R. v. M.E.N., 2023 BCSC 1972

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. M.E.N., 2023 BCSC 1972 Date: 20230828 Docket: 35203 Registry: Dawson Creek Rex v. M.E.N. Restriction on Publication: Pursuant to 486.31(1) & 486.5(1) C.C.C. Before: The Honourable Justice Shergill Oral Reasons for Judgment Counsel for the Crown: K.S. Blocka Counsel for the Accused: J.R. Steele Place and Dates of Trial: Dawson Creek, B.C. June 12-16 & 19-21, 2023 Place and Date of Judgment: Dawson Creek, B.C. August 28, 2023 Table of Contents I. Overview ... 3 II. Legal Framework .. 3 A. The Charges . 3 B. Reasonable Doubt 5 C.

Credibility and Reliability . 6 D. Sexual Offences . 7 E. Children’s Testimony . 8 III. The Evidence .. 8 A. Police Officers . 9 B. A.M.’s Evidence . 10 1. The first videotaped statement 10 2. Second Video Statement 13 3. Third Video Statement 15 4. Cross-Examination .. 17 C. TM’s Evidence . 19 1. First Video Statement 19 2. Second Video Statement 20 3. Cross examination .. 25 D. K.N.’s Evidence . 27 E. R. Z.’s Evidence . 32

F. The Accused’s Evidence . 34 IV. Analysis .. 37 A. Count 1 . 38 B. Count 2 . 42 V. Verdict .. 44 I. Overview [ 1 ] THE COURT: The accused, M.E.N., [1] stands charged with sexual interference of two persons under the age of 16, contrary to s. 151 of the Criminal Code, R.S.C 1985, c. C-46 [ Code ]. [ 2 ] A.M. is 12 years old and her sister T.M. is nine years old.

I will refer to them collectively as (“the Children”) or the (“Complainants”). [ 3 ] It is alleged that the accused touched A.M. and T.M. for a sexual purpose sometimes between September 1, 2017, and March 31, 2019, while they were visiting his family residence near Dawson Creek, British Columbia.

The accused is known to the Complainants as he is the common law partner of T.L. who was a close friend of the Complainants' mother, K.N. [ 4 ] The accused denies committing the alleged acts, and says that the Children's testimony is not credible or reliable. [ 5 ] The central issue at trial is whether, having regard to the whole of the evidence, the Crown has proven beyond a reasonable doubt that the accused committed the offences he is charged with.

This turns centrally on the credibility and reliability of the witnesses. [ 6 ] A cornerstone of our criminal justice system is that the accused is innocent until proven guilty. This means that the accused does not have to prove his innocence as it is presumed. It falls on the Crown to prove each essential element of the charge beyond a reasonable doubt. II. Legal Framework A.

The Charges [ 7 ] The accused is charged with sexual interference under s. 151 of the Criminal 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. [ 8 ] Sexual interference is a specific intent offence. The actus reus or physical element of that offence 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 mens rea or mental element of the offence is committed if the Crown establishes that the accused had a sexual purpose for the touching. [ 9 ] Mr. N. concedes that identification is not an issue. [ 10 ] There is also no dispute that both the complainants were under 16 years of age at the time of the alleged offences. The defence of consent does not apply to this case. [ 11 ] Because Mr. N. faces a multiple-count indictment, it is helpful to summarize the guiding principles that apply in such circumstances. Those were articulated succinctly by the court in a case called R. v. F.M. , 2020 BCSC 1884 at para. 82 .

I summarize those principles as follows: first, evidence that is properly admissible in relation to each count may be considered in relation to that count only; second, a finding of guilt for one offence is not evidence of guilt for another count; and third, the court must not engage in propensity reasoning by inferring from evidence of misconduct or discreditable acts relating to one count that the accused is person whose 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 to determine if the Crown has met its burden of proof in each instance.

This means that while there are two separate complainants in this case, similar fact reasoning is 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 of the evidence given by that witness. B. Reasonable Doubt [ 14 ] It bears repeating that the accused is innocent until proven guilty. This means that the Crown must prove beyond a reasonable doubt that Mr.

N. committed each count of sexual interference in order for me to find guilt of that particular offence.

[15] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Court explained that proving a case beyond a reasonable doubtdoes not require proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt. Rather,reasonable doubt exists where there is doubt that is based on reason and common sense. Reasonable doubt must be logically connected tothe evidence or the absence of evidence. If there are reasonable inferences other than guilt that can be drawn from the facts, the Crown'sevidence will fall short of meeting the proof beyond a reasonable doubt standard.

Gaps in evidence can also result in inferences otherthan guilt, but all such inferences must be reasonable based on the evidence and the absence of evidence, assessed logically and in lightof human experience and common sense. [16] A trier of fact, and in this case the trial judge, may accept all, some, or none of a witness's evidence and may assign differentweight to different parts of a witness's evidence that it has accepted. [17] Sexual offence cases often involve situations where there are no other witnesses to the alleged conduct, except for the accusedand the complainant.

Where there is no evidence other than the testimony of the complainant and the accused, their credibility will becritical to resolving the "he says/she says" conundrum that the court faces: R. v. L.F., 2006 Can LII 1024 (O.N.S.C.), at para. 9. [18] The guidance provided by the court in R. v. W.(D.), [1991] S.C.R. 742 for sexual assault jury trials, has often been relied on injudge-alone sexual offence trials where the accused and complainant provide competing versions of events. [19] In R. v. Ryon, 2019 ABCA 36, the Court of Appeal held that the exact wording in W.(D.) was misleading.

The court suggestedrevisions to the W.(D.) instructions to take into account that Steps 1 and 2 of the W.(D.) framework apply to all exculpatory evidence,whether it forms part of the defence's case or the Crown's case. [20] The reformulated W.(D.) framework is found at para. 51 of Ryon.

I summarize it as follows: If I believe the accused's evidencedenying guilt or any other exculpatory evidence, or if I am not confident that I can accept the Crown's version of events, I must acquit. [21] While I should attempt to resolve the conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring me to decide that one of the conflicting versions are true. If, after careful consideration of all of the evidence,I am unable to decide whom to believe, I must acquit.

Even if I completely reject the accused's evidence or, where applicable, otherexculpatory evidence, I may not simply assume that the Crown's version of events are true. [22] Rather, I must carefully assess the evidence I do believe and decide whether that evidence persuades me, beyond a reasonabledoubt, that the accused is guilty. Mere rejection of the accused's evidence or, where applicable, other exculpatory evidence, cannot betaken as proof of the accused's guilt. This approach has been approved by the B.C. Court of Appeal and was recently applied in R. v.

B.J.,2023 BCCA 166, at para. 64. [23] The principles surrounding reasonable doubt apply not only to each element of the offences alleged, but also to the credibility andreliability of witnesses. There may be circumstances where the trier of fact does not fully believe the accused's version of events andfinds the complainant's version to be more credible, but remains uncertain as to what actually happened. In that situation, there still isreasonable doubt, the benefit of which must go to the accused, even where the complainant's version is more plausible or believable thanthe accused's version. C.

Credibility and Reliability [24] Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt. Reliability has to dowith the accuracy of a witness's evidence, such as whether they have a good memory, if they are able to recount the details of the event,and whether the witness is an accurate historian. In contrast, credibility centres on the witness's veracity. A witness who is not telling thetruth is not providing reliable evidence. However, the reverse is not the case.

Sometimes an honest witness will be trying their best to tellthe truth and will believe the truth of what they are relating, but nevertheless be proven to be mistaken in their recollection. Althoughhonest, their evidence is not reliable. [25] Determining credibility of a witness requires the court to consider a number of factors such as internal and external consistencyof that witness's evidence, motive to fabricate, the inherent plausibility of the evidence in the context of the case as a whole, anddemeanour.

However, the use of a common-sense approach to credibility assessments can be dangerous because it can mask reliance onstereotypical assumptions. The trial judge must guard against relying on stereotypical assumptions when assessing the evidence. [26] Trial judges are also cautioned against making credibility assessments based on demeanour alone. This is because the manner inwhich a witness testifies is a notoriously unreliable measure of credibility.

A witness's age, physical health, personality, cultural andsocial upbringing, and comfort level with testifying in a courtroom setting are but some of the things that may affect their demeanour,thereby making it difficult to interpret. D. Sexual Offences [27] Our courts have unequivocally rejected the use of rape myths and discredited stereotypes to assess a complainant's evidence andcredibility. Twin-myth reasoning is forbidden. Nor is it appropriate to assume that sexual assault victims will react to abuse in anyobjectively identifiable way.

There is no inviolable rule on how victims of sexual assault will behave.

No inference should be drawnregarding the complainant's credibility that is based on assumptions about how a victim of sexual assault is supposed to react to thatassault. [28] It cannot be assumed that a victim of sexual assault will, for example, usually scream and yell, physically resist and fight back, orreport the sexual assault immediately to her family or to the authorities or avoid the perpetrator of the sexual assault. [29] The assumption or expectation about the post-abuse conduct of the victim, standing alone, will never give rise to an adverse

inference against the credibility of the complainant. However, that does not mean that no consideration whatsoever can be given to the timing of the disclosure or abuse. Delayed disclosure may have significance in some cases. What is important is that the trial judge avoid any stereotypical reasoning when evaluating such elements. E. Children’s Testimony [ 30 ] Finally, I turn to considerations that may apply regarding children's testimony.

Bearing in mind that the accused cannot be subjected to a different standard than the complainant, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria that is appropriate to their mental development, understanding, and ability to communicate. [ 31 ] In R. v. M.D. , 2021 BCSC 339 , Justice Dickson, writing for the court, addressed the principles engaged in assessing the credibility of children. She noted that the experience of children is different, so that details such as time, date, place, and frequency of events, may be missing.

Children also have a lowered ability to express themselves. They may be more prone to suggestibility and they may not focus too much on peripheral events. Thus, when assessing a child’s credibility, these factors should be taken into consideration. [ 32 ] I pause here to say that I have applied all of the above principles in coming to my conclusions in this case. I turn now to the evidence. III. The Evidence [ 33 ] Most of the evidence at trial was elicited during a voir dire .

The voir dire was held to determine the admissibility of videotaped statements made of the complainants which the Crown sought to rely on under s. 715.1 of the Criminal Code . [ 34 ] At the conclusion of the voir dire , I allowed the Crown's application and I admitted into evidence the following videotaped statements of the complainants pursuant to s. 715.1 of the Criminal Code :

a) two video recorded statements of A.M. made June 28, 2019;

b) one video recorded statement of T.M. made June 28, 2019;

c) one video recorded statement of A.M. made November 5, 2020, with redactions of portions that were deemed inadmissible; and

d) one video recorded statement of T.M. made November 5, 2020, ending at 23 minutes and 24 seconds, which is the point at which the video equipment malfunctioned. [ 35 ] With the agreement of the Crown and defence, I ruled that the evidence from the voir dire , including the testimony of all witnesses and the exhibits tendered during the voir dire , shall constitute evidence on the trial proper, except for those video interviews or portions thereof which were deemed inadmissible. [ 36 ] The Court heard from six Crown witnesses: three police officers, the two complainants who testified remotely, and the complainants' mother, K.N. [ 37 ] The defence called two witnesses: Mr.

N., who testified in his own defence, and R.Z. who is the ex-spouse of T.L. A. Police Officers [ 38 ] All three of the police officers who took the videotaped statements from the complainants testified at the s. 715.1 voir dire . The main purpose of their testimony was to authenticate the video statements and to provide some general information regarding their training and the methodology used to interview the children.

Their evidence is uncontroverted and no issues are raised regarding their credibility or reliability. [ 39 ] The officers attested to both video recording and separately audio recording the children's statements. The audio recording was done in case of malfunction of the video recording. Despite the fact that one of the video recordings did indeed malfunction, consistent with the requirements of s. 715.1 , the audio recordings are not relied on by the Crown and they were not entered into evidence. B. A.M.’s Evidence [ 40 ] A.M. was born in November 2010.

Count 1 relates to allegations of sexual touching of A.M. between September 2017, when she was six years old, and March 31, 2019, when she was eight. By the time of trial, A.M. was 12 years old and in Grade 7. [ 41 ] Each of her three video statements were played to A.M. during the voir dire and she was asked questions about them. A.M. recalled giving all three videotaped statements. However, despite having the video statements played back to her, A.M. could not recall the incidents themselves that had brought her to court. 1.

The first videotaped statement [ 42 ] A.M.'s first and second videotaped statements were made on June 28, 2019, three months after the end date for the offence period. The interviews were both conducted by Constable Flikweert at the Dawson Creek RCMP detachment. In the first video statement, A.M. appears as a personable but shy child who looked and acted younger than her stated age of eight years. She enunciates

reasonably well, though there are occasional times when A.M.'s statements in the videos are indiscernible. However, this is infrequent and does not interfere in my ability to understand her evidence. There are also times when the questions put to A.M. by the police officer are leading. I have taken this into consideration when considering how much weight to give to those answers. [ 43 ] A.M.'s first videotaped statement is taken just after 10:00 a.m. on June 28, 2019. It is 42 minutes long and is captured in two segments: the first is 36 minutes long and the second is six minutes long.

Constable Flikweert testified that at the conclusion of the first segment, she realized that she had a few additional questions for A.M. The second segment focused on asking A.M. to identify and to help her label body parts on a drawing of a male and female body. [ 44 ] My

summary of A.M.'s evidence given during her video statements is based on what she directly stated or what I reasonably infer her evidence to be, based on the surrounding questions and answers. [ 45 ] Most of the interview time in the first segment of the first video statement is spent with Officer Flikweert attempting to build and maintain rapport with A.M. About 13 minutes into the first video, A.M. refers to events prior to her coming into the police station to provide her statement. She indicates that she, her mother, and A.U., who was her stepfather at the time, were fighting.

A.M. then recounts an incident which she said had happened about 10 weeks prior. On that occasion, A.U. had thrown a cup at her. She was not sure if it was an accident. A.M. then pointed out to Constable Flikweert the area on her leg which was hit by the cup, saying, "It looks like a dog bite now" but that it was a huge bruise and there was a big lump. [ 46 ] Under cross-examination, when A.M. was asked about that incident, A.M. testified that her mother was stressed because of the interview that A.M. was scheduled to give that day and that A.U. was making a "big hissy fit about something".

A.U., she said, was her previous stepdad and she last saw him yesterday, meaning the day prior to her testimony at the trial. [ 47 ] Under cross-examination, A.M. did not recall saying to the police that A.U. had thrown a cup at her and she did not recall the bruise or the size or the lump. [ 48 ] Turning back to the video itself, it was not until about 24 minutes into the video that the conversation turns to the accused.

A.M. is asked about an “Auntie T.” She says that she does not like “Auntie T.” because of “M.” A.M. then says that she does not like “M.”, because he did something that he was not supposed to do. There is no dispute that the references to “Auntie T.” are to T.L., and that the references to “M.” are to the accused. [ 49 ] A.M. explains in the video that Mr. N. is T.L.’s husband. T.L. has four children: three boys and a girl who is much younger. They live outside of Dawson Creek.

She last saw them "a really long time ago." By inference, I inferred that to mean prior to the current year, based on the surrounding questions. [ 50 ] A.M. said that she likes T.L. and her three boys. She misses the boys and T.L., but not Mr. N. Despite being pressed repeatedly by Constable Flikweert, A.M. refuses to elaborate further about why she does not like Mr. N., saying only that she does not want to talk about it because it was a really long time ago. A.M. says that she does not want to tell anybody except Mommy. When asked if she would come back and talk to the police and tell them what Mr.

N. did, A.M. says that she is not sure. [ 51 ] The first segment of the first video concludes without any further disclosures. [ 52 ] Constable Flikweert then asks A.M. to mark a diagram of a boy and girl, identifying various body parts. A.M. was able to identify the male and female sexual organs, referring to them as private. [ 53 ] During her direct evidence in the trial, A.M. was not able to provide much clarity regarding the allegations against Mr. N. Similar to her video statements, her evidence at trial was disjointed and often very vague.

Most of her evidence related to peripheral events or the people in her life at the time. She was slow to respond to questions and admittedly had a great deal of difficulty with her memory. [ 54 ] At trial, A.M. did recall, though, giving her first video interview to Constable Flikweert. She testified that her mother and T.L. were good friends, and she had stayed overnight at T.L. and Mr. N.’s house many times.

When asked about why she did not want to talk to the police officer during her first statement, A.M. testified that she was really upset with herself that she "let that happen" and did not want to talk about it. A.M. recalled that when the first video interview ended, she went to her mother and sister, who were waiting in a room near the front door of the police station. 2. Second Video Statement [ 55 ] Constable Flikweert conducted A.M.'s second interview immediately following T.M.'s interview and on the same day.

The second video statement lasted seven minutes, and according to Constable Flikweert, was done at A.M.'s request. [ 56 ] Constable Flikweert explained that at the conclusion of the first video interview, she took A.M. back to the waiting room to wait with her mother, and then brought T.M. into the interview room to conduct T.M.'s interview. T.M.'s interview lasted for 27 minutes. Following T.M.'s interview, Constable Flikweert took T.M. back to the lobby to join A.M. and their mother.

At this time, A.M. indicated a desire to speak further with Constable Flikweert. [ 57 ] Once they were back in the interview room, Constable Flikweert asked A.M. what she wanted to talk to her about. A.M. said, "That I want to actually tell you what happened now. So [Mr. N.] actually licked my pee-pee." [ 58 ] A.M. then proceeded to provide the following details regarding the licking incident. She did not remember when this happened. It happened in the bathroom. A.M. was at T.L.'s house and was having dinner and Mr.

N., "just barged in there to wash his hands and then did that." [ 59 ] She said that the lock did not work back then, by inference referring to the lock of the door to the washroom at the accused's home. She said that it happened a long time ago, "Then like five weeks later, just tell Mom 'cause I forgot about it, then it just came back

to me." [ 60 ] She said that she said "no" when asked if Mr. N. said anything to her in the bathroom. A.M. repeated "no" when later asked if she remembered if Mr. N. said anything while it happened, and if he said anything afterwards. When asked by the police officer if she could explain how Mr. N. licked her, A.M. said, "I don't really wanna explain. I forgot." A.M. then proceeded to point out the "private part" depicted on the female drawing. [ 61 ] When asked to explain how that got licked, A.M. stated that she did not know and that it was a long time ago. When asked what Mr.

N. licked that part with, A.M. answered, "With his mouth." A.M. denied that it happened more than once, stating, "It only happened once, like a little bit, just once, then it never happened again." She repeated this answer when asked the same question a few minutes later. [ 62 ] The contrast between A.M.'s first video statement and second video statement is remarkable. In her first video statement, she was extremely reluctant to speak and vague in her answers.

In direct contrast to her first statement, just 35 minutes later, A.M. was spontaneous, focused, and provided far more details. [ 63 ] After A.M. was shown her second video statement at trial, A.M. was asked by Crown counsel about why she wanted to speak to the police officer. A.M. said that she had changed her mind about when to disclose things to the police officer because "if I did not say it, then my mom would take me to the police station over and over again." [ 64 ] Under cross-examination, A.M. testified that her mother had sat with her in the waiting room at the police station.

She did not recall what happened from the time that she left the interview room and then returned to the interview room after T.M.'s interview had concluded. A.M. also could not recall who she was with or what was said during that interview, 35 minutes. [ 65 ] At trial, A.M. was asked about the correct name for a "pee-pee". She said that she could not recall. When asked what that body part was used for, she said that she did not know how to say it, but that it was located below the belly button, in between her legs.

It is difficult to know whether her inability to recall was intentional or because she was nervous, or because she lacked the necessary vocabulary when testifying. [ 66 ] When asked specifically about the licking incident, A.M.'s present memory was mostly related again to peripheral events. She said that it had happened at T.L.'s house. There were no other adults around at the time, other than T.L. and Mr. N. Before the incident, T.L. was cooking dinner. A.M. said that almost everyone was in the living room, and does not know how she came to be in the washroom.

When asked how the incident ended, A.M. said that she just walked out, and then went to T.L. and told her what had happened, but that T.L. did not believe her. [ 67 ] Under cross-examination, A.M. did not recall any details in relation to the bathroom incident. In terms of the incident itself, she said that she did not remember it because it happened a really long time ago. A.M. could not explain any further details about what happened in the bathroom, how she was dressed, or how she felt. She said that she did not know the date or time of year when it happened or how old she was. 3.

Third Video Statement [ 68 ] A.M.'s third videotaped statement was taken by Constable Taron on November 5, 2020, a few weeks shy of A.M.'s tenth birthday. A.M. appeared to be her stated age in that video. [ 69 ] Constable Taron testified that the children's mother had reached out to the police to provide some new information from the children. After interviewing the mother to ascertain what this information related to, Constable Taron commenced her interview of A.M. The statement lasted a total of 23 minutes.

Several portions of the video statement were deemed inadmissible at trial for reasons related to speculation or inadmissible hearsay. During the statement, A.M. was again asked to identify and mark the body parts of a male and female drawing. During her third statement, A.M. described an incident where she said she was at T.L. and Mr. N.’s residence. The three boys were out in the big field and there was a lot of mud. A.M. asked for a stick and Mr.

N. helped her, and he said, "Touch it," and then he pulled his pants down and A.M. said, "and I didn't…I just ran out…Yeah…with a broom." [ 70 ] When asked by the police officer to repeat what happened with Mr. N., A.M. said the following: …so I asked for a big stick from [Mr. N.]…and I went down with him in the big shed…not in the little shed, in the big shed…And um… um he pulled his pants down and he said 'touch it' and I said 'no'…and I ran out and grabbed a stick. [ 71 ] A.M. stated that when he said "touch it", Mr. N. was pointing at his private.

The private was identified in the drawing depicting the male genitalia. [ 72 ] A.M. said that she told her mother before she went to bed. She does not remember the season of the year when this happened, but thinks it was spring or summer. In answer to whether there was any snow on the ground, she hesitated and said, "No. No." [ 73 ] A.M. was then asked by Constable Taron for some more details regarding the other times that something had happened with Mr. N. A.M. explained that it was only one to two times.

When asked what happened with those times, she replied: I went in the bathroom and I locked the door…And I was in the middle of peeing and [Mr. N.] walked in and washed his hands…and then he picked me up and [put me] on the counter and he pulled my pants and he started licking my private. [ 74 ] She denied that Mr. N. was touching or licking anything else. [ 75 ] When asked again how often, she said this happened two separate times, on two different days, like a week after. However, under cross-examination, she denied that there were two bathroom incidents, saying that there had been only one such incident.

[ 76 ] After viewing her third video statement at trial, A.M. provided the following direct evidence.

a) She said that she came to the police officer that day because she had remembered another thing that Mr. N. had done. She had told her mom what had happened.

b) She did not remember how long it had been before she gave that statement.

c) The stick incident happened at T.L.'s house, but she has no present memory of the incident or asking Mr. N. for a stick.

d) When asked to describe the shed and surrounding area, she said that the shed was a reddish brown colour. Tiffany's house was in the country. A.M. could not remember other buildings on the property, just the red shed and the house. She could not remember the time of year when the incident happened, or whether there was snow or what the leaves' colours were, or how much time had passed between the interview with the police and the incident having occurred.

e) A.M. remembered that the kids were out playing, but did not remember whether there were any other adults around.

f) The bathroom incident happened first and the stick incident happened after, according to A.M. A.M. stated in her direct evidence that she could not remember if she ever went back to the house again after the shed incident or how long ago it had been since she had seen T.L.'s children.

g) She described the house in which T.L. lived with the children and Mr. N. as having one bathroom and a door that does not lock. She says that she thought she locked it, but it had not locked.

h) She also could not remember what Mr. N. had said, if Mr. N. had said anything to her during either of these two incidents. 4. Cross-Examination [ 77 ] Under cross-examination, A.M. could not recall various things, such as what school she went to at the time of the third interview. She did not remember testifying at the preliminary inquiry, only the drive to the preliminary inquiry. She agreed that she had visited T.L. and Mr.

N.'s residence basically every day and probably over a hundred times, but could not recall the inside layout of the house, aside from a few minor details. [ 78 ] She stated that she had stayed at their place many times and that Mr. N. was there on many occasions. She recalled breaking her arm at T.L.'s house, saying that it was an accident and that she was on a dirt bike. The kids were all there and that Mr. N. was there, he was inside. She said that "he helped me go inside", and put her on the couch and walked away. [ 79 ] A.M. agreed that anyone could have come into the washroom because the lock was broken.

She said that she knew who R.Z. was, as he was the father of T.L.'s children and she had seen him about five times. [ 80 ] A.M. was asked directly about whether she had ever told R.Z. that the incidents regarding Mr. N. had never happened. She said that she did not remember saying that. She also did not think that she had told R.Z. that someone else had touched her and that it was not Mr. N.

When asked if that person was D., she said that she did not remember. [ 81 ] A.M. denied that her mother had pressured her or influenced her on what to say, and she said that she had not talked to her sister about the events. [ 82 ] A.M. could not recall when she told T.L. about the incident. [ 83 ] There was some suggestion during cross-examination that A.M. may have been confused.

At one point in an exchange with defence counsel, A.M. stated that, "I don't understand what you're saying most of the time." [ 84 ] However, I am satisfied, based on the questions and answers that she gave, that most of the time she was able to comprehend the questions and took time in thinking and deliberating over her answers before providing them. [ 85 ] I turn now to T.M.'s evidence. C. TM’s Evidence [ 86 ] T.M. is 10 years old. She was born in August 2013.

Count 2 relates to allegations of sexual touching of T.M. between September 2017, when she was four years old, and March 31, 2019, when she was five. [ 87 ] At the time of trial, T.M. was about three months shy of her tenth birthday. On the voir dire , T.M. recalled making both videotaped statements. [ 88 ] T.M. was very emotional during the trial and had a difficult time testifying. Her testimony had to be stopped on numerous occasions to allow her to compose herself. It was evident that she was very distraught and the process was very difficult for her. [ 89 ] I turn to T.M.'s first videotaped statement. 1.

First Video Statement [ 90 ] T.M.'s first videotaped statement was made on June 28, 2019, when she was five years old. The interview was conducted by Constable Flikweert at the Dawson Creek RCMP detachment.

[ 91 ] This first statement is 27 minutes long that includes a bathroom break for T.M., during which she is accompanied by the police officer. Constable Flikweert also asked T.M. to assist with labelling a drawing of male and female body parts. T.M. was unable to name the male and female sexual organs or the buttocks on each diagram. [ 92 ] I pause here to note that there was no suggestion whatsoever that during that bathroom break any inappropriate conversation or communications occurred with T.M. [ 93 ] Determining what T.M. is saying in her first statement is challenging.

There are many points at which her voice is inaudible or her enunciation is not clear, such that it is difficult to know what she had said. There are also a lot of leading questions which make the answers less reliable. [ 94 ] In her first video statement, it is not until about 24 minutes into the video that the subject of the allegations regarding the accused come up. T.M. says: Because cuz something happened with [Mr. N.] I see that's really bad and that's why I don't wanna talk about it. [ 95 ] Constable Flikweert then asks a question which first makes the connection between Mr. N. and T.M.

The police officer asks, "So [Mr. N.] did something bad to you guys?" And T.M. says, "Yeah." [ 96 ] Then T.M. goes on to say that she cannot remember what Mr. N. did, but that she did not want to do it, saying, "But I had to touch his wiener and I didn't want to." She later says, "He just wanted me to touch it but I didn't want to." [ 97 ] T.M. explained that this incident happened in the bathroom at T.L.'s house. She needed to go to the bathroom. When asked by the police officer the following question, "And then [Mr. N.] came into the bathroom, or was [Mr.

N.] helping you with going to the bathroom?" T.M. said, "He just comed in." [ 98 ] At trial, after playing the video, she was asked by Crown counsel with respect to the assertion that she had been asked to touch his wiener. She said that she recalled the incident, that it happened at T.L. and Mr. N.'s house, and that T.L. was her mother's friend. [ 99 ] Whether because of nervousness or issues with respect to her memory, during the exchange that followed those questions, T.M. had a difficult time at trial naming all of T.L.'s children and could not recall how many times that she had gone to their house.

She was able to describe the house as being a small house with a garden and a trailer, but could not recall the number of bedrooms that were in the residence. 2. Second Video Statement [ 100 ] T.M. was then played the second video statement. I pause here to note that T.M. was interviewed for a second time by the police in October 23, 2019 by Constable Peddle.

Though that statement was played to her in the voir dire , T.M. could not recall making the statement and it has not been admitted into evidence. [ 101 ] Following the playing of that October 23rd videotaped statement, T.M. was asked again in her direct evidence what she remembered about something that had -- whether she remembered what had happened in the bathroom. She said, "He forced me to touch his pee-pee" and then broke down crying. When asked what the pee-pee was called, she said that she did not want to say the name.

She stated that it was located by the legs. [ 102 ] The November 5, 2020, video statement was then played to T.M., which I will refer to as the second video statement. T.M.'s second video statement, which is in evidence, was taken by Constable Taron as well, on the same day as A.M.'s third statement. At this time, T.M. was approximately seven years old. T.M. was also asked to label another drawing of male and female figures. She was able to identify them as pee-pee in relation to the genitalia on both figures. [ 103 ] The second video statement was 31 minutes long.

However, according to Constable Taron, the video recording equipment malfunctioned at 23 minutes and 24 seconds into the interview. The Crown only sought to introduce the video recording and not the audio recording of the remainder of the interview. [ 104 ] With respect to her statements, there are fewer instances in the second video statement where T.M. was inaudible, but however there remained portions of that statement where it was difficult to discern what she had said.

Not unexpectedly, given her age, some of the statements that T.M. made during this video statement were disjointed and her statements were not always easy to follow. [ 105 ] The following is a

summary of the statement provided by T.M. in the second video statement with respect to an incident that she says occurred at T.L. and Mr. N.'s residence. [ 106 ] T.M. stated that her mother had told her, when talking to the police, "Just don't um lie." Three minutes into the statement, T.M. says the following: … everyone was outside and I really had to use the bathroom and I went and then [Mr.

N.] um came in and I went to the bathroom and he was following me …and then I didn't…um…lock it…And then…when I was done going to the bathroom I washed my hands and then I was trying to pull up my pants and then he tried to knock on the door but I didn't um, hear and then he just camed in and he said 'um pull your pants down' and I said 'no' and then he just did it for me…And it happened more…like not just one… [ 107 ] And she says later: And then um he pulled his…and then um he dared me to um go on the sink thing…And…he dared me to touch his private…And then I did…he was daring me…And then um…he um…touched my and then he put it to mine.

[ 108 ] She goes on later to say: And I went to tell um [T.L.] that um he was doing that and her didn't believe me…And [then] I went outside and then he camed outside… [ 109 ] When asked by the police officer if she remembered when the incident happened, T.M. referred to her sister and then said, "Um…my sister only did it like two times…mine was longer." [ 110 ] By inference, I take that to mean that at that time that she gave that statement, T.M. was aware, at least, that there were some allegations that had been made by her sister in relation to the accused. [ 111 ] Later on in her video statement, T.M. says that the incident happened "Last year…When I was six." That would suggest, by inference, in terms of timing, that it would have happened sometime after August of 2019. [ 112 ] T.M. went on to say that they were staying the night at T.L.'s residence and they were eating dinner outside.

Asked whether Mr. N. had pulled her pants down, when he had pulled her pants down, whether it was in the bathroom, T.M. says, "Most of it was in the bathroom" and that it was "just one of the days." [ 113 ] T.M. went on to say that the accused had pulled her pants down with both hands. The police officer at several instances asked T.M. with respect to the allegation of Mr. N. touching her pee-pee with his pee-pee. On several occasions, T.M. says, "uh huh" but does not actually use that wording herself. [ 114 ] T.M. says that she was not sure how long Mr.

N. did that, and she said that he did not do anything else and that he just walked out the door, and that she pulled her pants and went outside. [ 115 ] T.M. then recounts another incident where she says that she was having a play date with the Northcott children, and by that, I mean Mr. N.'s stepchildren, where she had to use the bathroom again.

She says: …I was done washing my hands…and then I just walked out of there, he did nothing else and then he just walked in… [ 116 ] The next few words were indiscernible, and then she says he was still there, nothing happened with him that time. [ 117 ] And then she says: I lock the door this time…because I didn't trust him…And then um I unlocked it and I see him right in front of me…And then I just quickly ran out the door. [ 118 ] She was then asked again if there was another time that Mr. N. had touched his pee-pee to her pee-pee.

She answers: …yeah…I actually not locked the door because…he was out…[and] then he came back…[and] came to the bathroom and he didn't knock on the door…I was like 'get out' and then he's like 'um…' I forgot. [ 119 ] Then she said that: …he just went out the door 'cause I screamed… [ 120 ] T.M. stated that the door was weird because you had to do a weird thing to open it and to get out. She then says that she ran out and told her sister what happened and then her mom. She said that she had actually spoken to her mother a few days ago, meaning maybe about three days prior to giving the video statement.

She said that her mother was writing stuff on the couch and "[A.M.] got to do it first and then me." [ 121 ] She then states later on in her statement that he just touched the pee-pee with his pee-pee, that he did not go inside, in reference to a question that was put to her by the police officer.

She says: …I thought I was a bad kid…and…Mum said 'you're not a bad kid'… [ 122 ] I have put out the actual statements in significant detail with respect to what was stated by T.M. in this video statement because, as I have said, some of it is difficult to put together and it is important that we have context for some of the evidence. However, I infer from all of those statements that it was T.M.'s evidence at the time that she was interviewed by the police officer that Mr. N. had -- there was at least one incident where there was no penetration, but that Mr.

N. had touched his genital, meaning his penis, to her vaginal area without any kind of penetration, and that there were other times where he was outside the door or she had come into the washroom and she had run. [ 123 ] To some degree, after having reviewed the video statement from November, in my view, it seems as if it is more of an expansion of the incident that is referred to in the first interview, rather than necessarily being a separate incident itself. [ 124 ] At trial, after her video statement was played, the testimony provided by T.M. was as follows: She stated that she had some recollection of the video statement, but she could not remember why she had come back this time to talk to the police officer.

She was asked if she knew about another name for the pee-pee and answered no. She stated that it was located behind the legs at the end of the torso. [ 125 ] I pause here to note that the use of the word torso seemed very odd, given the limited vocabulary that was evident with respect to the other testimony provided by T.M. I also note that in her evidence at trial, T.M. did not use the word wiener that was referred to in the video statement itself and that she rather referenced the area as being a private or pee-pee.

[ 126 ] Returning back then to her direct evidence, when asked what she remembered of the incident, she said, "Every single time I had to use the bathroom, Mr. N. would come in." And here I infer that she is speaking about the bathroom at [T.L.] and [Mr. N.]'s house. [ 127 ] She said that she did not remember the particular incident that was referenced in the second video. She could not recall how often she had been in the house or if the bathroom had a tub or a shower. She thinks that the door had a lock, but she was not sure, and she could not remember what happened when Mr. N.had come into the bathroom.

She provided a vague description of the house and said that she had stayed overnight a few times, and that she had told her mother after the incident had happened. [ 128 ] She was asked the following day regarding the name for the wiener and she said "private part" and essentially the same part that she had circled. At trial, she thought that the incidents described in the first and third video were different incidences, although as I have said, it appears, when one regards all of the evidence, that it is likely referring to the same incident.

She also believed at trial that she had told T.L. twice and that she did not believe her. She stated that she never saw T.L. and her children again after speaking to the police, and did not know how long after speaking to her mom that they had gone to the police. 3. Cross examination [ 129 ] Under cross-examination, she provided the following testimony: She discussed A.U. and said that he was her mother's friend and her previous stepdad.

She still saw him and, in fact, had seen him yesterday, meaning the day before her testimony, and stated that they had lived together with him about a year prior, and that A.U. had lived with her mother and her sister for about one to two years. [ 130 ] She testified under cross-examination that she had gone to T.L. and Mr.

N.'s residence maybe about 13 or 14 times, that she could not recall. [ 131 ] Although she had said in her direct evidence that these incidences had happened every time, she then stated in her cross- examination that it did not happen every single time, but she was not sure how many times that these incidences with Mr. N. had occurred.

She did state in her cross-examination that she had told T.L. shortly after the incident occurred, and the same day, and that she thinks that she told her mother when she got home later that day. [ 132 ] The last time T.M. remembered going to T.L.'s house was being there with her biological father, and she was not sure, though, with respect to when that incident had occurred. [ 133 ] She stated that in general her memory was not really great and that it was easier for her to remember things that had happened recently as opposed to having happened a long time ago.

She stated that she remembered staying overnight a few times at the Northcott residence and stated that Mr. N. had put his pee-pee on hers and agreed that it was the same every time, but that she remembered only one incident. [ 134 ] She said under cross-examination that she did not know where she had heard the word wiener . [ 135 ] She was then asked about R.Z. and stated that she knew R.Z., because he was the T.L.'s children's father, and that she had met him maybe one or two times.

She indicated that she thought she knew somebody named D., but was not able to elaborate as to who that person might be. [ 136 ] T.M. was asked under cross-examination about certain statements that she may have made to R.Z. She testified that she could not really remember talking to him at T.L. and Mr. N.'s house and telling him that nothing had actually happened with Mr. N. She was also asked if she recalled saying something, saying that the person that had assaulted her was somebody named D. She said that she was not able to provide any confirmation of whether she had actually said that.

T.M. said that the name D. did sound familiar to her. D. K.N.’s Evidence [ 137 ] K.N. is both the complainants' mother. She testified that she lived in Dawson Creek for nine years, but moved away in August 2022. Her previous common law spouse was a man named A.U. They were together for five years from about 2017 to the summer of 2022. [ 138 ] K.N. testified that her children are A.M. and T.M. They are attending Grades 4 for T.M. and Grade 7 for A.M. She stated that they were good students, and their biological father was J.M., but he had not been a part of the kids' lives.

She provided some evidence with respect to the children struggling in school during the period of time in question when the allegations, she says, were first disclosed to her. [ 139 ] Turning to her evidence with respect to T.L., K.N. stated that she knew of Mr. N. through her friend T.L., who she described as her old best friend. She stated that she had spoken to T.L. every day and saw her every other week, and considered them to be close like sisters. She said that T.L. had children ranging in ages from a very small age to 15.

The middle boys were the same age as her own daughters. [ 140 ] She also stated that T.L.'s children's biological father was R.Z., and that she knew him well because he was also the best friend of her own children's biological father. [ 141 ] She spoke about meeting Mr. N. in May 2017 when he and T.L. first started dating, and stated that her kids called him Mr. N. [ 142 ] It was evident from her testimony that while the relationship with the accused was originally amicable, at some point in time that relationship changed. K.N. testified that she was aware that Mr.

N. and T.L. had started living together very shortly after they met, around the summer of 2017, and they lived in the same residence as K.N., with K.N. staying in the basement suite with the children, and Mr. N. staying in the upper suite with Ms. L. However, around September or October 2017, she said that Ms. L. and Mr. N. had moved to a small community outside of Dawson Creek. Coinciding around the same time, K.N. moved out of Dawson Creek with the children. So

between September 2017, she was absent with the children until her return in December 2017. [ 143 ] She described the property at the Northcott residence as being a mobile home located on a hobby farm. There was a house with an addition to it and four or five outbuildings, including a shop, barn, storage sheds, and chicken coop, etc. [ 144 ] She stated that the last time that she had been at the Northcott residence was in May 2019, after the children had already made their disclosures to her.

She stated that the kids used to stay overnight, they loved being there, and she had also spent many nights at the Northcott residence. [ 145 ] She recalled an overnight stay on New Year's Eve in 2018, when the children had also stayed there, as well as A.U., and I will go back to that event in a moment.

She had stated that she was still on good terms with A.U., her previous ex-spouse, and in fact that A.U. had given the children a PS4 yesterday, and had picked A.M. up after she had done testifying, and yesterday was in reference to the day that K.N. was actually testifying at the trial. [ 146 ] K.N. also testified that she was aware that after the girls had made their disclosures to her, R.Z. had come and stayed at T.L. and Mr.

N.'s place, and had indicated that perhaps her own children's biological dad had also been at that residence. [ 147 ] She stated, going back to the disclosure, that the children had disclosed to her in March of 2019 on the way home from school. She says that after the statements had been made, she met with the children separately, and that they made a disclosure over a period of time but not all at once. She then stated that she told A.U. who, in her words, "lost his mind".

She then stated that she waited for a few weeks and for the children to tell her more information, which they did, and that she did not go to the police immediately because she wanted the children to finish their school year, they were doing horrible in school, and she also wanted to ensure that A.U. did not retaliate out of anger. [ 148 ] K.N. insisted that she learned about the incident in March of 2019, and that she spoke to T.L. about two weeks later.

She said that she told T.L. that she was going to the police, but that she did not do that because the children were struggling in school and she did not want to traumatize them. She also wanted to wait for A.U. to cool off. [ 149 ] She then said that after the children had disclosed the incidences to her and before they gave their statements to the police, she went to T.L.'s residence on a few occasions. On one occasion, she took the children there so that they could visit their biological father who was staying at T.L.'s house.

This happened around May of 2019, and she stated that they were there for a little bit. She herself was there for a little bit, but the children stayed overnight at the house with their father, and that they slept in the living room with their father.

When asked why she took them there, she said that she felt that they were safe with their father and that she had no legal grounds to keep them away from their father. [ 150 ] K.N. testified that once she and A.U. had gotten into an argument on one occasion, and that she then had also gone back to T.L.'s house, and on that occasion, R.Z. was there, but that she had gone there sometime around the beginning of June 2019. [ 151 ] The incidences were reported to the police not by K.N. herself, but rather by a friend who she said that she confided in, in order to get some advice with respect to what to do, and that her friend then turned around and reported the matter to the police.

K.N. repeated that she wanted to wait until the children's school year was over, and about a week after she was contacted by the police, she took the children to meet with the police officers. [ 152 ] She stated that she did tell T.L. in June 2019 that she was going to the police, and that was the last time that they had spoken. [ 153 ] K.N. then testified that she took T.M. back to the police in the fall of 2019, after T.M. had seen Mr.

N.'s truck and became very upset. [ 154 ] She then went on to discuss -- I am now going to focus on the cross-examination of K.N. [ 155 ] Under cross-examination, K.N. stated that A.U. was living with her during all of the period of time when these incidences are alleged to have occurred. She also insisted, under cross-examination, that the children had divulged and disclosed the incidences to her in March of 2019.

She was asked about the New Year's Eve event and said that it had not gone well, that A.U. had drunk a considerable amount of alcohol, and then was asked about the incident that happened when she went back to T.L.'s residence and Mr. Z. was there. [ 156 ] She was cross-examined extensively with respect to the reason for coming to T.L.'s residence on that occasion. She denied that she had been assaulted by A.U.

She denied that she was being threatened by A.U., but did concede, reluctantly I would say, under cross- examination, that she was taken to a shelter by the police and ended up with a s. 810 peace bond in April of 2020, in relation to that particular incident. [ 157 ] She stated that she had gone to T.L.'s house to escape A.U., and admitted that the children were in their pyjamas at the time, but insisted that everybody was fine and that, as I have said, that there was no threats or fear of A.U. when they had gone to T.L.'s residence. [ 158 ] I got the clear impression during this testimony, it was evidently clear that K.N. was attempting to minimize the incident that had occurred in relation to A.U. and was being, what I would say, protective of him. [ 159 ] K.N. confirmed that she had gone to T.L.'s house hundreds of time, and indeed at one point every week for six weeks the children had stayed overnight from Sunday nights to Monday mornings, and there were additional times when T.L. had both babysat the children and she testified under cross-examination that Mr.

N. was there most of those times. [ 160 ] She was also cross-examined extensively in relation to a conversation that she had with Mr. Z. She stated that the conversation occurred with J. or J.J. being present, and during that conversation, she had said that nothing had happened vis-à-vis the girls and Mr. N. K.N. stated under cross-examination that she made the statement because both of these men were irate and hostile, and she was worried that they might retaliate against Mr. N.

[ 161 ] She insisted that the conversation with R.Z. happened at his other residence and not at T.L.'s residence, though she did not deny that, in fact, she did tell R.Z. that the incidences as alleged by the children had not occurred. When she was asked whether she told R.Z. also that it was a person named D. that had touched the girls and not Mr. N., K.N. stated that she could not remember making that statement.

She did explain that D. was the boyfriend of a woman that had babysat her children sometime in 2018, and that this woman had provided after-school care for the girls for several months. [ 162 ] She was asked about her relationship with respect to Mr. N., and she stated that she felt that he was too friendly, and she was protective of her children and was in mommy mode when she saw his friendliness around the children. She stated that Mr.

N. was present for many of the sleepovers that the children had. [ 163 ] K.N. was also asked about the December 2018 incident around New Year's Eve, and it seems, from her evidence, and I infer it because she did not directly state it, that in fact after that evidence, the relationship between Mr. N. and his family and the K.N. family disintegrated and deteriorated such that they became estranged, and the frequency of their visits after the December 2018 incident diminished quite dramatically. This is consistent, I pause here to note, with the evidence provided by Mr.

N. and some of the statements from the children which suggest that their visits were infrequent in the ensuing period in 2019. [ 164 ] K.N. stated that at one point after the girls had made their disclosures, she took the girls back on one occasion to see how they would react to being around Mr. N. [ 165 ] I turn now to R.Z. 's evidence. E. R. Z.’s Evidence [ 166 ] R.Z. is the biological father of Mr. N.'s stepchildren. He lives in Lytton but used to live in Dawson Creek. He knows Mr.

N. because he is the common law partner of his children's mother, T.L. [ 167 ] R.Z. testified that he and T.L. were together for 20 years and remain on good terms. His biological children live with Mr. N. He does not consider Mr. N. to be his friend, but they do have a cordial relationship. [ 168 ] He referred to K.N. as "Dani" and stated that he knew Dani and knew of the allegations that Mr. N. had touched the complainants.

He, consistent with the testimony of K.N., confirmed that he was friends with J.J., who was the complainants' father. [ 169 ] R.Z. stated that he was in Kamloops when he learned of the allegations from T.L. T.L. had messaged him and he waited about one week and then packed his belongings and moved to Dawson Creek and rented a room in town. He stated that he wanted to satisfy himself that his children were safe, but that he did not confront Mr. N. because he wanted to feel things out himself and ask his children what had occurred, in order to assess their safety. [ 170 ] Mr.

Z. then described an incident that occurred in the very early part of June 2019. He stated that he was at T.L. and Mr. N.'s house when K. N. showed up, appearing very distraught and scared. She told him that her boyfriend was after her and that he was trying to kill her, and he asked her why she was there if this man had touched her children, and why she considered T.L.'s residence to be a safe space. [ 171 ] Mr. Z. testified that when K.N. appeared at the residence, she showed up in her shirt and underwear, and the children were also wearing T-shirts and no pants.

During that entire time, K.N. was agitated and looking out the window. T.L. and Mr. N. were out of the residence, branding cows, and his children were playing outside. [ 172 ] It is clear by his description and Mr. N.'s description of that incident, that both of them are describing the same incident or the same event when K.N. attended at T.L. and Mr. N.'s residence. What is also evident is that their perspectives of what happened during that incident are different. [ 173 ] Mr. Z. testified that during that event, he asked again K.N. why she was there. He then asked the girls directly if Mr.

N had touched them, and they told him no. He said that when he asked K.N., she also said that the girls had not been touched by Mr. N., but rather that there was some other man named D. that had touched them. [ 174 ] He also stated that he was told that A.U. had thrown a cup at A.M. and that the cup had hit A.M.

This, I pause here to say, is consistent with A.M. discussing an incident that had occurred during her first interview with the police many weeks prior, where she had said that a cup had been thrown in her direction, although she was not sure that it was intentional. [ 175 ] This is also consistent with what K.N. had said in terms of the incident, although K.N. denied that it was intentional. [ 176 ] Under cross-examination, Mr. Z. stated that he had met Mr. N. shortly after he and T.L. had started dating in 2017.

He also confirmed that the door to the bathroom at the trailer did not lock. [ 177 ] He stated under cross-examination that the last time he had seen the complainants was when they admitted to him that Mr. N. did not do it in early 2019. He denied that he would strike out against Mr. N. or that he would act out of fear, and this is in relation to K.N.'s evidence that was the reason why she told Mr. Z. that Mr. N. had not assaulted the children. [ 178 ] When asked about the timing of the incident, he stated that K.N. had come out to the property in the middle of the afternoon around 2:00 or 3:00 p.m.

He stated, again under cross-examination, that he flat-out asked the children whether the incident had occurred and they said no. He stated that the girls were crying and were scared and that K.N. was visibly upset and, as he stated, freaking out. He stated that he did not raise his voice when he asked the girls about whether the incident with Mr. N. happened. [ 179 ] Through his testimony, it was evident that Mr. Z. was not on very good terms with K.N., and that he did not appear to like her

very much. He stated that his concerns with respect to the safety of his own children were allayed following his discussions with K.N. and, although he stayed in Dawson Creek for a period of time afterwards, it was enough to finally take away his fears and that he was satisfied that Mr. N. had not assaulted the children. F. The Accused’s Evidence [ 180 ] Mr. N. was the last witness to testify in the trial. Mr. N. gave evidence that he is 42 years of age. He operates machinery for an oil company. He has been living in the same residence north of Dawson Creek since 2019, with T.L. and their four children.

The children are the biological children of T.L. and he considers them to be his stepchildren. They have been together for six years. At the time that he joined the T.L. family, Mr. N.'s stepdaughter was two years old. [ 181 ] Mr. N. described the property as being approximately 160 acres with about a 30-acre hayfield beside the house. He testified that the children were regularly at their residence. He was often out of town for work, but he still saw the children very frequently. They would also stay overnight regularly during the summer months. [ 182 ] Mr.

N. described an incident that happened on New Year's Eve 2018, and I am satisfied from his description of it that this is the same incident that was described and attested to by K.N. On that occasion, according to Mr. N., he had to kick A.U. out of the house because he was intoxicated. [ 183 ] Mr. N.'s evidence indicated that this resulted in an estrangement in the relationship and that he did not hear from K.N. until the spring or summer, at which point they started talking to each other again.

When I say "they", I am speaking of the families, the T.L. family and the K.N. family. [ 184 ] This is consistent with what K.N. said when she stated that at the time that the children made a disclosure to her in March 2019, T.M. had said that she missed Auntie, but that she did not miss Mr.

N, and I infer from that, being a consistent statement with respect to the fact that there had been an estrangement between the families certainly up to that point in time. [ 185 ] It is difficult to know how long that estrangement occurred, but I am prepared to find that there was estrangement that existed, certainly up to March of 2019. [ 186 ] Mr. N. described a relationship with the girls that was a positive one. He indicated that he had carried A.M. when she broke her bone, and aided her and helped her on that occasion. Though A.M. had denied that Mr. N. taught her how to ride a bike, contrary to Mr.

N.'s assertion, that in my view is of no consequence in the overall evidence that suggested that there had been a positive relationship between Mr. N. and the children prior to the allegations or the events surfacing in relation to the allegations. [ 187 ] Mr. N., in his direct evidence, through his evidence there was some indication that he was mixed up in terms of some of the timing of some events.

He had stated when he was asked about when he saw K.N. again and the children after the New Year's Eve incident in 2018, at one point he described it as six months later or in the spring or in the summer, but based on the evidence and the totality of evidence, I believe that to be that it was sometime in his evidence to be in the late spring, and I say I believe that to be based on some of the corrections that he made later in his testimony. [ 188 ] Where Mr. N. was abundantly clear in his testimony was his denial of any inappropriate touching with respect to the children.

He also denied being alone with them or being naked in the washroom with them or at any other point in time. [ 189 ] Under cross-examination, Mr. N. explained that K. N. and the children had moved away from Dawson Creek, he believed from the period of time, September to December 2018. He readily admitted under cross-examination that the door to the latch on the bathroom did not latch correctly, and that he had to adjust it periodically. However, he denied ever walking in on anybody while they were using the bathroom.

He discussed that the process was that if the door was closed, you would knock first, and that was a hard and fast rule. [ 190 ] He denied specifically ever walking in on the children. [ 191 ] Mr. N. testified that when the children slept over at his residence, they usually slept in the living room. He stated under cross- examination that the children may have started revisiting, the families reconnecting perhaps, in early spring. There was still snow on the ground. You could take the quads out, but you could not take the bicycles out.

He stated that on that occasion, they visited, but they did not stay the night. [ 192 ] Mr. N. was also asked about the shed in the yard, ostensibly the one where the incident in relation to A.M. is alleged to have occurred. He described the shed as it used to be red, but that the colour of the shed was now faded. There were no windows on the shed and there was a lock on the door from the outside. [ 193 ] Mr.

N., however, had no recollection of the incident where A.M. had asked for a stick, and he testified that he did not know why she would have asked for a stick, because they were surrounded by trees. [ 194 ] Mr. N. also stated that he did not know when A.M. had broken her arm, but that he was alone with all six of the children. He iced it and waited for the mothers to return to the residence.

The arm eventually required a cast and it was casted, from his evidence, a few days later. [ 195 ] He stated that because they had the dirt bikes out, the incident is likely to have occurred after the snow had already disappeared. [ 196 ] Mr. N. also stated under cross-examination that there were many children running around on the property at any point in time, and it was quite possible to be alone on the property, given the size of the property. He also explained that the bathroom lock would lock, but you would have to jiggle the lock. Mr.

N. readily admitted that if he wished to be alone with one of the children, the opportunity was there, stating, "Absolutely yes, yes." Nevertheless, he denied that the allegations against him were true.

[ 197 ] Mr. N. also explained that there was an occasion that he was out branding the cattle with T.L., and at that occasion, K.N. came out briefly with the children to see T.L., but had no contact directly with him. He stated that the last time he saw K.N. and the children was in town, but he had been instructed to leave, and he did not describe anything that happened on that one occasion where he might have seen them. IV.

Analysis [ 198 ] I am now going to go into my analysis of the evidence and my analysis of the reliability and credibility of the various witnesses. [ 199 ] Before I turn to considering each count separately, I pause here to note two things. The first is that the evidence as a whole suggests that if the offences occurred, they would have occurred sometime between December 2017 and December 2018.

That is the likely window of opportunity, based on the fact that T.L. and the children had moved away between September to December of 2017, and the indication of the families becoming estranged after New Year's Eve in December of 2018, with minimal contact in the ensuing months that led up to the disclosures. Having said that, it is not necessary for me to come to a firm conclusion for the reasons that will follow. [ 200 ] Secondly, I cannot reconcile, on the evidence, when the disclosures were made by the children to K.N.

It is possible that the disclosures occurred when she says that they occurred, i.e., March of 2019. It is also possible on the evidence that the children made disclosures to their mother much earlier, prior to March of 2019, but that K.N. may not have taken them seriously at that time. [ 201 ] To a large extent, as the following analysis will reveal, it is not necessary again for me to reconcile that evidence, but the conflicts in the evidence with respect to some inconsistencies is material to some degree. A. Count 1 [ 202 ] I turn first to the first count in relation to A.M. The allegation is that Mr.

N. touched A.M. for a sexual purpose contrary to s. 151 of the Criminal Code . After having regard to the totality of the evidence, I am left with reasonable doubt as to Mr. N.'s guilt in relation to Count 1. [ 203 ] First, I turn to A.M.'s evidence. I am satisfied that when A.M. provided her statements to the police in 2019 and 2020, she genuinely believed the truth of what she was saying. I also believe that she was making a genuine effort to be forthright with the court during her testimony at trial.

A.M. provided evidence which, when considered in isolation, is compelling, but falls short of being conclusive as to Mr. N.'s guilt. [ 204 ] Even after taking A.M.'s age and mental development into consideration and the difficulty of the subject matter and the trauma that is likely associated with testifying about these events. I did not find A.M.'s evidence to be reliable. For example, in her three interviews and at trial, A.M. could not provide specific details about either the stick incident or the bathroom incident, which would assist in determining whether those incidences had in fact occurred.

I agree that lack of peripheral details is not unusual for a child of that age, but when considered with the other frailties in the evidence, it is concerning. [ 205 ] Second, I note that the manner in which the events are said to have occurred make it impossible. Neither event was said to have occurred in an isolated place. The bathroom incident was in a small trailer park home, where the lock was ostensibly not working on the door, so anyone could come in, and the bathroom was within full view of the kitchen and anyone working in the kitchen.

Indeed, K.N. testified that on a number of occasions, the children had walked in on her while she was using that bathroom. [ 206 ] Similarly, the stick incident is said to have occurred while the children were all outside and at any time could have walked in on Mr. N. [ 207 ] Third, I note that A.M.'s evidence at trial leaves open the possibility that A.M.'s disclosures during her second video statement were influenced by her concerns about what her mother would do if she did not provide more details to Officer Flikweert. [ 208 ] I now turn to the other evidence in this case. I note, first, that Mr.

N.'s evidence alone raises reasonable doubt. Mr. N. presented as a credible and reliable witness. He steadfastly denied ever touching A.M. inappropriately. Mr. N. was unshaken in cross-examination. I found him forthright and even in his responses, despite the fact, regardless of whether he was being questioned by the defence counsel or the Crown counsel. [ 209 ] Mr.

N. made admissions against self-interest, such as admitting under cross-examination that if he wished to be alone with one of the children, the opportunity was absolutely there for him to do so, and admitting that there were problems with the latch to the bathroom door. [ 210 ] Mr. N. also readily admitted the limits to his memory when asked details about some events, though on a few occasions he did get some of the dates confused, particularly with respect to how long it had been between the families reconnecting.

The discrepancies were not significant and do not impact my view of his credibility. [ 211 ] I pause here to note that some of that can be explained by his own evidence that he was extremely nervous when testifying. [ 212 ] Second, I note that Mr. Z.'s evidence also raises doubt about the reliability and credibility of the allegations against Mr. N. I found Mr. Z. to be a credible and reliable witness. He was indeed the only truly independent lay witness before the court. He presented as a father who was interested in knowing the truth of what happened between Mr.

N. and the complainants, so that he could ensure his own children's safety in the presence of Mr. N. Mr. Z.'s evidence was detailed and consistent with the other evidence on key issues. For example, though they disagreed as to where this conversation occurred, K.N. admitted that she and the children had told Mr. Z. that Mr. N. did not sexually assault the children.

[ 213 ] Where there are conflicts between Mr. Z.'s evidence and that of K.N., and that of the complainants, I accept Mr. Z.'s evidence. I found that Mr. Z. provided his testimony fairly. Though he had a clear disdain for K.N., I did not find that it coloured his evidence. He readily admitted that the children were distraught when he asked them if Mr. N. had sexually assaulted them. [ 214 ] I accept that it is possible that A.M. recanted her allegations about Mr. N. when Mr. Z. asked, because she might have been distraught or fearful. Similarly, it is possible that T.M. also recanted her allegations about Mr.

N. when Mr. Z. asked, because she may have been distraught or fearful. However, I am not able to dismiss the possibility that both A.M. and T.M. recanted those statements because they knew that the allegations against Mr. N. had been false. That possibility remains. [ 215 ] Third, I did not find K.N. to be a credible or reliable witness. Her testimony was self-serving and her testimony was often coloured to protect those people that she cared for. She was evasive, indirect, vague when it suited her. For example, she minimized the events with her ex common law husband, A.U.

Her denial that she was afraid of him or the victim of domestic violence was implausible, in light of the fact that the police had taken her to a shelter and she had obtained a s. 810 peace bond against A.U. [ 216 ] K.N. also admitted lying to Mr. Z. when he asked her if the allegations against Mr. N. of sexual assault of the children were true, and that is taking her evidence at its face value. Her evidence leaves open the possibility that she may have told Mr. Z. that a person named D. had touched the girls. When asked, she simply said that she could not remember telling Mr.

Z. if she had said that or not. [ 217 ] I find K.N.'s evidence implausible that she lied to Mr. Z. about the girls being touched by Mr. N. because she was afraid that he may become violent. There was nothing in her evidence or in the testimony of Mr. Z. that would suggest that there was any reasonable basis for that belief. There were also numerous inconsistencies between her evidence and that of other witnesses.

For example, her evidence that she found out in March 2019 was contradicted by the children's own evidence, which suggested that they had made disclosures to their mother earlier. [ 218 ] Even if the children's ages are considered in terms of their ability to recollect dates and times of events accurately, there are other anomalies which arise. For example, K.N. testified that her daughters told her in March 2019. The evidence is that during that period of time, the relationship between Mr. N.'s family and K.N.'s family had been estranged since around 2018, New Year's Eve.

The March 2019 disclosures, if they were indeed made, were months after the last known sleepover or visit to the Mr. N. residence. [ 219 ] In rejecting K.N.'s testimony, I note the following: First, I do not place any weight on the suggestion by the defence that K.N. should not be believed because she did not react in a normal manner as one might for a mother who had learned that her children may have been sexually abused. Just as there is no one way that a victim of sexual assault may behave, there is no one way that a parent of a victim of sexual assault may behave.

Therefore, I put no stock in the suggestion that it was consistent with the incidences not having occurred by the fact that K.N. did not disclose to the police right away, or by the fact that K.N. may have taken the children to Mr. N.'s residence, even after the disclosures had been made. As I have said, there is simply no one way that a parent of a victim of sexual assault may behave. [ 220 ] Second, even if I accept that K.N. came to believe that Mr. N. did not sexually assault the girls does not mean that the girls were not sexually assaulted by him.

Whether or not others believe that an assault happened does not make it more or less likely that the events as described by the children occurred. What is important here is whether the Crown has proven their case beyond a reasonable doubt. This consideration applies equally to Mr. Z.'s belief that Mr. N. did not assault the children. [ 221 ] As I have said, I have assessed the children's evidence independently of those beliefs and within the context of all the other evidence presented by the Crown and by the defence. [ 222 ] Thus, when I consider th

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