R. v. R.P., 2024 NLSC 7

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. R.P. , 2024 NLSC 7 Date : January 17, 2024 Docket : 202205G0054 HIS Majesty The KING v. R.P. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Philip Osborne Place of Hearing: Gander, Newfoundland and Labrador Dates of Hearing: June 19-23, 2023; November 1-3, 2023 Date of Judgment: January 17, 2024

Summary: R.P. is charged with 10 breaches of the Code , in relation to sexual offences against his niece. Following trial, R.P. was found guilty of one count of sexual assault pursuant to

section 271 of the Code and one count of sexual interference pursuant to

section 151 of the Code . Appearances:

Amanda J. Hiscock 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. W. (D.), [1991]1.S.C.R. 742; R. v. Best, 2016 NLCA 10; R. v. Ryon, 2019 ABCA 36; R. v. G.F., 2021 SCC 20; R. v. Taylor, 2023 SKCA 49; R. v.Darwish, 2010 ONCA 124; R. v. Swain, 2021 BCCA 207; R. v. C.L., 2022 NLCA 53; R. v. W. (R.), (SCC), [1992] 2S.C.R. 122 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Osborne, J.: INTRODUCTION [1] R.P. (the “Accused”) is the Complainant’s uncle. He is charged with 10 breaches of the Criminal Code, R.S.C. 1985, c. C-46,(the “Code”), including: • two counts of sexual assault, pursuant to

section 271 (Counts 1 and 8); • three counts of sexual interference, pursuant to

section 151 (Counts 2, 3 and 9); • three counts of sexual exploitation pursuant to

section 153 (Counts 4, 5 and 10); • one count of making sexually explicit material available to a person under 16 years of age, pursuant to subsection 171.1(1)(b)(Count 6); and, • one count of exposing his genitals to a person under 16 pursuant to subsection 173(2) (Count 7). [2] During the trial, Crown counsel acknowledged there was insufficient evidence to convict on the charges pursuant to subsection171.1(1)(

b) and subsection 173(2) of the Code. I agreed. Accordingly, I acquitted the Accused on Count 6 and Count 7 on theIndictment. [3] Due to errors in Counts 4, 5, and 10 on the Indictment, the Crown submitted that the Accused did not properly know the caseagainst him and advised that acquittals on those Counts were necessary.

Accordingly, I acquitted the Accused on Count 4, Count 5, andCount 10 on the Indictment. [4] The trial proceeded by judge alone. [5] Eight witnesses testified at trial, including: • three police officers, who spoke about the investigation; • the Complainant, who was between 10 and 17 years old at the times of the incidents and 26 years old when she testified at trial; • the Accused; • the Accused’s Partner; • the Accused’s Mother; and, • the Accused’s Mother-in-Law. [6] For the reasons noted below, I have concluded that the Crown has proven beyond a reasonable doubt that the Accused is guiltyof Count 1 and Count 2.

I have concluded that the Crown has failed to prove the charges in Counts 3, 8 and 9.

[ 7 ] In my reasons, I will provide an overview and then I will review: • the charges on the indictment, • the background evidence, • the relevant legal principles, • the arguments regarding the inadequate police investigation, • the elements of the offences and the evidence presented, and • I will then explain in my analysis of the legal principles and the evidence, why I am convinced the Crown has proven its case beyond a reasonable doubt for Counts 1 and 2, and why the Crown did not prove its case on Counts 3, 8 and 9. OVERVIEW [ 8 ] The Accused denied all of the allegations.

He said that it was impossible to offer any explanation or clarification because there was nothing to clarify or explain, rather, the incidents just never happened. [ 9 ] The Accused’s Partner and the Accused’s Mother spoke to some of the incidents and to the nature of the relationship between the Complainant and the Accused.

The Accused’s Mother-in-Law spoke to circumstances around an incident alleged to have occurred while the Accused was driving the Complainant home from a hospital visit. [ 10 ] The Complainant testified that there were thousands of incidents of the Accused touching her, kissing her, licking her vagina and touching her breasts. She said that incidents happened almost every day that she saw the Accused. She described six specific incidents that stood out in her mind. [ 11 ] The Crown submits that the evidence of the six incidents would lead to a conviction on each of the remaining Counts on the Indictment.

Those incidents and the related Counts are: Count 1 and Count 2 on the Indictment relate to incidents: • in the bathtub and bedroom when the Accused got angry; • when her brother walked into the room; • leading to a pregnancy test; and, • at the Accused’s friend’s house. Count 3 on the Indictment relates to an incident in a shed at the Accused’s Mother’s house (the “Shed Incident”).

Count 8 and Count 9 on the Indictment relate to an incident while driving home from the hospital (the “Driving Incident”). [ 12 ] The Defence submits that given the heavy burden on the Crown, the evidence of the Accused, the frailties and inconsistencies in the Complainant’s story and the inadequate police investigation, that it would be unsafe to convict the Accused. [ 13 ] The Crown submits that the evidence on behalf of the Accused should be rejected as it is not reliable or credible. [ 14 ] The Accused and his family often spoke in absolute terms and presented a story that seemed, at times, rehearsed.

The Accused suggested that there was no opportunity for the incidents to occur because he was always with his partner. Not just frequently with his partner, but that he was with her at all times, except when they were using the bathroom, when he was working or when she was giving birth. [ 15 ] The Complainant presented a clear, mostly detailed, account of the incidents.

While there were some inconsistencies between her police statement and her evidence at trial, with regard to the specifics of the sexual activity with the Accused that constitute the elements of the offences he is charged with, her evidence remained mostly unshaken on cross examination. [ 16 ] The Defence said the Complainant cannot be trusted.

The Defence submits that the primary reasons why the Complainant’s credibility should be viewed as suspect are that: • all of the Defence witnesses refute that the Accused drove the Complainant home from the hospital; • the Complainant fabricated a story of a bribe by the Accused’s Mother; • there were some inconsistencies between the Complainant’s police statement and her testimony; and, • the nature of some of the allegations are implausible, including the alleged frequency of the assaults and the allegation that the Accused sexually assaulted the Complainant while other people were in the room without anyone noticing. [ 17 ] I will address the issues of inconsistencies throughout the decision when considering the evidence relevant to each Count.

However, as credibility and reliability are central to this case, I will address the Defence submissions regarding the allegation of a bribe now. Allegation of a bribe [ 18 ] This is collateral to the issues that the Crown must prove beyond a reasonable doubt. However, the Defence spent much time on the issue and suggests that it irreparably damages the Complainant’s credibility. [ 19 ] During cross-examination, the Complainant stated that the Accused’s Mother offered her a bribe to not proceed with the prosecution.

The Complainant testified that the Accused’s Mother never directly offered her money, but that the Complainant’s father told her that the Accused’s Mother called him and offered money if the Complainant did not proceed with the complaint. The Complainant said that she called the police and left a message regarding this incident. [ 20 ] The police officer’s evidence was that there was no record of the Complainant making such a call.

He said that given the turnover of employees and under staffing at the police detachment, it was possible that she made such a call, but he said that a complaint such as this should have generated a record. [ 21 ] The Accused’s Mother testified that she never offered the Complainant a bribe or money to stop the charges against the Accused. However, she did admit that on the day after she gave a statement to the police, she called the Complainant’s father to ask him why the Complainant was making these allegations.

She put it to the Complainant’s father that if the Complainant needed money, she would provide it to her and that the Complainant did not need to “bribe” the Accused to get money. [ 22 ] The issue of whether the Accused’s Mother offered a bribe to the Complainant is collateral to the issues that the Crown must prove beyond a reasonable doubt. However, I find the Accused’s Mother’s version of this issue to be substantially the same as the Complainant’s version. I reject the Defence’s submission that the allegation of a bribe negatively impacts the Complainant’s credibility.

THE CHARGES [ 23 ] The five remaining charges on the Indictment against the Accused are: Count 1 On or between January 1, 2008 to December 31, 2015 at [Town name], in the Province of Newfoundland and Labrador, did commit sexual assault on [the Complainant] contrary to

section 271 of the Code ; Count 2 On or between January 1, 2008 to December 31, 2015 at [Town name], in the Province of Newfoundland and Labrador, did for a sexual purpose touch [the Complainant], a person under the age of 16 years directly with a part of his body, to wit, his hand, penis and mouth, contrary to

section 151 of the Code ; Count 3 On or between January 1, 2008 to December 31, 2015 at [Town name], in the Province of Newfoundland and Labrador, did for a sexual purpose touch [the Complainant], a person under the age of 16 years directly with an object, to wit, handheld power tool, contrary to

section 151 of the Code ; Count 8 On or between June 1, 2009 to June 30, 2009, near [place name], in the Province of Newfoundland and Labrador, did commit sexual assault on [the Complainant], contrary to

section 271 of the Code ; Count 9 On or between June 1, 2009 to June 30, 2009, near [place name], in the Province of Newfoundland and Labrador, did for a sexual purpose, touch [the Complainant], a person under the age of 14 years, directly with a part of his body, to wit, his hand, contrary to

section 151 of the Code . BACKGROUND EVIDENCE [ 24 ] The following findings of fact are not controversial and are derived from the combined testimony of the witnesses. [ 25 ] For most of the time relevant to the charges, the Accused lived in his mother’s house that was across the road from where the Complainant lived with her parents and brother. [ 26 ] The Complainant was born in 1997 and is the youngest child of the Accused’s brother.

[27] While growing up, the Complainant spent a considerable period of time hanging out with the Accused, often in the Accused’sMother’s house.

Frequently, the Complainant would be in the Accused’s bedroom playing video games with the Accused and theAccused’s Partner. [28] The Complainant and the Accused had a close relationship until about the time the Complainant finished high school. [29] The Accused and the Accused’s Partner started a relationship in 2004 and had their first child in June 2009. [30] The Accused and his partner had a friend (the “Accused’s friend”), whom they played video games and watched movies with.Sometimes they would do those activities in his bedroom.

On at least one occasion, the Complainant was playing video games orwatching movies with them in his bedroom. [31] All of the incidents are alleged to have occurred in or near [name of town] and [name of pond] area, in the Province ofNewfoundland and Labrador. RELEVANT LEGAL PRINCIPLES [32] The Crown bears the onus of proving the Accused’s guilt beyond a reasonable doubt. This pertains to each and every essentialelement of each of the offences with which the Accused is charged.

The onus never shifts to the Accused. [33] Proof beyond a reasonable doubt “does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it animaginary or frivolous doubt” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The burden of proof lies “much closer toabsolute certainty than to proof on a balance of probabilities” (R. v.

Starr, 2000 SCC 40). [34] The presumption of innocence along with the high standard of proof required by the Crown are important and necessarysafeguards to ensure that an innocent person is not wrongly convicted. [35] An accused person is never obligated to take the stand and has the right to call no evidence. An accused is never required toprove his innocence or disprove any of the evidence led by the Crown. While not obliged to do so, in this case, the Accused did testifyand call evidence. [36] The evidence of the Complainant and the Accused cannot be reconciled.

Therefore, I must assess the testimony of each, alwaysbearing in mind that the question is not which of the two versions is to be preferred, but whether on the evidence I do accept that theCrown has proven the elements of the offences beyond a reasonable doubt. [37] In deciding whether the Crown has proven the elements of the offences, I must be mindful of the framework in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 that helps avoid the trap of simply choosing between two competing versions of events andkeeps the focus on an assessment of all the evidence. The W. (D.) framework provides that: 1.

If the evidence of the Accused is believed and would support a finding of not guilty, I must acquit; 2. If I do not believe the evidence of the Accused, but am left in reasonable doubt by it, I must acquit; and, 3.

If I do not believe the Accused, and I am not left in reasonable doubt by his evidence, then I must still determine, based onall of the evidence that I accept, whether the evidence supports beyond a reasonable doubt that the offences occurred. [38] The Court of Appeal re-stated the framework, indicating that it is necessary for the judge to consider whether or not the judgebelieves the accused and, even if the judge does not believe the accused, then whether any of the accused’s evidence leaves her or himwith any reasonable doubt about the accused’s guilt.

If, after these considerations, there is no reasonable doubt, then the judge must stillask whether she or he is convinced of the accused’s guilt on the basis of the evidence that is accepted (R. v. Best, 2016 NLCA 10 at para.7). [39] The W. (D.) instruction applies not only to the Accused’s testimony but rather to the impact of all exculpatory evidence (R v.Ryon, 2019 ABCA 36 at paras. 29-30). [40] I am mindful that my assessment of the credibility and reliability of the evidence of the witnesses will be determinative of theoutcome of this case.

The issue of consent does not arise in this case given the Complainant’s age. The touching, if it occurred asdescribed by the Complainant, would have violated her sexual integrity. There was no suggestion to the contrary at trial.

However, if Ibelieve the evidence of the Accused, or if not believed, if I still have reasonable doubt, I would conclude that the Crown has not proventhe case beyond a reasonable doubt and I would acquit. [41] “The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ abilityto observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty...” (R. v. G.F., 2021 SCC20, para. 82).

I can only consider evidence that is both credible and reliable when deciding whether the Crown has proven its casebeyond a reasonable doubt. [42] In making credibility findings, I have considered how each individual’s evidence fits onto in the general picture whenconsidering the evidence in its entirety. [43] A trier of fact may accept all, some or none of the evidence of a witness.

[ 44 ] All of these principles will be applied when I analyze the evidence that was presented in this case. [ 45 ] Before addressing the elements of each offence and the evidence adduced in support of each Count on the Indictment, I will address the Defence’s arguments that the police investigation was inadequate. INADEQUATE POLICE INVESTIGATION [ 46 ] At trial, Defence counsel argued that Constable Brent Monks, the lead investigator, conducted an inadequate investigation because he: • failed to interview the Complainant’s brother, mother and father.

These witnesses, he argued, could have provided exculpatory evidence; • failed to record all of the conversations he had with the Complainant; • failed to make certain notations in the General Report; and, • had tunnel vision and rushed to arrest the Accused. [ 47 ] While not explicitly argued, Defence counsel is in effect alleging an overarching violation of the Accused’s rights under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ” ) on the basis that the police investigation undermined the Accused’s right to a fair trial or amounted to an abuse of process. [ 48 ] Constable Monks described the background and context of how this investigation unfolded. He explained that in December 2020, the Complainant called the general detachment in Glovertown to report the incidents. Arrangements were made for Constable Christopher Neimor to take the Complainant’s statement.

Constable Neimor testified that based on the statement, he would have considered the Complainant’s brother, mother and father to be witnesses. [ 49 ] While there was no notation in his notes to reflect this, Constable Monks testified that he did not take statements from the Complainant’s parents because the Complainant told him her parents never had any knowledge of any of the reported incidents.

Constable Monks said that while he recognizes the brother as a potential witness now, he missed it in 2021. [ 50 ] Constable Monks made notes in December 2020 that read “see what charges apply” and made notes in January 2021 that indicated that he thought about arresting the Accused after he read Constable Neimor’s

summary of the Complainant’s statement but before Constable Monks actually read the Complainant’s statement. Defence counsel argues this is evidence that Constable Monks had tunnel vision during the investigation and that he predetermined that the Accused would be charged. [ 51 ] Constable Monks denied that he had made any predetermination to arrest the Accused in December 2020. He acknowledged in January 2021 that he thought about arresting the Accused immediately after he reviewed Constable Neimor’s

summary, but he testified that his strategy changed after discussions and guidance from his sergeant who made suggestions on conducting the investigation. [ 52 ] I find the police investigation in this case was not ideal. [ 53 ] Inadequacies in a police investigation may cause a failure of the prosecution if it leads to the Crown’s inability to prove all of the essential elements of an offence, but a finding of not guilty does not flow directly from the shortcomings of an investigation ( R . v. Taylor , 2023 SKCA 49 , para. 68 ).

While an inadequate investigation may lead to a breach of a Charter right, those inadequacies do not, in and of themselves, constitute a denial of the right to make full answer and defense ( R . v. Darwish , 2010 ONCA 124 , para. 29 ). [ 54 ] While the investigation in this case had deficiencies, I find the deficiencies, separately or cumulatively, have not affected the fair trial rights of the Accused and they do not amount to a violation of a Charter right.

The issue remains whether, based on the evidence that has been called at trial, including gaps in that evidence, the Crown has proven all the essential elements of the offences beyond a reasonable doubt. ELEMENTS OF THE OFFENCES AND EVIDENCE PRESENTED Counts 1 and 2 [ 55 ] Count 1 involves a charge of sexual assault under

section 271 of the Code . For this charge, the Crown must prove beyond a reasonable doubt that: 1. the Accused touched the Complainant directly or indirectly; 2. the touching was intentional; and, 3. the touching was of an objectively sexual nature. [ 56 ] At the mens rea stage, the Crown must show that the Accused intentionally touched the Complainant. Consent is not an issue as the Complainant was under 16 years of age and statutorily incapable of providing lawful consent (subsection 150.1 of the Code ). [ 57 ] Count 2 involves the offence of sexual interference under

section 151 of the Code . For this charge, the Crown must prove beyond a reasonable doubt that: 1. the Complainant was under 16 at the time the offence is said to have occurred and the Accused knew the Complainant was under 16;

2. the Accused intentionally, directly or indirectly, touched the Complainant; and, 3. the touching was for a sexual purpose. [ 58 ] It is a specific intent offence, meaning that the Crown must prove beyond a reasonable doubt that the Accused specifically intended that the touching be for a sexual purpose. The Complainant’s evidence on Counts 1 and 2 [ 59 ] The Complainant testified that the Accused sexually assaulted her daily.

Her evidence was that most of the incidents occurred when the Accused lived in her grandparents’ house which is across the street from where she lived with her parents in [Town name], Newfoundland and Labrador. [ 60 ] She testified that the incidents started when she was 10 or 11 years of age. She said she knows this because she remembers events starting before she had her first period which occurred when she was in grade six. She testified that even when she was on her period, the Accused would put his fingers in her vagina.

She recalled when she was on her period, he said that she was growing up. [ 61 ] She knows the assaults stopped when she was 17 because that is the year she graduated high school and started dating her boyfriend. She said that she started dating her boyfriend in October 2014 and that no incidents with the Accused happened after that. [ 62 ] On cross-examination, the Complainant was pushed regarding her evidence that events happened daily.

She agreed that is what she said to the police and on direct examination, but she means almost every day that she saw the Accused. [ 63 ] The Crown contends the evidence in support of Count 1 and Count 2 comes from a series of specific events that happened when the Complainant was under 16 years of age. Generally, these events can be described as: • when the Accused got angry; • the time when her brother and grandmother walked in the room; • the time at the Accused’s friend’s house; and, • the event that lead to a pregnancy test. [ 64 ] The evidence of these events is described below.

When the Accused got angry [ 65 ] The Complainant described an event that started in the bathtub and ended with the Accused getting mad at her and sending her home. The date [ 66 ] The Complainant testified that this event happened at the Accused’s Mother’s house when the Accused was living there. She could not recall exactly when it occurred, but she said she was “a little older” than when the incidents first started. She thinks it was in the Summer or the Spring because she could not remember having a jacket on.

She testified that it occurred before the Accused’s Partner had her first child (which was in 2009) as she knows the Accused moved out of his Mother’s house shortly after the baby was born. The incident started in the bathtub [ 67 ] She testified that the incident started when they were alone downstairs in the bathroom of the Accused’s Mother’s house. She did not remember how she came to be in the bathroom with the Accused, but she remembers getting undressed and using the washroom before getting into the bathtub.

She said that the Accused was in the bathroom and watched her while she was peeing. [ 68 ] She said the Accused filled the bathtub and had her get in because the Accused said he wanted to do an experiment that involved pushing water into her vagina. She said that she did not understand what the experiment was. She said that she was naked in the tub and the Accused was clothed, leaning over the tub, pushing water inside her vagina with his fingers. [ 69 ] She didn’t remember how long she was in the bathtub, but she did remember the water was cold when she got out.

To the bedroom [ 70 ] She said when she got out of the bath, the Accused took her from the bathroom to his bedroom. She testified that in the bedroom, the Accused got her to lie naked on top of him. She initially sat on him, and he kept guiding her back further and further until she was lying on him with her vagina in his face and his penis in her face. She said the Accused was licking her vagina and told her to put his penis in her mouth.

She said that she did not know what to do with his penis, so they changed positions. [ 71 ] She described moving so that she was on her back on the side of the bed and that he was kneeling on the floor. Initially, he was licking her vagina in that position until he raised himself up a little more to make his penis more level with her vagina. She said that he then started to rub his penis on her vagina and that she felt pressure on her vagina. She said that it was the first time he tried to put his penis in her vagina.

She described saying “don’t put that thing in me” and that he laughed because he thought it was cute that she called his penis “a thing.” [ 72 ] She describes that someone came home during this incident so the Accused ran downstairs to the bathroom to collect her clothes so no one would see them. She didn’t remember who came home or if anyone was home when she left the house.

[ 73 ] She testified that at some point during the incident, she told the Accused that she was going to tell someone about what happened. She said that made him angry and before he sent her home, he said he would blame it on someone else and that he told her that no one would believe her because she was a kid. On cross-examination, she agreed that when the Accused was angry, there was yelling between her and the Accused. [ 74 ] She said that when she went home, her family asked why she was upset.

She told them it was because her grandfather “drove her out of the house.” [ 75 ] She said she started to stay away from the Accused after this incident because she felt scared and pressured because he wanted to put his penis in her mouth and because he laughed at her when she called his penis “a thing.” When Brother and Grandmother walked in [ 76 ] The Complainant described an event that happened when she was with the Accused and his partner in his bedroom in his mother’s house.

She said that it was before the Accused and his partner had their first child (in 2009). [ 77 ] She said the event stands out vividly in her mind because it was the first time she experienced an orgasm. She testified that she was lying on one side of the Accused’s bed, the Accused was lying in the middle and the Accused’s Partner was on the other side. She said that she was watching television with the Accused while the Accused’s Partner was playing a video game. [ 78 ] She said that she and the Accused were under a blanket and the Accused had his hands under her clothes with his fingers in her vagina.

She said it ended when she got a sensation and pushed his hand away. She said that she didn’t know what was happening when she was having the orgasm. The Complainant’s evidence was that there was no discussion of what was happening during or after the event. [ 79 ] On direct examination, she said that her brother and grandmother walked into the room around the time of the event, but they did not see anything. On cross-examination, she acknowledged that she did not tell the police that her grandmother walked in with her brother.

She also acknowledged that she told police that the Accused kept fingering her to orgasm after her brother came in the room. At the Accused’s friend’s house [ 80 ] The Complainant described an incident of the Accused putting his fingers in her vagina while at the Accused’s friend’s house. She said it occurred before the Accused had any children. [ 81 ] She described the event as occurring in the Accused’s friend’s bedroom on his bed. The friend and the Accused’s Partner were also present in the room. The friend was turned back on while at his computer.

The Accused’s Partner was playing a video game and the Accused and the Complainant were on the bed with a blanket over them. She described the blanket as a heavy blanket, a duvet or a comforter. On cross-examination, she acknowledged that she said they were under the bedsheets in her police statement. [ 82 ] She said that the Accused’s hands were down her pants, fingering her vagina. She said that after the event, she got up off the bed and the Accused took her to the bathroom.

She recalled that the Accused was going to the bathroom because he had melted chocolate mini eggs in his pants that he needed to clean up. She remembers that he was wearing camouflage pants. [ 83 ] When asked on cross-examination if anybody ever questioned her being under blankets with the Accused, she responded by saying that she and the Accused would always say they were under a blanket because they were cold. The Pregnancy Test [ 84 ] The Complainant testified that while in the Accused’s bedroom, she would sit on the Accused’s lap while they would play video games together.

This was prior to the Accused having children. She testified that the Accused’s Partner would often be there and knew what games they were playing. They often played different versions of an adult puzzle game called Fantasia. In the game, as you correctly placed puzzle pieces, naked women were revealed. On cross-examination, the Complainant acknowledged that she did not tell the police the name of the game while giving her statement.

She said she does not know why she did not give the name of the game at the time. [ 85 ] The Complainant described an event where she was sitting on the Accused’s lap in his room on his computer chair and she masturbated him to ejaculation. After that event, the Accused asked his partner to purchase a pregnancy test for the Complainant. At the time, the Accused’s Partner was pregnant. The Accused was with his friend in the basement, plucking ducks when he asked his partner to buy the pregnancy test.

He had told his partner that the Complainant was sitting on his lap and that she was scared and thought she could get pregnant that way. [ 86 ] The Complainant said she went with the Accused’s Partner to buy the test and then went to the Accused’s Partner’s Mother’s house to do the test. The Accused’s Partner stayed with the Complainant while she did the test. The Complainant said the Accused’s Partner paid for the test, which was just over nine dollars.

She said she asked her mother for money for ice cream with the intention to using the money to pay the Accused’s Partner back. [ 87 ] On cross-examination, she acknowledged that she did not tell the police about the Accused’s friend being there plucking ducks when the Accused asked his partner to buy the pregnancy test. She also acknowledged that she did not tell the police about getting the money from her mother under the guise of ice cream money to pay for the test. [ 88 ] The Complainant said that after she started to date her boyfriend, she avoided the Accused. The Accused’s evidence on Counts 1 and 2

[ 89 ] While he was not required to do so, the Accused testified in his own defence. He denied all of the allegations made by the Complainant. He said that he has never done anything inappropriate with the Complainant and that all of the allegations are fabricated and false. [ 90 ] With respect to his relationship with the Complainant, he testified that he would play games with her, watch videos with her, go with her to take the dogs swimming and sometimes he and his partner would take her to Gander to go shopping. He said that a lot of times, the Complainant’s brother would join them.

He said that was all he did with the Complainant. [ 91 ] Regarding the allegations around the time the Complainant said he got angry, he denied ever putting her in the bath and denied all of the other events that the Complainant described surrounding that event. He stated that it just never happened. He denied that he was screaming at the Complainant or chasing her around the house. If fact, he said that he never spent a lot of time with her alone.

On cross-examination, he said that he was rarely alone with the Complainant as his partner was always with him, unless either of them was in the bathroom, he was working, or she was in hospital giving birth. [ 92 ] He denied all of the allegations made regarding when the Complainant said her brother walked into the room. He acknowledged that sometimes he and the Complainant and his partner would lie on his bed together. But he denied there was ever a sexual assault. [ 93 ] Regarding the allegations of an incident happening at the Accused’s friend’s house, he said it just never happened.

He stated that the Complainant was only with him and his partner at his friend’s house on two occasions. He said on one of the occasions, the Complainant stayed upstairs chatting with his partner and his friend’s mother. On the other occasion, he admitted that he was in his friend’s bedroom with the Complainant, his partner and his friend.

He admitted that they may have been sitting on the side of his friend’s bed if they were watching the computer; however, he denied that he would ever lay on his friend’s bed. [ 94 ] The Accused testified that he never asked his partner to buy a pregnancy test for the Complainant. He did recall an event while he was plucking ducks with his friend where his partner discussed a pregnancy test that she had taken. He recalled there was an error in the test and that she had to take it again. [ 95 ] Further, he denied the events that the Complainant said lead to needing a pregnancy test.

He acknowledged that he often played video games with the Complainant and his partner in his room. He denied ever playing adult games with the Complainant. He said that he and his partner would only play games that were rated “E for Everyone” with the Complainant.

He said they primarily played the action adventure games Ratchet & Clank, the Jak and Daxter series and Spyro the Dragon with the Complainant. [ 96 ] He did acknowledge that the Complainant would sit on his lap on his computer chair in his bedroom as they played games, but he denied that she would masturbate him during this time, and he denied ejaculating on her. [ 97 ] The Accused testified that the Complainant did not avoid him after she started to date her boyfriend. He indicated that the Complainant had even texted him three times to ask if he would take her boyfriend salmon fishing.

He also said that on one occasion, the Complainant came to his Mother’s driveway and told him, his partner and his mother about her failing a term during her post-secondary schooling. He said that at the time, he tried to give her encouraging advice. The Accused’s Mother’s evidence [ 98 ] The Accused’s Mother provided evidence. She admitted to reviewing all of the statements made to the police and to discussing the events with the Accused and his partner. Much of her evidence could be reconciled with the evidence of the Complainant and some of it could not. [ 99 ] The Accused’s Mother is 88 years old.

She described herself as hard of hearing. She said she has 7 children. Relevant to these proceedings are her sons, the Accused and the Complainant’s father. Her husband, who I will refer to as the Grandfather, passed away 12 years ago, but was alive and part of the relevant narrative of some of the incidents. [ 100 ] She said the Accused had lived with her for 47 years. She described her house as a split level that was relatively small and that her bedroom was upstairs next to the Accused’s bedroom. She noted you could hear everything that happened in the house.

I note that evidence from other witnesses indicated that while the Accused’s Mother did have a bedroom upstairs next to the Accused, in reality, she primarily used a bedroom on the main floor of the house. [ 101 ] She often told the Accused to turn down the volume while he was in his bedroom, playing games.

To some extent, this is externally inconsistent with the testimony of the Accused, who said the Grandfather often had the television up so loud and that you could speak freely without worry of him hearing anything. [ 102 ] She said the Complainant would often come and hang out with the Accused and the Accused’s Partner in the Accused’s bedroom. [ 103 ] When she was questioned about the evidence that the Accused was once yelling at the Complainant to get out of the house, she said that she never heard yelling, however, she did say that one time she did overhear the Accused telling the Complainant to go home.

The Complainant’s inappropriate feelings towards the Accused [ 104 ] The Accused’s Mother blamed the Complainant for always being “after” the Accused and that she always wanted to be around him. She said that everyone knew the Complainant was “after” the Accused from the time she was young, perhaps 12 years of age, until the time she graduated high school. [ 105 ] She described a time when the Grandfather told the Complainant’s father that he should keep the Complainant home because she was “after” the Accused.

The Accused’s Mother explained that sometimes she told the Complainant to go home because she was always after the Accused.

[ 106 ] She recalled one time when the Grandfather did not want the Complainant in the house and she let her in the front door to go up to the Accused’s bedroom without the Grandfather noticing. The Complainant had arranged to signal her so she could distract the Grandfather by getting him into another room when she was going to leave the house. [ 107 ] She stated that she never saw the Accused put his arm around the Complainant or kiss her, but the Complainant would do that to the Accused. [ 108 ] She said that one time, the Complainant said that she wished the Accused was not her uncle.

She inferred that this was so that the Complainant could have a romantic relationship with him. She described how the Complainant got upset when the Accused’s Partner had her first baby. She said the Complainant began crying, saying that it should be her baby and not the Accused’s Partner’s baby. [ 109 ] The Accused’s Mother testified that she believed the Complainant was seeking money because the Complainant could not romantically “get” with the Accused.

She testified that because the Complainant could not “get” the Accused and because the Accused’s Partner was with him, that the Complainant wanted money and that was the Complainant’s motive for making the complaints. She said that everyone knows the Complainant was romantically after the Accused. She said if a person cannot get someone they are pursuing, then they will go through anything to get the object of their affection in trouble. [ 110 ] There is no burden or requirement on an accused to demonstrate that a complainant has a motive to lie or explain why a complainant has made allegations ( R . v .

Swain , 2021 BCCA 207 , at paras. 31-33 ). However, the suggestion that a complainant should not be believed or is less worthy of belief because of rejected affection is an impermissible myth ( R . v . C.L ., 2022 NLCA 53 at para. 21 ). I reject any suggestion that the Complainant is less worthy of belief because of this assertion. ANALYSIS OF COUNT 1 AND COUNT 2 [ 111 ] Although there is overlap in the essential elements of Count 1 and Count 2 of the Indictment, I must consider each count separately and refrain from engaging in similar fact or propensity reasoning.

On the basis of the evidence that is accepted, I am convinced beyond a reasonable doubt of the Accused’s guilt on Count 1 and Count 2. I am satisfied that the Crown has established the essential elements of the offences in each of Count 1 and Count 2 beyond a reasonable doubt. [ 112 ] During cross-examination, while explaining his answers, the Accused stated that his memory is very poor for bad things and that he only remembers good things. When challenged about inconsistencies between his police statement and his evidence at trial, the Accused disavowed all of the contents in his police statement.

He did so because he said at the time he gave the police statement, he was in a total state of shock and blindsided by the allegations. He said that he would have agreed to any statement to the police just to get out of the interview. [1] [ 113 ] There were some internal inconsistencies in the Accused’s evidence. In the context of denying that he was playing explicit video games, the Accused testified that he, the Complainant, and his partner primarily played Ratchet & Clank, Jak and Daxter trilogy and Spyro the Dragon.

However, he later said that he collected video games and he bought thousands of different video games online.

He said that when the games arrived, his partner and the Complainant would play them to make sure they were in working order so that he could determine if they needed to be returned or not. [ 114 ] I do not accept the Accused’s suggestion that there was little opportunity for the incidents to have occurred throughout the relevant time as he was always with his partner. [ 115 ] I do not accept the argument that it is implausible for the Accused to have been yelling at the Complainant to go home without someone hearing or that it was unlikely for the Complainant to leave the house without being noticed for the following reasons:

a) the Accused’s Mother, testified that she was hard of hearing;

b) the Accused’s Mother testified that she remembered a time when the Accused told the Complainant to go home;

c) the Accused’s Mother testified that on at least one occasion, she distracted the grandfather to allow the Complainant to sneak into and out of the house undetected; and,

d) the Accused testified that his father was very hard of hearing. During his testimony, the Accused spoke of a time when he was sitting on the couch, watching television with the Complainant and his father and the Complainant was speaking poorly about his partner.

When asked, on cross-examination, if his father would have heard this conversation, the Accused explained that his father would always have the television on so loudly that it was easy to have discussions without fear of his father hearing even if he was in the same room. [ 116 ] The Defence stated that it is implausible the Accused could sexually assault the Complainant so frequently and sometimes in front of other people without anybody noticing. However, it appears the Accused’s parents did suspect something was not right.

The Complainant testified that the Grandfather thought the Accused and the Complainant had a sexual relationship. This is supported by the Accused’s Mother’s testimony that the Grandfather told the Complainant’s father that he should keep the Complainant away from the Accused because the Complainant was “after” the Accused.

While the Accused’s Mother actually blamed the Complainant for having her arms around the Accused and kissing him, she also testified that she thought the Complainant was “after” the Accused and had asked her to go home on occasion because of that relationship. [ 117 ] The Defence argued that if the event when the Complainant’s brother and grandmother walked in the room had occurred, someone would have heard noise when the Complainant was orgasming and telling the Accused to stop and someone would have seen the Complainant push the Accused’s hand away.

Based on the facts of this case, I accept that the Complainant and the Accused were under a blanket and that nobody had noticed. [ 118 ] The Defence argued that the Accused admitted there was a conversation with his partner about a pregnancy test and he admitted that the Complainant would sit on his lap in the computer chair while playing video games. Defence counsel said this enhances his

client’s credibility as he admitted things that could reflect poorly. [119] The Defence pointed out that: • while the Complainant testified in Court that she played adult games called Fantasia I, II and III with the Accused, that she neverprovided the name of the game to the police; • the Complainant told the police that her brother walked in during the time she experienced her first orgasm, but that she told theCourt that her brother and her grandmother walked in; • when testifying that the Complainant said the Accused and his friend were plucking ducks when the Accused asked his partner tobuy a pregnancy test, but the Complainant left that detail out when providing her police statement; and, • the Complainant testified that she got money for the pregnancy test by asking her mother for money to buy ice cream, however,she left that detail out when giving her police statement. [120] I am not left with reasonable doubt after considering the Accused’s evidence. [121] I must consider the Complainant’s age when considering the significance of any gaps or inconsistencies in her evidence.Children’s evidence must be assessed on a commonsense basis, recognizing that while children may not be able to recount precise details“and communicate the when and where of an event with exactitude, this does not mean they have misconceived what happened to themand who did it” (R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122 at para. 25). Children experience the world differently thanadults. The particular perspectives of children may affect their recollection of events and any inconsistencies should be assessed incontext. [122] When the differences in her police statement and her testimony were put to the Complainant, she acknowledged that her testimonyin Court had more details. The explanation she offered was that she had given a lot of information to the police. She pointed to a placewhere even the police officer stated they were exhausted at the end of the Complainant’s police statement.

She had no explanation forwhy her police statement did not include that the grandmother also came in the room during an incident. Although I cannot resolve thatinconsistency, it does not cause me to reject the Complainant’s evidence. [123] I have considered all of the inconsistencies in the Complainant’s evidence when arriving at my decision.

In my view, none ofthese inconsistencies cause reasonable doubt surrounding the reliability and credibility of the Complainant generally, or her testimonyregarding the specifics of the sexual activity with the Accused that constitute the elements of the offences he is charged with. [124] I am satisfied that the events as described by the Complainant occurred. The Accused intentionally touched the Complainant asdescribed. There is no doubt that the touching of the Complainant’s vagina was of an objectively sexual nature.

The Complainant wasunder 16 years of age and the Accused knew the Complainant was under 16 years of age. [125] I find the Crown has proven beyond a reasonable doubt, all of the essential elements of the charges at Count 1 and Count 2.Accordingly, I find the Accused guilty on Count 1 of the Indictment and guilty on Count 2 of the Indictment. Count 3: The Power tool in the Shed [126] Count 3 involves the offence of sexual interference under

section 151 of the Code. [127] For these charges, the Crown must prove beyond a reasonable doubt that: 1. the Complainant was under 16 at the time the offence is said to have occurred and that the Accused knew the Complainant wasunder 16; 2. the Accused intentionally, directly or indirectly, touched the Complainant with a handheld power tool; and, 3. the touching was for a sexual purpose. [128] It is a specific intent offence, meaning that the Crown must prove beyond a reasonable doubt that the Accused specificallyintended the touching be for a sexual purpose. [129] The Crown’s position is that the evidence proves each element of the offence beyond a reasonable doubt.

The incident [130] The Complainant said an incident occurred once when she was alone with the Accused in his shed, which is in the back of theAccused’s Mother’s house. [131] She said the Accused had her sit sideways on a quad all-terrain vehicle and showed her a large vibrating tool. She said theAccused laid the tool on her vagina, outside her clothes. She told him that she did not like it. She could not remember how long the eventlasted. She could not recall what colour the tool was, but she could recall him saying that his partner liked the tool being used on her.

TheComplainant said that she could also recall one occasion when the Accused laid the tool on his partner’s clothing, outside her vagina. [132] The Accused denied that he did anything with the Complainant on the quad. He said that allegation is just false and that it neverhappened. He denied touching the Complainant with a power tool or drill. He said the shed did not have power, so he could not use apower tool without running an extension cord from the house. [133] The Complainant testified that she could not remember her age when it happened, nor could she remember what year it occurred.

With respect to the timing of the incident, the Complainant could only recall that it was in the summertime. [ 134 ] The Complainant turned 17 years old in the early Summer before the Fall that she started to date her boyfriend. Her evidence was that events occurred up to when she was 17 years old and that no events happened after she started to date her boyfriend.

From the evidence, it is not clear that this event occurred when the Complainant was under 16 years of age. [ 135 ] One of the essential elements of this offence that the Crown must prove beyond a reasonable doubt is that the Complainant was under 16 years of age at the time of the incident. I find the Crown has failed to prove that the Complainant was under 16 years of age at the time of the alleged incident. As the Complainant’s age at the time of this incident has not been proven, the Accused is acquitted on Count 3.

COUNT 8 AND COUNT 9: DRIVING HOME FROM THE HOSPITAL [ 136 ] Count 8 is a charge of sexual assault contrary to

section 271 of the Code . The Crown must prove beyond a reasonable doubt that: 1. the Accused touched the Complainant directly or indirectly; 2. the touching was intentional; and, 3. the touching was of an objectively sexual nature. [ 137 ] At the mens rea stage, the Crown must show that the Accused intentionally touched the Complainant. Consent is not an issue as the Complainant was under 16 years of age and statutorily incapable of providing lawful consent (Subsection 150.1 of the Code ). [ 138 ] Count 9 involves the offence of sexual interference under

section 151 of the Code .

For this charge, the Crown must prove beyond a reasonable doubt that: 1. the Complainant was under 14 at the time the offence is said to have occurred and that the Accused knew the Complainant was under 14; 2. the Accused intentionally, directly or indirectly, touched the Complainant with his hand; and, 3. the touching was for a sexual purpose. [ 139 ] It is a specific intent offence, meaning that the Crown must prove beyond a reasonable doubt that the Accused specifically intended that the touching be for a sexual purpose. [ 140 ] The Crown argued that the evidence shows beyond a reasonable doubt that the Accused committed a sexual assault and committed sexual interference on the Complainant on the night the Accused’s first child was born.

I disagree with the Crown’s submissions. For the reasons that follow, I find the Crown has not proven these counts beyond a reasonable doubt. The Complainant’s evidence on Counts 8 and 9 The date [ 141 ] It is not disputed that the Complainant was born in 1997 or that the Accused’s first child was born in 2009. There is no dispute that the Complainant was under the age of 14 at the time of this alleged incident. [ 142 ] The Complainant said she remembers it was in June 2009.

On direct examination, she testified she could not remember the exact date, but that it was during the time that the Accused’s Partner was in hospital for the birth of their first child. However, on cross- examination, the Complainant agreed that the incident happened the day the baby was born. [ 143 ] She remembered that at the time, she was really close with the Accused and she remembered she went to Gander with the Accused in the morning and spent the day in Gander.

She testified that the Accused had called her that morning, to ask if she wanted to go to Gander with him to visit at the hospital for the birth of his child. The Complainant remembered going over to the Accused’ Mother’s house to get a drive with the Accused and the Accused was still eating breakfast when she got there.

The time of the incident [ 144 ] The incident was described to have happened late at night; when it was dark, and the Accused was driving the Complainant back from visiting at the hospital to her home. [ 145 ] She said she remembered speaking to her mother on the phone at the hospital and her mother asked what time she was coming home because it was getting late. She indicated that she did not know whose phone it was and that it may have even been a phone at the nursing station. She said she could not recall exactly, just that she remembered her mother calling while at the hospital because it was getting late.

On cross-examination, the Complainant was pushed regarding the time of the call from her mother. She guessed that it was around 10:30 PM. The incident [ 146 ] The Complainant testified that she was in the front passenger seat, while the Accused was driving her home from the hospital. She said the Accused pulled the car over on the side of the road near [name of pond] area. After he stopped the car, he leaned over and was putting his fingers inside of her vagina. She said that she was wearing a purple t-shirt and capris. She said that her pants were unzipped, but that she could not recall how they became unzipped.

She said she was wearing underwear, and that he was touching her underneath her underwear and inside of her vagina. She said she did not recall how long the incident lasted or how it stopped. She could

not recall if there was any conversation with the Accused immediately after the incident. But she does remember that she did not discuss it with anyone after she got home. She said that she did not understand what was going on. The Accused’s evidence on Counts 8 and 9 [ 147 ] The Defence argued that on the night the Accused’s Partner gave birth, the Accused’s Mother drove the Complainant home. [ 148 ] The Accused said he did not drive the Complainant home the night his baby was born, and he did not assault her.

He said while he does not remember the “comings and goings” of who came with whom or who left with whom, his memory of that night is very clear. He cut the umbilical cord when the baby was born and he stayed with his partner in hospital until the early hours of the next morning. He remembers driving home in the early daylight. [ 149 ] Exhibit LP#1 is a commemorative certificate from the hospital that indicates the time of birth was 10:38 PM. I accept the Accused’s evidence that the baby was born at 10:38 PM and that the Accused stayed with his partner until the early morning.

The Accused’s Partner’s evidence [ 150 ] The Accused’s Partner said she was admitted into hospital on Friday, June 26 th , she had her baby at close to 10:45 PM on Saturday and she was discharged on June 30 th . She said when the baby was born, the Accused stayed with her until 4:00 AM the next morning. [ 151 ] With respect to when the Complainant visited the hospital the day after the baby was born, on direct examination, she said her mother drove the Complainant to and from the hospital.

On cross-examination, with reluctance and after rereading her statement to the police, she acknowledged that she had told the police that the Accused took the Complainant to the hospital at that time. However, she said that when she gave her statement to the police, she was in a state of shock and what she had told the police is not her evidence. Her evidence remains that her mother drove the Complainant to the hospital the day after the baby was born.

She tried to explain that she saw the Accused and the Complainant walk into her hospital room together and assumed they had driven together, but that her mother told her later at the hospital, that she was the one who drove the Complainant. [ 152 ] While I have difficulty accepting her evidence explaining why she told the police that the Accused drove the Complainant to the hospital, or her explanation of her mother telling her who drove the Complainant, I do accept her evidence that on the night the baby was born, the Accused stayed with her in hospital overnight until about 4:00 AM the next morning.

The Accused’s Mother-in-Law’s evidence [ 153 ] The Mother-in-Law gave evidence primarily around the driving arrangements for the Complainant back and forth to the hospital when the baby was born. [ 154 ] The witness was argumentative when asked on cross-examination about the preciseness of her memory from 14 years ago, of exactly who drove the Complainant back and forth to the hospital on each of the days that the Accused’s Partner was in hospital giving birth.

The witness said that the reason she could remember with such exactitude and confidence is because the birth of her first grandchild was a significant event and that is why she can recall with precision the comings and goings of the Complainant. [ 155 ] She testified that she recalled vividly that the Accused’s Mother drove the Complainant home the night the baby was born. She testified that she drove the Complainant to the hospital the next day and that she dropped her home later that evening.

She also testified that the Complainant’s parents drove the Complainant to the hospital on Monday and then the Complainant’s parents went shopping. She noted that the Accused did not visit at the hospital on Monday and the Accused’s Partner was discharged Tuesday morning. [ 156 ] While I share the concerns raised by the Crown about the peculiarity of this witness’ memory, I do accept that the Accused’s Mother drove the Complainant home the night the baby was born.

The Accused’s Mother’s evidence [ 157 ] Part of the Accused’s Mother’s testimony around the incidents of the birth cannot be fully reconciled with evidence from other witnesses. Her evidence in this regard may have been tainted by her admitted review of other peoples’ statements to the police or her admitted discussions of the events with the Accused and his partner. [ 158 ] She said the night the baby was born, the Complainant’s parents arrived later in the evening and the Complainant’s father asked if the baby was born yet. She said the Complainant’s parents then went downtown shopping.

She said that given the late hour in the evening; they likely went to Walmart. This is inconsistent with the evidence of the Mother-in-Law who said that the Complainant’s parents dropped the Complainant off at the hospital on Monday before they went shopping at Walmart. [ 159 ] She testified that the night of the birth, the Complainant’s parents allowed the Complainant to stay late as she and the Grandfather agreed to drive the Complainant home. She said that she and the Grandfather drove the Complainant home around 1:00AM.

She said she went to bed and woke up at 3:00 or 4:00 AM and the Accused was not in his bed, so she called him and he was still at the hospital. [ 160 ] I accept the Accused’s Mother’s testimony that she and her husband drove the Complainant home on the night the baby was born. ANAYLISIS ON COUNT 8 AND COUNT 9 [ 161 ] I agree with the Defence’s submissions that the Crown has not proven the elements of this offence beyond a reasonable doubt.

I understand that the Complainant was 12 years old at the time the baby was born, and I recognize that children may not be able to recount precise details and communicate the when and where of an event with exactitude. However, this does not mean that the credibility or reliability of a child's evidence should not be carefully assessed or that the standard of proof must be lowered when dealing with children.

A "solid foundation" is required for a verdict of guilt, whether the complainant is an adult or a child (see W. (R.) ) . [ 162 ] The evidence on Count 8 and Count 9 lacks a solid foundation. The Accused’s Partner was in hospital for five days. On direct examination, the Complainant indicated that she was not sure what particular night the incident happened, which I would understand and accept given the Complainant’s age at the time. However, on cross-examination, when asked if the event happened on the night the baby was born, the Complainant said yes.

Her answer was not addressed or clarified in redirect examination. [ 163 ] I accept the evidence offered by the Accused and by his Defence, that the baby was born at 10:38 PM and that the Accused stayed in the hospital with his partner until the early hours of the next morning. I accept that the Accused did not drive the Complainant home the night the baby was born. As a result, based on the direction in W. (D.) , I find the Crown has not proven these counts beyond a reasonable doubt. Therefore, the Accused is acquitted on Count 8 and Count 9.

SUMMARY and DISPOSITION [ 164 ] For the foregoing reasons, I am convinced beyond a reasonable doubt that the Accused is guilty of the charges at Count 1 and Count 2 of the indictment. [ 165 ] With respect to the charges at Count 3, Count 8 and Count 9, I am left with reasonable doubt by the evidence adduced by the Accused. Even if I were not, I am not convinced beyond a reasonable doubt by the totality of the evidence. Accordingly, I find the Accused not guilty of the charges at Count 3, Count 8 and Count 9 of the indictment. [ 166 ] Judgment accordingly. _____________________________ PHILIP OSBORNE Justice