R. v. J.B.M., 2019 BCPC 164

Citation: R. v. J.B.M. 2019 BCPC 164 Date: 20190603 File No: 20635-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.B.M. BAN ON PUBLICATION - SECTIONS 486.4(2.1) & 486.4(2.) CCC ORAL REASONS FOR JUDGEMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G.K. Merke Counsel for the Accused: R.A. Mulligan, Q.C. Place of Hearing: Colwood , B.C. Date of Hearing: March 5, 6, 8, and 12, 2019 Date of Judgment: June 3, 2019 Introduction

[1] THE COURT: J.B.M. has been charged with an offence under s. 151 of the Criminal Code that, for a sexual purpose, hetouched, directly or indirectly, with a part of his body or with an object, the body of A.D., being a person under the age of 16. [2] The Complainant and the alleged victim of this offence is A.D. (the "Complainant") who at the time of the alleged offence wasthree and a half years of age. J.B.M. (the" Accused") was approximately 73 years of age and was a neighbour and a family friend of theparents of the Complainant (the "Parents").

The allegation is that the Accused pulled down the Complainant's outer garment andunderwear and touched her vagina in a sexual manner. That is alleged to have occurred while the Accused was minding the Complainantat her home, and while her Parents were completing an outdoor project at the rear of their residence, and also while her siblings and otherneighbours were in the immediate vicinity. Two neighbours contend that they observed the offending act. [3] A lengthy voir dire was held during the course of the trial, at which time all of the evidence of the Parents was adduced.

Thepurpose of the voir dire was to determine the admissibility of a series of statements allegedly made to the Parents by the Complainant inthe early evening of May 21, 2018, following the afternoon of that same day at which time the offence is alleged to have occurred. [4] These statements made by the Complainant to the Parents were being relied upon by Crown to be confirmatory in nature aboutthe alleged sexual touching. The Complainant, as the declarant, was not presented as a witness during the trial.

However, Crown soughtthe admission of the alleged confirmatory statements on the basis that they fell within the principled exception to the hearsay ruleestablished by the Supreme Court of Canada in R. v. Khan, (SCC), [1990] S.C.J.

No. 81; [1990] 2 S.C.R. 531. [5] Defence sought exclusion of these alleged confirmatory statements presented as evidence in the voir dire from the evidence inthe trial proper on the basis that the Crown had failed to adequately establish the requirements of the principled exception to the hearsayrule. [6] The ruling on the voir dire was rendered on April 17, 2019 (the "Voir Dire Ruling"). [see: R. v. J.B.M. 2019 BCPC 130; [2019] B.C.J. 1175; 2019 CarswellBC 1813] The two confirmatory statements made by the Complainant to the Parents wereadmitted into evidence in the trial proper.

These two confirmatory statements are hereinafter described below and referenced as the"Complainant's Confirmatory Statements". [7] The Accused denies that this offence occurred and has testified on his own behalf. In his evidence in the trial proper, theAccused denied that he pulled the Complainant's pant garment down, and further denied that he touched the Complainant in aninappropriate or sexual way. He testified that the Complainant was responsible for pulling down her own pant garment on two occasionsand he then assisted her in pulling it up.

This all occurred while he was minding her for the Parents and while he and the Complainantwere not in the immediate presence of others. [8] The task of this court is to determine whether or not Crown has discharged its burden of proving the offence beyond areasonable doubt. Presumption of Innocence [9] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then andonly then can the court convict an accused person. Where reasonable doubt exists on any element of the offence charged, the accusedperson must be acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [10] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt.

However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard. [11] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. In short, if,based upon the evidence before the court, the finder of fact is sure the accused person committed the offence then the finder of factshould convict, since this demonstrates that the finder of fact is satisfied of the accused person's guilt beyond a reasonable doubt. (See R.v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144) The W.(D.) Formulation [12] I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of theevents which the finder of fact believes, but rather whether, on the totality of the evidence, Crown has proven each essential element ofeach offence beyond a reasonable doubt. [13] Where there is evidence of an accused person that raises a defence, as is the case in this matter, then I must further instructmyself as the finder of fact and I must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 found at paragraph 28: First, if [I] believe the evidence of the Accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the Accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [14] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of

an accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at para. 18). Proper application of the third step involves moving thefocus from the evidence of the accused to the Crown’s evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility.

This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canadarecently stated in R. v.

J.H.S., 2008 SCC 30 , at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2 at para. 7). [15] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [16] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) Assessing Credibility and Reliability of Witnesses [17] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness's testimony, after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [18] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [19] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) Assessment of a Witness's Evidence [20] As noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009ONCA 56 , Watt J.A. explained the difference between credibility and reliability, at para. 41: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [21] There are many factors to take into account when assessing a witness's evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event?

Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on othersources? 5. Was the testimony of the witness reasonable and consistent? Was the witness's evidence consistent with the other evidence inthe case? 6. Do any of the inconsistencies in the witness's evidence make their testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail?

7. Was the witness's evidence plausible? (see: R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395 , at para. 60.) [22] In assessing the credibility and the reliability of those witnesses who have provided the conflicting evidence about the allegedoffence, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [23] In the case of R. v.

Cuhna, 2015 BCPC 60 at paras. 5 and 6, the court provides another useful review of the factors to beconsidered when assessing the testimony of a witness from these three perspectives: Truthfulness [24] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has beenuntruthful; inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with thetestimony of the witness and the attitude and the demeanour of the witness.

However when considering demeanour, it is important toconsider all possible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affectdemeanour. Objectivity [25] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumption of unproven facts, or by subsequent events. Accuracy [26] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations.

The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability. Somewitnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness. The Evidence The Scope of Evidence Addressed in These Reasons [27] For the purpose of these reasons I have broken the evidence into three categories.

a) First what I view as non-controversial background facts that surround this case.

b) Second is the evidence adduced by Crown in support of the Crown's theory of the case which, for the most part, was providedby the Parents and by two neighbours who claim to have seen the offence occurring.

c) Last is the evidence adduced by defence in support of their theory of the case which has been provided by the Accused. [28] For the benefit of all of the parties and their supporters present in court today, it is important to understand the approach that Ihave followed in summarizing the evidence in these Reasons for Judgment. It is the same approach usefully and concisely set out by theHonourable Judge T.S. Woods in the recent decision of R. v.

Connell, 2017 BCPC 123 at paragraphs 5 and 6, as follows: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked. I have, rather, referred to evidence that I consider itnecessary to mention in connection with my factual findings and the legal conclusions that flow from them.

In places I have mademention of evidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is notmentioned in this decision, both Crown and defence may take comfort that the omission is not the result of my not having taken note ofit. I have read all of the transcripts from end to end. I have done the same with all of the documentary exhibits. If witness testimony ordocumentary evidence do not come up for specific mention in these reasons, that is because:

a) The evidence was not relevant;

b) The evidence is to the same effect as other evidence of which mention has been made; or

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to thefacts that I have found and the arguments that are supported by those facts. [6] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed andsomewhat selective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there issubstantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make areversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 atpara. 56; R. v. Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para.

30 . Undisputed Facts and Circumstances [ 29 ] The friendship between the Complainant's Parents and the Accused and his spouse started in the summer of 2016, when the Accused and his spouse moved into the neighbourhood and were welcomed and greatly assisted by the Complainant's Parents R.D. (hereinafter "R.D." or the "Father") and T.D. (hereinafter "T.D." or the "Mother"). The Mother and the Father are collectively referred to as the "Parents". [ 30 ] From that point, notwithstanding the differences in ages and backgrounds between the two couples, the family friendships blossomed.

The relationship between the Father and the Accused was very strong, they both felt they were kindred spirts and formed a very close bond. [ 31 ] The Accused and his spouse were often invited to the family celebrations at the family home of the Complainant's Parents (the "Family Residence"). It was common for the Accused to be visiting and present in and around the yard of the Family Residence for casual, unplanned visits.

Also, regular planned visits took place in each other's homes, including frequent visits by the Complainant's siblings to the Accused's home for such things as tutoring offered by the Accused's spouse. The Complainant's siblings at the time of the alleged events giving rise to the charge were approximately 11 and 9 years of age. The Accused had a particularly strong relationship with the middle child. The older siblings were at times cared for by the Accused and his spouse.

The Accused and his spouse did not care for the Complainant, mainly because of the Parents' concerns that both the Accused and his spouse were cigarette smokers and the Parents were concerned about second-hand smoke affecting the Complainant. [ 32 ] The Accused and his spouse contributed financially to the Disneyland family vacation of the Parents and their three children. The Accused was characterized as being like an "uncle" to the Complainant and her siblings. [ 33 ] The Accused had consumed alcohol prior to his attendance at the Family Residence on the day of the alleged offence.

The Accused was also taking some medication for dental pain. There is a dispute in the evidence of the Father and the Accused about the degree, if any, of the level of intoxication of the Accused. The Accused denies being intoxicated. The Father described him as being noticeably under the influence of alcohol. [ 34 ] The allegation is that the Accused pulled down the Complainant's outer garment and her underwear and then touched her vagina in a sexual manner.

That offending behaviour is alleged to have occurred while the Accused was minding the Complainant and entertaining her with a beach ball at the front of the Family Residence, located at the end of a cul-de-sac, and specifically on the front driveway and in or near the attached garage, all the while the Complainant's Parents were completing a driveway demolition and construction project at the rear of the of the Family Home (the "Driveway Project"). [ 35 ] At the time in question, the garage door was open with a large RV trailer (the "RV Trailer") backed in close to the garage door opening, less than some two feet in distance from the location of the garage door opening.

Half of the garage was filled with motorcycles and recreational equipment and the other half was free of personal property and therefore more easily accessible. I understand that a door led from the garage into the Family Residence. [ 36 ] Also during the period of time that the offending behaviour is alleged to have occurred, the Father, in the course of the Driveway Project, was wheelbarrowing multiple loads of concrete rubble from the rear of the Family Residence to a dump site down the street.

Accordingly, his wheelbarrow route took him along the side of the Family Residence, and therefore only a short distance from the opened garage area.

The offending behaviour is also alleged to have occurred while other neighbours were in the immediate vicinity, and the Complainant's own siblings and their playmates were in the general vicinity of the Family Residence and the cul-de-sac. [ 37 ] Two neighbours, G.A. ("G.A.") and his then 11-year-old son, O.A. ("O.A."), contend that they observed the offending acts from a distance away of some 36 feet, and from an elevated vantage point from the top of their driveway beside their own residence (the "Neighbour A's Residence") while looking down at the Family Residence.

The Family Residence and the Neighbour A's Residence are separated by a fairly wide panhandle driveway which services both the Family Residence and another neighbour's residence ("Neighbour R") that is set back a fair distance from the roadway and is behind the Family Residence. The panhandle driveway runs on the left side of the Family Residence when viewing the Family Residence from the cul-de-sac.

The Neighbour A's Residence is also on this same side of the Family Residence. [ 38 ] In the course of the continuing wheelbarrow trips, the neighbour G.A. engaged the Father in a conversation and reported to the Father (as described by the Father) that he had observed the Accused pulling up the Complainant's "skort", being the Complainant's lower wearing apparel consisting of shorts inside of a skirt which is fitted over underwear (the "First Report"). The Father was somewhat dismissive and unbelieving of any untoward behaviour on the part of the Accused.

However, the Father did follow the advice of G.A., to the effect that the Father should keep the Complainant with him. He took the Complainant by the hand and led her to the rear of the Family Residence where he and the Mother were working. The Accused followed. The Father did not mention to the Accused any of the information reported by G.A. in the First Report.

The Father did say to both the Accused and to the Complainant that the Complainant should remain in the vicinity of the Parents at the rear of the Family Residence. [ 39 ] The Accused then continued to mind the Complainant in the rear of the Family Residence, while the Driveway Project continued with the jackhammering and sledge hammer removal of concrete and the wheelbarrow transport of the rubble to the dump location up the cul-de-sac.

The Father testified that the Accused and the Complainant then followed the Father and the wheelbarrow up the driveway during one of his trips, as the Accused cited safety concerns about the flying debris from the concrete removal striking the Complainant in the eye.

The Accused and the Complainant therefore moved towards the front of the Family Residence, away from the rear and the vicinity where the Mother and the Father were working. [ 40 ] Within a relatively short period of time after having received the First Report from G.A., and while the Father and the Mother continued to work at the rear of the Family Residence, the Father heard G.A. call for him to come immediately to the front of the Family Residence. The Father directed the Mother to go quickly to the front of the Family Residence and fetch the Complainant, which she did.

[ 41 ] The Mother testified that she moved quickly from the rear to the front of the Family Residence and turned the corner towards the open garage. She stated that the Complainant was standing about six feet inside the garage with her hands on her waist, with a grip at the side of her skort. The Accused was standing three or four feet away and closer to the entrance, just inside the opening of the garage, with his hands and arms extended. The Mother and the Accused did not speak.

The Mother asked the child if she needed to go "pee-pee", as she moved the Complainant with her towards the entrance door off of the garage to the interior of the Family Residence. The Complainant indicated that she did not need to go "pee-pee". [ 42 ] Once inside the Family Residence, the Complainant was again asked and again indicated that she did not have to use the toilet. The Complainant and the Mother also had a brief discussion about the Accused and her diapers, which the Complainant was not wearing at that time (the "Complainant's Diaper Statement").

There were no discussions between the Mother and the Accused about the Complainant's pants being pulled down, or any other discussions to that effect.

The Mother left the Complainant to play with her iPad in the Family Residence and returned outside to re-join the Father at work on the Driveway Project. (AUDIO MALFUNCTION AT 11:58:06 A.M.) (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 43 ] THE CLERK: Recalling the matter of J.B.M. [ 44 ] THE COURT: Due to the technological break, I am going to read the last paragraph again. [ 45 ] The Mother testified in cross-examination that she told the police in her statement that, when she entered the garage, she noted that the Complainant's pants "were kind of dishevelled on the top", and further explained that the Complainant's underwear was bunched up and over the top of the tight waistband of the pant portion of the skort. [ 46 ] The Father continued his driveway demolition work and the wheelbarrowing of the rubble.

In the course of doing so, and shortly following G.A.'s loud shout to the Father, and the Mother's immediate attendance to the garage, the Father had a further discussion with G.A. at the end of the driveway at the front of the Family Residence. In the course of that discussion, G.A. reported that he had observed that the Accused had pulled down the Complainant's pants and the Accused had touched the Complainant between her legs (the "Second Report"). [ 47 ] The Father then reported to the Mother that G.A. had observed something that made the Father "feel uncomfortable".

They conferred and decided, somewhat reluctantly (because of the closeness of their families and what may have been a misinterpretation or misunderstanding on the part of G.A.) that they should go over and speak to the Accused and his spouse. [ 48 ] After completing their Driveway Project work for the day and cleaning up, the Father and the Mother went to the Accused's residence. The Accused's spouse greeted them at the door. The Accused was not available, but the Parents spoke to the Accused's spouse for a period of time on the porch.

The Parents did not directly or indirectly confront or speak to the Accused's spouse about what had been allegedly observed by G.A. during the interactions between the Complainant and the Accused, as reported by G.A. to the Father in both the First and Second Reports. [ 49 ] The Parents say that there were some discussions with the Accused's spouse which included her description, apparently obtained from the Accused, about some interactions between the Complainant and the Accused, and the Complainant's behaviour that day while the Accused and the Complainant had been alone together.

There was also a discussion about the Parents' requirements that in the future the Complainant and the Accused should not be alone in private when other people were not around. [ 50 ] At that point, the Accused apparently then opened the front door and joined the Parents and his spouse on the porch. There was a brief exchange between them.

Again, the Parents neither mentioned nor confronted the Accused about what had been allegedly observed by G.A. and being the subject matter of the First and the Second Reports, nor was there any discussion about any prior interactions that day between the Accused and the Complainant while they were alone. [ 51 ] The Parents departed from the Accused and his spouse. The Parents felt disquieted by the discussions which they found to be awkward, especially the Accused's spouse's description about the Complainant's alleged behaviour while in the presence of the Accused.

As referenced in the Accused's evidence, this entailed the Complainant pulling down her own pants in the presence of the Accused. To the Parents, there was a sense that this information had been rehearsed. [ 52 ] The Parents returned to the Family Residence. As a result of the disquieting discussions with the Accused and his spouse, and prompted by the First and Second Reports from G.A., the Parents decided to speak with the Complainant about what had occurred that afternoon.

The Mother and the Father spoke to the Complainant while the three of them were all in the bathroom preparing the Complainant for a bath and bed.

They asked the Complainant some questions and received some answers from her that are alleged to be confirmatory in nature about her pants allegedly being pulled down by the Accused and about him allegedly touching her vagina (the "Complainant's First Confirmatory Statement"). [ 53 ] At that point, and in the absence of the Father, further questions were posed by the Mother to the Complainant and further answers received from the Complainant that are alleged to be confirmatory in nature about the Accused touching her vagina (the "Complainant's Second Confirmatory Statement").

That statement was made while the Mother and the Complainant were sitting together in a living room chair without anybody else present. [ 54 ] Both Parents provided evidence about the circumstances surrounding the making of the Complainant's First and Second Confirmatory Statements, collectively referred to as the "Complainant's Confirmatory Statements". [ 55 ] That same evening and shortly after having received the Complainant's First Confirmatory Statement and while readying the

Complainant for bed, the Father telephoned G.A. to discuss the matter, and then the Parents went to the Neighbour A's Residence to obtain further information from G.A. about the circumstances being the subject matter of the First Report and the Second Report. Further information was obtained from G.A. At that point, G.A. stated that it was necessary to report the incident to the police and he placed the call to the RCMP out of the earshot of the Father. As this was occurring, the Mother returned to the Family Residence to be with the Parents' children including the Complainant.

It was at this point the Mother received the Complainant's Second Confirmatory Statement. [ 56 ] That same evening, Constable Alex Berube attended at the Neighbour A's Residence and took separate statements, first from G.A. in the garage of the Neighbour A's Residence, and then from O.A. in the foyer of that residence with O.A.'s parents present. [ 57 ] Constable Berube then proceeded next door to the Family Residence and took separate statements from the Father and the Mother. [ 58 ] The Complainant was taken by her Parents on May 22, 2018, being the next day after the alleged incidences, to the West Shore RCMP detachment for the purposes of the Complainant giving a video-recorded statement which was taken by Constable Jesse Schroeder (the "Complainant's Video Statement").

The Complainant's Video Statement lasted for about one hour. [ 59 ] It was evident to me when viewing the Complainant's Video Statement, and I found and concluded in the Voir Dire Ruling that: the Complainant had immature language development, during the course of the interview she was easily distracted, it was difficult for her to maintain her focus on the questions being asked, the Complainant demonstrated some comprehension issues and difficulty with some conceptual issues. She was unable to remain seated on her chair and wanted to move around the interview room.

Her primary focus was on gaining possession of her bracelet and playing with it, notwithstanding the efforts of Constable Schroeder to divert her back to the purpose of the interview. She often asked about the whereabouts of her Parents. In particular, the child had difficulty explaining the consequences of not telling the truth. She responded in a fashion that was totally unrelated to the questions asked. She had difficulty about the notion of who were the neighbours.

She did seem to know the Accused, whom she identified by his first name, and his spouse, whom she identified by her first name, and indicated that they lived nearby. She appeared to have conceptual difficulty with sorting out events in a sequential timeframe or whether things that had happened in the past occurred recently or in the more distant past.

There were periods during the interview when she seemed to lapse into some level of childhood fantasy. [ 60 ] The Complainant provided some responses to questions posed by Constable Schroeder about various parts of human anatomy as depicted on a male and a female "gingerbread doll" diagram presented to the Complainant by Constable Schroeder. She was able to accurately describe certain anatomical parts, but sometimes in an inaccurate and very childlike manner, such as describing the mouth and the lips area as the "kissings".

She described both her pubic area and her buttocks as her "bum"; she did not seem to understand the concept of "private parts" being a reference to the genitalia areas of boys and girls, and when asked about private parts, she pointed all over the diagram to various body parts depicted on the diagram. [ 61 ] She did not understand the concept of the age of her brothers, stating that they were four and six years of age. Her notion of colours was "brown and white".

She described everything, from what her grandpa looked like, what her grandpa's truck and his new car was like, the pink bouncy ball that she had played with the previous afternoon, the colour of the bees with which she apparently had had an encounter in the Family Residence or were located in some camping equipment, as being "brown and white". [ 62 ] When asked whether she had been with the Accused "yesterday", she stated "yeah", and then described an event about getting the Accused's "guitar" from the Accused's spouse's room in the downstairs at the Accused's house, but then, when asked what happened, stated, "I went to, I went to die", which of course did not seem to be germane to any relevant or actual event. [ 63 ] Further observations about the Complainant and what was revealed in the Complainant's Video Statement are set out in the Voir Dire Ruling, which are wholly incorporated by reference within these reasons for judgment. [ 64 ] In response to the questioning from Constable Schroeder and specifically to the question as to whether anybody ever touched her "bum butt", the Complainant stated affirmatively that the Accused "did", identifying him by his first name.

She described that "he touched my bum" and when asked by Constable Schroeder to show him how the Accused "tapped your bum", she pointed to the front pubic area on the gingerbread diagram, but when asked what the Accused had tapped her with, she then responded "jus' the toys". [ 65 ] Crown did not seek to have the Complainant's Video Statement admitted into evidence in the trial proper, but used it to establish the requirement of necessity in order to have the Complainant's Confirmatory Statements admitted into evidence in the trial proper.

In doing so, Crown concedes that the Complainant's Video Statement was unreliable due to the lack of sufficient detail provided by the Complainant, her inability to reasonably articulate what is alleged to have happened involving the Accused, her lack of understanding, and her lack of comprehension, and her lack of ability to express herself, and her lack of recall less than one day after the alleged illicit activity. The defence agrees with these multiple deficiencies. [ 66 ] On this basis, I also found in the Voir Dire Ruling that the Complainant's Video Statement was not a source of admissible evidence.

However, based on the Voir Dire Ruling and at the request of the Accused, and with no objection from Crown, the Complainant's Video Statement was admitted into evidence not for the truth of its contents, but rather for the purposes of assessing the Complainant's recall of the alleged events less than 24 hours after they had occurred. [ 67 ] The Mother testified, based upon her continuing and constant observations of the Complainant, that since the alleged incident, the Complainant does not have a memory of the alleged incident.

The Mother has not brought it up to her, explaining that she has refused to do so on the basis that if the Complainant can forget it, then she should be allowed to forget it. Similarly, on the other hand, the Complainant has not mentioned the alleged incident nor made mention of the Accused since the completion of the Complainant's Video Statement. [ 68 ] The evidence is that the Complainant did not sustain any injury from the alleged behaviour giving rise to the charges before this court.

There is no evidence before the court that there were any physical marks, such as chafing or bruising, in the Complainant's genital area following the alleged incident.

The Crown's Case [ 69 ] I have the benefit of reviewing the transcripts of evidence of each of the Father and the Mother given in the voir dire on March 6, 2019 (the "March 6, 2019, Transcripts"), and I will make reference to them. I have also had the benefit of reviewing the transcripts of evidence of the other Crown witnesses provided on other days (the "March 5, 2016, Transcripts") as well as the evidence of the Accused (the "March 8, 2019, Transcripts"). Evidence of G.A. [ 70 ] G.A. ("G.A."), a professional firefighter, resides in Neighbour A's Residence next door to the Family Residence of the Parents.

G.A. is the parent of three children, ages 12 to 16, including his youngest child O.A. ("O.A."), now age 12. [ 71 ] G.A. testified about making two observations of the interactions between the Complainant and the Accused that have given rise to the charges. The First Observation and the First Report [ 72 ] G.A. testified that preceding his first observation (the "First Observation") he and O.A. were attending to their recycling-related chores at the top of their driveway beside their garage at the Neighbour A's Residence.

He made the First Observation after they had been working on the recycling chores for about 30 minutes. The First Observation resulted in what I have referred to as the "First Report" made by G.A. to the Father. [ 73 ] At pages 61 and 62 of the March 5, 2019 transcript he described the First Observation as follows: A Okay. So my first observation was as I -- as I was helping [O.A.] sort the recycling, I was -- I audibly could hear [J.B.M.] requesting [A.D.] to come to the front of the garage, which is located at the -- the front of the [D.s'] residence. He was asking her to come up to the front of the garage.

He had a ball that he was telling her to come look at.

And as I -- as I was sorting the recycling, I was walking up and down the driveway and I could, as I came back up to the driveway, one of my trips down, I noticed that [J.B.M.] was, what I'll say, fumbling around at the front of [A.D.]’s pants -- or, sorry, skirt or shorts, whatever it was, which were partially down, and he -- he appeared to be doing something and -- and I wasn't a hundred percent sure of what it was as I just caught it briefly as I was bringing the recycling back up to -- to the top of the -- or, sorry, coming back up to the top of the driveway from taking our recycling down. Q Okay. Continue.

A So I -- I, at that point, yelled at [J.B.M.] from the top of the driveway or -- or said to him in a firm or loud voice, "What are you doing," or, "What's going on over there," something along those lines, and he said back to me something along the lines of he thought she had peed, and it -- I wasn't comfortable with the situation, so I, at that point, noticed that [R.D.] was coming from the backyard with a load of rubble towards the -- the empty lot that we have in our cul-de-sac, and I went back down my driveway and approached [R.D.] Q Okay. And at this point, you had a conversation with Mr. [R.D.]? A Correct.

At this point, I -- I asked Mr. [R.D]. if he felt comfortable with [J.B.M.] around his kids and said that I wasn't a hundred percent sure what was going on, but I told him what I -- what I had seen . . . [ 74 ] Therefore it was just after making the First Observation, as set out above, that G.A. intercepted the Father and made his First Report to the Father. [ 75 ] G.A. testified further that when he made his First Observation, the Complainant and the Accused were directly in front of the Family Residence garage, in the space between the garage door opening and the RV Trailer.

He further described that the Accused was standing behind the Complainant and that the Accused had his hand in the front of the skirt at her waistband, with her shirt inside his hand, in between her stomach and the Accused. [ 76 ] In cross-examination, he further stated that at the time of the First Observation, the Accused was standing behind the Complainant and reaching over her with his back to the RV Trailer and the Complainant was situated with her back to the Accused, so that the Complainant was also facing towards the open garage.

However, G.A. then went on to testify that the Accused's hand was just inside her waistband, rather than just on the front of the skirt and at her waist.

On Day 2 of his cross-examination, he described how the Accused was reaching over the Complainant's right shoulder with the Accused's right hand, and when G.A. called out the first time to the Accused, the Accused turned towards G.A. and made the comment of "something about peeing", but that it was "a mumble". [ 77 ] Therefore, rather than either being unsure about or not a hundred percent sure of what he had observed by way of his very brief glance and the fact that it had happened extremely quickly (estimating it to be between five or ten seconds), G.A. now indicated that he was "certain" that Accused's hand was inside the Complainant's waistband and that he could see that positioning clearly.

He further stated in cross-examination that when he yelled at the Accused after making the First Observation, the Accused pulled his hand out of her waistband. [ 78 ] He stated on cross-examination that he could not recall verbatim what he told the Father in the First Report about what he had observed during the First Observation. But he was emphatic that he did make the observation that the Accused was "fumbling" around with the Complainant's clothes, and the Accused had his hand inside the Complainant's waistband and that was "exactly what" he told the Father.

However, initially he indicated in the First Report that he told the Father that he "wasn't a hundred percent sure what [he] had seen", explaining that he was unsure what he was looking at because "it was a really quick situation". [ 79 ] When asked in cross-examination to physically demonstrate and describe what the observed "fumbling" looked like, G.A. did so by placing his hand on top of his shirt and his right hand slipped inside the centre of his pants. He stated this was the position he

observed the Accused's hand on the Complainant, and he further said that he observed the Accused's hand moving up and down a couple of times while inside the waistband, and then G.A. went on to demonstrate a circular motion with the same hand.

G.A. denied that what he observed or what he demonstrated looked like the action of "pulling up pants" and further denied that he told the Father that he had observed the Accused pulling up the Complainant's pants. [ 80 ] In cross-examination, G.A. testified that he was not certain where the Complainant was after G.A. started down his driveway away from the Neighbour A's Residence because she was behind the RV Trailer, but in subsequent cross-examination, he stated she remained in the driveway of the Family Residence and that the Accused was starting to move towards the backyard. [ 81 ] G.A. could not recall what he told the police about the First Observation, but specifically he says that he told the police that the Accused had his hands inside her clothing, but he was not sure if he told the police that he had observed the Accused's hands inside the Complainant's waistband. [ 82 ] On G.A.'s second day of cross-examination, he confirmed that he had not observed the Accused pulling down the clothing of the Complainant during the First Observation, and further testified that the Complainant's clothing was not in a "natural position", that being such as when one got dressed in the morning.

He explained that description as being based upon his observation that the Complainant's underwear was: "slightly above her waistband on . . . an outside portion of her clothing and that her shirt was a little bit tucked into the front". However, he then confirmed that he had never given this description to anybody prior to this cross-examination at trial. [ 83 ] G.A. was further cross-examined about the description that he provided to the RCMP Constable Berube that evening about the First Observation.

G.A. had difficulty remembering what he stated and when portions of his statement were presented to him, he suggested that his description given in the police statement was "inaccurate".

That apparent inaccurate portion read in part as follows: . . . out of the corner of my eye notice that [J.B.M.] had, uhm, pulled down [A.D.’s] dress and was doing something with her and at that point I said, "Hey, what's going on over there?" And he said she said she had to pee. [ 84 ] I understand from G.A.'s testimony that, having been confronted with the discrepancy in his first police statement, G.A. now says that his description that the Accused had pulled down the Complainant's dress (that being her lower clothing) was the referenced inaccuracy and that his evidence in the trial is the accurate version.

The Second Observation and the Second Report [ 85 ] Within a brief period of time of the First Observation (but about which time period G.A. had difficulty estimating), G.A. made a second observation (the "Second Observation) of an interaction between the Accused and the Complainant. [ 86 ] His evidence in examination in chief about the Second Observation is found on pages 63 starting at line 30 and continuing on pages 64 and 65 of the March 5, 2019, Transcripts, as follows: A So after we brought more recycling out, we were sorting the recycling again and I took another load down to the bottom of the driveway.

This time, as I came back up to the top of the driveway, I observed [J.B.M.] on his knees in front of [A.D.] with his hand in between her legs aggressively rubbing her vagina. Q Okay. As with the first incident, I took you back, and I want you to provide -- break down that in a bit more detail of how that occurred and what steps and where you were along the way. A Correct.

So as I came to the top of my driveway and I looked over to what would have been my right-hand side, I observed [J.B.M.] and [A.D.] again in the same position at the front of the house in the -- the space between the -- the garage and the travel trailer. The garage door was open at this point. The ball -- I don't know why this sticks [page 64] in my mind, but the pink ball that he had previously been offering to her was laying behind him in the garage door opening. As I came up the driveway, I noticed that, as I said, [J.B.M.] was aggressively rubbing her vagina.

As I got closer, he tugged down at her clothing more to provide . . . better access. Q How were you drawn -- how was your attention drawn to that? A My attention was drawn to this because as I walked up the driveway, I -- my son, [O.A.], was directly in front of me. He had a look on his face that it -- it caught my attention. It -- something wasn't right. And he was looking over in that direction, so I looked over in that direction. Q So it's at that point you saw what you've already described a couple times, then? A That's correct. It's at that point that I -- I saw what I have described.

Q And just on that point, you say -- you said something about, just now, a tugging down further. What do you mean by tugging down further? What was -- what was he tugging at? A He had tugged at her clothing, whether it was shorts or a skirt, I -- again, I said I wasn't a hundred percent sure of it, and her -- her panties, tugged -- tugged them down further to just below her pelvic area. Q So, just to be clear, where were the pants or panties or -- or skirt or -- shorts or skirt that you're -- you're not clear of, where were they when you first saw -- saw them?

A They were down below her hips, still on her body, but below her hips and above her knees. Q Okay. And describe, then, as -- that's what your first observations were. How long did you have occasion to observe what was going on?

A Honestly, it -- it feels like forever. I'm sure it was -- I -- I honestly can't tell how long it was. It felt like time stopped. I -- I would venture to say five seconds that this unfolded. It was, you know, an --

an act in progress, so it was -- it was a -- it was the situation as it was unfolding. Q Okay. And describe the details, then, about where his hands were -- were on her body, if -- if you could. [Page 65] A He had one hand at her hip, on her hip, and with -- I specifically remember with his thumb inside the -- the clothing, the -- the waistband of her underwear and the -- the other clothing, the skirt or the shorts, and he was sturdiering [phonetic] her with that hand and his other hand was in between her legs and he was rubbing her in -- in an aggressive fashion.

Q You use the term a couple of times now "aggressive fashion." Can you articulate or provide a bit more detail what you mean by that? A This is one of those things, actually, that sticks in my mind more than anything was [A.D.’s] body moving back and forth. You can imagine the size of a -- I guess -- I'm guessing a three and a half, four year old, I'm not exactly sure of her age, but a small child in relation to a grown man. Her hips were rocking back and forth. Q Okay. What happened next?

A At that point, I -- I actually had a clear line of sight of J.B.M. and A.D. as well as the back of the [D.] residence where [R.D.] and [T.D.] were. I yelled at [J.B.M.] and I yelled at [R.D]. right afterwards and I started down towards the end of my driveway. I -- and when I got to the bottom of the driveway, [A.D.'s] pants were pulled back up and [J.B.M.] mumbled something, I -- I don't know exactly what it was, and then went to the -- the side back portion of the [D.'s] house.

I told [R.D.] what I had seen and at this point it was myself and [R.D.] and -- and [A.D.] was standing somewhere off to the side and the back of the house between the travel trailer still and [R.D.] took her out of my sight and I believed -- or I -- he -- he said something to -- to [J.B.M.], I'm not exactly sure what it was, but [J.B.M.] left at that point and returned home. I went inside with my son. Q Taking back just a few steps there, Mr.[ A.], when you yelled at [R.D.] and [J.B.M.] from up there, where was [O.A.] during that point? A O.A. was at my side at the top of the stairs still. Q Okay.

And then when you -- A Or, sorry, at the top of my driveway, not at the top of the stairs. Q And then when you went down the driveway -- A Correct. [ 87 ] G.A. testified in his cross-examination that at the time of the Second Observation, the Accused and the Complainant were in the same location at the front of the Family Residence between the rear of the R.V. Trailer and front of the garage door opening. However, the Complainant now had her back to the R.V. Trailer and was facing the garage opening, and the Accused had his back to the garage opening and was facing the Complainant.

The Accused was described as being crouched down by bending at the knees (but not kneeling or being on his knees as described in his earlier testimony), and the Complainant was standing in a "natural position" with her legs apart and her clothing, consisting of her outer garment being the skort and her underwear, remaining unseparated as a intact unit.

That clothing had not been removed but had been pulled down "below her pelvic area" at the front by way of the Accused's hand position in her crotch area; the sides of the clothing remained up, or "hooked at the hip", but with one side higher than the other and still located at her hips.

He stated that, but for the location of the Accused's hands, he would have been able to see the Complainant's vagina. [ 88 ] On day two of his cross-examination, G.A. stated that the Accused had his arms extended with the palm facing up, such that he was moving the back portion of his hand between the legs of the Complainant quite vigorously, while at the same time, with his other hand, he had that thumb hooked inside the Complainant's waistband, pulling her lower clothing down further, such that it was just below the area of her vagina.

Hence G.A. testified that it was accurate to say that the Accused had partially pulled down the Complainant's clothing. He indicated that the Accused stopped when he called out. [ 89 ] G.A. emphasized that he had a clear sight line from his door of the Neighbour A's Residence and near its garage, down to the location of the Complainant and the Accused, in order to make the Second Observation and he even described the location of the Complainant's shoulder as it related to the RV Trailer.

He testified that within seconds of making his observation, he yelled or spoke in a loud voice at both the Accused and the Father from the top of his driveway. He did not hear a response from the Accused. It was obvious to G.A. that the Accused knew G.A. was present. [ 90 ] Thereafter, G.A. went down his driveway and made his Second Report to the Father while they were still standing near the RV Trailer and while the Accused was a short distance away, and while the Mother was taking the Complainant into the Family Residence.

Thereafter, G.A. called an RCMP friend for some advice and then, upon receiving that advice, G.A. called the non-emergency number for the RCMP within about 30 minutes, notwithstanding that he understood the RCMP friend's advice was to immediately call 9-1-1. [ 91 ] G.A. provided a statement to Constable Berube on the same evening that the alleged incident occurred and that the First Observation and the Second Observation had been made. [ 92 ] G.A. was questioned in cross-examination about some discussions that he had with Constable Schroeder in the lobby at the police detachment on May 23, 2018.

He denied any recollection of the details of that conversation, but did confirm that there was a

conversation. [ 93 ] G.A. was again formally interviewed by the RCMP on January 31, 2019. In that second statement made to Constable Berube, he repeatedly, up to some seven times, described the Accused's sexual conduct towards the Complainant as "aggressive or aggressively". G.A. conceded that he had not used either of those words in his original statement to Constable Berube on May 21, 2018.

However, he contended that he was not "enhancing" his description of the alleged sexual interaction between the Accused and the Complainant, as was suggested by defence counsel, but rather those terms were consistent with his "very vivid memory" of what had occurred. [ 94 ] G.A. was further cross-examined about the second police statement that he provided on January 31, 2019, and in particular his description about the Second Observation, which read as follows: "[J.B.M.] pulled her pants back up and obviously stopped touching her." [ 95 ] Defence put the proposition to G.A. that he had previously testified that he had not observed the Complainant's pants being pulled up.

He acknowledged the discrepancy and then explained that discrepancy by saying that it was "an assumption" on his part. [ 96 ] In cross-examination, G.A. agreed that he "made it a preoccupation to repeatedly remind [his] children of child safety", but denied that he expressed a concern about "molestation" or that his children were very alert to that idea. [ 97 ] In cross-examination, it was put to G.A. that "for some unknown reason [he] had a real negative attitude towards" the Accused. He denied that to be the case.

He was then presented with his first statement to Constable Berube and the passage that read as follows: That son of a bitch intentionally baited to her out to the front of the garage with a beach ball that he had. And the further passage that read as follows: That asshole was purposely trying to separate that little girl from her family to do this to her. [ 98 ] G.A. acknowledged that he had made those statements.

He further conceded that he had "imputed to [the Accused] that he was intentionally baiting" the Complainant and this was his opinion based upon his observations. [ 99 ] G.A. was further cross-examined and the suggestion was put to him by defence counsel that he had influenced his son O.A. about how O.A. should interpret what he had seen and what he should say about the observed incidences.

G.A. denied that but did admit that he was present at the commencement of the interview with O.A., and accepted that on the second page of the three-page statement of O.A., that he is recorded as saying to O.A.: Tell him what you saw, Bud, it will help out [A.D]. Evidence of O.A. [ 100 ] As noted above, O.A. ("O.A.") is the now 12-year-old son of G.A. O.A. is in Grade 7. He resides with his parents in the Neighbour A's Residence. He described his two observations of the interaction between the Complainant and the Accused.

He was making his observations during the course of completing his recycling chores with his father, G.A., in the early evening. There was a lot of recycling sorting required, which included taking recycling bins down the driveway of their residence to the cul-de-sac. [ 101 ] The interaction between the Accused and the Complainant giving rise to the First Observation was some 45 minutes into the recycling the chores. O.A. says that the Second Observation occurred some 30 minutes after the First Observation. O.A. was at the top of the driveway of the Neighbour A's Residence for both observations.

He indicated that there was no shadow coverage of the area immediately outside of the garage door opening of the Family Residence or covering the RV Trailer. The First Observation [ 102 ] O.A. testified that at the time that he made his First Observation (as a result of taking an "incidental look"), both the Complainant and the Accused were located in the same area between the RV Trailer and the garage door opening. He placed the Complainant as being closer to the garage with her back towards the garage door opening and facing the Accused. The Accused had his back towards the RV Trailer.

In the course of the interaction, being the subject matter of the First Observation which O.A. described as the occurring very briefly (but further described as being for an estimated period of 10 to 15 seconds), the Accused pulled out the Complainant's pants in the area of her waist and looked into the front of the pants, but there was no pulling down of the pants, there was no pulling up of pants, and there was no contact with any part of the body of the Complainant. Then G.A. called out to him and inquired about what was going on.

The Accused turned and faced towards the direction of Neighbour A's Residence and, in doing so, the direction of O.A. and G.A. O.A. recalls the Accused saying that he was looking for a diaper and then terminated making his diaper inspection. [ 103 ] O.A. recalls "quite a little bit of a conversation" between the Accused and G.A. about the Complainant and her diaper and about "peeing".

Thereafter, the Accused turned his back towards G.A. and O.A., such that he was facing away from them, and moved in such a manner that the Complainant was then in a position behind the Accused, and so he was standing between the Complainant and O.A. and G.A., and therefore blocking their view of the Complainant. [ 104 ] O.A. agreed that he had heard the Complainant speaking in "an excited child way", words to the effect "no diaper, no diaper", while she and the Accused were in the vicinity of the open garage and the RV Trailer. [ 105 ] O.A. agreed that the Accused was aware of O.A. and G.A.'s presence looking down at the Family Residence.

The Second Observation [ 106 ] O.A. described what was referred to as the "beach ball incident", which immediately preceded the "touching incident", and all

being the subject matter of the Second Observation. [ 107 ] O.A. testified that after the first interaction, being the subject matter of the First Observation, he and G.A. were keeping an eye on the Accused from their vantage point above the Family Residence and were "suspicious" of him. [ 108 ] O.A. agreed that there was a significant amount of ongoing jackhammering, knocking out, and removal of concrete, and back and forth trips by the Father in the course of hauling debris to the front of the Family Residence, all incidental to the Driveway Project that had continued throughout the afternoon.

O.A. confirmed that, in the course of those trips, the Father was passing by the open garage and proceeding up the cul-de-sac. During this same period of time, O.A. had also been interacting with the Complainant's siblings who were also in and around the Family Residence. [ 109 ] O.A. said that another 30 minutes had passed after the First Observation when he noted that the Complainant was in the backyard area with her beach ball, which had been her toy of focus that afternoon and which she had carried and played with for an extended period of time.

At that point, O.A. says the Accused grabbed the beach ball and rolled it around the corner to the front of the garage opening. A somewhat different description was also provided, to the effect that it may have been that while at the front of Family Residence, the beach ball rolled down the driveway towards the backyard and the Driveway Project, and thereafter the Accused called to the Complainant to come to him and to return towards the front of the Family Residence.

At this juncture, and all within 35 or 40 seconds, the Complainant and the Accused moved into the same position between the garage door opening and the RV Trailer. [ 110 ] O.A. testified that he had "spun around" from his recycling chores and observed the Accused was positioned standing with his back towards but not touching the RV, and the Complainant was in front of him with her back to the garage opening.

The Accused pulled down the Complainant's pants and underwear all the way down to her ankles with both hands, thereby exposing her vagina, and touched her in her vagina with both hands and also using just one hand, all the time in the plain view of O.A. and G.A. The touching involved poking and rubbing of the Complainant's vagina, which continued for some 15 to 20 seconds, and even after G.A. had almost immediately called out to the Accused for the second time asking what the Accused was doing. The Accused did not stop. O.A. recalled no verbal response being forthcoming from the Accused.

According to O.A., the Accused remained standing during this touching of the Complainant and so long as O.A. made his observations, and not kneeling or crouching. [ 111 ] O.A. was questioned about the location of the touching on the Complainant's body and initially described it as her waist, and upon further questioning, stated it was in an area that started out in the same location that would be at the top of his pant zipper, and ultimately he identified it on a "gingerbread man" sketch as being lower and in the Complainant's pubic area.

He seemed somewhat embarrassed to make that location identification, but was not in any way being evasive. [ 112 ] At the direction of G.A., O.A. went inside of the Neighbour A's Residence within 20 seconds of having made the Second Observation and did not discuss it with G.A.

O.A. subsequently provided a statement to the police later that evening, during which time he says both of his parents were present, but he had not talked to them about his observations prior to providing his police statement. [ 113 ] O.A. was questioned about whether or not he had been warned by his own parents about not having contact with the Accused. He agreed that such was the case and that his own parents were suspicious of the Accused. O.A. said that he also was "kind of suspicious" of the Accused, and that such had been the case since the Accused had moved into the neighbourhood.

Essentially O.A. stayed away from him, although O.A. conceded that there had not been any incidences which would give rise to those concerns. O.A. agreed that he was "hyper concerned" about the Accused, describing it as follows: "I just always felt off about him." [ 114 ] O.A. recounted that his Father often spoke to him and emphasized about being wary of strangers and not talking to them. [ 115 ] In response to defence's suggestion that the events did not occur as described by O.A. and that he had come to believe it because everyone seemed to think it had happened, O.A. responded as follows: " No.

I know what I saw." Evidence of the Father [ 116 ] The Father is a civil servant and a regional director with a provincial Ministry. He is also a certified paralegal. He previously was an active reservist with the Victoria Police Department and is a volunteer firefighter in his local community.

He was encouraged to apply for that position by his neighbour G.A., who is a full-time firefighter with the same fire department. [ 117 ] In the course of providing his evidence about the close relationship between the Accused and his spouse and his own family members, the Father also provided evidence about the alcohol consumption of the Accused.

He testified that the Accused consumed alcohol every day starting after lunch, such that by the time the Father was in the company of the Accused at the end of the Father's workday: "he'd be into a few of his cups, he'd call it; vodka mixed with juice." The Father testified that the Accused was never rude or belligerent, nor was he a "bad drunk", but actually a "very friendly drunk".

Accordingly, the Father stated that the Accused's drinking habits were not an issue of concern for the Father [ 118 ] On the day of the alleged incidences, the Father observed the Accused when he arrived at the Family Residence in the late afternoon, which was quite common. The Accused had his usual "stainless steel to-go cup with vodka and juice in it".

The Father testified that he knew the Accused had been drinking because he was "stumbling around a bit", but "not to the point that he was falling over but definitely to the point that he had maybe a few too many drinks at that point already." The Father's observation was that the Accused was "drunk", "not being incapable of standing up, but definitely drunk beyond on one or two drinks." [ 119 ] The Father described that the Accused was minding and playing with the Complainant, who was engaged in rolling a pink beach ball on the panhandle driveway between the garage area of the Family Residence and the area towards the direction of Neighbour R's residence.

That was the same panhandle driveway that the Father was utilizing to move the concrete rubble from the rear of the Family Residence requiring, the Father said, was an estimated 15 to 20 trips over the course of the afternoon. [ 120 ] The Father described how G.A. stopped the Father at the end of the driveway. At that point, G.A. began to make his First Report and described his First Observation. G.A. initially engaged the Father with the questions of: "How comfortable are you with

[J.B.M.]? How comfortable are you with [J.B.M.] and your kids? . . . Do you trust him?" The Father described a shocked look on the face of G.A. during this exchange. [ 121 ] The Father said he initially was defensive about the Accused and indicated both comfort and trust in him, and was also somewhat dismissive about the concerns being expressed by G.A.

At this point, G.A. mentioned to the Father that he had seen the Accused "pulling up" the Complainant's skort, being the combined shorts inside a skirt. [ 122 ] The Father stated that he was in disbelief, but did follow G.A.'s advice of keeping the Complainant with him. At that point, he led the Complainant back to work area at the rear of the Family Residence where he and the Mother were working on the Driveway Project, and he then indicated to the Mother that the Complainant should remain in that rear area. The Accused followed behind.

The demolition work on the Driveway Project and removal of debris continued, and the jackhammering and sledge hammering of a portion of the concrete driveway. [ 123 ] After about 20 minutes, the Accused made a comment to the Parents that, for safety concerns, he suggested that the Complainant should be away from that demolition environment to avoid getting any flying debris in her eyes. The Father accepted that suggestion as being one of genuine concern for the safety of the Complainant.

At that point, the Accused and the Complainant followed the Father up the panhandle driveway as he was moving the load of debris towards the dumpsite. Accordingly, the Accused and the Complainant were together with a beach ball towards the front of the Family Residence at the starting point leading from the cul-de-sac into panhandle driveway and in the area at the entrance to the open garage. [ 124 ] The Father continued with transporting the loads of debris by wheelbarrowing them along the panhandle driveway, past the garage door entrance.

The Father was with the Mother at the rear of the Family Residence when he heard G.A. yell to him to get to the front of the Family Residence. The Father dispatched the Mother to go quickly to the front of the Family Residence, whereupon the Mother took the Complainant into the Family Residence. [ 125 ] The Father continued to wheelbarrow the rubble up the driveway when he was once again stopped by G.A. The Father observed the look of "pain, fear, disgust all wrapped up in one" on the face of G.A. At that point, G.A. made his Second Report to the Father about the Second Observation.

The Father stated that G.A. told him that the Accused had pulled down the Complainant's pants and that the Accused had touched the Complainant between her legs. This same description was provided to the Father by G.A. later that evening after the Parents' subsequent visit to the residence of the Accused and the discussions with the Accused and his spouse on their porch. [ 126 ] The Father testified in cross-examination that the Complainant was not able to pull down her own pants.

The Father also testified that he and the Mother were responsible for dressing the Complainant. [ 127 ] In further cross-examination, the Father testified that the Complainant was out of diapers and was reliant upon the Parents to take her to the toilet when required, and that the child would indicate that both verbally and by the action of touching her crotch about the necessity to go to the toilet. [ 128 ] The Father stated that he did not hear the Complainant make any comments to the effect, "no diapers no diapers".

Complainant's First Confirmatory Statement as Described by the Father [ 129 ] The Father provided the following evidence about the Complainant's First Confirmatory Statement. At pages 21 and 22 of the March 6, 2019, Transcripts, starting at line 22 on page 21 and continuing to line 19 on page 23, the Father testified as follows: . . . And so we went home, we went in the house and we were going to get [A.D.] ready for a bath, shower.

We were in the bathroom and [T.D.] and I were talking to [A.D.] and asked her and said, "Did you pull down your pants or did [J.B.M.] pull down your pants?" And she responded, "[J.B.M.] pulled down my pants." Q And you said, "we asked her". Who asked her? A [T.D.] asked her specifically. I was there with -- Q So you just heard this question and -- and answer? THE COURT: Is that right? You were there and heard the answer; is that right? A Yes, sir -- THE COURT: Okay. A -- I was standing behind [T.D.] and [T.D]. was at eye level with [A.D.] [A.D.] was sitting on the toilet. But I -- it -- MR.

MERKE: Q Okay, what else? A And so it -- very common for me, I helped [A.D.] bath all the time. It was not abnormal, I was there. And so I took off [A.D.’s] pants the same way I had always done and I had asked her to point to me where [J.B.M.] had touched her. And [A.D.] pointed to her vagina and said to me that [J.B.M.] had touched her on her bum; that I asked myself. And [page 22] then I remember in that moment, it became very real for me. Q Okay, let's talk about -- I'm just going to ask you about [A.D.'s] answer there. So [A.D.] -- you said she pointed to her vagina and said [J.B.M.] touched her bum.

A Yes. Q Her bum, is that a term that she -- what -- what does she -- what is that -- how do you know her to use that term? A [A.D.] being three and a half or a little older, she referred to her whole private area as her bum. Q And is that how she would normally refer to it? A All -- always to that point. Today she understands the difference because [T.D.] and I have spent a lot of time educating her on her private areas and who can and can't touch them.

But at that time, that was all she understood her private areas to be referred to as her bum. [ 130 ] In the Father's cross-examination, starting at page 37, line 21 to 47, and continuing on page 38 of the March 6, 2019, Transcript, starting at line 1 and continuing to line 31, he testified further as follows: Q . . . Now it's my impression, you tell me whether this is correct, from the description of your day that you gave us earlier, that at some point you asked [ A.D.] some questions? Yes? A Yes. Q Pertinent questions? So it was obvious you were bearing down on that and being serious with her about that?

A I -- we -- my wife had asked her a question, I had a follow-up question. I don't believe that we at any point presented to her in bearing down fashion. I asked her nonchalantly and she provided an answer. Q But the three of you were in the bathroom at the time? A That's correct. Q And at some point when you're in the bathroom, you actually pulled down her pants? A I did. Q How long do you think you were in the bathroom, the three of you together? A Estimate two to three minutes.

Q Now every child is different, of course, but do you have anything to say about [A.D.] and her sense of responsibility when she's pressed about possible wrongdoing and so on, how did you experience her in that respect? [Page 38] A [A.D.] is a sweet little girl who doesn't do wrong very often, and this is -- she's not in a situation where she's being -- how did you use the word, both of us disciplinary. I didn't have any impression that day that she felt any different. Q What about her ability to focus on questions? A At the time in question, she fully understood what we were asking of her.

Q That was your belief, right? A My belief as her father. Q All right. And you said that, if I understood your testimony correctly, that she used the term bum to refer to anything in the lower sort of pelvic area? A Below the waist, yeah. Q Below the waist? A Yeah. Q Yeah. A Like below her waist, above her thighs, like -- Q Front and back? A The private area, that most people consider private, yes, sir. Q Front and back? A Yes. Q Yes, okay. She certainly didn't use the term vagina?

A No, sir, that was mine. I said that to you when she pointed to the spot between her legs, which is her vagina. Q Yes. A And referenced it as a bum. Q Yes. Now did she take care of her own hygiene at that time? A No. [ 131 ] Continuing in cross-exam, at page 42 of the March 6, 2019, Transcripts from lines 3 to 43, the Father continued to describe the circumstances surrounding the Complainant's First Confirmatory Statement as follows: Q You questioned [A.D.] that night? A My wife and I together had a conversation with [ A.D.] -- Q In the bathroom? A -- and I asked her a question following.

Q In the bathroom, and the two of you were focusing on [A.D.] at the same time? A Yes. Q And your initial question of her was, did she pull her pants down or did [J.B.M.] pull her pants down? You gave her a binary option, did you? A I am not sure what you mean by that. Q You gave her a choice of two. A Okay, if that's what it means -- Q Is that right? A -- then yes. Q Is that -- is that in accord with your memory? A It was my wife that asked the question. I was present. That how I recall it. Q And [A.D.] had a smile on her face at that time?

A When [A.D.] responded to the question, she had a smile on her face, as if it was no big deal. Q Right. And it was shortly thereafter that you pulled her pants down to get ready for the shower? A Yes, sir. Q This all happened within a couple of minutes? A Yes. Q And was it your wife doing the questioning throughout that two-minute period? A Like I said, my wife asked [A.D.] some specific questions about what happened. I provided you with the evidence of what I recall. I provided you the evidence of what I asked. Q Yes. Did you do anything to focus [A.D.] on the timeframe that you were talking about? A I did not.

Q Or your wife? A You'd have to ask her. Q You don't recall anything your wife said that focused on the timeframe? A I do not recall. Evidence of the Mother [ 132 ] The Mother testified she was primarily responsible for dressing and undressing the Complainant. On the day in question, the Father had been responsible for dressing the Complainant. At the time of the alleged incident, the Complainant was no longer wearing diapers.

[ 133 ] She also described in similar terms about the Complainant's toilet routine and the fact that the Complainant would both verbally and by motion indicate her necessity to use the toilet, and on occasions the Parents would ask the Complainant if she had to go to the toilet using the term, "Do you need to go pee-pee?" The Mother also described that it was common for the Complainant to approach them and essentially request their permission to go to the toilet, to which the Parents would explain that it was not necessary to seek that permission.

The Complainant would also request that the Parents pull down her pants in order to enable the child to utilize the toilet. [ 134 ] The Mother confirmed in her evidence that there was a concern about the Complainant being around the Driveway Project and the demolition that was occurring, and that further that both she and the Father were initially expressing concern to each other and to their other children about the Complainant being too close to the demolition activities.

Hence, the request was made of the Accused by the Parents to watch over the Complainant. [ 135 ] In her testimony, the Mother described how she ran to the front of the Family Residence at th

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