty in her testimony as to where she was positioned in the car, Ann testified that the relevant part for her was that EH was touching Belle’s leg. She noted that details that were not relevant to her tended to fade from her memory over time. She was adamant that she was doing her best to tell the truth but that it happened so long ago it was hard to remember the details.

Evidence of Belle regarding the incident with Belle on the way to a youth event [ 109 ] Belle recalled the youth event. She stated she was in junior high at the time and recalled that EH drove her and Ann there. Belle was not certain but her memory was that she sat in the front passenger seat during the drive. She said she was certain that her bag was on her lap no matter where she sat. She did not recall much of the event but she recalled that she and Ann were uncomfortable and on edge when they arrived but then got involved in the event.

She noted that she had not discussed this in her police statement but said it might have been something significant to Ann if she had brought it up. On cross-examination, Belle was asked if anything stood out in her mind regarding the ride in the car. Belle answered that the only thing she could say was that she could “almost guarantee” that EH put his hands over and put them on her lap as that “always happened”. She was asked if she remembered EH touching Ann in the front seat of the car. She did not.

Her memory was that she was in the front seat but she allowed that she and Ann could have switched seats at some point. Evidence of EH regarding the incident with Belle on the way to a youth event [ 110 ] EH could not recall driving his granddaughters to that event but he acknowledged that he drove his children and grandchildren around regularly, saying that was his role as a father and grandfather. He denied touching Belle on her legs. Issue 2.B.

Analysis of the charges involving Belle [ 111 ] Belle testified to events that happened over a period from when she was in primary school until shortly after her grandmother died. She described EH touching her legs and buttocks and putting his tongue in her mouth when kissing her. Belle was a child when most of the events took place and so it is understandable that she does not recall precisely when these events occurred. I found her

evidence as to her dawning realization as she matured that there was something wrong about the touching to be a credible detail. I also found her description of the “pact” that she and her sister developed to be credible. I accept that Belle did not like talking about what was happening and her communications with her sister were largely unspoken. Again, although there is no correct or singular way for victims of abuse to act, I found Belle’s descriptions to be believable reactions for a child. Belle gave her evidence with confidence and in a straightforward manner.

Incident of kissing on mouth with cousins present [ 112 ] I found Belle’s evidence about this event to be credible. She recalled details of the living room and couch and the presence of her younger cousins. It was believable to me that Belle would recall trying to argue with her grandfather that a kiss on the mouth was unnecessary. That reaction was consistent both with what I observed of Belle’s personality and with how other witnesses described her. [ 113 ] As I have already indicated, I did not believe EH’s denial of this event with Belle nor his denial that he ever asked his grandchilden for kisses.

His evidence did not raise any reasonable doubt for me and I find this incident to be proven. [ 114 ] These facts support a finding of guilt for the offence of sexual assault pursuant to

section 271 of the Criminal Code . The kiss was not a simple kiss on the lips. The evidence is that EH put his tongue in Belle’s mouth and that it lasted for a few seconds. I find that to be touching of a sexual nature on an objective standard. EH is also charged with sexual interference with Belle pursuant to

section 151 of the Criminal Code however the charge alleges touching with the hands. These facts do not support that charge as the sexual touching happened with EH’s mouth and tongue. Incident in the parking lot [ 115 ] I believed Belle’s evidence about this event. I did not find the change from her initial testimony that it happened in a mall parking lot to it happening in a Walmart parking lot negatively affected her credibility. The parking lots are within the same town and Belle was consistent in her details about back-to-school shopping that day.

Which parking lot was a peripheral detail and Belle was recalling back to time when she was between grades six and seven. It was the detail of a particular shirt that lead her to be certain that it took place at Walmart and that detail triggering a memory in her mind was believable to me. [ 116 ] Counsel for the defence cross-examined Belle at length about her having indicated an area of her leg during the police interview that was different from what she described as the area of touching in court.

Having reviewed the video of the police interview, I find that Belle was not demonstrating how or where she was touched for the police. She was not asked to demonstrate and she did not say or otherwise indicate she was demonstrating. She did touch her leg as she was talking about the incident but it was more in the nature of a general touching of a body part that she was speaking about. I did not find her gestures in the video to be a prior inconsistent statement.

Her evidence as to how and where she was touched in court was clear and unambiguous. [ 117 ] I believed Belle’s evidence as to the touching in the parking lot. I did not believe EH’s denial of the event, or that he was ever alone with Belle on these shopping trips, and his evidence did not raise any reasonable doubt for me. [ 118 ] This incident supports a finding of guilt for the offence of sexual assault pursuant to

section 271 of the Criminal Code as I have no trouble accepting that putting one’s hand down the front of a child’s pants to tickle the top of her leg, close to her vagina, while alone in a car, to be touching of a sexual nature on an objective standard. Belle was not a very young child, such as a baby or a toddler, who is used to adults touching at or near the genital area for non-sexual purposes and who does not have a sense of privacy toward their genitals.

A child going into grade seven has a developed sense of privacy and legitimate reasons for putting one’s hand down the front of a child of that age’s pants are few and not present in this case. I also find these circumstances support a finding of guilt pursuant to

section 151 of the Criminal Code as I am satisfied beyond a reasonable doubt that the touching was done for EH’s sexual gratification and to violate Belle’s sexual integrity. There is no other reasonable explanation for EH having done it. Incident on the way to a youth event [ 119 ] This incident is unusual in that Ann testified about specific touching of Belle but Belle did not report the incident.

Although Belle testified to recalling that she and Ann were uncomfortable on their arrival at event, her not having any specific memory of being inappropriately touched is enough to raise a reasonable doubt in my mind. [ 120 ] Additionally, Ann’s testimony about exactly where or how she was sitting in the car and how she was able to see her sister’s legs was uncertain. Although I accept that she saw or thought she saw something on that ride that made her concerned for her sister, I am not satisfied beyond a reasonable doubt that what she saw was a sexual assault or sexual touching. Issue 3.

Charges in relation to Daisy Issue 3.A. The evidence in relation to the charges involving Daisy Evidence of Daisy in relation to Father’s Day 2014 [ 121 ] Daisy testified about a specific incident that she said occurred on Father’s Day weekend in June 2014 at EH’s home. Daisy testified that it was her first time meeting EH. Other members of the family, including Chris, were there to wish EH happy Father’s Day. Daisy testified that EH walked over to her, hugged her and touched her buttocks in the process of the hug. Specifically, she said his left hand was higher and his right hand was lower.

She testified that during the hug, which lasted six or seven seconds, his right hand moved down to her buttocks, specifically what she remembered to be the centre of her buttocks. His hand was there for a second and then EH exited the hug, to stand side by side with her, and while he did this, he kept his right hand on her buttocks. This was what she referred to

as the “exit part” of the hug. She testified that he then removed his hand by rubbing it across her buttocks. She estimated the exit part of the hug lasted four seconds. She testified that the incident made her feel weird, confused, and uncomfortable. There were other people, family members, in the kitchen at the time. On cross-examination, she confirmed that there was no discussion of a sexual nature and the visit continued with general conversation after the incident occurred.

When it was put to her that it was hard to believe that EH would do this in front of his wife, who was one of the family members in the kitchen, Daisy said that everyone was across the room and would not have seen where his hand went. She agreed with counsel that, at the time, she played it off in her mind as probably an accident. Evidence of EH in relation to Father’s Day 2014 [ 122 ] EH testified that he recalled first meeting Daisy at his house when Chris brought her there for the first time. He said only he and his wife were home and the visit lasted less than 15 minutes. It was not a special occasion.

He recalled his wife hugging and kissing and then he put his arms around her neck, kissed her cheek and welcomed her to the family. He did not recall any details of their conversation but said that it would have been general. He denied Daisy’s allegations. Evidence of Daisy in relation to a summer visit [ 123 ] Daisy testified about a second incident that she says happened on a summer visit to EH’s house in 2014 or 2015, this time only she and Chris were visiting.

Daisy testified that as they were leaving, EH hugged her in the same way as before, with his left hand in the middle of her back and his right hand lower. She said his right hand gradually moved down to her buttocks and patted her buttocks quietly about three or four times. This was in the center of her buttocks. She testified that he exited the hug in the same manner as the first time she had described. She testified that she tried to get way from the touching by moving like she was in a game of tag. Again she testified that she felt uncomfortable. On cross-examination she confirmed that she hugged EH back.

She also testified that no one else would have heard or seen the patting. Daisy believed EH’s patting of her buttocks was intentional. Evidence of Chris in relation to these visits [ 124 ] Chris testified that he did not witness EH touching Daisy’s buttocks. He recalled Daisy telling him after at least one visit that EH’s hand had slipped below her waist but, at the time, he did not think it was a sexual act. Chris testified that EH was short and that Chris assumed it had happened by chance with no ill intention on EH’s part. He did not see any inappropriate touching on subsequent visits either. Issue 3.B.

Analysis of the charges involving Daisy [ 125 ] In Chase the Supreme Court of Canada articulated the test to apply in determining if impugned conduct has the requisite sexual nature to establish a sexual assault: Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer? The Supreme Court also identified a number of factors to be considered in that assessment.

Having considered all of the evidence, I am not satisfied beyond a reasonable doubt that the touching Daisy described in either case was of a sexual nature as per the test in Chase . [ 126 ] While the buttocks are certainly a private area of the body, the touching Daisy described in the first incident was not of a long duration (approximately five seconds) and it was over the clothes. There was no pinching or squeezing described, just a placing of the hand on that area and rubbing across as EH exited the hug.

There were other people in the room, and although they were not behind Daisy, when she was side by side with him, the general positioning of his arm would have been apparent to others. This was Daisy’s first time meeting EH so there was no history between the two that would suggest a sexual context. There was no talk or other gestures of a sexual nature. No one raised any concern at the time and Chris did not report seeing anything that caused him concern.

Having considered all of these circumstances, I am not satisfied that the Crown has established beyond a reasonable doubt a sexual or carnal context to the touching that would be visible to a reasonable observer. [ 127 ] For the second incident, Daisy recalled Chris and EH being present. She did not recall if EH’s wife was there. Prior to this Daisy testified that she had raised her discomfort with EH’s hug with Chris but he had felt it was unintentional and had to do with EH’s short height. Chris testified similarly. Daisy described the touching on this day in much the same way as the first incident.

It was not of a long duration. Daisy described three or four gentle pats. Despite the fact that Chris and Daisy had discussed EH’s hugs previously, Chris did not notice anything untoward on this day and he was standing near Daisy at the time. Again there was no talk or other gestures of a sexual nature and the visit continued with general conversation afterward. Again, having considered all of these circumstances, I am not satisfied that the Crown has established beyond a reasonable doubt a sexual or carnal context to the touching that would be visible to a reasonable observer. Issue 4.

Charges in relation to Edith Issue 4.A. The evidence in relation to the charges involving Edith Edith’s evidence regarding childhood incidents [ 128 ] Edith was born in 1999. She testified about an incident that she said happened when she was seven or eight years old and sleeping over at her friend’s house. Her friend was EH’s granddaughter and EH was at the house to babysit the two girls. No one else was present. Edith recalls that EH wanted her and her friend to keep the bedroom door open when they were changing into their pajamas. EH

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