R v. D. B., 2012 NSPC 78

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. D. B., 2012 NSPC 78 Date: 2012-08-02 Docket: 2303974, 2303975 Registry: Bridgewater, NS Between: R. v. D. B. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Judge Gregory E.

Lenehan Heard: August 2, 2012, in Bridgewater, Nova Scotia Written decision: September 13, 2012 Charge: 266 CC, 151 CC Publication Ban: S. 486.4 CC - Ban on Publication of any information that could disclsoe the identity of the victim and/or complainant Counsel: Leigh-Ann Bryson, Crown Attorney Barry Whynot, Defence Attorney By the Court : [ 1 ] This is the decision in the case of the Crown versus D. B. B.. Mr. B. is charged with having committed offences contrary to Sections 266, you can just have a seat sir, Sections 266 and 151 of the Criminal Code .

I will make a few preliminary comments prior to giving my decision. [ 2 ] The cornerstones of our Criminal Justice System are: 1. The presumption of innocence and 2. The requirement of proof

beyond a reasonable doubt. These principles reflect our society ’ s belief that no person should ever be convicted of an offence for which he did not commit. And the corollary to that is it is far more desirable that a guilty person should be acquitted before an innocent person should ever be convicted. [ 3 ] In criminal trials, as in this one, the burden rests throughout with the Crown to prove the allegations. That is, to prove beyond a reasonable doubt the offences that have been charged. In this trial the defendant has been charged that on or about the 2 nd of April, 2011, at or near C., Nova Scotia, he did commit an assault on A. B. contrary to

Section 266 of the Criminal Code , and furthermore for a sexual purpose, touch A. B., a person under the age of 16 years directly with a part of his body, to wit his fingers, contrary to

Section 151 of the Criminal Code. [ 4 ] The Defence is not required to prove anything beyond a reasonable doubt. The Defence is entitled to put the Crown to the strict proof of the offences charged and the Defence need not call any evidence of it ’ s own. When the Defence choses to call evidence on it ’ s behalf, as in this case, the Court must assess the entire case before it having regard to the guidelines set out in the case referred to as R v. W.D. . [ 5 ] To summarize those guidelines.

When the defendant testifies, and what is given in testimony could amount to a defence to the charges, the Court must if it believes the defendant, find the defendant not guilty. If it does not believe the defendant but what the defendant stated could reasonably be true and it creates a reasonable doubt find the defendant not guilty.

If the Court does not believe the defendant and does not find what was presented by the defendant could reasonably be true otherwise, the Court must still assess the entirety of the testimony presented at trial and can only convict the defendant if the court is satisfied that the evidence accepted as trustworthy and accurate establishes beyond a reasonable doubt the essential elements of the charges alleged. [ 6 ] I ’ m going to take a few moments to review the testimony. I heard from Dr. John Grant, a pediatrician from the I.W.K. Children ’ s hospital who examined A. B. on the morning of April 3, 2011.

A. appeared to be crying and nervous. She made no eye contact with the doctor and would not talk at first. Dr. Grant assessed A. as a healthy girl. She had no signs of bruising, scratches or tearing of her vaginal area. Dr. Grant found no tissue damage. [ 7 ] Next, I heard from A. B.. She testified from outside the courtroom via video and audio conferencing. She had a support worker sitting with her during her testimony. That support worker did not otherwise participate in the trial process. A. testified that she is six years old and lives with her mother and brother.

She was at court because her neighbour D. touched her in the pee-pee. When touched, it hurt. It happened in her house. A. told D. to stop, after she said stop really loudly, he did stop. The touching made A. feel made. After Uncle D. let her go she went to her mom, her mother hugged her. After this, she did not see Uncle D. after this. Uncle D. lived with them. A. said the touching happened on the couch. She pointed to her crotch area to show where her pee-pee was. A. has one Uncle D.. She played cards with her Uncle D.. Her brother jumped on Uncle D. ’ s stomach.

There is another D., a nice guy who did not touch her in the pee-pee, who has never lived with A. and her mother. She still sees the new D.. A. said Uncle D. had a bedroom in their place across from another bedroom. In cross-examination A. agreed she had a birthday party in February and a neighbour who goes on her bus was at the party. As well, more people she didn ’ t know. A. lives in C. but could not say where that is. There are sheds on the property. A. was asked about the number of pets she had. A. was asked to detail the bedrooms in her house. She said one has nothing in it.

D. ’ s bedroom has all the stuff they are selling and there is the bedroom she sleeps in. A. denied wrestling with her Uncle D.. She did not play fight with him because Uncle D. was too strong. She was asked if they had a wood stove. A. said no. A. then agreed there was a stove and that they put wood in. A. was questioned about playing computer games and or a playstation in Uncle D. ’ s room. A. said Uncle D. did not live next door, then there was questioning about who the neighbours were. A. confirmed D. did not wrestle with her or push her on the swings, that ’ s her Uncle D..

A. said the touching happened on the couch in the living room. It was light outside, she thinks it was the morning. There was only one couch in the house and A. said she was wearing a pink shirt, pink pants, pink socks and shoes. There was more questioning about her pets. A. said when the touching happened her mother was at home on her computer but A. could not see her mother. [ 8 ] Next to testify was K. P., A. B. ’ s mother. Ms. P. testified with the assistance of her own hearing enhancement device. Ms. P. said she lived in C., [...] County, with her son and her daughter.

She said that A. ’ s birthdate, her daughter, is February *, 2006. Ms. P. says A. has one Uncle D., the defendant, and she identified Mr. B. in the Courtroom. She says that D. B. had lived with her from July, 2010 until April, 2011. He had moved in with Ms. P. and her family because D. B. could not afford to live on his own. During the time D. B. lived in Ms. P. ’ home, Mr. B. ’ s girlfriend also lived there, but that was only for about four months, and that the girlfriend was not

living there in April of 2011. Ms. P. described the physical set up of her home and where the rooms were located. Ms. P. indicated that on the day of A. ’ s complaint, Ms. P. was in the living room when shortly before midnight A. entered the room complaining about being sore in her pee pee. And just so it is clear, pee-pee is the vagina. It seemed like a long time that A. complained. Ms. P. asked A. why she was sore and A. responded she didn ’ t know. Ms. P. asked A. direct questions. Finally A. told Ms. P. what happened. Ms. P. took A. to the IWK Children ’ s Hospital to be checked out. Ms.

P. says A. appeared nervous and upset. She wanted cream on her vagina to make it better. Ms. P. stated that one time before A. came to her because A. ’ s pee-pee was sore but that was after a bubble bath and Ms. P. assumed that had irritated A.. On the date of this complaint it had been some 48 hours since A. had last had a bubble bath. Ms. P. says on the day of the complaint that the persons at the home in C. were A., Ms. P., her son, and D. B.. The children slept in the same room. Ms. P. was in the living room and D. was in his room. She says that A. had spent the day playing in the house with toys and dolls.

D. B. had stayed in his room and he did not come out very often. Ms. P. said her children loved their Uncle D.. He was like a big brother to them. He played with them and played games with them. Ms. P., when she was trying to find out from A. why her pee pee was sore, said she picked up a doll and pointedly asked A. if someone had touched her. She had to ask A. three to five times before A. answered with the defendant ’ s name and showed on the doll where on herself she had been touched. Ms. P. says D. B. was in his room when A. made her disclosure. D. B. was sitting in total darkness. Ms.

P. says she did not talk to Mr. B. about the allegation. Ms. P. focussed on getting A. medical attention. She says that her husband wasn ’ t at home at the time, he was in the city with his parents. Ms. P. testified that she and D. B. had had some moments in their relationship but there had been no conflict on the day of A. ’ s complaint. Ms. P. confirmed that D. had a television and video games hooked up in his room. She said that A. loved her Uncle D.. Ms. P. actually said that A. adored him. When questioning A. about being touched, Ms. P. did not suggest any names. Ms.

P. did not examine, physically examine, A.. On the way to the I.W.K. they happened to drive through a police check point. She said that since the complaint there have been discussions with A. about the incident, but only when brought up by A., and that the details were not discussed. There was further testimony about Ms. P. ’ s relationship with her deceased husband, about his employment and his death. There was also questioning of Ms. P. about conversations and confrontations at, or after her husband ’ s funeral. Ms. P. testified that D. B. kept the wood stoves going in the house and garage.

He would do so when asked. Ms. P. stated she had a desk top computer in the living room on a computer desk that was a few feet from the couch. Ms. P. also had a laptop computer kept usually on the end table by the back wall of the living room and sometimes the laptop would be on the couch, and sometimes in her bedroom. What people had for supper that night, the night of the complaint, could not be recalled by Ms. P.. Ms. P. did not notice anything different in the way in which the children had interacted with Mr. B. on the day of the complaint. [ 9 ] Mr. B., the defendant, was the last to testify.

He confirmed possessing a criminal record unrelated to the charge before the Court. He stated he suffers from Epilepsy and loss of memory. He testified he was diagnosed 14 years ago with paranoid schizophrenia. Mr. B. says that he takes several different medications to address anxiety and depression, but he has not taken medication for schizophrenia for 6 years. Mr. B. said he consumes marijuana on a daily basis to help calm him down. Mr. B. said A. B. is his niece, he was uncertain how old she was, he indicated that it is difficult to remember some stuff. Mr.

B. testified that he repeats things, he talks to himself in order to help calm himself down, and during questioning, he repeated the questions to himself. Mr. B. said he lived with Ms. P. and his brother, S. B., in C.. The move to his brothers place was at the suggestion of D. B. ’ s doctor. Mr. B. talked about his work history, his income, and the money he gave to Ms. P. and S. B. for rent. D. B. said he smokes three to four packs of cigarettes per day. Mr. D. B. also said that his girlfriend moved in with him for about a month and a half while he was living with his brother and Ms. P. in C.. Mr.

B. testified about his typical day involving waking, making sure wood is in the wood stove, and if there is no work for him he would stay at home. If there was work for him, he would go to it. He said the kids would come in and play and later he would go out to the shed, sometimes for four to five hours and that was largely to smoke his cigarettes. He said that the fire in the woodstove in the house would be kept going all the time. Mr. B. stated that his brother S. was not at home on April 2, 2011. He indicated that his brother and Ms. P. had been fighting and that his brother, S.

B. had been in Halifax for about two to three weeks before April 2, 2011. Mr. B. said that three or four days after his release from custody he learned his brother had [...]. Mr. B. talked about horseplay with A. and her brother. Flipping them on his bed, and he said that the kids were like his own, and the kids played games such as Play Station, but mostly it was his nephew, not A.. He said that his nephew was actually a wizard, not his exact words, on the Play Station. Talking about the day of April 2, 2011, Mr. B. said he was usually up at 10 or 11 in the morning.

He would never eat lunch, only supper, and in the house that day were K. P. and the kids, besides himself. Mr. B. testified to K. P. ’ s routine which was she made sure kids were dressed every day, let them play around, then she would watch television and be on the computer all the times. There were two computers in the house, Ms. P. laptop and there was a desktop computer in the living room for the kids. Mr. B. also indicated that he had his own laptop which he kept in his room. He says the couch in the living room was L-shaped. Mr.

B. actually drew a sketch of the house, and while explaining the diagram he indicated he was getting really mixed up. Mr. B. said he did not spend time in the living room, he spent time in his bedroom or the shed. And, on April 2, 2011 he got to the kitchen to have tea, checked to see if anyone was around, went into the living room to see if people were there and to say hi to K.. He said he would usually go outside. He says that A. was at home all the time, at the time. Mr. B. was asked about April 2, 2011 meals. He did not eat supper with the family. Mr. B. said he was not, said that K. was not a good cook.

He said his brother only took off to Halifax two weeks before the end of the month. Mr. B. said at supper K. was going to Halifax to find out where S. B. was and was taking the kids with her. After supper Mr. B. went out to the porch and had a cigarette. He went in the house and told K. P. he was going out to the shed, went to the shed. When he went back to the house Ms. P. and the kids were gone. And then testimony from Mr. B. was he ate supper by himself, and after supper he went back to his room, then out to the shed. When he woke up the next morning, they were gone.

Then he clarified that that supper was the night he ate alone. Mr. B. said he was never alone with A. on the couch. He never went in the living room except to ask K. something. He never touched A., there was never an accidental touching. He would not touch any kids. He would not touch A. ’ s vagina. He never touched A. ’ s vagina. He never touched A. ’ s bum. Mr. B. never struck or pushed A., only when she would come in to wrestle. About being alone in the house the next day, Mr. B. stated he thought K. P. either went to work or had gone down to her neighbour. He says

the police had arrived one day after K. and the kids had left. Mr. B. said he is not the type of person to do this type of thing, this sexual interference. On arrest Mr. B. was taken to Bridgewater Police Station and was released on an undertaking. He said he moved into a rooming house in [...] and stayed there for about five months and then he moved in towards Halifax. When he moved into Halifax, that was when he heard about his brother [...]. About the night of April 2, 2011 after supper, Mr. B. added he went out to smoke a joint. He used marijuana to calm down and that he was stressed out.

He said he went out to the shed. He stayed there until he went to bed. On cross-examination, Mr. B. stated K. P. was helping him to get his license to have medical marijuana. He said he had a good relationship with K. P.. She looked after his money, his medications, and provided supper when S. was not home and she did his laundry half the time. Mr. B. testified he was never alone with A.. Mr. B. said K. was always in the living room and the door would be closed on the computer and/or she would be watching television. Mr. B. ’ s door was always open. Mr. B. acknowledged he was Uncle D. to A. and her brother.

With regards to April 2, 2011, he did not remember the day well. He recalled he went to the shed and stayed most of the night. Everybody was gone when he came back in between 11:30 pm and 12 midnight. He said the kids were in bed every night between 8 and 9pm. With regards to whether or not he had spent time with the kids after supper on April 2, he said that if he did it was only because the kids came in to play with him. He said that he told K. he was going to the shed for a while.

He said it ’ s a chance he could have played with the kids but there ’ s a chance he could not have, and he says he was only in the house to put wood in the stove and to eat. The only time he would touch the kids was when they came in the room, or, that would be to play, or when he would hug them in front of their parents. With regards to playing with the kids on April 2, it would have been doing their normal things. He does not have a lot of memory for a lot of days spent, that he would spend an hour or two in the shed after playing with the kids.

He says he got up around 11 or 12 each day and anything that was going on would be heard, anything going on in his room would be heard because his door was open all the time. And if anything did happen, somebody would hear it because there would be screaming, and he said that his brother should have heard something. After supper he was talking about his nephew and A., he said they had a bath every day and they got dressed in their mother ’ s room.

With regards to horsing around, he said it involved the kids jumping on his back, him flipping them over onto the bed and then back they would get on his back and do it again, and that happened every day. He says that A. was with her mother all the time and he would be in his room until 1 or 2 o ’ clock in the afternoon every day. He did say that he played cards with A. a long time ago, the game of Go Fish. He described the type of game and he said that it took place at the kitchen table with K. P. being in the living room. With regards to being alone with A., he acknowledged he would be alone playing cards.

If he was, J., the brother, was in the house and went off to the bathroom, that that was a possibility. He did acknowledge that a couple of times he did babysit the kids. He says that he was never home alone with A. and he said that “ I ’ m never alone with A.. ” [ 10 ] A few words need to be said about the assessment of testimony. It is not a popularity contest. It is not an exercise of preferring one person ’ s version over another ’ s. It ’ s important to understand that the assessment of testimony is not performed in isolation.

When more than one witness testifies, the Court assesses each person ’ s testimony with reference to all of the others, both Crown and Defence witnesses, and to any physical evidence presented at trial. In order to determine whether testimony is credible and worthy of belief, the Court follows the exercise of comparing testimony for consistencies among recollections and examining each witness ’ evidence for internal consistency, and that is to see whether important details change over time, or upon repetition of the event.

The Court is mindful when assessing each witness ’ testimony, the stake, if any the individual witness might have in the presentation of the case. As a caution, I ask myself what motivates any particular witness to come before the Court and say what they say. When deciding whether to accept testimony as credible or trustworthy evidence, the court looks for markers within and among the versions given for the event that permit a measure to be made of accuracy, reliability and logical flow with a given scenario.

It is important to bear in mind that the Court can accept or reject all of a person ’ s testimony or any part of it. In other words the Court can find that some of what a witness has said is worthy of belief, but choose to reject the rest as being not credible or reliable. Although the Court assesses the demeanor of each witness, that is how the individual behaved in the Court, and whether questions were answered appropriately, whether the witness was respectful of the process and what affect was shown, the court tends not to put a great deal of weight on this in determining credibility.

I recognize that the Court process is artificial, and foreign to many of the people who are compelled in one way or another to appear before it. There is bound to be nervousness, resentment, fear, feelings of awkwardness and mistrust. In all cases, the court is mindful of the reasoning from a case called Farina and Chorney , which was applied in R v.s Logan, and I quote “ the credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be guaged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of it ’ s consistency with the probabilities that surround the currently existing conditions, in short the real test of the truth of the story of a witness in such a case must be it ’ s harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. ” And that is the test this court must and does apply. [ 11 ] With regards to assessing a child ’ s testimony, I ’ m guided by several comments of other judges, in particular Justice Wilson from the Supreme Court of Canada in a case called R vs.

B(

G) in 1990. When referring to submissions regarding a Court of Appeal judge ’ s treatment of evidence of a complainant, Justice Wilson said the following: “It seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.

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

While children may not be able to recount precise details, they communicate the when and where of an event with exactitude. This does not mean that they have misconceived what happened to them and who did it. In recent

years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the Courts must of course be carefully assessed, but the standard of the reasonable adult is not necessarily appropriate in assessing the credibility of young children.” [ 12 ] These changes in the way the Courts look at the evidence of children does not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses.

Protecting the liberty of the accused and guarding against injustices, the injustice of an innocent person being convicted, requires a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. Every person giving testimony in court, whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate, including a defendant who in this case possesses significant mental health difficulties. ” [ 13 ] I turn now to the assessment of the testimony.

Following the three stage approach in R vs. W.D. I must assess the defendants evidence to determine whether or not what he ’ s testified to could reasonably, is credible or trustworthy. I do not do so in isolation, but in comparison to all the testimony I heard. Mr. B. ’ s testimony was at times difficult to follow. He admitted at times being or getting mixed up. He would recognize those moments and attempt to clarify his recollections. His greatest confusion appeared to be around the sequence of events for the evening of April 2, 2011 and the day following, April 3, 2011.

This confusion is not surprising given the medications Mr. B. acknowledges taking along with 2.5 grams of marijuana on a daily basis and 3 - 4 packs of cigarettes each day. It was clear to the Court that Mr. B. really has no clear recollection of April 2, 2011 and what people in that house did that day, including himself. When asked by his counsel to detail that day, he spoke about what usually happens. Mr. B. testified about what he recalls as the “ normal routine ” from his perspective, his unique perspective. Mr. B. knows that K.

P. and the kids were not in the house when he got up April 3, 2011, but the details of April 2, 2011 are, for Mr. B., otherwise uncertain. He offered the recollection that K. was taking the kids to go into Halifax to find out where S. B. was, and then later in his testimony about waking in the house and nobody being there, he said he thought K. had gone to work or had driven to a neighbour. Mr.

B. said early in his testimony that three or four days after his release from custody he learned his brother had [...] and then later he talked about his arrest and release, living in [...] for five months, then moving to Halifax and then that is when heard about his brother ’ s [...]. Mr. B. said he did not spend time in the living room, was never alone with A. on the couch, that he was never alone with A., that he was never home alone with A. and that A. was always with her mother all the time. Yet Mr.

B. also acknowledged he would be alone with A. playing cards, when A. ’ s brother would go off to the bathroom, and a couple of times when he would have been babysitting the kids. He also said Ms. P. was always in the living room with the door closed on the computer and/or watching television and the kids would be in his room playing with him and jumping on him and that is a far cry from A. always being with her mother. [ 14 ] These assertions by Mr. B. are contradictory and/or exaggerations. In it ’ s entirety, Mr.

B. ’ s testimony is so fraught with inconsistencies, confusion and contradictions and exaggerations that I find it to be unreliable, inaccurate and incapable of belief. His denial of the allegations is not convincing or believable. It is clear that Mr. B. does not believe or does not want to believe himself capable of harming his niece, and I do not find him to be deliberately false in his testimony. He simply is not credible given his memory issues. I do not believe Mr. B. ’ s denial.

That is the result of the first stage of analysis. [ 15 ] With regards to the second stage of analysis, in the absence of any other testimony from the defence, there is nothing in the defence case that I find could reasonably be true that could raise a reasonable doubt. The attempt to convince this Court that there was no opportunity for Mr. B. to be alone with A. B. has fallen short, indeed, I am convinced there was ample opportunity available given the testimony that came out in cross-examination and the examples of times when in fact Mr. B. would have been or could have been in the sole company of A..

Thus, the second stage of analysis in R vs. W.D. fails as well. [ 16 ] In the final stage of analysis, I am left to consider all of the evidence presented at trial to determine whether the Crown has met it ’ s burden. Once again, I instruct myself that while I should assess A. B. ’ s testimony differently than I would an adult, the burden of proof for her testimony and that of the remaining witnesses is not to be relaxed.

While each fact may not be proven beyond a reasonable doubt it is necessary before any finding of guilt can be made that the Crown must establish beyond a reasonable doubt, each and every element of the offences charged. [ 17 ] Dr. Grant ’ s testimony was of limited value. It was provided in a professional manner, it was unchallenged. He described A. B. as being upset and nervous when he met her, which he said is usual for children in the hospital. He also said the absence of injury to a child is not determinative one way the other whether the child was touched inappropriately.

[ 18 ] With regards to A. B., she appeared as a bright and engaging six-year old little girl. She testified with little hesitation in words I found appropriate to a child of that age. Her expressions and gestures were also consistent with what would be the expectations of a child in early elementary grades at school. There were difficulties with her testimony. She first referred to her neighbour D. touching her pee-pee. Later she said it was her Uncle D. and thereafter she held fast to describing the individual as being her Uncle D., the Uncle D. who lived with them.

A. had difficult with the number and types of pets she had had. A. said the touching happened when it was light outside, she thought it was in the morning. She said her mother was at the computer and after it happened she went to her mother for hugs. K. P. had said that A. came to her at night complaining of a sore pee-pee and wanting cream to put on it to make it better. And K. P. said she had to ask repeated and more direct questions of A. to find out why she was sore and K. P. hugged and comforted A. at that time. [ 19 ] When I assess A. ’ s testimony, I try to guage what would be salient details to a child.

I ’ m satisfied those details would be what happened, who did it, how it felt, how she felt, what made it better, and to a six-year old little girl, what she may have been wearing at the time. On those details A. B. was clear. Uncle D. touched her pee-pee it was on the couch, it hurt her, she had to yell at him to stop. She felt mad. She went to her mother to be hugged, and she wore pink shirt, pants, socks and some shoes. A. demonstrated by pointing to her crotch area while she sat on a chair, what part of her body had been touched.

She pointed also, while she was standing on that same chair, to a couch in the room in which she was giving her testimony to say that the incident of her being touched happened on a couch, but it was at home. These demonstrations did not appear to be coached in any way, but spontaneous, especially with regards to identifying the couch as being where the area in the house where she had been touched. I also note that A., for the most part, was very literal in her testimony. A striking example is when asked in cross-examination whether they, that is A. ’ s family, had a wood stove. A. said no.

But when asked if they had a stove that wood was put into, A. said yes. From a six-year old girl ’ s perspective, the stove was not a wood stove, it was not made out of wood. Thus not a wood stove, very literal. This way of processing questions and providing answers by A., I ’ m satisfied, explains many if not all of the confusions around the discussions about her pets, past or present. The confusion was not in the answers, but I ’ m satisfied in the level of the language, in the wording of the questions used in cross- examination. [ 20 ] K. P. ’ testimony corroborated A. ’ s assertion that what happened hurt.

A. had complained about being sore to her mother and on that complaint appeared upset. K. P. said it took some coaxing of A. to find out what caused the soreness. K. P. also stated that D. B. and the kids, including A. had a close relationship prior to this date, he was a big brother to the children and played with them. Ms. P. said that A. adored her Uncle D.. Mr. B. in his testimony described the same type of relationship between him and the children.

The reluctance that was displayed by A. to tell her mother of what happened is consistent with A. explaining something both physically and emotionally disturbing and confusing within such a close relationship. [ 21 ] On the whole of the evidence, I ’ m satisfied that A. was a credible and reliable witness and I accept her testimony for it ’ s truthfulness. Although there are some inconsistencies that might be of concern if A. were an adult witness, those inconsistencies do not lead me to doubt the details of what happened to A. and by whom it was done.

The frailties of her testimony with regards to time or distance between events are to be expected of a six-year old child. There appears in the testimony of A. a suggestion that her mother was on the computer when the touching occurred. There was also evidence that Ms. P. ’ s laptop was often located in the living room where the couch was also located. And when I review this testimony I am left to conclude that A. once again gave a literal answer to a literal question. Her mother was on the computer when A. went to her for hugs. I do not find that A. meant her mother was on the computer in the living room when D.

B. touched her. [ 22 ] I need to mention that when I review the testimony, when I review the testimony of K. P. the fact that K. P. has testified to A. identifying her Uncle as being the person who touched her, that testimony in no way is used to bolster the truthfulness of what A. B. said. K. P. testimony is used to corroborate the narrative of what took place and not identifying Mr.

B. as the assailant. [ 23 ] With regards to the charges before this Court, I find that upon reviewing all of the testimony that the Crown has proven beyond a reasonable doubt, the following: On or about April 2, 2011, and incident occurred. It happened in C., Nova Scotia. D. B. B. was responsible. The incident was D. B. touching with his hand or his fingers, A. B., in the area of her vagina. Consent is not an issue given A. ’ s young age. Six years old is well under sixteen years of age, and I ’ m satisfied the age of A. was clearly evident and established beyond a reasonable doubt.

I ’ m therefore satisfied beyond a reasonable doubt that Mr. B. in doing so committed an assault on A. B. contrary to

Section 266 of the Criminal Code . I would have found that by doing so, by touching the vagina of A. B., that he violated the sexual integrity of A. B. and I would have found him guilty of sexual assault, but for whatever reason, the Crown chose not to charge Mr. B. with that offence.

[ 24 ] With regards to the offence under

section 151 of the Criminal Code , the Crown is required to prove beyond a reasonable doubt that Mr. B. so touched A. B. for a sexual purpose. There was no direct evidence or argument by the Crown addressing this important element to the second count on the information. Therefore it is left to the court to review the circumstances of the offending behaviour and if available, to draw a permissible inference. It is difficult to know what is in the mind of any person at any given time. But the Court allow triers of fact to conclude intent based on what and how something was done. And in this case before Mr.

B. could be found guilty of this offence, it is necessary that there be established beyond a reasonable doubt that he had the specific intent to receive, that his actions were for a sexual purpose. [ 25 ] In this case I have accepted A. B. ’ s recollection of the touching incident as being truthful and reliable. She said, and I find, that D. B. touched her pee-pee, her vagina. It was not a momentary touching. A. said she told him to stop and that he did not, and that she had to tell him again, and that still he did not, and it wasn ’ t until she had raised her voice and told him to stop that he did stop.

She says that it hurt her. She did not find it fun. This was not an accidental touching or part of horseplay. I ’ m satisfied that for the touching to have lasted as long as it did, and that it required A. to have actually raised her voice in order to get it to stop. Mr. B. knew A. wanted it to stop, but he persisted, and in doing so there can only be one rational explanation for why he would not stop if it was accidental or if it was part of horseplay, and that was he was enjoying it, it was satisfying him, a desire that he had.

And in these circumstances as I have found them, I am satisfied beyond a reasonable doubt that Mr. B. touched A. on her vagina and by permissible inference I conclude he did so for a sexual purpose. I ’ m therefore convinced beyond a reasonable doubt that Mr. B. committed the offence of touching for a sexual purpose, A. B., a female person under the age of sixteen years, at or near C., Nova Scotia, on or about April 2, 2011, contrary to

Section 151 of the Criminal Code . Mr. B. is guilty of both counts on the information, however, where the elements of count number one, assault contrary to

section 266 are fully encompassed by the elements and facts that I have found to support the conviction under count number 2, that of sexual touching, I shall issue a stay under the Kienapple principle on count number one.