R. v. Bonnell, 2024 BCSC 230

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bonnell, 2024 BCSC 230 Date: 20240118 Docket: 26918-2 Registry: Nelson Rex v. Lee Stanley Bonnell Restriction on Publication: Pursuant to 486.4(2) C.C.C. Before: The Honourable Madam Justice Lyster Oral Reasons for Judgment Counsel for the Crown: C.-A.P. Pine Counsel for the Accused appearing by videoconference: D.M. Melville Place and Date of Trial: Nelson, B.C. October 24-27, November 2 & 3, & December 1, 2023 Place and Date of Judgment: Nelson, B.C.

January 18, 2024 Introduction .. 2 Analysis .. 4 Nature of the Charges . 4 Presumption of Innocence and Burden of Proof 5 Treatment of Evidence on a Multiple Count Indictment 6 Assessing the Testimony of Child Witnesses . 7 Use of s. 715.1 Statements . 9 Analysis of Allegations . 10 Analysis of Alleged Offences Against C.L. 11 Analysis of the Alleged Offence Against A.A. 30 Conclusion .. 37 [ 1 ] THE COURT: These are my oral reasons for decision in this matter. I intend to order a transcript, and I will review it to ensure citations and quotations are complete and accurate.

I will add headings and otherwise review it for readability. Introduction [ 2 ] Lee Bonnell is charged with four counts as set out in the indictment as amended:

Count 1 Lee Stanley BONNELL, from the 1st day of January, 2017 to the 31st day of August, 2020, inclusive, at or near [location redacted], in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of C.L., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . Count 2 Lee Stanley BONNELL, from the 1st day of June, 2020 to the 31st day of August, 2020, inclusive, at or near [location redacted], in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of A.A., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . Count 3 Lee Stanley BONNELL, from the 1st day of January, 2017 to the 31st day of August 2020, inclusive, at or near [location redacted], in the Province of British Columbia, did sexually assault C.L., contrary to

Section 271 of the Criminal Code . Count 4 Lee Stanley BONNELL, from the 1st day of June, 2020 to the 31st day of August 2020, inclusive, at or near [location redacted], in the Province of British Columbia, did sexually assault A.A., contrary to

Section 271 of the Criminal Code . [ 3 ] Because of the nature of the offences alleged and the age of the complainants, there is an order in place, pursuant to s. 486.4 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ] prohibiting the publication of any information that could identify the complainants. For this reason, I will refer in my reasons to the complainants and their mothers by initials, and I will otherwise take steps to ensure that nothing in my reasons could identify them. [ 4 ] The complainant C.L., was, at the time of the alleged offences against her, Mr. Bonnell's stepdaughter. Mr.

Bonnell was in a spousal relationship with C.L.'s mother, D.L., between sometime in 2015 and August 2020. C.L. was born on September 26, 2012, making her five to eight years old at the time of the alleged offences against her. She had just turned 11 at time of trial. [ 5 ] A.A. is the daughter of a close friend of C.L.'s mother, T.D. The two families were in frequent contact during the relevant period. A.A. was born on December 24, 2014.

She was five at the time of the single alleged offence against her during the summer of 2020, and eight at the time of trial. [ 6 ] As I will explain in greater detail, it is alleged that Mr. Bonnell repeatedly touched C.L. for a sexual purpose and, in particular, that he repeatedly put two different electric massagers on her vagina, as well as touching her vagina with his hand and kissing her with an open mouth. [ 7 ] It is alleged that Mr.

Bonnell touched A.A. once for a sexual purpose, specifically that he touched her vagina with his hand. [ 8 ] These offences are all alleged to have occurred in the home in which Mr. Bonnell, D.L., and C.L. were living in a community in the Kootenays. D.L. had a baby, F., on July 24, 2018, who also lived in that home after he was born. D.L., C.L., and F. moved out of the family home in August 2020. No offences are alleged to have occurred after that. [ 9 ] Following a disclosure to her mother, C.L. gave a videorecorded statement to RCMP Constable Nicoll on December 18, 2020.

The video was admitted into evidence pursuant to s. 715.1 of the Code . A transcript of C.L.'s statement was also entered into evidence. [ 10 ] On or about December 11, 2020, A.A. was questioned by her mother, T.D., about a disclosure A.A. had made. T.D. videorecorded her conversation with A.A. and that video was also admitted pursuant to s. 715.1 of the Code . A transcript of that video was admitted into evidence. [ 11 ] Both C.L. and A.A. testified at trial. They did so with appropriate accommodations ordered pursuant to ss. 486.1 and 486.2 of the Code .

Their mothers also both testified as part of the Crown's case. [ 12 ] Mr. Bonnell testified in his own defence. He denied all allegations of sexual interference and sexual assault. [ 13 ] The core issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Bonnell committed the alleged offences. The resolution of that issue centres on the credibility and reliability of the evidence given by A.A., C.L., and Mr. Bonnell. Analysis Nature of the Charges [ 14 ] Mr.

Bonnell is charged with two counts of sexual interference under s. 151 of the Code , which makes it an offence for a person to touch, with a part of their body or with an object, any part of the body of someone under the age of 16 years for a sexual purpose, whether that touching is done directly or indirectly. [ 15 ] The physical element of sexual interference is committed when the accused, directly or indirectly, touches the body of a complainant who is under the age of 16 with a part of the accused's body or with an object.

The mental element of the offence is committed if the Crown establishes that the accused had a sexual purpose for the touching. [ 16 ] Mr. Bonnell is also charged with two counts of sexual assault contrary to s. 271 of the Code . Given the age of the complainants, consent is not an issue. Sexual assault will be established if the Crown proves beyond a reasonable doubt that Mr. Bonnell intentionally touched the complainants and that the touch was of a sexual nature.

[17] Counsel made no submissions with respect to what is necessary to prove either sexual assault or sexual interference. This is notsurprising. Given the nature of the allegations in this case, if Mr. Bonnell is found to have engaged in the conduct alleged, he will beguilty of sexual interference and sexual assault. Presumption of Innocence and Burden of Proof [18] Mr. Bonnell is presumed to be innocent. That presumption remains unless and until the Crown proves his guilt beyond areasonable doubt. [19] As stated by Justice Marchand, as he then was, in R. v.

Snell, 2021 BCSC 673 [Snell] at para. 36: [36] … a reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it must bebased on reason and common sense. It must logically come from the evidence or the absence of evidence. [20] Mr. Bonnell testified. As a result, my analysis must be guided by the instructions of the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, as explained in a variety of cases, including R. v. J.H.S., 2008 SCC 30 , [2008]S.C.J. No. 30, and Snell at paras. 37–38. That means: • first, that if I believe Mr.

Bonnell's exculpatory evidence, I must acquit; • second, even if I do not believe Mr. Bonnell's exculpatory evidence, but I am left in a reasonable doubt by it, I must acquit; • third, even if I do not believe Mr. Bonnell's exculpatory evidence and it does not leave me in a reasonable doubt, if, on the wholeof the evidence, I am left with a reasonable doubt, I must acquit; • fourth, if I am not sure who to believe, I must acquit. [21] It is important to remember that the W.(D.) formulation is not a magical incantation.

Depending on the case, it may make senseto approach the questions in a different order or to formulate them slightly differently. The key point is that this is not a credibilitycontest. The burden of proof never shifts. The Crown must prove every element of the offences beyond a reasonable doubt. Treatment of Evidence on a Multiple Count Indictment [22] Mr. Bonnell stands charged with four counts against two different complainants. This is similar to the situation in R. v. M.E.N.,2023 BCSC 1972, where Justice Shergill summarized the applicable legal principles in such circumstances as follows: [11] Because Mr.

N. faces a multiple-count indictment, it is helpful to summarize the guiding principles that apply in suchcircumstances. Those were articulated succinctly by the court in a case called R. v. F.M., 2020 BCSC 1884 at para. 82.

I summarizethose principles as follows: first, evidence that is properly admissible in relation to each count may be considered in relation to that countonly; second, a finding of guilt for one offence is not evidence of guilt for another count; and third, the court must not engage inpropensity reasoning by inferring from evidence of misconduct or discreditable acts relating to one count that the accused is [a] personwhose character or disposition makes it more likely that he committed an offence alleged in another count. [12] Thus, each count on the indictment is a separate charge and I must assess it independent of the other[s] to determine if the Crownhas met its burden of proof in each instance.

This means that while there are two separate complainants in this case, similar fact reasoningis not permissible. The evidence of one complainant cannot be used to bolster the credibility or reliability of the other complainant. [13] However, in assessing the credibility of each witness, including the accused, the trial judge is entitled to consider the totality ofthe evidence given by that witness. Assessing the Testimony of Child Witnesses [23] The complainants were very young when the offences are alleged to have occurred.

C.L. was between five and eight years oldwhen the offences against her are alleged to have been committed, and she was 11 when she testified. A.A. was five at the time theoffence against her is alleged to have been committed, and she was eight when she testified at trial. [24] In Snell, at paras. 41–44, Justice Marchand provided a helpful

summary of the principles to be applied in assessing the testimonyof child witnesses. I must take into account that children may not perceive and recall events in the same way as an adult. This may beparticularly be so with respect to peripheral matters. [25] The standard of proof does not change when assessing the testimony of children. The Crown must always prove the offencebeyond a reasonable doubt. But I must be sensitive to the unique perspective of child witnesses.

For example, the inability to recountprecise or peripheral details does not mean that a child witness misperceived what happened to her. [26] I must carefully assess the complainants' testimony. I must avoid any stereotypical reasoning, such as assuming that C.L. wouldattempt to avoid being alone with Mr. Bonnell after she had been assaulted.

By the same token, I must avoid stereotypical assumptions,such as that all complainants are to be believed to tell the truth or would not testify at trial unless what they are saying is true. [27] The absence of a motive to lie is a factor that can be considered in assessing a witness' evidence, but it is only one factor: R. v.Horton, 1999 BCCA 150 [Horton] at para. 19, and Snell at para. 77. [28] When assessing inconsistencies or inaccuracies in a child's evidence, the court must consider whether they are of significance,

given the witness's background, including their intelligence, maturity, experience, and cultural background: Horton at para. 20(a). [29] I must also apply the principles stated by Justice Marchand, as he then was, in R. v. M.P.H., 2022 BCCA 216. That was a caseinvolving allegations of sexual assault and sexual interference by a man against the seven-year-old son of his partner. The case revolvedaround an assessment of the credibility and reliability of the accused and the complainant.

At para. 48, Justice Marchand stated: [48] The testimonial ability of the two principal witnesses in this case was different and their testimony was therefore not amenable to"parallel or symmetrical analysis." To her credit, the judge appreciated that she was required to take different approaches to herassessment of the testimony of the complainant, a child, and Mr. H, an adult. It is not an error in principle to apply differentmethodologies to the assessment of the testimony of different witnesses based on a difference in their testimonial abilities.

In fact, insome cases (this one included) different methodologies will be necessary and appropriate. [30] The trial judge in that case was held at para. 50 to have displayed an appropriate level of sensitivity to the fact the complainantwas seven years old when the offences were alleged to have occurred, 14 when he first spoke to police, and 17 when he testified.

Thetrial judge was held to have erred, however, in assessing the credibility of the complainant and the accused in ways that had nothing todo with their ages and testimonial ability. [31] Specifically, it was held at para. 55 that she should have recognized and grappled with the fact that the accused's testimonyaligned very well with the testimony of others in material respects.

Her failure to do so was held to have been indicative of an uneven andflawed approach to the evidence of the Crown and defence. [32] The judge's error was summed up at para. 80 as having taken an unbalanced approach to the assessment of the evidence, andrelying on consistencies between the testimony of the complainant and other witnesses without grappling with the consistencies betweenthe evidence of the accused and other witnesses. Use of s. 715.1 Statements [33] As I have said, videorecorded statements from both A.A. and C.L. were admitted into evidence under s. 715.1 of the Code. [34] In R. v.

L.(D.O.), (SCC), [1993] 4 S.C.R. 419, the Supreme Court upheld the constitutionality of s. 715.1 and, indoing so, commented on its purpose. At para. 1, Chief Justice Lamer commented that s. 715.1 not only makes participation in thecriminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidenceand the discovery of the truth. [35] In her concurring reasons, Madam Justice L'Heureux-Dubé commented at greater length on the purpose of s. 715.1. In particular,at para. 35, she stated: … that the

section is designed to preserve an early account of the child's complaint in order to assist in the discovery of the truth and toprovide a procedure for the introduction of the child's story into evidence at the trial. … [36] In R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183 [C.C.F.], the Supreme Court considered what constitutes theadoption of the videotape for the purposes of determining its admissibility under s. 715.1 and the effect of subsequent contradictoryevidence on the admissibility of the videotape. Mr.

Justice Cory's discussion at paras. 30–44 makes clear that it is not necessary for awitness to have a present memory of the events discussed in the video for the video to be admissible. [37] At para. 40, Justice Cory held that: … a lack of present memory or an inability to provide testimony at trial regarding the events referred to in the videotape as a result of theyouthfulness and the emotional state of the complainant increases the need to consider the videotaped statement. [38] He continued at para. 41, referring to the situation where a child has little or no present memory of the events.

He stated: … it is precisely in this situation that the video is most needed. Children, particularly younger ones, are prone to forget details of anevent with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child's viva vocetestimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station andmaking the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events.

This is particularly truewhere the elapsed time between the initial complaint and the [trial date] is lengthy. ... [39] Thus, there is no need for a child witness to have a present memory of the events recounted in a videotaped statement for thestatement to be admissible. However, inconsistencies between what was said in the videotaped statement and at trial may go to theweight to be given to the videotaped evidence: C.C.F. at paras. 45–46. That said, the fact the video is contradicted in cross-examinationdoes not necessarily mean that the video is wrong or unreliable.

It is still open to the trier of fact to determine that the video is morereliable than the evidence given at trial. [40] In R. v. F.(S.G.), 2001 BCCA 320, which was upheld by the Supreme Court, indexed at 2002 SCC 37, the Court of Appealupheld a decision of a Provincial Court judge finding the appellant guilty of sexual assault against his daughter, who was five or sixyears old at the time of the assault. The child complainant had given a videotaped statement that was admitted under s. 715.1, in whichshe had described the assault in some detail.

Her evidence in direct examination at trial, by contrast, was described at para. 16 as of littleevidentiary value, with many of her answers being vague and unresponsive. In many instances, she said she could not remember. Duringcross-examination, she admitted that many of the things she had said in the video were made up. [41] The trial judge relied on the child's description of the assault on the video in convicting the appellant. At para. 37, the Court ofAppeal held that, despite the weaknesses in the child's evidence, the trial judge did not err in finding her evidence sufficiently reliable to

establish proof beyond a reasonable doubt of the sexual assault. Analysis of Allegations [ 42 ] I will now separately analyze the evidence related to each of the alleged offences, first, those against C.L., and then that against A.A. In each case, I will set out a

summary of the child complainant's evidence and state my conclusions with respect to the credibility and reliability of their evidence, followed by that of Mr. Bonnell. In each case, I then consider the evidence as a whole related to the allegations relating to the offences alleged against each of the children. I consider the evidence of the other witnesses, namely the children's mothers, to the extent it is necessary to make my determinations as to whether the Crown has proven its case against Mr. Bonnell beyond a reasonable doubt. Analysis of Alleged Offences Against C.L.

C.L.’s Evidence [ 43 ] As I have said, C.L. was five to eight years old during the period Mr. Bonnell is alleged to have repeatedly assaulted her, and 11 when she testified in court. C.L. disclosed the alleged assaults to her mother on December 13, 2020. She was interviewed by Constable Nicoll, who conducted a step-wise interview on December 18, 2020. The videotape of that nearly two-hour statement was, as I have said, admitted pursuant to s. 715.1 of the Code . Therefore, C.L.'s evidence includes both the contents of her statement and her evidence given at trial. [ 44 ] C.L. testified about Mr.

Bonnell repeatedly touching her vagina with two different massagers. Her first recollection of him doing so was when she was five. She also said it first happened when her baby brother was in her mother's belly. Her brother was born July 24, 2018. This would put the first alleged assaults sometime in the latter part of 2017 or the first half of 2018. Given C.L.'s birthdate of September 26, 2012, her evidence is consistent about when the assaults began. [ 45 ] C.L. testified that while she was sitting on the couch watching Dora The Explorer , Mr.

Bonnell would randomly pull out what she called "the back rubber" and place it on her vagina. C.L. said that this first happened while her brother was in her mother's stomach or womb, which provides the timeframe I have already referred to. [ 46 ] This back rubber was normally used by D.L. and other family members to massage their backs. It was grey, had two bulbs. which C.L. referred to as “wheels”, that protruded from it, an on/off button, a variable speed control, and a cord to plug it into the wall. C.L. drew a picture of this back rubber during her interview with Constable Nicoll.

It is remarkably detailed, particularly given how old C.L. was at the time of that interview. She told Constable Nicoll that she liked the wheels on it because they were so "memorizing", by which I believe she meant "mesmerizing". It was these wheels that Mr. Bonnell would place on her vagina. [ 47 ] C.L. testified that when Mr. Bonnell would place the grey back rubber on her vagina, he would do so for 20 or 30 minutes. He never explained to her why he was doing this. When asked by Constable Nicoll how many times Mr. Bonnell did this, C.L. said it was a lot, probably 13 times.

At trial, she said it was more than 13 times, and that if her mom was on night shift, Mr. Bonnell would do this around lunch and dinner time. She remembered that he would have to stop doing it so she could eat lunch. [ 48 ] C.L. testified about a time that Mr. Bonnell placed the grey back rubber on her vagina after her brother was born. She said that while this was happening, her brother was sitting in a lounging chair watching Paw Patrol . She would turn the television on for her brother to watch the show. He was four or five months old at the time.

She remembered that she was wearing grey sweatpants and her purple shirt. [ 49 ] C.L. said this happened more than three times before the Paw Patrol incident. She also said it happened a second time the same day as the Paw Patrol incident when her brother was in bed for the night. She usually stayed up later than her baby brother. It was dark outside. She was eating a particular kind of candy, which she called Rockets. On this occasion, she and Mr. Bonnell were watching a recording of the television show MacGyver . He put the grey back rubber on her vagina. After the show, Mr. Bonnell tucked C.L. into bed.

He did not touch her vagina again that night. [ 50 ] C.L. also testified about another back rubber that Mr. Bonnell used on her vagina. She said that it had a cord to plug into the wall and four settings, as well as an on/off button. Later in her testimony, C.L. clarified that it was the grey back rubber that had several settings, not this one. She told Constable Nicoll that it also had what she called "nice light blue rubbery things", although she could not initially remember that at trial. It had what she described as a wheel at the top which went around really fast if you put it onto a particular setting.

She said that this back rubber was black. This back rubber was kept in C.L.'s mother's closet, which is also where she said the grey back rubber was kept. [ 51 ] I will pause to note that D.L.'s and Mr. Bonnell's testimony made clear that the second back rubber C.L. testified about was a wand-shaped sex toy. It had a blue attachment that could be fitted to the end of it. A photo of it with the blue attachment in a plastic case beside it was entered in evidence.

C.L.'s drawing of it in the interview is accurate, as was her description, save for the fact that it is white with blue accents, not black. [ 52 ] C.L. identified the photo as being of the second back rubber when she testified about it. For clarity, I will generally call it "the wand", although that is not the term that C.L. used. [ 53 ] C.L. testified that she believed that Mr. Bonnell put the wand on her vagina one or two times. He put what she called the circle part on her vagina. The circle

part is a reference to the ball part at the end of the wand that the blue attachment fits onto. It was put on her vagina over her underwear. Her pants were off because Mr. Bonnell told her to take them off. Mr. Bonnell pushed the buttons on the wand. The wand remained on her vagina for 10 to 20 minutes, after which Mr. Bonnell said it was time to eat lunch. C.L. said this occurred in the living room on the couch. She thought that her brother was having a nap at the time and her mom was at work.

[ 54 ] C.L. gave further evidence about the blue attachment for the wand after she looked at the photograph. She said that it went on top of the ball at the end of the wand, and she described it as being like a squish toy. She said that it felt like it was filled with Jello. [ 55 ] Sometimes when Mr. Bonnell put the wand on her vagina, the blue attachment was attached and sometimes it was not. He would be the one to put the blue attachment on the wand. [ 56 ] C.L. testified that she never got the back rubbers from the closet. [ 57 ] C.L. testified that after supper sometimes they would have ice cream for dessert.

If they did so, they would sit on the couch and watch MacGyver . Mr. Bonnell would pull out the back rubber. Her mom was on night shift. [ 58 ] C.L. testified that Mr. Bonnell sometimes used the back rubber in her bedroom. He would hold it on her vagina while she lay on her bed. This would happen when it was dark and her mom was on night shift. [ 59 ] C.L. testified that the back rubber gave her a rash. She said that the rash was really red and it burned. Her mom would put Polysporin on it to make it feel better. She did not tell her mom at the time where the rash had come from. C.L. said that Mr.

Bonnell knew about the rash because he did it, and he saw the rash in her bedroom. On that occasion, she was near her Barbie Dreamhouse. She was getting dressed for school at the time and he walked in on her. She asked him to please get out of her bedroom. C.L. said that the rash lasted for about a week. When asked if it was the only time she got a rash from the back rubbers, C.L. said that she got one at least two times. [ 60 ] C.L. told Constable Nicoll that on one occasion she tried to sneak the grey back rubber back into her mother's bedroom. She testified that she remembered that and it was true.

She was wearing shorts at the time. She testified that Mr. Bonnell placed the back rubber on her vagina on the couch in the living room. He got distracted while the back rubber was on her vagina by a packrat he was trying to kill with a shotgun, so she took the opportunity, while he was getting the shotgun from the garage, to put the back rubber back in the closet, then she went to play with Barbies in her room. She put the back rubber in the closet because it felt uncomfortable and it was wrong. [ 61 ] C.L. said that when Mr.

Bonnell got back from trying to kill the packrat, he was okay with it but he looked really mad. She thought he was mad because she put the back rubber away. He did not use the back rubber on her anymore that day. Her mom was at work when this happened and her brother was watching Paw Patrol . [ 62 ] C.L. told Constable Nicoll about a time when she hid in her closet from Mr. Bonnell. She told Constable Nicoll that Mr. Bonnell touched her with his hand and that she went into her closet and hid. She did not remember hiding in her closet at trial. [ 63 ] C.L. testified at trial that Mr.

Bonnell touched her vagina with his hand. She said that while she was watching a movie, he would slowly move his hand over towards her vagina. They were sitting on the couch watching MacGyver and eating popcorn at the time. She described him grabbing her vagina like a ball with his hand under her clothes, including under her underwear. She moved away. She told him to please stop. His hand was on her vagina for five seconds. This happened at night when her mother was on night shift. [ 64 ] C.L. also testified that Mr. Bonnell kissed her on the lips when her mother was not around.

He would do so when he was tucking her into bed. She said that no one else was there. His mouth would be open and his tongue out. These kisses would last five seconds. She said his teeth were nasty, like he had not brushed his teeth in years or weeks. These kisses made her feel overwhelmed and awkward. These kisses would also happen at random times, like when she was watching MacGyver . Sometimes they happened when he was using the back rubber. She estimated that he kissed her more than a hundred times like that. [ 65 ] C.L. testified that on one occasion she went for a motorcycle ride with Mr.

Bonnell and he patted her on the thigh. It made her feel uncomfortable. [ 66 ] C.L. testified that she tried to stop Mr. Bonnell kissing her and putting the back rubber on her vagina for three years, but he would not stop. In cross-examination, she was asked if she meant three years or just a long time. She maintained it was for three years. She would tell Mr. Bonnell to stop or ask him to please not touch her there. He would say okay, but he kept on doing it. The touching did not stop until her mother, brother, and she moved out. It was after that, that she decided to tell her mom. Earlier, Mr.

Bonnell had asked her if she could keep a secret and she said yes. Then he grabbed the back rubber and put it on her vagina. She decided to tell her mom because she was feeling really uncomfortable. [ 67 ] I found C.L. to be a highly credible and reliable witness. She is intelligent and articulate. Her evidence about the alleged assaults was detailed and consistent, both between her videotaped statement and at trial, and between direct and cross-examination.

For example, her evidence in direct and under cross-examination was consistent about some of the assaults occurring before her brother was born and some after he was born. When she was asked in cross-examination if she really meant that these things happened for three years or whether she just meant a long time, she confirmed that she meant three years. [ 68 ] C.L.'s evidence about what the back rubbers looked like and how they worked was remarkably detailed. It was consistent as between her videotaped statement and her testimony in court.

Only a person who had seen the two back rubbers being used could have given that evidence. As I will describe below, the grey back rubber was an object that C.L. would have been familiar with in the absence of Mr. Bonnell using it on her vagina, but the only way she would have been familiar with the wand and its blue attachment, and especially how the blue attachment felt, was if someone had used it on her. [ 69 ] C.L.'s evidence about some of the surrounding circumstances during the times Mr. Bonnell placed the back rubbers on her vagina was detailed and convincing.

She remembered particular movies or television shows she was watching; whether her brother had been born or not; details such as Mr. Bonnell trying to kill the packrat; on two occasions, what she was wearing; and on several occasions what she was eating – Rockets, popcorn, or ice cream. She has a clear memory of some of the circumstances surrounding the assaults. I find that her evidence about these matters was truthful and reliable, and it helps to confirm the reliability of her evidence on the core of the allegations.

[ 70 ] In cross-examination, C.L. was asked about going to the chiropractor. She remembered doing so. She was asked whether the chiropractor talked about using a back rubber. She remembered that he did, and even remembered him saying she could use a back rubber, if they already had one at their house, or he could sell them one. [ 71 ] She said that her mom taught her how to use the grey back rubber on her back. She sometimes got the back rubber for herself and used it on her back. It helped her back. [ 72 ] In my view, C.L.'s evidence about using a back rubber for her back enhances her credibility.

She was straightforward in answering these questions on cross-examination. The fact C.L. sometimes used a back rubber on her back does not detract from the reliability of her evidence about the times Mr. Bonnell is alleged to have used one on her vagina. [ 73 ] One area where I do not find C.L.'s evidence entirely reliable is whether she only had rashes due to the back rubber, or also for other reasons. She testified in both direct and cross-examination that she only had rashes because of the back rubber. This is inconsistent with the evidence of Mr. Bonnell, who attributed them to poor hygiene.

D.L. testified that C.L. had rashes starting from the time they moved to the Kootenays. She said that they were not consistent, but happened periodically. [ 74 ] It is probable, on all of the evidence, that C.L. had vaginal rashes for reasons other than the back rubber. As D.L. testified, kids have rashes. [ 75 ] The unreliability of C.L.'s evidence on the specific question of whether she may have had rashes due to reasons other than the back rubber does not detract from the overall reliability of her evidence with respect to the assaults Mr. Bonnell is alleged to have committed.

It is a relatively peripheral issue and it is quite likely that a young child, such as C.L. was at the time she was having rashes, would not know all of the reasons for them. This does not mean that I do not believe her evidence that Mr. Bonnell's use of the grey back rubber, a device he described as aggressive and capable of causing injury, caused at least some of her rashes. [ 76 ] There were a few things that C.L. said in her videotaped statement that she did not remember at trial, in particular, hiding in her closet to get away when Mr.

Bonnell touched her vagina with his hand and she said, "No touching." [ 77 ] In my view, C.L.'s willingness to candidly admit at trial when she did not remember something she had said in her statement enhances her credibility. She truthfully said at trial what she did and did not have a present recollection of. Almost three years had passed from the time C.L. gave her statement to when she testified at trial. Her memory would have been better at the time she gave the statement.

I find it more reliable on that point than her present failure to recall that having occurred. [ 78 ] I did not find C.L.'s evidence at trial that Mr. Bonnell touched her thigh with his hand while they were riding his motorcycle particularly reliable or probative. She did not tell Constable Nicoll about this when these events would have been much fresher in her mind. Mr. Bonnell confirmed that they did ride his motorcycle together. Even if he did touch her thigh with his hand while they were riding, there could be an entirely innocent explanation for that having occurred.

It is not reliable evidence of a sexual assault or sexual interference having occurred on that occasion. [ 79 ] The defence submitted that C.L. made an arguably prior inconsistent statement to her mother. In cross-examination of D.L., the defence asked her if she remembered telling the police that C.L. had told her that Mr. Bonnell had put four fingers inside her vagina. D.L. agreed that she had told the police that and said that C.L. said it was four fingers without his thumb. This is not something that C.L. ever described in her interview with Constable Nicoll or in her testimony in trial.

Indeed, she was very clear in her interview with Constable Nicoll that Mr. Bonnell never put anything, including any part of his hand, inside her vagina. This statement was not put to C.L. in cross- examination, so the court does not know what she would have said had it been.

In saying this, I do not fault defence counsel, who was appropriately sensitive and professional in his cross-examination of C.L. and all the Crown witnesses. [ 80 ] In the circumstances, I am not prepared to treat C.L.'s alleged disclosure of the specific allegation to her mother as a prior inconsistent statement that diminishes the reliability of the evidence she provided in her statement to the police and at trial. D.L. may have misheard or misunderstood what C.L. told her.

In this regard, I think it is particularly significant that C.L. allegedly said this to her mother in close temporal proximity to the police interview, which was extensive and carefully conducted, and in which she made no allegation of the kind and, in fact, as I have said, specifically denied that Mr. Bonnell had ever placed part of his hand in her vagina. [ 81 ] C.L.'s statement to the police, admitted pursuant to s. 715.1 , is her best and most reliable evidence about what Mr.

Bonnell did to her, not a hearsay statement attributed to her by her mother. [ 82 ] I also find that C.L.'s refusal in the s. 715.1 interview to exaggerate Mr. Bonnell's conduct by attributing to him having inserted his hand or part of it in her vagina enhances her credibility and reliability. Mr. Bonnell’s Evidence Relating to Alleged Offences Against C.L. [ 83 ] I will next deal with Mr. Bonnell's evidence related to the offences he is alleged to have committed against C.L. I will also deal with some of his evidence more generally, insofar as it may relate to his reliability and credibility.

I do not deal here with his evidence related specifically to A.A., which I deal with separately later. [ 84 ] Mr. Bonnell was asked in direct examination for the names of his children. He provided the name of an adult daughter and said, "I believe F.", referring to C.L.'s younger brother. [ 85 ] In cross-examination, he was asked whether he shared a child with D.L., to which he said, "I believe so." He said that there had been a request for a paternity test, as he was suspicious that F. was not his son.

He explained that when he said, "I believe F.", he was not uncertain about his name, but was about whether F. is in fact his son. [ 86 ] Mr. Bonnell testified about meeting D.L. in August 2015 and starting to live with her at her place in October 2015. He testified that C.L. was about two or nearly three years old when he first started dating D.L. He met and moved in with D.L. and C.L. before they

moved to the town where these offences are alleged to have occurred. [ 87 ] Mr. Bonnell said that he is a sheet metal fabricator/roofer. He said he is now self-employed, but he worked for two companies, which he named, before that. The first of these was before they moved to the Kootenays, and the second after they did so in or about September 2016. They lived at one home in the Kootenays from then until October 2017, when he testified that they moved to the home where these offences, or at least the majority of them, are alleged to have occurred.

At that time, C.L. had just turned five. [ 88 ] In cross-examination, Mr. Bonnell testified that C.L. called him "Dad", something D.L. agreed to her doing, and that he was the only one she knew as a father-figure. He accepted that he was a co-parent and he took care of her like any co-parent would do. [ 89 ] Mr. Bonnell testified about the circumstances under which D.L., C.L., and F. moved out of the family home. They were given notice by their landlord in early August 2020 that they would have to move out by the end of October.

He said that on August 16, 2020, D.L. said to him out of the blue that he should look for a place for himself. He described himself as dumbfounded. D.L. and the children moved out by the end of the week, while he said he was away doing an estimate and met some people for a barbecue. When he came home, everything was packed up and they all left. [ 90 ] After that, D.L. and the children briefly stayed with him in the former family home in September, and they came for a couple of visits, but he never cohabited with D.L. again. [ 91 ] Mr.

Bonnell was asked in direct what kind of work he was doing in 2019 and up until the end of August 2020. Rather than deal with his evidence on that now, I will address his evidence about his work in this period in my analysis of the evidence as a whole about the offences alleged against C.L. and against A.A. [ 92 ] Mr. Bonnell testified that C.L. had a seizure disorder and that he and D.L. took her first to a pediatrician and then a chiropractor for it. He thought this was in 2018. The chiropractor recommended a number of things, including the use of a back massager on C.L.'s back. Mr.

Bonnell said that C.L. used what C.L., as I have said, referred to as the grey back rubber on her back, and that he showed her how not to use it because it is so aggressive and could hurt you if you used it inappropriately. [ 93 ] I will note here that D.L. and C.L.'s testimony confirmed that C.L. went to a chiropractor, but D.L. said it was related to back pain and bed wetting. She never mentioned anything about C.L. having a seizure disorder. [ 94 ] Mr. Bonnell also testified about the other back rubber, which I have referred to in my reasons as the wand.

He said that C.L. went into the closet looking for the grey back rubber and came back with the wand, which he described as a sex toy. He said that C.L. asked what it was and he was trying to avoid the details, to avoid an uncomfortable conversation, so he just said it was a smaller massager or a vibrator and that it did not vibrate as hard. [ 95 ] In cross-examination, Mr. Bonnell was asked if he told D.L. about this incident. He testified that he thought he told D.L. when she got home that what he referred to as "the stuff" needed to be kept better.

He recalled having a conversation with D.L. about how the Mary Kay bag in which the wand was kept needed to be kept in a safer location. He did not view having this conversation with D.L. as having the same urgency as an incident in which he put cream on C.L.'s rash, an incident I will deal with later, for which he called D.L. at work. [ 96 ] Also in cross-examination, Mr. Bonnell said that he did not explain to C.L. what the blue attachment to the wand was for. When asked how then she would have any idea what the blue attachment did, Mr.

Bonnell said that he thought that when she pulled the wand out that night, the blue attachment was already on it. He said he thought it had not been put away properly and the attachment had not been separated from the wand like it should have been. [ 97 ] D.L. testified about the wand in both direct and cross-examination. She testified that it was kept in a closet in a Mary Kay bag. She was asked whether, to the best of her knowledge, C.L. would have been aware of the existence of the wand. She said absolutely not. She was questioned on cross-examination about where the wand and the grey back rubber were kept.

She was not asked about the incident Mr. Bonnell described in his cross-examination about C.L. finding the wand, which Mr. Bonnell claimed he told D.L. about. [ 98 ] I find that Mr. Bonnell did not tell D.L. about the incident in which C.L. brought the wand and blue attachment out of the closet. He did not do so because it did not happen. He manufactured that story out of whole cloth to provide an explanation for how C.L. knew about the wand and what it looked and felt like. This attempted deception is very damaging to Mr. Bonnell's credibility generally. [ 99 ] In cross-examination, Mr.

Bonnell said that the grey back rubber would sometimes be kept in the living room and sometimes in a closet in the master bedroom. When shown the picture C.L. drew of the grey back rubber during her interview with Constable Nicoll, Mr. Bonnell was initially reluctant to agree that it was a pretty good depiction of the device. When pressed to agree that it was a pretty good drawing for an eight-year-old, he did agree. [ 100 ] Mr. Bonnell was asked if the grey back rubber was an object C.L. was already familiar with when she was about five.

He disagreed, saying that she only became familiar with it after F. was born because that was when she had the seizure disorder. He testified that it was not readily accessible until perhaps January or March 2018. He testified that it did not see the light of day for the most part. All of this is inconsistent with the evidence of D.L., which I accept, that the grey back rubber was just part of everyday life, kept in the living room and everywhere else in the house, and that C.L. would have been aware of it, including being asked by D.L. to use it on D.L.'s back. [ 101 ] I find that Mr.

Bonnell attempted in his evidence to downplay the accessibility of the grey rubber and C.L.'s knowledge of it throughout the relevant period, in particular before her visits to the chiropractor. [ 102 ] In his evidence, Mr. Bonnell denied ever using either back rubber on C.L.'s breasts, vaginal, or anal areas. [ 103 ] Mr. Bonnell also denied ever kissing C.L. with an open mouth or with his tongue. In direct examination he was asked whether, at

any time, he ever kissed her goodnight or anything like that, to which he said, "A peck on the cheek or forehead." He was then asked whether, other than that, that was it, to which he said, "Yeah, that was it." [ 104 ] In cross-examination, Mr. Bonnell was asked to confirm if it was his testimony that he never gave C.L. even a peck on the lips. He responded that there might have been a couple of times accidentally when it happened when he was kissing her goodnight and she turned her head.

He said that happened once or twice and he and D.L. talked about it and agreed it was not appropriate, and it was discouraged and never to happen again. [ 105 ] He was asked why he did not mention this when he was questioned about kissing in his direct examination. Mr. Bonnell testified that he did not remember the one that led to the conversation with D.L. He said he interpreted the question as being about intentionally kissing C.L. on the lips. [ 106 ] D.L. testified that she had conversations with C.L. in which C.L. told her that Mr. Bonnell kissed her on the lips.

She had three or four stern conversations with Mr. Bonnell about these incidents in which she told him it was unacceptable and that he was to kiss her only on the forehead or the cheek. He would apologize and then it would happen again. [ 107 ] D.L. said that these conversations happened in the last three months or so before they moved out. She also testified that she and Mr. Bonnell would go into C.L.'s room together to kiss her goodnight, and that she actually observed him kissing C.L. on the lips at that time. It was only on December 13, 2020, when C.L. disclosed Mr.

Bonnell's conduct more generally to D.L., that she learned that there was more extensive kissing of the kind C.L. testified about. [ 108 ] I accept D.L.'s evidence that she had three or four stern conversations with Mr. Bonnell about this issue in the months before she and the children moved out of the family home. I accept that D.L.'s evidence about seeing Mr. Bonnell kiss C.L. on the lips when they put her to bed together does not corroborate that he kissed C.L. when they were alone. Neither, however, is it evidence that he did not kiss her when they were alone. [ 109 ] Mr.

Bonnell's evidence about kissing C.L. lacks credibility. He was asked in direct whether he ever kissed C.L. goodnight. Despite a follow-up question from his counsel giving him a second opportunity to say if he ever did more than give her a peck on the cheek or forehead, Mr. Bonnell failed to disclose in direct examination that he had kissed C.L. on the lips. That only came out in cross- examination. I do not accept his explanations for this inconsistency between his evidence on direct and cross-examination on this subject. [ 110 ] Mr.

Bonnell was asked in direct examination whether he ever touched C.L. with his hand over or under her clothes near her vaginal area. He asked, "Like for a purpose?" His counsel clarified that he was asking whether he ever touched her in a sexual manner on the vagina, which Mr. Bonnell denied. [ 111 ] Mr. Bonnell was asked in direct examination whether C.L. ever had a rash. He said that she had a rash right from the first time he met her periodically which he said, according to D.L., was because of poor hygiene. He said that D.L. had a bunch of creams and ointments that she would use for the rash. Mr.

Bonnell was asked whether he ever applied any cream or ointment to C.L. for a rash. He said that he avoided it at all costs, except for one particular time when she was crying out of control. She seemed to be in a lot of pain, so he tried to alleviate it by putting some ointment on it. Mr. Bonnell said that he immediately told D.L. They discussed this was not right, which he acknowledged, but he did not know what else to do, as there was nobody else at home. He said it was discussed that it would not happen anymore.

He testified that this was the only time there was physical contact between him and C.L. [ 112 ] D.L. also testified about this incident, confirming that Mr. Bonnell told her about having put cream on C.L. and that D.L. was upset about that. [ 113 ] In cross-examination, Mr. Bonnell said that he knew C.L. had sensitive skin like her mother. He was asked then whether the problem was hygienic or genetic. He said that it was passed down from D.L., but it was also hygiene. He denied that C.L.'s rashes coincided with him putting a massager on her vagina. [ 114 ] In cross-examination, Mr.

Bonnell testified that when he was watching C.L., he would sometimes put the television on for her. There were a number of movies she liked to watch and she did not mind watching Paw Patrol with F. When asked, he agreed that Dora was a favourite of C.L.'s when she was younger. While explaining this and without having been asked, he said that for the most part F. was up almost until C.L. went to bed, and that she stayed up only 15 minutes later. [ 115 ] In my view, this was part of a pattern of Mr. Bonnell's unconvincing attempts to minimize the time he was alone with C.L.

I note he later said C.L. would stay up for about a half an hour later than F. This is a small inconsistency and not one I place much weight on. [ 116 ] In cross-examination, Mr. Bonnell testified that he never did anything to spend one-on-one time with C.L. He said they were always interacting and did not need to be alone. He later said that he maybe did so once after F. was born, when he drove with her to a swap meet. When specifically asked, he also said that they went out once or twice on his motorcycle. [ 117 ] Given Mr.

Bonnell's role as C.L.'s de facto father, it is notable that he claimed never to have done anything to spend time alone with his stepdaughter. I find it to be part and parcel of Mr. Bonnell's attempts to downplay time spent alone with C.L. during which these offences could have been committed. [ 118 ] Crown submitted that a diagram Mr. Bonnell drew during direct examination of the family home had a negative impact on his credibility. He labelled every room of the house, other than C.L.'s bedroom.

The couch he drew was not the L-shaped couch that was in the home at the end of their occupancy, on which it is alleged that at least some of the offences, and in particular that against A.A., occurred. [ 119 ] I am not able to place much, if any, weight on these elements of Mr. Bonnell's drawing. The evidence was clear that the L-shaped couch was only one of several couches the family had in the residence over time. He was not asked to draw the residence as of a particular date. The failure to identify every room but C.L.'s bedroom is perhaps curious, but given that the majority of the assaults on

C.L. are alleged to have occurred in the living room, not her bedroom, the failure to identify her bedroom does not appear to me to have much, if any, significance. [ 120 ] Considering his evidence as a whole and in the context of the evidence of this case as a whole, I did not find Mr. Bonnell to be a reliable or credible witness. His attempts to downplay or minimize his opportunities to be alone with C.L. or with C.L. and F. after F.'s birth, lacked credibility. I did not find his explanation for the difference in his evidence in direct and cross-examination about kissing C.L. on the lips persuasive.

I find he made up the story about C.L. finding the wand with the blue attachment attached in order to provide an explanation for how C.L. knew about the wand and the attachment. That is deeply damaging to his credibility. Analysis of Alleged Offences Against C.L. [ 121 ] I will next address the suggestion made by the defence that while there was no collusion, the two mothers and the two children are close and have spoken to one another about these events.

As I say, counsel did not submit that there was any collusion, but he did suggest that such conversations could muddy the waters and that subtle problems could arise. [ 122 ] It is clear that in the last three years, the two mothers have maintained contact and they are supportive of one another. They have spoken with their daughters and they have done their best to be supportive of them. Conversations between A.A. and C.L. have likely been more limited, although they have occurred. [ 123 ] There is, however, certainly no evidence of collusion.

Considering the evidence as a whole, I do not think that the reliability of either C.L.'s or A.A.'s evidence, or for that matter that of their mothers, about what happened has been adversely affected by their conversations with one another or their mothers. [ 124 ] I next consider the evidence related to Mr. Bonnell's opportunity to commit the alleged offences against C.L. [ 125 ] Both C.L. and her mother testified that Mr. Bonnell would look after C.L. when D.L. was working night shifts. D.L.'s night shifts were between either 3:00 p.m. and 11:00 p.m., or 4:30 p.m. and 10:30 p.m. During that time, Mr.

Bonnell would be alone with C.L. and, after the baby was born, the two children. C.L.'s evidence was that it was while her mother was at work that Mr. Bonnell would assault her. [ 126 ] In his testimony, Mr. Bonnell sought to minimize the amount of time he was alone with C.L. He testified in direct examination that in 2019, and up until the end of August 2020, he was doing roofing and home repairs. When asked what his typical working hours were, he testified that it was all available daylight from 8:00 a.m. to 5:00 p.m.

He then said he would try to get a start by 8:30 or 9:00 a.m., and that he would typically get home by 4:00 or 4:30 p.m. He said that on days when he needed to get home early, he would try to get home by 2:30 or 3:00 p.m. [ 127 ] Mr. Bonnell was asked what D.L. was doing during this period. He said that other than being home with the kids, if she had to work then she would ask T.D., or another friend that he named, to look after the kids. On cross-examination, he agreed that there was a period of time after T.D. and D.L. fell out, when T.D. was not around at all to look after the kids. [ 128 ] Mr.

Bonnell said that D.L.'s shifts varied, but she did end up with more night shifts. He said that she needed the hours and she had to take what she was given. Mr. Bonnell testified that C.L. started school full-time in September 2019. She was on summer break the summer of 2020. [ 129 ] Mr. Bonnell was asked whether he was working full-time the summer of 2020. He responded that he was doing everything he could and referred to taking seminars with the job placement centre to get himself into his own business. Mr.

Bonnell was initially notably vague about when he left his employment with the second roofing company that he used to work for and started trying to work on his own. Late in his cross-examination, he testified that he left the roofing company in the summer of 2019, and that while he was working there, he was working full-time, usually until 4:30 or 5:00 p.m., but that sometimes he could get off a little earlier to help D.L. look after the kids. [ 130 ] Mr. Bonnell attempted to give the impression that he was working full-time, all available daylight hours, during the summer of 2020, but this was not true.

He had not been working full-time since the middle of the previous summer. In the summer of 2020, he was taking seminars and trying to start a business. He was, as he testified, doing his best to be self-employed. I find that he was not working full-time the summer of 2020. [ 131 ] Mr. Bonnell said that D.L. was working pretty much full-time the summer of 2020, and in addition was working at home part-time baking for a local coffee shop. [ 132 ] Mr. Bonnell acknowledged on cross-examination that there was a time period during which he was the only person around to help with childcare when D.L. was at work.

That included taking care of C.L., both before and after F. was born, on his own during both the day and the evening and occasionally overnight. Mr. Bonnell testified that F. would go down for a nap around 12:30 or 1:30 p.m. for 45 minutes or an hour. This confirms both that Mr. Bonnell sometimes looked after the children in the day, and that there were times during the day when he would be alone with C.L. because F. was napping. [ 133 ] I find that Mr. Bonnell had ample opportunity to commit the offences alleged by C.L.

He often looked after C.L., and F. after he was born, when D.L. was at work or otherwise unavailable. He was a father-figure to C.L. and looked after her and her needs like any co-parent would. [ 134 ] C.L.'s evidence about the assaults was highly detailed, recalling matters such as what the back massagers looked like and how they operated, what television program she was watching, whether her brother was born yet, on some occasions what she was wearing or eating, and the particular detail of Mr.

Bonnell using the shotgun to attempt to kill the packrat. [ 135 ] Some of those details were corroborated by other evidence. For example, both Mr. Bonnell and D.L. testified about him trying to

kill a packrat with a weapon that was variously described as a shotgun or a pellet gun or a .22. Some of the programs that C.L. mentioned, such as watching Dora when she was about five, and watching Paw Patrol with F., were corroborated by Mr. Bonnell. He also testified that he would sometimes put programs on the television for C.L. to watch around lunchtime and in the evenings. [ 136 ] Mr. Bonnell did not refer to MacGyver as a program he watched with C.L. until it was specifically put to him in cross- examination.

He then said they watched it a couple of times and that was because he had performed in it many years ago and C.L. wanted to see his costume on television. He said that one time F. was there and he was not sure if F. was there the other time. He did finally agree that he did watch MacGyver alone with C.L. after F. had gone to bed. [ 137 ] It is not plausible that a child C.L.'s age at the time these offences are alleged to have occurred would have known about using massagers on a person's vagina for sexual purposes. She did not imagine or make these things up. I find she could only have described Mr.

Bonnell's use of the two massagers on her vagina if it happened. [ 138 ] I believe C.L.'s evidence that Mr. Bonnell repeatedly placed the two massagers on her vagina, and that he also kissed her with an open mouth and put his hand on her vagina. He did so repeatedly over an approximately three-year period, both before and after F. was born, ending when D.L., C.L., and F. moved out of the family home. I do not believe Mr. Bonnell's denials. His evidence was calculated to minimize his opportunities to be alone with C.L. and to engage in these offences, and I do not believe it.

Nor does it raise a reasonable doubt that he engaged in the conduct alleged. [ 139 ] Considering the evidence as a whole related to the offences alleged to have been committed against C.L., I find that the Crown has proven these offences beyond a reasonable doubt. Analysis of the Alleged Offence Against A.A. A.A.’s Evidence [ 140 ] A.A. was very young at the time of the alleged offence against her, just five years of age and eight when she testified in court. [ 141 ] As I said at the outset, the videotape of her statement to her mother on December 11, 2020, was admitted pursuant to s. 715.1 of the Code .

The context in which the videotape was made is as follows. [ 142 ] T.D. testified that A.A. had made a disclosure to her while they were in the bathroom together with A.A.'s baby sister. At the time, A.A. sometimes had an issue with wiping after using the bathroom. It was in this context that A.A. said to her mother something about how she had told her that no one was supposed to touch her there. T.D. needed to attend to her baby at this point, but after she had got the baby down for a nap, she spoke to A.A. about what she had said to her in the bathroom.

T.D. sat down with A.A. on the couch and asked her what or who she needed to talk about. T.D. could not remember the exact words used, but recalled that A.A. said it was about Joe, which is how she referred to Mr. Bonnell, and her private areas. [ 143 ] T.D. then began videorecording their conversation on her cellphone. The transcript of the videorecording then begins with T.D. asking A.A. if Joe ever touched her inappropriately. A.A. said no.

T.D. asked her if she was sure, and she said that she was. [ 144 ] T.D. then asked her if "he never tried to touch you and you said that Mommy said not to let anybody touch me there." A.A. responded that, "I said that." [ 145 ] A.A. then indicated her agreement that Mr. Bonnell had tried to touch her and that she said that. T.D. asked her if she was lying and A.A. said she was not. She then went on to say that Mr. Bonnell tried to touch her when they were watching a movie, Pocohontas . She said that it was on her vagina with his hand.

A.A. provided further detail about how they were sitting beside one another on the couch and the shape of the couch when this happened. She later explained that he touched her by going through or under her clothes. She also said that he opened her privates with his hand.

The touching did not last for a really long time, it made her feel mad, and she told him he was not allowed to touch her, to which he said "okay". [ 146 ] On the voir dire to determine the admissibility of the videorecording, A.A. testified that she was telling the truth in the video, and that what she said in the video happened. [ 147 ] When she testified in the trial proper, A.A. did not appear to have a clear present memory of what had happened with Mr. Bonnell. In direct examination, she was asked about the video in which she had told her mother that Mr. Bonnell touched her vagina.

She was asked if she remembered that happening and she said she did not. She did remember telling Mr. Bonnell that he was not allowed to touch her twice, but said that that was all she could remember. [ 148 ] In cross-examination, A.A. confirmed that it was true that she could not remember if anything happened. She was also asked in cross-examination about an early part of the video in which her mother had asked her if Mr.

Bonnell had touched her, and A.A. said that was true. [ 149 ] It is possible that A.A. was confused by the questions she was being asked at trial, and in particular by the questions near the end of her cross-examination in which counsel asked her, for example: When you told your mom, your mom asked if Uncle Joe touched you, and you said that he didn't. Was that true? [ 150 ] Given her age, A.A. might not have appreciated what it was that she was being asked was true.

Again, in saying this, I am not being critical of defence counsel, who was trying to be sensitive to the complainants' young ages in how he framed his questions, and who took the court's direction with respect to things such as avoiding double negative questions. [ 151 ] The Crown sought to re-examine A.A. to clarify her evidence, which I permitted. Crown asked A.A. if Mr. Bonnell ever touched

her privates, to which she said yes. [ 152 ] While A.A.'s memory at trial as to whether Mr. Bonnell ever touched her vagina was therefore inconsistent, she did remember other surrounding details. She drew a picture of the couch at C.L.'s house, accurately portraying the L-shaped couch that was in the home at the time this offence is alleged to have occurred, and indicating where she and Mr. Bonnell were each sitting on it. She remembered that she and Mr. Bonnell were alone in the room and that C.L., her mom, and her little brother were also in the house.

Her own mother was not there. [ 153 ] She remembered that it was close to dinner and it was getting dark. She remembered Mr. Bonnell sliding closer to her on the couch. She remembered telling Mr. Bonnell he was not allowed to touch her twice. She remembered that she and Mr. Bonnell were watching Pocohontas , that Mr. Bonnell left close to the end of the movie, and that after that she told C.L., in C.L.'s room, what had happened. [ 154 ] I find that A.A. was an honest witness.

Both in speaking to her mother in the videorecorded statement and in testifying in court, A.A. clearly tried to tell the truth to the best of her ability. I find her testimony in court that she did not remember Mr. Bonnell touching her vagina particularly compelling in this regard. A dishonest witness would likely have said that they did remember the touching, even if they did not. A.A. told the truth when she said she did not remember at trial. [ 155 ] In part for the same reason, I find that A.A. was not a suggestible witness.

Had she been suggestible or wanted to please the questioner, she would likely have said that she did remember the touching at trial. In the same vein, A.A. did not simply accept what T.D. suggested to her in her questions in the videotaped statement. For example, when asked if what Mr. Bonnell did hurt, she said no. When asked if it made her feel uncomfortable, she said no, it made her feel mad. [ 156 ] These are the answers of a child telling her mother the truth. A.A. was only five when the assault is alleged to have occurred and when she told her mother about it.

Almost three years had passed between her disclosure to her mother and her testimony at trial. It is hardly surprising that such a young child would have forgotten what Justice Cory called "the unpleasant events" in that regrettably lengthy time period. [ 157 ] I find that A.A.'s disclosure to her mother in the videorecorded statement is much more likely to be an accurate account of what Mr. Bonnell did than her testimony at trial. For this reason, I place very little weight on the inconsistencies in her evidence at trial about whether she remembered what Mr.

Bonnell did, as well as the inconsistencies between her videotaped statement and her evidence at trial. [ 158 ] More concerning in assessing the reliability of A.A.'s evidence are the inconsistencies in what she told her mother in the videotaped statement. At the outset of the statement, she told her mother Mr. Bonnell did not touch her. Later in the statement, she said Mr. Bonnell did touch her vagina. Counsel for Mr. Bonnell places great emphasis on this point, submitting that this alone creates a reasonable doubt. [ 159 ] Crown counsel submits that T.D.'s initial questions to A.A. were confusing to A.A.

The questions were delivered rapidly. T.D. used the term “inappropriately” in asking her, "Did Joe ever touch you, A.A., inappropriately?", which A.A. might not have understood. In this regard, counsel refers to T.D.'s evidence about A.A. being confused at the outset of the video. Crown counsel emphasizes that the court must keep in mind where A.A. was at, both developmentally and linguistically, at the time she made the video statement, referring, for example, to her saying she "regot" when what she meant was she forgot. I will return to this issue later in my analysis of this allegation. Mr.

Bonnell’s Evidence About A.A. [ 160 ] Mr. Bonnell acknowledged knowing A.A. and her mother T.D. In the period between June and August 2020, he testified that there was a period when A.A. was at the family home. He thought A.A. was close to five. He testified that A.A. and T.D. and T.D.'s younger daughter did some sleepovers at the family home in that period. He said that T.D. and her younger daughter sometimes slept in a travel trailer outside, and A.A. would sleep in C.L.'s room. Mr. Bonnell testified that on a couple of occasions, he cared for A.A. without either D.L. or T.D. present.

He said it was always after the girls had gone to bed and the two women had gone out. [ 161 ] He testified about an occasion when he watched a movie with A.A. and C.L. He believed that it was Pocohontas . He thought it was in late July 2020. He thought it was around 2:00 p.m. They were all sitting on the couch with one girl seated on either side of him. He testified that both T.D. and D.L. were present, some six to eight feet away in the kitchen. The two younger children were also there, but they were sleeping. Mr.

Bonnell thought that they did not get to the end of the movie, because everyone got bored or distracted. [ 162 ] Mr. Bonnell denied having any physical contact with A.A. on this or any other occasion. Analysis of A.A. Incident [ 163 ] Mr. Bonnell's evidence about watching Pocohontas with A.A. and C.L. is far from compelling evidence that the alleged assault did not occur as described by A.A. These families spent a significant amount of time together. One of the things they did was watch movies and television shows recorded on DVDs and VHS tapes. A.A.'s favourite movie was Pocohontas .

It is entirely plausible that there was an occasion when Mr. Bonnell watched Pocohontas together with both A.A. and C.L., and that their mothers were nearby in the kitchen. C.L. remembered a time when she, A.A., and Mr. Bonnell sat on the couch together and watched Pocohontas while the others were also there. The fact that that probably occurred and that it is the incident Mr. Bonnell chose to testify about is not evidence that the incident recounted by A.A. did not occur on another occasion. [ 164 ] Some aspects of Mr. Bonnell's evidence provided some limited measure of corroboration of A.A.'s evidence.

In particular, he said, as did she, that they did not watch the end of the movie. [ 165 ] Mr. Bonnell had ample opportunity in the summer of 2020 to be alone with A.A. T.D. was moving from another community. D.L.

travelled to T.D.'s home to help her pack and clean, and then brought A.A. back to her home with her while T.D. finished moving. Five to eight days passed before T.D. rejoined the families at D.L.'s home. [ 166 ] In his evidence, Mr. Bonnell attempted to minimize the amount of time he was with A.A. without any other adult being present. As I discussed in more detail in assessing the allegations relating to C.L., he did the same in relation to his time alone with A.A. I do not find Mr.

Bonnell's evidence about how much time he spent alone with either child credible or reliable. [ 167 ] He testified in cross-examination that A.A. was in the home for five to eight days before T.D. joined them. He testified that D.L. was there almost every day during that period, that she had taken vacation time off work and that there was a long weekend and she was in charge of the kids. He said she was in the house for those five days for sure. [ 168 ] The difficulty with Mr. Bonnell's evidence about this is that it is largely inconsistent with D.L.'s evidence about her work.

She testified that she was working three jobs: as an assisted living worker; part-time at another seniors' residence; and baking for a bakery. It was clear from her evidence that she was working as much as she could to support her family. She said that she was probably working during the period A.A. stayed with them before T.D. joined them. Given the nature of D.L.'s work as an assisted living worker, a long weekend would not mean that she did not have to work. It was not suggested to her in cross-examination that she took time off work while A.A. stayed with them. I find that she did not do so, and that Mr.

Bonnell manufactured the story that she was not working during this period in order to reduce his opportunity to be alone with A.A. [ 169 ] C.L. recalled a time when she was in her room playing with Barbies and A.A. was in the living room watching TV. She thought A.A. was watching Minions . She did not know where her mom or A.A.'s mom were at the time. She thought Mr. Bonnell was cooking lunch. C.L.'s evidence is consistent with A.A. watching a movie without her while Mr. Bonnell was with A.A., and neither of the girls' mothers were present.

Whether the movie was Minions or Pocohontas is certainly a peripheral issue so far as C.L. is concerned, who was not watching the movie. C.L.'s evidence provides some element of corroboration of A.A.'s evidence, in particular, A.A.'s recollection of going to C.L.'s room after the assault where C.L. was playing with her dolls. [ 170 ] C.L., however, did not remember A.A. telling her what Mr. Bonnell had done. I do not place much weight on C.L. not remembering A.A. telling her about what had happened.

For C.L., this is a relatively peripheral matter that she may well have forgotten. [ 171 ] I appreciate that it is difficult for Mr. Bonnell to do much more than offer the denial of any physical contact with A.A. that he does: Snell at para. 70 . Equally, as stated by Mr. Justice Harvey at para. 113 of R. v. Jackson , 2022 BCSC 2412 , it is difficult to undermine a simple denial. [ 172 ] I believe that A.A. was making an honest disclosure of something that had happened to her when she made her statement to her mother.

A.A. was consistent, both throughout her statement to her mother and her evidence at trial, that she told Mr. Bonnell he was not allowed to touch her. I find that she told Mr. Bonnell that. [ 173 ] A.A. was less consistent with respect to whether Mr. Bonnell touched her vagina. I have already recounted her evidence on this point and I will not do so again. Despite those inconsistencies, I do believe A.A. that Mr. Bonnell touched her vagina. I do not believe Mr. Bonnell's denial of touching her.

This is not, however, a credibility contest. [ 174 ] While explainable, the inconsistencies in A.A.'s account to her mother leave me with some doubt as to what Mr. Bonnell did with A.A. while they were seated on the couch watching Pocohontas . Those inconsistencies are not peripheral. They relate to the very substance of the charges against Mr. Bonnell. [ 175 ] On a consideration of the evidence related to this allegation as a whole, and while I do not prefer Mr. Bonnell's evidence to that of A.A., I am left in a reasonable doubt. Conclusion [ 176 ] Mr. Bonnell, would you please stand. [ 177 ] Mr.

Bonnell, I find you guilty on Counts 1 and 3, as amended. I find you not guilty on Counts 2 and 4. “L.M. Lyster J.” LYSTER J.