R. v. R.B.P. Date:, 2017 BCPC 246

Citation: R. v. R.B.P. Date: 20170817 2017 BCPC 246 File No: 36346-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.B.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. P. MACCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C. Dates of Hearing: February 6, 7, 8, 9, 2017 March 30, April 12, May 12, 2017

July 4, 5, 19, 20, 2017 Date of Judgment: August 17, 2017 Introduction [1] THE COURT: R.B.P. (the "Accused") has been charged with an offence that he: . . . between August 1, 2013 and October 18, 2013, at or near Lake Cowichan, in the Province of British Columbia, did, for a sexualpurpose, touch, directly or indirectly, with a part of his body or with an object, the body of A.P., a person under the age of sixteen years,contrary to

Section 151 of the Criminal Code. [2] Crown has proceeded summarily on this charge. [3] The complainant A.P. (the "Complainant") is the daughter of the Accused. At the time of the alleged offence she was sevenyears of age. Presently she is now 10 years of age and, shortly, will be 11 years of age. [4] This has been a lengthy matter.

The trial originally came before me on February 6, 2017, February 7, 2017, February 8, 2017,and February 9, 2017. [5] In the course of that portion of the trial, a Mills application was brought by Defence, pursuant to s 278.3 of the Criminal Code,for production of certified medical records and reports relating to the treatment, diagnosis, and opinions in connection with thehospitalization of the Complainant from July 3, 2016, to July 12, 2016, at the Victoria General Hospital. [6] The stated grounds for that disclosure were that this information was required by the Accused to make full answer and defenceto the charges that he faces.

A hearing in connection with that application was conducted on March 30, 2017, and April 12, 2017. [7] Oral reasons on the first stage of the Mills application were rendered, directing the custodian of the records to turn over therecords for a review of the records by the court (see R. v. R.B.P., [2017] B.C.J. No. 891; 2017 BCPC 135 ). [8] Following the court's review, a further ruling was made on the second stage of the Mills Application on May 12, 2017 (see R.v. R.B.P., [2017] B.C.J.

No. 1079; 2017 BCPC 159 ). [9] Thereafter, the trial continued on July 4, 5, 19, and 20, 2017. [10] The Crown called a number of witnesses, including the Complainant who testified and was cross-examined by closed-circuittelevision while in another room within the Duncan Courthouse, as contemplated by s. 714.1 of the Criminal Code. [11] In her evidence, the Complainant described the incidents out of which the charge arose. [12] A video recording of the Complainant was made on October 30, 2013, in which she describes to RCMP Constable RossWallace the acts complained of giving rise to the charge against the Accused.

She adopted that statement in her viva voce evidence. Itwas admitted into evidence pursuant to s. 715.1 of the Criminal Code (the "Section 715.1 Video Recording"). It was accompanied by awritten transcript of the

Section 715.1 Video Recording which was also admitted into evidence (the "Interview Transcript"). [13] The Accused testified on his own behalf. No other defence witnesses were called or testified. The Accused denied theallegations made by the Complainant. [14] The task of this court is to determine whether the Crown has met its burden of proving the charge beyond a reasonable doubt. In so doing, this court must assess the credibility and the reliability of all the witnesses and, in particular, the Complainant and theAccused.

Presumption of innocence and reasonable doubt [15] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [16] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. (See R. v. Lifchus, (SCC); [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 ; [2000] 2S.C.R. 144.) The W.(D.) formulation [17] I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of theevents I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [18] Where there is evidence of an accused that raises a defence, as in this case, then I must further instruct myself, and I must applyto this evidence the well-known process of analysis set out in R. v. W.(D.), (SCC); [1991] 1 S.C.R. 742, found at

paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the Accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [19] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6; [2012]P.E.I.J.

No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of anaccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt and if not, then going on to step three and determining whether the evidence taken as awhole raises a reasonable doubt. [R. v. Ellis, 2006 PESCAD 25, at para. 18].

Proper application of the third step involves moving thefocus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canadarecently stated in R. v.

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

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2 at para. 7). [20] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis; namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as he then was) suggests that,logically, this ought to be second in order in the W.(D.) analysis. [21] It is important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or toachieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [22] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing the evidence, I mayreject or accept some or all of the witnesses' testimony, after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. [23] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [24] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) Assessing credibility and reliability of witnesses [25] Here, I have heard evidence that is conflicting on material matters regarding the alleged offence, and I must assess thecredibility and reliability of those witnesses who have provided this conflicting evidence. [26] In doing so, the testimony of each of the witnesses can be considered from three perspectives:

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

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

c) the accuracy of their observations: their abilities to observe, remember, and communicate accurately. [27] In the case of R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6, is a statement that provides a useful review of the factors tobe considered when assessing the testimony of a witness from these three perspectives.

Truthfulness [28] Relevant factors for truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful;inconsistencies in testimony during direct examination and cross-examination; and reliable evidence that conflicts with the testimony ofthe witness and the attitude and the demeanour of the witness. However, when considering demeanour, it is important to consider all thepossible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affect demeanour. Objectivity

[29] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumptions of unproven facts, or by subsequent events. Accuracy [30] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations. The reasons for recalling an event and the length of time betweenwitnessing an event and providing their testimony about it may affect the accuracy of the witness's testimony and hence its reliability.

Some witnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness. The Approach to Assessing the Evidence of a Child [31] The approach to assessing the evidence of a child bears special mention in this case. This approach is described by the SupremeCourt of Canada in R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122 ("W.(R.)"). [32] The W.(R.) decision describes how the law affecting the evidence of children has undergone two major changes, includingchanges of attitude, in the recent years preceding that decision. [33] First, it describes how the common law notion, namely that evidence of children was inherently unreliable and therefore was tobe treated with special caution, became codified in various pieces of legislation including the Criminal Code, the Evidence Act, and theYoung Offenders' Act, or its predecessor legislation.

Thus, at one time a child's evidence needed to be corroborated in order for anaccused person to be convicted. [34] The first change started in 1988 when new legislation came into force to eliminate several of the existing codifications of thiscommon law notion.

The Supreme Court noted that these changes may have repealed the necessity of corroboration of a child'sevidence, but it did not prevent the finder of fact in a trial from "treating a child's evidence with caution where such caution is merited inthe circumstances of the case" (see paragraph 23). [35] At pages 132 and 133 of that decision, the Supreme Court, at the conclusion of paragraph 23, then goes on to say: But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always lessreliable than the evidence of adults.

So if a court proceeds to discount a child's evidence automatically, without regard to thecircumstances of the particular case, it will have fallen into an error. [36] The second change noted by the Supreme Court was a then fairly recent change in attitude of the law towards the evidence ofchildren, marked by a "new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children" (seeparagraph 24). [37] Continuing in the balance of paragraph 24 and into paragraphs 25 and 26, the Supreme Court states as follows: 24 . . .

One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the worlddifferently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissionsregarding the court of appeal judge's treatment of the evidence of the complainant, she said that ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

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

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. Inrecent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of youngchildren. 25 As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that theevidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protectingthe liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for averdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of childrennot from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths andweaknesses which characterize the evidence offered in the particular case. 26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to"adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying.

[ 38 ] Therefore, in

summary, the Supreme Court in W. (R.) directs that while the evidence of children is still subject to the same standard of proof as the evidence of adult witnesses in criminal cases, it should be approached not from the perspective of rigid stereotypes, but on a common sense basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. The Evidence The Crown's Case [ 39 ] The Crown called a total of seven witnesses, including the Complainant.

Crown's witnesses were the following individuals: 1) RCMP Constable Bruce Coles, who conducted the investigation of the allegations made against the Accused; 2) D.J. (the “Grandmother) - the Accused's mother and the grandmother of the Complainant; 3) D.M. (the “Teacher) - a teacher on call who, while working as a substitute teacher, received an initial disclosure of the allegations from the Complainant and reported them to the Ministry of Children and Family Development ("MCFD"); 4) L.A. (the “Foster Mother”) - the foster mother of the Complainant who served in that capacity commencing shortly after the removal of the Complainant by MCFD based upon investigations of the Complainant's allegations.

The Foster Mother continued in that role at the outset of the trial; 5) Kim McLeod - the MCFD social worker who worked with the MCFD team that conducted an investigation and attended at the Accused's home in Lake Cowichan, British Columbia; 6) RCMP Constable Ross Wallace, who conducted the videotaped interview of the Complainant that gave rise to the

Section 715.1 Video Recording ; and 7) The Complainant. Circumstances Based on the Whole of the Crown's Evidence Background [ 40 ] At the time that the allegations giving rise to the charges were disclosed, the Complainant and the Accused resided together alone in a two-bedroom rental unit contained within a multi-family dwelling situated in the Village of Lake Cowichan, British Columbia. Other family members, including an aunt, S.H. (the “Aunt”), were neighbours in this complex.

She and her then 10-year-old son lived in the basement unit, and the Accused and the Complainant resided upstairs in their unit. [ 41 ] The Complainant and the Accused had previously resided together in Duncan, British Columbia, initially in an apartment and then in a small rental house. The Complainant was enrolled in an elementary school in Duncan. [ 42 ] The Accused was responsible for the care of the Complainant shortly after the birth of the Complainant.

The Complainant's biological mother, C.B. (the "Mother"), had limited and intermittent contact with the Complainant throughout the child's life and often with some participation by MCFD. Evidence of the Teacher [ 43 ] The Complainant was enrolled at a local elementary school in Lake Cowichan. On October 18, 2013, the Complainant and her Grade 2 classmates, under the supervision of the Teacher, were on a field trip to a farm near Nanaimo, British Columbia, a feature of which was the students visiting a corn maze and obtaining pumpkins to take home.

Other teachers and students from the same elementary school were also participating in the field trip. [ 44 ] According to the Teacher's evidence, another teaching colleague brought the Complainant to the Teacher and said that the Complainant told two other students from the other teacher's class about a disclosure of a sexual nature. The Teacher spoke to the Complainant, resulting in a disclosure of a sexual nature being made to the Teacher. The Teacher reported the disclosure to MCFD.

Evidence of the Social Worker [ 45 ] Kim McLeod, a social worker with 17 years of experience with MCFD, provided evidence about the MCFD's resulting response to the report. [ 46 ] Another social worker, Lisa Olund, who is a colleague of Ms. McLeod’s on the Ministry Child Protection Intake Team, attended the Grandmother's residence in Lake Cowichan in response to the report from the Teacher. Ms. Olund completed a child protection removal of the Complainant in the presence of Constable Coles on October 18, 2013. The Complainant was staying with the Grandmother at that time.

The Accused was on the British Columbia mainland dealing with family business relating to the death of the Accused's father. [ 47 ] The Complainant was placed in her initial foster care situation after that removal. [ 48 ] The Complainant's child protection file was then assigned to Ms. McLeod. As I understand it, Ms.

McLeod ultimately, on behalf of the MCFD, oversaw and brought forward the court procedures undertaken by the Ministry under the Child, Family and Community Services Act , R.S.B.C. 1996, c. 46 , that ultimately resulted in the Complainant being made subject to a continuing custody order and becoming a ward of the Province of British Columbia. She continued to be so during the time of the trial.

[ 49 ] Ms. McLeod made a referral to an MCFD resource social worker, who arranged the Complainant's first foster care placement, following the child's removal, with the foster parent, C.G. [ 50 ] In the course of her duties, Ms. McLeod was inside the Accused's Lake Cowichan rental accommodation. In that unit, she observed a somewhat unusual shower facility consisting of a tiled shower room. It contained a chair apparently able to be used by an occupant while showering. [ 51 ] In the course of her evidence, Ms.

McLeod testified that the MCFD files relating to the Accused, the Mother, and the Complainant were quite voluminous. As I understand it, a significant number of MCFD social workers on various teams were engaged with the Accused, the Mother, and the Complainant over the course of several years preceding the Complainant's removal, as a result of the allegations that are the subject of the present criminal charges. [ 52 ] Also in the course of her duties, Ms.

McLeod arranged for a referral of the Complainant to a multidisciplinary team that deals with children who are the subject of allegations of suspected sexual abuse. This team is identified with the acronym VI SCAN and consists of a paediatrician, other medical specialists, a child psychologist, and a social worker.

As I understand it, the Complainant's referral to VI SCAN involved in-person meetings, assessments, and examinations of the Complainant, as well as a review of the Complainant's medical records. [ 53 ] Pursuant to Admissions of Fact made under s. 655 of the Criminal Code , it is admitted that on December 5, 2013, the Complainant was examined by Dr. Wilma G. Arruda. Dr.

Arruda concluded that her examination did "not reveal any physical evidence that sexual abuse has occurred, but this does not confirm nor negate the disclosure.” [ 54 ] On the continuation of her cross-examination on the second day of the trial, Ms. McLeod indicated that following the conclusion of her evidence on the first day of trial and prior to the second day of trial, she was able to review some portions of the MCFD records following her assumption of conduct of matters relating to the Complainant. [ 55 ] Ms.

McLeod did not specifically look for a 2012 report allegedly made by the Accused to a MCFD social worker named Patricia Glover regarding the Accused's concerns about inappropriate sexual activity by the Complainant. Ms. McLeod did testify that she looked in the MCFD files and found what she referred to as an "intake" in 2006, 2007, and 2008, but none in 2012.

She described that an "intake" is created when information is reported to or received by an MCFD worker, usually an intake social worker, which, after consultation with an MCFD team leader, is determined to be significant enough to result in the creation of an "intake" that is then recorded in the MCFD files. Ms. McLeod indicated that she did not have the available time to review each of the file records including electronic records to determine whether or not there is any reference to such a report being made to Ms. Glover by the Accused.

Evidence of Constable Bruce Coles [ 56 ] Constable Bruce Coles headed up the investigation for the Lake Cowichan Detachment of the RCMP. As part of that investigation he met with and took a lengthy statement from the Accused on October 20, 2013, about the allegations made by the Complainant, which statement predated the Accused being arrested or charged for the offence. [ 57 ] The Accused offered to take a polygraph test, but that never occurred.

Constable Coles indicated that the Accused was cooperative with him and emotional when providing his statement to the police officer in the time preceding the Accused's arrest, which occurred around November 5, 2013, following the police interview of the Complainant. [ 58 ] As part of his investigation, Constable Coles also spoke to the principal and homeroom teacher at the Complainant's elementary school. He spoke to the Grandmother and the Accused's Aunt. He did not interview the Complainant, having left that to Constable Wallace.

Evidence of the Grandmother [ 59 ] The Grandmother testified that she cared for the Complainant from time to time while the Accused was either working or looking for work, both while the grandmother resided in Duncan, British Columbia, and then, subsequently, in Lake Cowichan when the Accused and the Complainant moved there in July or August of 2013, some six months after the Grandmother's own relocation to Lake Cowichan. [ 60 ] The Grandmother testified that she was caring for the Complainant at the time that the MCFD removed the Complainant and while the Accused was on the mainland dealing with his own father's estate. [ 61 ] The Grandmother indicated that she was involved in the life of the child and regularly saw her, frequently, on a daily basis after the Complainant was age three or four.

The Grandmother described an incident when the Complainant was approximately five years of age. The complainant was showering with the Grandmother and attempted to touch the Grandmother in the vaginal area. That led to a discussion with the Complainant about appropriate and inappropriate touching. [ 62 ] The Grandmother described what she considered to be adequate care provided by the Accused to his daughter which included medical attendances. She also assisted the Accused in dealing with a diaper rash suffered by the Complainant in her vaginal area, which I understood occurred when the Complainant was younger.

She also confirmed that the Complainant was suffering from bouts of head lice that required ongoing treatment by the Accused. [ 63 ] The Grandmother also provided evidence about the Complainant being very verbal and talkative, and described her as happy and bubbly. The Grandmother testified that the Complainant never made any disclosure to her about sexual abuse or sexual touching. [ 64 ] The Grandmother was surprised to learn about the allegations against the Accused. The Grandmother has not seen or had contact with the Complainant since the child's removal by MCFD.

[ 65 ] The Grandmother had no recollection of the Accused sharing with her disclosures made by the Complainant after the Complainant had visited at her mother's residence sometime in or around 2012. Nor was the Grandmother aware of any report made by the Accused to a social worker with MCFD about the Complainant and, as I understand it, concerns that the Accused may have had about her sexualized behaviour. The Grandmother did not know the name Patricia Glover.

Evidence of the Foster Mother [ 66 ] The Foster Mother was serving as the Complainant's foster parent at the outset of the trial and had served in that capacity for some three years and four months since October of 2013. [ 67 ] She is an experienced foster parent who, in addition to the Complainant, had two other foster children in her care at the time of her testimony in this trial. She also has a diploma in early childhood education and has worked as an educational assistant and a special educational assistant in the public school system.

She was not proffered as, nor qualified as, an expert witness by Crown. [ 68 ] The Foster Mother testified that at the time of the trial, the Complainant was working at a Grade 2 to Grade 3 level in a number of subjects, rather than at a Grade 5 level which would be more commensurate with her chronological age. Depending on the subject matter, the Complainant's observed attention span had increased to about a half an hour. [ 69 ] She further stated that the Complainant's gross motor skills are delayed, but have improved since coming into the Foster Mother's care.

From a social development perspective, the Complainant is more attracted to the company of children two to four years younger than the Complainant. [ 70 ] At the date of the trial, the Complainant was receiving separate medications for her concerning behaviour at school and for a medical diagnosis of ADHD. [ 71 ] In cross-examination, the Foster Mother confirmed that in the spring of 2016, the Complainant disclosed to the Foster Mother that she was hearing voices at that time and, further, that while residing in Lake Cowichan in 2013 with the Accused, she was also hearing voices. [ 72 ] The disclosure made by the Complainant was to the effect that voices were "mumbly", that she could not understand them, and that they were bothersome to her and made her angry.

In addition, there was a disclosure made by the Complainant to the Foster Mother that in the spring of 2016, there were two new voices. I understand that part of the disclosure was to the effect that one of the voices was that of what I take to be an imaginary friend of the Complainant.

I accepted this evidence from the Foster Mother, not for the truth of its contents, but rather that this disclosure had been made to her by the Complainant. [ 73 ] These disclosures and the Complainant's angry behaviour at home and her disruptive classroom behaviour at school, observed in or around the same time as the making of these disclosures, were all reported by the Foster Mother to the Complainant's Guardian, Laurel Faccette, at MCFD. This ultimately resulted in the hospitalization of the Complainant in Victoria from July 3 to July 12, 2016, at the Victoria General Hospital.

As noted above, the medical records of the Complainant for that period of time became the subject matter of the Defence’s Mills application brought during the course of this trial. Evidence of Constable Ross Wallace and the

Section 715.1 Video Recording [ 74 ] Constable Ross Wallace is a 34-year veteran of the RCMP as a regular member. Following his retirement, he became an RCMP reservist, remains a member of the force in that capacity, and provides consulting services to the force. He has specialized training in interviewing children and, in particular, with respect to domestic violence and sexual assault matters. He was not proffered by Crown as an expert. [ 75 ] He conducted the interview of the Complainant, that was video recorded and which produced the

Section 715.1 Video Recording. It was subsequently transcribed into written form and proofread by Constable Wallace. In the course of the trial, agreed amendments were made to the Interview Transcript based on Constable Wallace's testimony and also counsel's submissions arising out of the presentation of the

Section 715.1 Video Recording. Constable Wallace also audio recorded the interview with a digital recorder for back up purposes, and to safeguard that any interactions outside of the interview room were recorded. [ 76 ] As noted above, that interview occurred on October 30, 2013. At the time of that interview, the Complainant was seven years of age. The interview of the Complainant commenced at 8:55 a.m., and was completed by 11:12 a.m. The interview was conducted in the "soft interview room" at the Duncan detachment of the RCMP.

Constable Wallace explained to the Complainant that the interview was being video recorded. [ 77 ] At the outset and throughout the interview, Constable Wallace emphasized to the Complainant the necessity and importance to talk about the truth. The Complainant acknowledged this on numerous occasions throughout the interview.

During the course of the interview, Constable Wallace asked and it was confirmed by the Complainant that nobody had told her what to say nor had anybody told her not to say anything to him. [ 78 ] They also talked about "good secrets" and "bad secrets", although initially the Complainant said she did not know about any bad secrets. [ 79 ] In his cross-examination, Constable Wallace confirmed that his strategy, when a child says something happened, is that he will go back to that particular disclosure and see if the same circumstances are provided by the child, and whether there are any differences in the description or an indication of fabrication.

That strategy was evident throughout the

Section 715.1 Video Recording. [ 80 ] In cross-examination, Constable Wallace denied that he pressures child interviewees to continue to talk until there has been disclosure by the child on tape that there had been a sexual assault, noting further that he has often conducted interviews where it showed that the child interviewees had fabricated these types of allegations. He stated that the length of a particular interview will be

dependent upon the child and the circumstances. He indicated with respect to the Complainant, that during the course of her interview forming the

Section 715.1 Video Recording, he arranged for appropriate bathroom and snack breaks after approximately an hour into the interview, being in or around 9:58 a.m., and continuing through to approximately 10:05 a.m. [ 81 ] At approximately 10:30 a.m., Constable Wallace was asking the Complainant about her discussions with other students during the farm field trip that caused them to tell a teacher. The Complainant said she did not remember about those discussions, and then said she was hungry and that she and the Foster Mother were going to McDonald's that day.

Constable Wallace diverted the Complainant from the issue of the McDonald's visit back to questions about touching of private parts, and shortly thereafter the Complainant made disclosure of the sexual activity that gives rise to the charge before the court. [ 82 ] On two other later occasions during the balance of the interview, the Complainant again mentioned that she was hungry, and her wish to go with the Foster Mother to McDonald's. On both occasions, Constable Wallace redirected her back to matters relating to the allegations of sexual touching.

He denied the Defence suggestion, put to him in his cross-examination that he forced the Complainant to stay in the interview. He characterized it as getting her "to agree to stay." In my review of the

Section 715.1 Video Recording and the Interview Transcript, I accept the characterization by Constable Wallace as being accurate. [ 83 ] The interview was conducted by Constable Wallace using age-appropriate terms in an informal and comfortable manner. Part of the interview consisted of the use of two "gingerbread men," being simple anatomical diagrams of the front and rear views of an unclothed girl and the front and rear views of an unclothed boy. Both of the diagrams were marked up in the course of the interview, both by the Complainant and by Constable Wallace.

Those diagrams were entered as documentary exhibits in the trial. [ 84 ] The Complainant was asked by Constable Wallace to identify various parts of the human anatomy on the diagrams.

She identified and referenced the female and male external genitalia with the term "peepee." She told Constable Wallace that she calls a boy's external genitalia a "peepee" because she was not allowed to say "the boy word for that", and then further explained that it was her father (the Accused) and her “aunty” (the Aunt) that did not want her to use that term. (See lines 622 to 633 of the Interview Transcript.) [ 85 ] The Complainant described that there was a difference between males and females, and that a boy's external genitalia "has a little thing and a little head and girls don't." She described that she had seen this part of her father when they had showered together.

It was when showering with her father that she had first seen a penis. She recounted an occasion that she had showered with her father and her father had brought the family dog into the shower to be cleaned. She described that this event had occurred in their Lake Cowichan residence. [ 86 ] In the course of the interview, the Complainant was asked about and provided her understanding about certain parts of the body that were "private", including her vaginal area and her buttocks. She stated that the private areas were to be touched by her and only by doctors and parents.

She then recounted the necessity of having to go to the doctor because of a rash in her vaginal area while she was living in Duncan, and stated that it was because she was not wiping properly. (See Interview Transcript pages 63 and 64.) [ 87 ] At approximately 10:31 a.m., Constable Wallace directed the Complainant back from the planned visit to McDonald's Restaurant with the Foster Mother to the topic of something that was bothering the Complainant, which resulted in the disclosure to the students on the field trip.

Thereafter, the following exchange took place at approximately 10:32 a.m., commencing at line 1713: 1713 1714 Wallace Oh, so ah with this thing that you were talking about um it's ah it's something that I, I need to, to know about, like . . . 1715 A.P. Well I forgot of it. 1716 1717 1718 1719 Wallace Okay well um when we were talking about private parts and um whether ah who, who it's okay to, to touch, you, you'd said that your dad had um had, had touched your private parts and that a doctor had checked your private parts as well. 1720 A.P. Yeah. 1721 1722 Wallace Right?

Okay um so with the, the private part thing um have you ever touched your dad's private parts? 1723 A.P. Um yup.

1724 1725 1726 Wallace Oh okay. So that was um, ah the thing that ah, that I'd heard about with the, the talking to the two kids and then the other so maybe you can tell me about that. What's, what's, what's that all about? 1727 1728 A.P. Um hmm, like I think I might've remembered. Alright now I remember. Because I remember now my dad makes me suck his peepee. 1729 Wallace Mhmm. 1730 A.P. Yeah. 1731 Wallace Mhmm. 1732 A.P. Yup. 1733 Wallace Oh okay, so tell me about that. 1734 1735 A.P.

Um we're in the shower sometimes um there's a little square hole but a um in the wall but nobody can look through because it's not in the closet. 1736 Wallace Mhmm. 1737 1738 1739 A.P. Plus um theres stuff you know that brown newspaper um but um I think there's little taps under it um and it was pretty low so I think um this might be from a old person in a wheelchair. 1740 Wallace Oh okay. 1741 A.P. And they might have been a bench. 1742 Wallace Mhmm. 1743 1744 A.P.

And then um me and my dad bought that house and we have showers in um he made me suck he peepee. 1745 Wallace Mhmm. [ 88 ] From approximately 10:32 a.m. to 11:09 a.m., in response to questions from Constable Wallace, the Complainant provided a graphic description that her father, the Accused, forced her to perform fellatio on him, usually in the shower. She testified that this activity started in Duncan, and that the last time occurred in Lake Cowichan. It was during that occasion that she squirmed out of her father's arms and attempted to hide behind the chair that she described had been placed in the shower.

By hide, I understand that she was describing her attempts to get the chair between her and her father and was squatting down behind it. [ 89 ] She described how her father would tap his penis (describing it as his "peepee") on her lips, which was an indication to her that he wanted her to suck his penis. She described the act of her father pushing his penis towards her lips and attempting to put it into her mouth as "gross." She thought it was horrible and she did not like sucking her father's "peepee." Her description is consistent with his penis being in an erect state.

She further described how he wanted her to take his penis down into her throat and then take it out, but that she choked and could not take it fully down. She stated that this activity started when she was two years of age and was living in the Duncan apartment.

Later in the interview, she stated that since she had been in Lake Cowichan, this occurred five times and that each occasion took about 10 minutes. [ 90 ] At approximately 10:46 a.m., and for the next several minutes, she spontaneously started to describe how her father makes her sit on his "peepee." She describes that this occurs when they were both naked at times in her bedroom, although some mention is made of the bathroom and the shower where the fellatio occurs.

She then goes on to describe, in both words and utilizing the diagram, about how her father gets her to sit on his peepee and that he says "hump my peepee," and that she has to hump it. She described that his penis, which apparently is in an erect state, is placed up her "butt,” referring to her buttocks. She said that "it hurts my butt" and she does not like it. She describes that his peepee is on the inside of her butt. It is not clear from her description whether actual anal or vaginal penetration occurs. She says that it takes six minutes for this to occur.

She describes how she then hurts and she tries to run away from him. She stated that this started when she was two years of age at the apartment. She stated that since she has lived in Lake Cowichan, this has occurred six or eight times. (See Interview Transcript, pages 89 to 102.) [ 91 ] In response to Constable Wallace's questions, the Complainant says that she has never seen anybody perform these acts, nor has anybody seen her and her father perform these acts.

[ 92 ] The Complainant described that her father told her not to tell anybody about me humping him or sticking his peepee in my mouth. She then confirmed that she "told anyways" to the children on the field trip and, specifically, a boy who was picking on her, in order to make him stop picking on her.

They in turn told the teacher. [ 93 ] The Complainant said that her father told her not to tell, "but I guess I am telling you because you are a cop." (See Interview Transcript line 2169.) [ 94 ] In cross-examination, Constable Wallace confirmed that when the Complainant provided recollections about the events that occurred when she was age two, he did not pursue the recollections because, based on his training, there was a concern that those recollections would not be reliable. [ 95 ] Approximately 47 minutes into the interview, at approximately 9:47 a.m., the Complainant was looking up to the portion of the room where the video camera was located and the following exchange took place, which is recorded at lines 941 to 946 of the Interview Transcript: 941 A.P.

Um what is that paint doing on there? 942 943 Wallace I don't know, I've kinda wondered that too. I think it was just a mistake that there's paint on the glass in front of the camera. 944 A.P. I got a friend um he's up there and the camera is kinda down low 945 Wallace Right, right 946 A.P. So that's kind of weird. [ 96 ] The suggestion made by Defence is that the Complainant was at this point seeing an imaginary friend during the interview, and in the throes of a psychotic episode which was not detected by Constable Wallace.

Constable Wallace indicated that he did not interpret that comment from the Complainant as an indication that she did have an imaginary friend in the room. He indicated that if in fact she saw an imaginary friend in the room, it would be of concern to him as an interviewer. Evidence of the Complainant [ 97 ] The Complainant testified on July 4 and July 5, 2017. On both days of her testimony, she was suffering from a gastrointestinal problem which necessitated a number of brief recesses in order to permit her to use the toilet facilities.

As noted above, she testified from a separate room in the Duncan courthouse by way of a video link. She was in the presence of two support persons, namely a woman serving as the Complainant's new and present foster mother, and an RCMP victim services representative. [ 98 ] On July 4, 2017, the Complainant viewed the

Section 715.1 Video Recording. On July 5, 2017, her examination- in-chief continued, and she was then subject to cross-examination. She testified that she recognized herself and the police officer in the

Section 715.1 Video Recording. She testified that when she spoke to the police officer, she was telling him the truth about what happened; she remembered speaking to the police officer when the video was made; and she remembered the police officer asking her the questions in the

Section 715.1 Video Recording. She further confirmed that nobody told her to say that her father was "doing this stuff to her,” being the sexual activity described by her in the video. [ 99 ] She explained in her examination-in-chief that she now uses the term "vagina," rather than "peepee" for a girl's private parts, and she utilizes the word "penis" rather than "peepee" for a boy's private parts. Therefore, the references in the

Section 715.1 Video Recording to her father's peepee were in fact references to his penis. [ 100 ] She confirmed that the event in which she describes her father was holding her with one arm and she squirmed down and behind the chair, had occurred in the bathroom shower while living with her father in Lake Cowichan. The family dog was not in the shower when the described sexual activities with her father took place. [ 101 ] She confirmed that she had told the Foster Mother that she was hearing voices in her head in Lake Cowichan when she was living with her father.

One of the voices was that of a cat that was meowing, but she indicated that she did not have a cat in Lake Cowichan. She found the voices frustrating. When she was residing with the Foster Mother, she started to hear a bunch of other voices and then it got so out of control that she had to go to the hospital for a while. She recounted that she tried to tell her father about the voices, but he just told her she was not hearing the voices.

However, when she moved in with the Foster Mother and told the Foster Mother about the voices, the Foster Mother listened. [ 102 ] In her cross-examination, she clarified that the sexual activities with her father did not happen when she was two, but more like maybe starting around age three through to five, six, and seven. [ 103 ] She confirmed that she did not recall the number of times that she had sucked her father's penis and clarified that when she was speaking to the police officer who asked her how many times she had sucked her father's penis, she just started counting and lost track of the counting. [ 104 ] When she was questioned about the comments that she made in lines 941 to 946 of the Interview Transcript about a friend and she was pointing up to the camera, she denied that she was making reference to an imaginary friend, but rather she was talking about a "different friend, but I got kind of distracted at one point and then said it." She went on to state that when she said "that is weird" and pointed up, she was referencing the paint on the camera in the interview room. (See July 5, 2017, Transcript of Evidence, page 21.) [ 105 ] When pressed about whether or not she recalled the incidences of her father putting his penis in her mouth in Lake Cowichan,

she stated that she mostly remembered the incidences. She was quite emphatic that the first occasion occurred "when everything was organized in Lake Cowichan," and it was a school day but she was not signed up for school. It was in the evening. [ 106 ] She stated that these incidents occurred mostly at night and once in a while in the morning. [ 107 ] She provided details that the humping was usually in the bathroom, on the bathroom floor, in Lake Cowichan when they came out of the shower and sat on the floor to perform the act.

She graphically described how her father would grab her arms and then say, "Do you want to hump me?," and then if she did not do it, he would put her on his lap and lift her up and down, and that his penis was sometimes into her butt and sometimes under her butt. It never went into her vagina. She described how, if she could, she would squirm away, go back into the shower, and attempt to hide behind the chair. [ 108 ] She stated in cross-examination that her father taught her the word "humping," and that he had showed her how to do it.

She denied the suggestion that she had ever seen a "funny show" on TV with two guys pretending to hump each other. She stated that when she went to her mom's residence (that being the Mother) she had her sisters with her so they only watched children's shows. [ 109 ] She described her father's Lake Cowichan bedroom as being messy. She did not recall a TV set in his bedroom, but there was one in the living room. If there was a TV in her father's room, she said that it would be buried.

She denied that she ever saw her father in his bedroom watching a sex movie. [ 110 ] In her cross-examination, she clarified that she could not remember the number of times or when the first humping had occurred in Lake Cowichan; however, she indicated that it was before her seventh birthday, and that the humping only occurred there in Lake Cowichan.

She conceded that she made a mistake when she told Constable Wallace that the humping had occurred when she was two years of age in the apartment in Duncan. [ 111 ] The Complainant was firm in her cross-examination that she did not know why she was at the meeting to talk to Constable Wallace. She did indicate that Constable Wallace wanted her to tell the truth.

She was also firm in saying that she did not think that Constable Wallace wanted her to tell something bad that had happened. [ 112 ] She further indicated that when she told Constable Wallace that she did not remember what she had told the children at the farm field trip, she actually did forget. She said that thereafter she started to remember. [ 113 ] When confronted with the Defence suggestion that she was mistaken about her father having her suck his penis, she stated clearly and emphatically as follows: He did. He -- he did. He absolutely did. It was very gross.

He actually tried to stick it down my throat, too, and I started choking because of that. (See July 5, 2017, Transcript of Evidence, page 45, lines 8 to 11.) [ 114 ] When it was suggested that her father never had her hump him, she responded as follows: Well, if he didn't, he -- he didn't stick his penis up my butt. It hurt a lot.

I couldn't sit down when he did that. (See July 5, 2017, Transcript of Evidence, page 45, lines 14 to 16.) [ 115 ] In response to the suggestion that her memory was inaccurate and that she had made some mistakes, the Complainant then went on to articulate that she was nervous when she was talking with Constable Wallace, and it was closer to the end of the interview that she thought he was talking about sexual activity with her father.

I understand that her initial reluctance to discuss it with Constable Wallace was: . . . because I thought my dad would be real mad because he -- he told me before, when he just dropped me off at school enough time that my grandma or auntie was going to pick me up, that if I told, he'd be really mad at me and not trust me anymore. (See July 5, 2017, Transcript of Evidence, page 45, lines 20 to 28.) The Defence's Case [ 116 ] The Accused was the sole witness for the Defence.

He is 33 years of age and currently employed as a dispatcher with a transportation company on the British Columbia mainland. [ 117 ] He testified that he was responsible for raising his child, the Complainant, from the age of six months, at which time the Mother was "removed" from their residence. [ 118 ] He described a tumultuous relationship with the Mother and significant involvement of MCFD in the affairs of their family.

The domestic violence in the family home, which the Accused says was perpetrated by the Mother, resulted in numerous attendances by the RCMP. [ 119 ] He testified that he obtained a court order for sole guardianship of the Complainant and that he was given sole discretion with respect to the Mother's visitation or interaction with the Complainant. He then went on to state that MCFD "completely usurped that." As I understand it from his evidence, that took the form of court ordered overnight access for the Mother which was made in 2012.

He testified that because of the Mother's lack of follow through for the Complainant, the child indicated that she did not want to continue to go to visit the Mother's residence. I understand that the visits had petered out around the time the Accused and the Complainant had moved to Lake Cowichan. [ 120 ] He recounted several other incidences of where he accused MCFD social workers of inappropriately dealing with him and the Complainant for the benefit of the Mother and to promote the Mother's contact or relationship with the child.

This included interfering with his attendance at parenting courses, the Complainant's attendances at children's programs, and the like. I understand that there were numerous court appearances relating to the Complainant involving the Mother, MCFD, and the Accused.

[ 121 ] In contrast to MCFD's lack of support, he spoke positively about the support he received from friends, family, and neighbours. He confirmed that he was residing in a rental apartment in Duncan during the early years of the Complainant's life. [ 122 ] He described the Mother's contact with the Complainant as being "very, very sporadic." He testified that she made unfounded allegations against him of child molestation of the Complainant when the Child was approximately two years of age. Those reports resulted in MCFD investigations and visits to the home of the Accused and the Complainant.

As I understand it, no steps were taken by MCFD with respect to the allegations or following up on their investigations. [ 123 ] He indicated that there were very few occasions on which he did not have the Complainant in his care, and when that did occur, it was the Grandmother who looked after the child. The last time was, of course, when the child was taken into care from the Grandmother's house while the Accused was on the mainland dealing with his own father's estate issues. He testified about the numerous activities and events in which he and the Complainant participated.

He also testified about the adverse effect that the present charge has had on his life. [ 124 ] He stated he ensured that the Complainant had regular medical visits and received medical attention and treatment for a rash in her vaginal area, which he says was precipitated by her failure to wipe herself properly after urinating. [ 125 ] In his evidence, he confirmed that he and the Complainant had moved to Lake Cowichan just before the Complainant's seventh birthday.

He described a large family birthday party to celebrate the Complainant's birthday in Lake Cowichan. [ 126 ] The Accused testified that following a visit to the Mother's residence, he learned from the Complainant that her younger stepsister had been teaching or showing her how to have sex with her dolls and teddy bears.

Also following a visit to the Mother's residence, while living in Duncan and shortly before the move to Lake Cowichan, when the Complainant was approximately five or six years old, the Complainant was watching a comedy television show at the Father's home, with the Accused, in which there was a skit involving two males in a suggestive sexual position.

In response to seeing it, the Complainant "had started telling me that they were having sex." He stated that he initially phoned his mother (the Grandmother) and father to tell them about this incident, and then called Patricia Glover, the Mother's former social worker at MCFD, to report this information. He understood that she was passing this information along to other MCFD officials. He never heard back from MCFD. He says that this all occurred in 2012 or possibly even in 2013. [ 127 ] The Accused testified that he and the Complainant had separate bedrooms in their Lake Cowichan rental unit.

He indicated that his bedroom was "off limits" to the Complainant, although he did say that on occasion if she woke up at night, she would make her way to his bedroom until she was able to fall back to sleep, in which case he would then return her to her own bedroom. [ 128 ] The Accused said he had a TV in his bedroom, which is contrary to the evidence of the Complainant. He also testified that his bedroom was spotless, again contrary to the evidence of the Complainant. He testified that he watched recordings and movies on the TV in his bedroom.

He said that he had a collection of pornographic movies which he watched in his bedroom. He described the movies as having "a little bit of everything, anal, there was fellatio, there was vaginal sex. It was standard porno." He testified that it was consensual heterosexual sex being depicted in the videos. (See July 19, 2017, Transcript of Evidence, page 25.) [ 129 ] In his evidence, he recounted that he had been watching one of his pornographic movies in his bedroom at night.

He went to leave his bedroom and found the Complainant standing on the other side of the door, telling him that she was going to the bathroom or getting a drink. He was sure that she was looking through the crack in the door and, as I understand it, observing the pornographic images being depicted on the television screen. He apparently chastised the Complainant and told her that she was being sneaky and not appropriate. In cross-examination, he stated the TV was visible from the bedroom door.

On cross-examination, he conceded that the dialogue in the pornographic presentation did not use words like "humping," and there were no requests made between the participants using language such as "suck my peepee." [ 130 ] The Accused further described the Complainant's bathing and shower routines in the Lake Cowichan residence. That usually occurred in the evening. He did confirm that he and his seven-year-old daughter had showered together, but indicated that was in the context of him washing his daughter's hair with head lice treatment or bathing the family dog.

He stated that such only occurred "once in a blue moon." In cross-examination, he further described the showering and bathing routine of the Complainant and his participation in it when they were residing in the various locations in Duncan.

Again, he stated that they only bathed or showered together "once in a blue moon." [ 131 ] The Accused adamantly denies that he put his penis into the Complainant's mouth, and he adamantly denies he made her hump him, and he adamantly denies that he inserted his penis into her anus. [ 132 ] Although cautioned by his counsel that he was under no obligation to do so, he went on to testify that some online friends have referred him to various resources and specifically the work of a U.S. criminal psychologist who has done extensive work on "false memories." He stated that he has learned about clinical studies where false memories had been implanted in persons of all ages, and went on to say that seniors and children are "apparently a lot more susceptible to it." He apparently researched and found out this information following the Complainant's disclosure of the allegations.

He testified in cross-examination that he is of the belief that his daughter's description of the Accused tapping her on the lips with his penis in the shower and choking on his penis and recalling the taste and smell of his penis, and other vivid details, are all false memories. [ 133 ] The Accused then went on to say that he does not use the word "humping," and then provided other explicit words that he does use to describe that act. [ 134 ] The Accused then went on to indicate that the word "humping" would be a word that the Complainant may have heard from another child, and then went on to further speculate that it may have been the Complainant's sister, who had used toys to demonstrate sex acts in the presence of the Complainant.

He suggested other sources of that language may come from watching television or hearing it on the school ground from other children.

[135] The Accused was asked about the Complainant hearing voices and said that, upon reflection, he was aware of the Complainanthaving an imaginary friend, but not hearing voices. He blames himself for not following up on that on behalf of the Complainant. Hestated that he had an imaginary friend as a child. [136] The Accused described that there were no situations in Lake Cowichan where there had been inadvertent or accidental contact ofhis genitals with his daughter.

He did recount that there was an occasion which he says occurred when he was showering with theComplainant and she tried to grab his exposed genitals. [137] He stated his penis was flaccid and not erect at the time. He suggested that this also occurred in Lake Cowichan. He said hewas shocked by this event. He says that he told the Complainant that this was inappropriate touching and that they had a long talk aboutit of some 20 to 30 minutes. [138] He suggested that this was similar in nature to the experience of the Grandmother.

He further testified that subsequent to thatevent, they did have further showers together. He testified that he did not think there was any problem showering together with hisdaughter at this age, but did indicate it would be problematic if she were the age she is at present. He recounted his own personalexperience of showering or bathing with his own parents when he was young. [139] The Accused indicated that prior to being taken into care by MCFD, there had been no noticeable changes in the Complainant'sbehaviour although he said she hated school and left it on occasion.

Other than that, she "was a perfect little angel." [140] In cross-examination, he also recounted discussions he had had with the Complainant to discuss body parts, sex, and "strangerdanger" when the Complainant was around five years of age. [141] He denied that the Complainant was ever sexually acting out or displaying signs of sexuality when they were living in Duncanor Lake Cowichan. [142] Crown counsel asked the Accused to agree that the Complainant was a pretty accurate historian.

The Accused agreed that theComplainant had accurately stated the appropriate timeline and order of the various residences that they had occupied; the schools thatshe had attended; the fact that she had gone to a physician to have her vaginal rash looked at; and her recollection that he had applied acream to that rash. He agreed that she was accurate about the bathing of the family dog in the shower and the background giving rise tothem receiving the dog as an abused animal.

He took issue with her unflattering description of his Lake Cowichan bedroom and herassertion about the general lack of cleanliness of that residential unit. [143] In his redirect examination, the Accused made a highly emotional direct plea to the court about the ongoing nightmare of theseallegations, the devastating nature of them, and the significant negative emotional impact that has been rendered upon him, including adiagnosis of PTSD. He concluded by saying he would "never do anything like that to any kid, especially my own god damned flesh andblood.

It's my daughter, for fuck's sakes." The Applicable Law [144]

Section 151 of the Criminal Code reads as follows: 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years. (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of 90 days. [145] As noted above, Crown has proceeded summarily on this charge. [146]

Section 715.1 of the Criminal Code reads as follows: 715.1

(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time theoffence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victimor witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice.

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1). Case Authorities Cited by the Parties Cases Authorities Relied Upon By Crown [147] Crown Counsel has referred the court to and relies upon the following case authorities:

a) R. v. L.(D.O.), (SCC), [1993] S.C.J. No. 72 (SCC);

b) R. v. G.(G.), (SCC), [1990] 2 S.C.R. 30 (SCC);

c) R. v. W.(R.), (SCC), [1992] 2 S.C.R, 122 (SCC);

d) R. v. E.H.S. [2012] B.C.J. No. 2728; 2012 BCPC 450 (BCPC). Case Authorities Relied Upon by Defence [148] Defence counsel has referred the court to and relies upon the following case authorities:

a) R. v. D.D.S., 2006 NSCA 34 , [2006] N.S.J. No. 103; 2006 NSCA 34 (NSCA);

b) R. v. A.F., 2010 ONSC 5824 , [2010] O.J. No. 4564; 2010 ONSC 5824 (Ontario Superior Court of Justice);

c) R. v. R.G.B., 2012 MBCA 5 , [2012] M.J. No. 17; 2012 MBCA 5 (MBCA). [149] While I may not make specific reference to some or all of these cases, I have read and considered the principles stated in themand I have taken those cases and their principles into consideration in arriving at my decision. [150] No issue is taken by either party about the applicability to this case of the W.(D.) formulation and the approach stipulated in W.(R.).

Crown's Position [151] Crown submits that they have discharged the burden to prove the charge against the Accused beyond a reasonable doubt. [152] Crown further says that this case will turn on the court's evaluation of the credibility and the reliability of the witnesses, inparticular the Complainant and the Accused. [153] Crown agrees that, as with any witness, the court must proceed with caution when looking at the evidence of the Complainant inthis case.

Crown says that when assessing the evidence of a child witness of tender years that "common sense" is required andstereotypical assumptions about children must be left aside. [154] Crown says that the Complainant is credible and reliable and her evidence can be accepted on the basis of her honesty, hermemory, a lack of suggestibility, her ability to communicate, and a lack of motive to lie. [155] Crown further says there is external consistency and a lack of inconsistency going to the essential elements of the offence. [156] Crown says that the Complainant attempted and was trying to be forthright, candid, and matter-of-fact.

Crown suggests that theComplainant may have been "hesitant" to make a disclosure to Constable Wallace, based upon her father's direction to her not to tellanybody, but when she made her final disclosure it was very explicit in its details. At no time did Constable Wallace suggest anyparticular answers or details to the Complainant. [157] For example, Crown notes that the Complainant apparently went beyond her initial disclosures of sexual activity with her fatherthat she made on the school field trip.

That occurred when she recounted to Constable Wallace the incidences of humping her father'spenis. [158] Crown says that the court must be cautious in accepting stereotypical views of how a sexually abused child may act as a result ofthat sexual abuse. [159] Crown further says that the mere fact that the Complainant had not previously disclosed the allegations of sexual abuse activitydoes not mean that it had not happened. [160] Similarly the evidence of both the Teacher and Constable Coles supports the Crown's position that there was no opportunity forthe Complainant to have been coaxed to make any particular disclosure of sexual activity with her father.

Also, Crown states that anysuggestion about influence that may have been exerted by the Mother on the Complainant to make this disclosure must be tempered bythe reality that the child had very little contact with the Mother for some time preceding the disclosure, and, therefore, there was noreasonable opportunity to plant "false seeds" preceding the Complainant's disclosure. [161] Crown says that when the Complainant provided her viva voce evidence, she was very clear, very attentive, sought clarification,and was a very thorough and thoughtful witness.

She was not defiant, nor did she over exaggerate or over explain, nor was she defensive. [162] Crown says that the Complainant clarified that she did have difficulty recalling what she had disclosed to a teacher and otherchildren at the farm field trip.

Crown notes that three years after the event, after what is the Complainant's third foster placement, theComplainant is still providing the same account of the material facts that gave rise to the charge. [163] Crown says that there is no motivation for the child Complainant to make the disclosure of sexual activity with her father, and,in fact, she has everything to lose, including her home with her father and contact with her family members. [164] Crown says in contrast to the Complainant, the Accused, in his evidence, was defensive, angry, over explaining, evasive in hisanswers and argumentative.

In addition, he offered up suggestions about both the basis and the nature of the child's disclosure, and thecontents of it, which make absolutely no sense. [165] Crown says that the court should reject the Accused's evidence about the sexual offences and his denial of his participation inthem. Defence's Position [166] Defence submits that the evidence adduced in this trial falls short of that required in order to convict the Accused of the charge

before the court. [167] In relying on R. v. D.D.S., supra, at paragraph 42, Defence submits that this court would be in error if it were to make a findingof credibility in favour of the Complainant, and then jump to a finding of guilt without ever addressing the ultimate issue of whether theAccused's guilt has been proved beyond a reasonable doubt. The D.D.S. case refers to R. v. Sheppard, 2002 SCC 26 , [2002] 1S.C.R. 869, at paragraph 65, wherein Mr.

Justice Binnie stated that "the issue at the end of the trial was not credibility but reasonabledoubt." [168] Defence says that in this case there is a risk that because the Complainant is a child witness, the court could fall into error bylessening the standard of scrutiny of the child witnesses' evidence. [169] Defence also says that this case presents the risk that by not critically examining the Complainant's evidence and its internal andexternal inconsistencies, the burden may be incorrectly transferred to the Accused, suggesting that this may present itself in requiring theAccused to demonstrate a motive for the sexual allegations made by the Complainant. [170] Defence also submits that the use of the

Section 715.1 Video Recording cannot be used to bolster the credibility of theComplainant by using it as a prior consistent statement. That, says Defence, would be an improper use of it, namely, to bolster thecourt's assessment of the Complainant's credibility. [171] Defence says that in this case there is more than a bald denial, sometimes referred to as a "flat denial", on the part of theAccused. (See R. v.

E.H.S., supra.) [172] In that regard, Defence relies upon such things as the Accused's attempt to report the child's sexual precociousness to PatriciaGlover at MCFD, which Defence says is inconsistent with the Accused having sexual activity with his daughter. [173] Defence also relies upon the factual admission that there is no physical evidence of the child having suffered sexual abuse. [174] Defence further relies upon the Accused's initial cooperation with the police and his offer to take a polygraph test. [175] Defence says that there is no observation by any of the witnesses about marked changes in the behaviour of the child, but ratherthat the child was happy and bubbly.

Until the disclosure was made, the Teacher had no concerns about the child. [176] Defence says that it is inconsistent for the Accused to have had the child treated for a vaginal rash condition by a physician, if, infact, he were engaged in sexual activity with the child. [177] Defence goes on to submit that this court should reject the evidence of the Complainant as being unreliable in its totality. [178] Defence says that there were inconsistencies in the Complainant's testimony, such as when she was not taking any medications.

This is in contradiction to what the Foster Mother stated earlier in her evidence. [179] Considerable reliance is placed upon the suggestion that the Complainant could not hide behind the shower chair because it wastoo small to do so. [180] Defence also puts a significant reliance upon what it describes as an "altered perception of reality" that the child was living inwhen she was giving her interview to Constable Wallace that formed the

Section 715.1 Video Recording; she was apparently hearingvoices, both while residing with the Foster Mother and also in Lake Cowichan when she was residing with the Accused. [181] Defence suggests that it makes no sense for the child to make a disclosure about her father requiring her to suck his penis inorder to prevent being picked on by a school yard bully. [182] Defence says that the Complainant's reliability is questionable because she did not make an earlier disclosure to herGrandmother nor to other family members with whom she had close and frequent contact. [183] In the process of the

Section 715.1 Video Recording, Defence notes the fact that there was a delay in the Complainant disclosingto Constable Wallace the sexual allegations that she made to the teacher and the other children on the farm field trip.

Defence says thatthroughout the interview, the Complainant, on numerous occasions, told Constable Wallace that she forgot and could not remember. [184] Defence suggests that the interview of the Complainant conducted by Constable Wallace was a "subtle interrogation," whichcontinued for a lengthy period of time and which, I understand Defence to say, only then resulted in the Complainant’s disclosure of thesexual activity with her father. [185] Defence goes on to suggest that common sense says that a child at age two would not be able to recall events that theComplainant suggests that she did in her

Section 715.1 Video Recording. [186] Similarly, the number of times she reported having her father's penis in her mouth and humping him was inconsistent, both in theinterview giving rise to the

Section 715.1 Video Recording, as well as in her viva voce evidence. [187] Further, because of the psychiatric hospitalization and the fact that the Complainant hears voices, it is submitted that this courtmust be very cautious about accepting the reliability of her evidence. [188] In juxtaposition, Defence then submits that the evidence of the Accused is compelling and corroborated by other Crownwitnesses, and by the observations and the lack of observations about the Complainant. [189] Defence summarizes by pointing to the emotional plea made by the Accused, directly to the court, about his innocence as notbeing simply self-interest, but a genuine expression of concern about his daughter.

The Accused's defensiveness and anger stem from

his incredulity that this is happening to him, which Defence says has a palpable ring of truth to it. Analysis [ 190 ] I have carefully reviewed the respective positions and the submissions advanced by Crown and Defence and considered them fully in reaching my decision, notwithstanding the fact that I may not make specific mention of a particular point or argument placed before me. [ 191 ] I have assessed the credibility and reliability of all of the witnesses on the basis of the various factors outlined above, in particular with reference to the approach utilized in R. v. Cuhna .

I have also followed the approach that the Supreme Court of Canada has described in W.(R.) as it relates to the Complainant as a child witness. [ 192 ] Clearly, particular attention must be paid to the credibility and reliability of both the Complainant and the Accused. Obviously, the Complainant's description of the offending sexual behaviour perpetrated upon her by the Accused and the Accused's denial of it cannot be accepted and stand together as a finding of fact.

That is impossible. [ 193 ] Dealing first with all of the Crown's witnesses other than the Complainant, about whom I will say further below, I found all of those witnesses to be credible and reliable. I accept the evidence that they have proffered and which I have set out above in these reasons. [ 194 ] With respect to the interview conducted by Constable Wallace which is captured on the

Section 715.1 Video Recording, I reject the Defence suggestion that this was a subtle interrogation of the Complainant and that the Complainant was in any way deprived of food or proper breaks or a delay in attending McDonald's with the Foster Mother that elicited her disclosure of sexual activity with her father. I am of the view that the interview was conducted in an appropriate fashion by Constable Wallace, and that the nature o

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