☼ R. v. E.J.M., 2023 BCPC 61

Citation: ☼ R. v. E.J.M. 2023 BCPC 61 Date: ☼ 20230412 File No: 37481-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. E.J.M. PUBLICATION BAN SUBJECT TO S. 486.4 OF THE C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.T. REEVES Counsel for the Crown: J. Michaels Counsel for the Defendant: S. Catona Place of Hearing: Fort St. John , B.C. Dates of Hearing: February 28, March 1, 2023 Date of Judgment: April 12, 2023

INTRODUCTION [1] The accused E.J.M. is charged with sexual assault and interference of a person under the age of 16 years contrary to ss. 271 and151 of the Criminal Code respectively. He is alleged to have committed these offences between August 22, 2012 and August 22, 2018inclusive, at or near Charlie Lake, BC. The complainant M.R. was between the ages of six and 12 years old during this period and at thetime of trial she is 16. The Crown has proceeded by indictment.

E.J.M. denies that any touching or activity of a sexual nature occurred. [2] A pre-trial application was made for disclosure of third-party records pursuant to s. 278.3, specifically, intake notes createdwhen M.R. attended a mental-health counsellor immediately prior to these allegations being reported to police.

Following a voir dire,that application was dismissed. [3] The Crown must prove all essential elements for the offence of sexual assault and interference beyond a reasonable doubt.Reasonable doubt is not imaginary or frivolous, nor is it based on sympathy or prejudice; it is also however not proof to absolutecertainty (R. v. Lifchus, (SCC)). Reasonable doubt must be logically connected to the accepted evidence as a whole andbe based on reason and common sense and in the spectrum of levels of doubt extending from probably guilty to absolute certainty ofguilt, falls much closer to the latter (R. v.

Bachman, 2013 BCSC 1028, paras. 78–79). [4] In addition to the complainant’s testimony, the Crown called the lead police investigator who testified with regards to thetimeline, and the complainant’s father (“Mr. M.R.”) who gave evidence of the family friendship and time spent together with E.J.M.during the period in question.

Three exhibits were also entered: a metal chain stamped with “14K”; a photo of a “Bigfoot” truck camperwith the date notation of 26 April 2016; and a diagram of E.J.M.’s property. [5] The case before me rests essentially on two contrasting accounts of what occurred during the period in question. The burdenupon the Crown to prove guilt beyond a reasonable doubt is an onerous one and any doubt regarding E.J.M.’s guilt must weigh in favourof the defence.

While not making any negative finding on the reliability or credibility of the complainant in this matter, as I do not doubtshe attempted to recall to the best of her ability what occurred and her perceptions of those events, I do have doubts that the incidentsoccurred as related in court and/or involved E.J.M. E.J.M. is therefore found not guilty of both charges. [6] In reaching my decision, I engaged the following analyses: 1. Applicable legislative framework and required essential elements; 2. Legal test for conflicting testimonial evidence; 3. Analysing evidence of a child; 4.

Evidence of the complainant M.R.; 5. Other Crown witness evidence; 6. Evidence of the accused E.J.M.; and 7. Disposition. 1. APPLICABLE LEGISLATIVE FRAMEWORK AND REQUIRED ESSENTIAL ELEMENTS [7] The relevant sections of the Criminal Code for the offence of sexual assault and sexual interference are: Sexual assault 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable . . . if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14years and to a minimum punishment of imprisonment for a term of one year; or . . . Sexual interference 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body . . . any part of the body of a personunder the age of 16 years is guilty of (

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 period of oneyear; or . . . [8] The following elements of the offence of sexual assault and sexual interference were admitted by counsel for E.J.M.: (

a) E.J.M.,the person before the Court, is the same person alleged to have committed the offences; (

b) jurisdiction of this Court over the accusedperson; (

c) date range of the alleged offences; and (

d) that E.J.M. was aware that the complainant M.R. was under the age of 16throughout the period covered by the charges.

[9] To ground a conviction for sexual interference, I would need to find that E.J.M. intended the alleged sexual interactions andthereby made contact with M.R.’s body (R. v. Sears, (MB CA), p.64). As a specific-intent offence, the intent of thetouching or conduct must be specifically for a sexual purpose, although that purpose may exist alongside another, non-culpable,purpose(s) (R. v. B.J.T., 2019 ONCA 694, at para. 37). [10] M.R. was younger than 16 years of age when the alleged touching and conduct occurred and thus any touching that wouldviolate her sexual integrity is sufficient to ground a conviction.

In assessing this, I considered all of the alleged circumstances, includingthe parts of M.R.’s body touched, the nature of the contact, the situation(

s) within which touching was alleged and accompanying wordsand gestures (if any). No sexual purpose or motive for the touching or conduct is required; however, its presence or absence may beconsidered among the factors present to conclude if the act was sexual (B.J.T. at para. 55, citing R. v.

Marshall, 2017 ONCA 801 (Ont.C.A.), para. 53)’ [11] Given that the critical issue before me involves the credibility and reliability of M.R. and the accused’s differing accounts, Iremain mindful that should I find an offence or offences occurred but outside the stated date range of the information, it would not beprejudicial to E.J.M. to enter a guilty finding given that his defence centred on credibility of the complainant (R. v. D.(S.), 2011 SCC 14,para. 2). 2. LEGAL TEST FOR CONFLICTING TESTIMONIAL EVIDENCE [12] Central to my decision was the conflicting testimony of M.R. and E.J.M.

Determining credibility has been characterized as “moreart than science” and is particularly difficult where the Court must assess witnesses’ evidence that is so significantly opposed (R. v. S.(R.D.), (SCC), at para. 128). Some, all, or none of a witness’ testimony may be accepted and different weight may beapplied to those parts of evidence that are accepted (R. v. Langlet, 2013 BCSC 2274 , at paras. 46, 47). Moreover, evidencefound not credible is logically also not reliable; however, the converse is not true, as credible evidence may nevertheless be unreliable (R.v.

Morrissey, (ONCA). [13] Where conflicting oral evidence is received in a criminal trial, the analytical framework set out in R. v. W.(D.), ,prescribes the test to employ when considering reasonable doubt with regards to credibility. This framework was expanded upon in R. v.Achuil, 2019 ABCA 299, at para. 18: a.

The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown (subject tothe caveat that this does not apply to defences, such as that found in s. 16 of the Criminal Code, where the onus rests with the proponentof the defence); b.

In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed, still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject todefences with additional elements such as an objective component); c. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and d. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. 3.

ANALYSING EVIDENCE OF A CHILD [14] In analysing M.R.’s evidence, I am guided by R. v. G.B., (SCC), [1990] 2 S.C.R. 30, at p. 54. There is nolower standard of proof for cases involving the testimony of children, as “a flaw, such as a contradiction, in a child’s testimony shouldnot be given the same effect as a similar flaw in the testimony of an adult”.

The evidence of every witness must be assessed taking intoaccount their mental development, understanding and ability to communicate. “Since children may experience the world differently fromadults, it is hardly surprising that details important to adults, like time and place, may be missing from [a child’s] recollection.” Theseconsiderations remain relevant even when adults testify about events that allegedly occurred when they were children.

Thus, while anadult’s credibility when testifying about events from their childhood should be assessed using adult-witness criteria, when evidence ofwhat occurred in childhood includes inconsistencies, particularly with regards to peripheral matters including time and location, theseshould be considered in the context of the age of the witness at the time of the events to which they are testifying (R. v.

W.(R.) (SCC), [1992] 2 SCR 122, at paras. 25 and 27). [15] There is also no presumption that sexual abuse victims will disclose immediately, or that it is necessarily less reliable wheredisclosure is delayed (R. v. D.D., 2000 SCC 43, at paras. 59 and 63; R. v. R.D., 2017 ONSC 1856, upheld at 2019 ONCA 132). [16] I have considered the three perspectives of truthfulness, objectivity and accuracy of observations in assessing the credibility andthe reliability of conflicting witnesses’ evidence (R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6).

In assessing truthfulness, I listenedcarefully to the evidence for inconsistencies both internal and external to in-court testimony; supporting or contradictory evidence to thewitness’ narrative; and the witness’ demeanour when testifying. That said, I was mindful that demeanour must be considered withcaution (R. v. Jeng, 2004 BCCA 464 , at paragraph 54) as court is a foreign and intimidating place for many and in particular,youthful witnesses. In assessing objectivity, I was also mindful that the witness may have been influenced by assumptions, expectations,emotions, or even subsequent events.

Lastly, in considering witness accuracy, I bore in mind the circumstances of events beingdescribed, including witness ages, reasons for recounting the event and the length of time between the alleged event and courtproceedings.

4. EVIDENCE OF THE COMPLAINANT M.R. Assessing the reliability of M.R.’s evidence [17] M.R.’s capacity to observe, recall and recount the events of the alleged assaults was that of a child between the ages of six and 12years old, while she was 16 when giving evidence before this Court. While I had no reservation regarding her reliability overall, due toevidence heard, it was necessary for me to also consider the law as it relates to “recovered memories”.

Recovered memory [18] Counsel for E.J.M. urged me to conclude that M.R.’s recollections are “recovered memories”, as the alleged incidents were onlyreported after mental-health counselling had occurred. Further, it was suggested that I should find M.R.’s recollections unreliable as theCrown did not provide evidence of the counselling methods used, or expert evidence on the subject of recovered memories.

It was alsosuggested that any direct interaction between a counsellor and client when dealing with trauma would require such expert evidence. [19] A recovered memory is one that the individual is otherwise unaware of or that has been lost, but is recovered throughcounselling, therapy, or hypnosis (R. v. J.L.-B., 2021 ONCJ 130 , at para. 2). Recovered memories, while plausible, can bringinto question the accuracy and thus, reliability of those memories (R. v. B.H.C., 2021 NSSC 68 , at para. 43).

In this case, M.R.adopted her memories in court as present recollections that she has always had, but had suppressed or consciously tried not to think ofprior to realizing they were of sexually inappropriate acts. She testified she always had these memories, of which she occasionally wasreminded as “flashbacks” when triggers occurred, such as driving past E.J.M.’s residence or when listening to music and thinking onevents. I find that this is not a question of recovered memories or memories that are recovered through some therapeutic treatment,without which the witness would otherwise be unaware.

Rather, this is simply typical recollection by a youthful witness of events thatoccurred while she was a child. [20] I nevertheless must exercise caution about the accuracy of M.R.’s memory of events in which key details are critical. Thatconcern is heightened because the earliest incidents, when she was between the ages of six to 12, are of relatively brief durationand could reasonably be the product of erroneous recollection or

interpretation by a child of tender years, who has no frame of referencefor identifying sexual or nonsexual behaviour and appreciating the implications. [21] Therefore, M.R.’s evidence demands an added layer of scrutiny by a trier of fact (R. v. A.S., 2021 ONSC 8549 at para.59, citing R. v. J.G.R., 2009 ONCA 116, at paras. 9-10). The possibility that M.R.’s memory was influenced and perhaps shaped by aprocess that took place after the events at issue must be considered.

This added layer of scrutiny is necessary despite my certainty thatshe is testifying sincerely and believes that her memories are accurate accounts of actual events (Vanderkooy v. Vanderkooy et. al., 2013ONSC 4796, at para. 134; R. v. S.D., (Ont. S.C.), at para. 43; R. v. A.R., 2012 ONCJ 268, at paras. 36 and 57; R. v.McGrath, [2000] O.J. No. 5735, at paras. 7-15; R. v. Kliman, (B.C.C.A.). [22] I will now discuss my analysis of key witness evidence, organized into the following headings: (

a) the witness’ demeanour whiletestifying; (

b) the internal consistency of the evidence; (

c) the external consistency of the evidence; (

d) independent evidence to supportor contradict that witnesses evidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair andforthright without any personal motive or agenda; and (

f) the plausibility of the witness’ evidence. M.R.’s demeanour while testifying [23] M.R. presented as a mature person, well beyond her 16 years. She was measured and very careful in her use of language anddisplayed no outwardly visible signs of distress or discomfort at the court surroundings, the subject of her evidence, or the presence ofthe accused. Her demeanour while testifying was engaged and precise and she neither embellished nor exaggerated her evidence. Nothingin her demeanour detracted from her credibility.

Internal consistency of M.R.’s evidence [24] M.R. testified the first significant incident (Incident #1) occurred while alone with E.J.M. in his home at around 7:30 a.m.,watching one of E.J.M.’s relatives on television curl in an international competition. M.R. described that E.J.M. stroked her thigh whilerubbing his groin and that she was six years old when this occurred, which would place the event in 2012 or 2013.

M.R. was certain thatshe and her family were camping overnight at E.J.M.’s property in a truck camper they had purchased from E.J.M. and she was able toprecisely describe the clothing she was wearing at the time. She believed the incident stopped when her parents entered the house formorning coffee and that sometime around this incident, E.J.M. gifted her the 14K necklace at Exhibit 1, a piece of jade and a one-centcoin. [25] M.R. testified that the second incident (Incident #2) happened in E.J.M.’s shop, which was also located on the property, alsowhile she was six years old.

Her parents were away riding quads on the property and M.R. walked into the shop where E.J.M. wasalready sitting on a stool. In direct, she testified that E.J.M. rubbed her buttocks while she stood in front of him, he then moved his handsto rub the front of her hips, up her stomach and towards her breast area. He stopped when her parents returned. She again was able todescribe with great detail the clothing she was wearing when this occurred. [26] The third incident (Incident #3) occurred when M.R. was approximately seven years old.

Again, the family was camping on theproperty and she was alone with E.J.M. in his kitchen making breakfast while he taught her how to make French toast. M.R. described avery detailed recipe that E.J.M. followed in preparing the breakfast and that while she was dipping the bread in the egg mixture, herubbed her “butt” and back and touched her neck, while complimenting her looks and how well she was preparing the breakfast.

Hisactions ceased when her parents awoke and came into the house for toast and coffee. [27] The fourth incident (Incident #4) occurred again in E.J.M.’s shop, but in the presence of M.R.’s parents and involved E.J.M.lifting her onto his lap and then rubbing her buttocks. She recalled her father was within four feet and her mother was also in the shopwhen this happened and that neither of her parents reacted but rather, her father continued his conversation with E.J.M. M.R. believed

this occurred around the same time as the previous incidents. [ 28 ] M.R. further testified that the sexual touching escalated as she aged and her body matured and that the incidents gradually escalated, as E.J.M. would grab her breasts and insert his fingers into her vagina. [ 29 ] M.R. also related many otherwise innocuous activities that she and E.J.M. would engage in and that he frequently gave her gifts, including the 14K gold necklace, a small bell, a hummingbird music box, a pocket knife, a book and a one-cent coin.

M.R. testified that both her parents were in the room when E.J.M. gifted her the necklace at Exhibit 1 from a jewellery box filled with rings and other jewellery. Aside of the compliments E.J.M. was alleged to have made to M.R. on her looks during Incident #3, no evidence was heard of any other compliments, pleas, or threats to remain silent about any alleged sexual touching. [ 30 ] In cross-examination, M.R. then described a fifth incident (Incident #5) that she had related to police, but not in direct examination.

While either seven or 11 years of age, E.J.M. placed M.R. on a stool, removed both of their pants and played with his penis while digitally penetrating her with a finger. She stated this sexual touching occurred on E.J.M.’s couch or in his shop and that it happened more frequently than she had related to either her counsellor or police. In answer to a question from defence counsel, she also testified that now she additionally had a vivid memory of E.J.M. forcing her head down onto his erect penis, something she disclosed to her counsellor but not police.

She explained that she had only previously recounted a single reliable memory but that now, with more “triggers happening”, she could recall more instances of sexual touching. Again, she described that prior to her counselling sessions, she had suppressed the memories so as not to impact her life, but they resurfaced following counselling. [ 31 ] M.R. agreed in cross-examination that her police statement was made following counselling to address mental-health concerns she had identified. M.R. had sought counselling partly to determine why she felt sexualized within her peer group and with relationship partners.

She agreed that when speaking to police, the memories of the alleged incidents were very fresh in her mind as they were a central feature of her counselling session which was only a few days prior. M.R. was challenged regarding her use of language including the terms “grooming” and “sexualized” in her police statement and in court and she testified that she was very familiar with this language as many of her friends had experienced “such activities”.

M.R. firmly rejected the suggestion that E.J.M. had not in fact given her the 14K necklace and opined that E.J.M. himself might not recall the gift as it was made “over a decade ago”, but that she vividly recalled the gift when she was either six or seven. [ 32 ] M.R. agreed in cross-examination that her memories were affected, as the events happened when she was so young.

She explained that following “lots of thought and regarding some of the gifts that he gave me, some of it comes back to me, as some people get triggers when it comes to trauma, or some people get memories after listening to happy music, because that’s simply how our brain works. Active recall”. She agreed that the memories came back to her later but “I had these memories throughout my life but I just didn’t think it was a big deal until I came [sic] older and realized what being sexualized was.

I didn’t think it was a big deal when I was a child because just I thought that was how he was showing his affection towards me but I realized that for an older man it’s inappropriate”. M.R. was challenged that she could have made up or fabricated the memories and replied “Absolutely not. Why would an innocent child try and make up something like this, and then come about it 10 years later? I feel like that’s kinda an interesting way to go about saying that I would make up such accusations”.

She further stated she did “not believe [the memories] were fabricated due to the fact of, why would a child make up something like this, they would want to make up imaginary friends, not a very old man touching them in inappropriate ways. Children have very innocent minds, and they wouldn’t make up something like this”. [ 33 ] M.R. testified in cross examination that the events would “come to me in flashbacks when I’m getting triggered, I’m sure your very familiar with that word when it comes to trauma victims, and it comes to you, flashing, and very vivid memories being able to feel like you’re in that moment.

It comes to me in nightmares as well, and sometimes these nightmares can be fabricated, but I know the difference in-between a fabricated memory and something that actually did happen.” She likewise agreed that sometimes her memories came to her in a dreamlike sequence, what she described as “faded memories” to police, that they came to mind during her December 2021 counselling sessions, but were no longer as fresh due to the passage of time.

She further agreed that these memories “resurfaced” only after her counselling sessions because prior to this, she had tried to forget about and bury them down. [ 34 ] M.R.’s evidence in court contained a number of inconsistencies regarding age and time – she believed the incidents occurred when she was six and seven, stating in cross-examination that “six years old was a very special time for me”. In cross-examination, she agreed that her memories could have been mistaken regarding age and that the events could have occurred when she was as old as 11.

While less weight should attach to a child witness’ faulty timeline, I also note that M.R. agreed her memories were accessed following counselling and that she testified to the similarity with her friends who had similar experiences. I am therefore cautious regarding her evidence on these points, as she may have unintentionally adopted others’ experiences into her own.

External consistency of M.R.’s evidence [ 35 ] Prior consistent or inconsistent statements may be used to provide context about the matter coming to the attention of authorities and as circumstantial evidence of the witness’ credibility and reliability. These statements may not be used for the truth of their contents or to corroborate a witness’ in-court evidence ( R. v.

Langan , 2020 SCC 33 , at para. 99 , adopting reasons found at 2019 BCCA 467 ). [ 36 ] M.R.’s account of the alleged incidents to her counsellor, in her police interview, in direct and in cross-examination in court included very inconsistent allegations and levels of detail as I have already cited.

Given her age at the time of the alleged incidents and in court, some inconsistency is to be expected and therefore less weight will normally be attached, however significant inconsistencies may still be considered. [ 37 ] During counselling, M.R. related that during Incident #2, E.J.M. not only rubbed her buttocks, stomach and breasts while she stood before him, but that he then exposed himself and forced her head down onto his erect penis. This was not disclosed to police; however, she adopted this version in court but only when put to her in cross-examination.

M.R. agreed this was a very traumatic event, but that she did not vividly recall it “as of this moment” as it was “kinda like puzzle pieces”. M.R. also agreed in cross-examination that this was the most traumatic incident, and then testified that this act of forced fellatio happened in relation to Incident #1 and not Incident #2.

[38] Also, M.R.’s evidence changed in cross-examination when she testified to digital penetration that she had previously related inher police statement regarding a fifth incident (Incident #5), as well as more aggravated sexual touching in relation to other incidents.When challenged, M.R. explained this was due to her discomfort in relating the sexually-aggravated details in open court.

She alsoexplained that the significant incidents she related to police but not in direct were those she considered the most significant for evidencepurposes at that time (emphasis added). [39] M.R. agreed that she had related in her police interview an incident that she had not disclosed in counselling, what she describedas a “faded memory”, involving E.J.M. picking her up and placing her onto his lap. Again, she only adopted this in court and only incross-examination.

M.R. provided no further detail and opined that her in-court recollection might not be as fresh as her memories duringthe counselling sessions two years ago, but agreed this was one of many memories that came up during counselling. M.R. attributed thisfaded memory in part to her mind trying to bury the memories down and that they were only recalled through the counselling sessions. [40] These significant changes in the central allegations of what are said to be now fixed memories must be considered when I weighthe reliability and consistency of M.R.’s recollections.

I noted as well that in court, M.R. was able to describe in precise and unvaryingdetail the exact clothing she wore during Incidents #1 and #2 and the exact recipe for French toast in Incident #3. This was at odds withher varying accounts to her counsellor, police, and again in court between her direct and cross-examination evidence regarding thealleged sexual touching and conduct of those incidents. These changes in her evidence regarding the most egregious aspects of thealleged conduct, while maintaining otherwise mundane and peripheral details is concerning, even accounting for a youthful or immaturewitness.

Likewise, tailoring a statement to police based on what a witness believes to be best for evidentiary purposes is also worthy ofcaution. To then discover a new, more vividly-recalled memory of another incident but only under cross-examination, is even moreworrisome. Independent evidence to support or contradict M.R.’s evidence [41] It is trite law that a sexual-assault complainant’s evidence does not require corroboration, nor that it safe to find an accused guiltyin the absence of corroboration (Criminal Code, s. 274), although such evidence if provided can be of assistance to the trier of fact.

Thisis particularly the case where concerns exist regarding the reliability of disputed testimony, as corroboration can provide a basis forresolving those concerns and concluding that guilt has been proven beyond a reasonable doubt (A.S. at para. 63). The Crown entered thepurported 14 karat gold necklace at Exhibit 1 to support M.R.’s recollection and suggested this, along with the other small items that bothM.R. and her father testified were given to her by E.J.M., is evidence of grooming behaviour.

Based upon the totality of evidence I heardhere, with respect, I disagree. [42] Grooming behaviour is a pattern of conduct whereby a perpetrator attempts to prepare the vulnerable victim for increasinglymore intrusive sexual abuse by first employing less intrusive conduct and, if no complaint or discovery is encountered, increasingly moreserious abuse is attempted (R. v. A.G., (ON CA), at para. 11).

While not always the case, this may commence withdiscussion of sexually-related topics, viewing suggestive images, or watching suggestive videos, followed by touching which mayinclude kissing and other forms of intimate contact. Ultimately, more intrusive sexual abuse may then be attempted, which may includeoral sex and penetration including sexual intercourse.

Victims are frequently targeted due to difficulties at home, immaturity, or othersimilar characteristics that isolate them from supervision or protection, and the use of alcohol, drugs or gifts may be used to reduce thevulnerable victim’s inhibitions and make them more receptive to the sexual abuse (R v PES, 2018 MBCA 124 , at para. 37). [43] M.R. testified she believed she was six or seven when the 14K necklace was gifted and she recounted that it was one of manygifts she received from E.J.M. before she was 12.

She gave no evidence of any accompanying words or conduct by E.J.M. when thenecklace, or other items, were gifted and agreed that E.J.M. was very generous both to her and her brother. [44] Gifts alone, without a surrounding pattern of conduct involving words, acts or attempts extending from less to more sexuallyintrusive, can be just that – gifts. I heard no evidence that E.J.M. attempted to isolate M.R. from her family – to the contrary, herevidence was that she initiated contact with E.J.M. for Incidents 1, 2, 3 and 5, and that her parents were present for Incident 4.

Moreover,while to an adult a purported gold necklace is a significant gift, M.R. testified with as much childhood fondness for a toy turtle and a one-cent piece as she did for the necklace – because to a child, items have no intrinsic value beyond what the child assigns them. I heard noevidence that the necklace, or any other gift, was then used to reduce M.R.’s inhibitions and make her more receptive to the allegedsexual abuse.

Likewise, I heard no evidence that any gift was used by E.J.M. as an inducement for M.R. to keep his actions secret fromher parents or anyone else. [45] M.R. further described much of the alleged sexual activity by E.J.M. as taking place while she and her family camped at hisproperty. This is at odds with her testimony that the events occurred while she was six or seven and subsequent Crown evidence fromMr.

M.R. and the photo entered into evidence as Exhibit 3, that the family only camped at E.J.M.’s property in the camper which was notpurchased until the early summer of 2016 and just prior to a significant accident E.J.M. suffered. Following that injury, the family did notcamp over again in 2016, and camped only four to six times over the following summer. All evidence heard also suggested that E.J.M.still had only reduced use of his right hand by the summer of 2017 and would have had great difficulty lifting M.R. up and onto a stool asshe described.

Although I account for M.R.’s youth and the likelihood that she was confused regarding her age when the alleged activityoccurred, given her insistence in court regarding her ages at the relevant times, this inconsistency also gave me pause. [46] Also of significance given the suggestion that E.J.M. used “grooming” behaviour towards M.R., I heard no evidence that any ofthese acts occurred in a setting that would be consistent with E.J.M. seeking secrecy or other similar conditions to de-sensitize a child tosexual acts.

None of the alleged incidents took place behind locked doors or in a place of any secrecy; rather, they are alleged to haveoccurred where the parents either were present (Incident #4), or would be reasonably expected to attend with little or no forewarning. Ialso heard no evidence that E.J.M. ever counselled or even suggested to M.R. that what he was doing was “good” or “normal”, or that heinstructed she tell no one or threatened her if she did disclose. In noting this I am not engaging in any sort of stereotypical reasoning withregards to expected behaviour where sexual assaults or sexual touching is alleged.

I do note that the complete absence of evidence of anysuch circumstance is one that I can properly consider in coming to my ultimate assessment. The “balance” of M.R.’s evidence

[ 47 ] M.R. related to the court both good and bad memories of E.J.M. and did not demonstrate any obvious bias against him. She candidly related him teaching her automotive skills and taking a genuine interest in her. [ 48 ] In answering a number of questions regarding her evidence, however, I found that M.R. appeared to adopt the language of a counsellor. When challenged regarding gaps or inconsistencies in her memory, she told the court what a young child would or would not likely fabricate, answering one question by explaining that is simply how the brain works, active recall.

Likewise, she deflected one challenge to her recollection by suggesting that an innocent child would make up imaginary friends rather than an old man touching them inappropriately, because children’s minds are innocent and would not make up things like that. [ 49 ] Evidence of this nature, describing how children create fantasies or how active recall works, is normally heard from a qualified expert witness as opinion evidence, not from a complainant when asked about her differing accounts.

I found these responses to proper questions were likely conclusions M.R. had heard or reached, possibly during counselling or in speaking to her friends, and were not her own conclusions or explanations to the questions posed. This detracted from her answers, as it reflected an intent to explain a conclusion on her part, rather than simply relate what she experienced or recalled. The plausibility of M.R.’s evidence [ 50 ] M.R.’s description of the alleged sexual activity leaves me with caution.

Some of the alleged incidents were themselves plausible, particularly accounting for her tender years and related ability to recall. Other aspects of her evidence however did not support finding the described incidents to be plausible. Her evidence that her otherwise very protective parents left her alone to wander into E.J.M.’s shop when she was just six while they were away riding quads, was unlikely. The presence of her mother and father during the groping of her buttocks during Incident #4 in the circumstances described, yet taking no action, is highly unlikely.

The lack of any evidence of actual grooming behaviour, or communication by E.J.M. to keep his actions secret, was also concerning. Conclusion regarding M.R.’s reliability and credibility [ 51 ] M.R.’s testimony of the alleged sexual incidents was detailed and thorough. She was responsive to questions from both counsel, although in some answers she tried to offer an analysis in answer to the question.

It was concerning that she only disclosed in cross- examination details – significant and obviously sexual details – which she had previously disclosed either to her counsellor or to police, but not to both, and not in direct. I accept that M.R. did her best to tell the truth about the events as she remembers them, however, I was left with significant concerns regarding her evidence. 5. OTHER CROWN WITNESS EVIDENCE [ 52 ] Cst. Cullen and M.R.’s father, Mr. M.R., both testified. Cst.

Cullen first became aware of the historical sexual assault complaint on November 24, 2021 from M.R.’s mental-health counsellor the day following M.R.’s disclosure in a counselling session. Cst. Cullen took the counsellor’s statement on November 26 and M.R. and Mr. M.R.’s statements on December 17 and 18, and lastly, a statement from Mrs. M.R. on March 9, 2022. Cst. Cullen was not cross-examined. I found he was both credible and reliable, but of limited assistance. [ 53 ] Mr. M.R. testified that in 2009 or 2010 he worked at a Fort St. John area oilfield supplier and met E.J.M. through work.

They formed a friendship over common automotive mechanics and auto-restoration interests. From the beginning Mr. M.R. would often bring his wife and children, M.R. and her younger brother who were approximately three and one respectively, with him when visiting E.J.M. at his home. Initially, the visits were from noon and lasted four or six hours and the children would ride bikes, play in the yard and woods, sometimes alone, but also under the watch of Mrs. M.R. [ 54 ] In 2016, Mr. M.R. purchased a truck camper from E.J.M. and the family would then stay over Saturday nights at E.J.M.’s property.

These overnight visits occurred approximately twice in 2016 and as many as six times in 2017, always during the summer months. Mr. M.R. agreed that from time to time the children would spend time alone with E.J.M. [ 55 ] Mr. M.R. was certain that the family never stayed overnight prior to purchasing the truck camper. Upon viewing the photo of the camper at Exhibit 3, which was date stamped 26 April 2016, he agreed the camper was likely purchased between May and June of 2016. Mr.

M.R. further recalled that in June of 2016, E.J.M. suffered an accident while the family was on the property, during which his right hand was crushed. As a result, E.J.M. had metal pins inserted into his fingers and lost most function and strength in his right hand for weeks to months after. Mr. M.R. testified that after the summer of 2017, his family did not spend any time at E.J.M.’s property, as by this time, Mr. M.R. was building and racing cars during the summer months. [ 56 ] Mr.

M.R. testified that when the two children, M.R. and her brother, were young, they were never left alone with E.J.M., but by 2016 and 2017, the children would occasionally spend up to an hour with E.J.M. This usually occurred when the parents were either still sleeping in the camper or doing other activities on the property. Mr. M.R. described himself as protective and his wife as over-protective, but that they had no concerns with E.J.M. and the children. Mr. M.R. only once noted anything odd between M.R. and E.J.M., when the defendant gifted what appeared to be a 14 Karat gold chain to M.R. Mr.

M.R. believed this occurred when M.R. was between six and 10 years old, and that E.J.M. had also gifted other small trinkets and gifts to both children. Mr. M.R. was not asked and did not give evidence regarding being present for Incident #4 when E.J.M. was alleged to have rubbed M.R.’s buttocks. [ 57 ] I found Mr. M.R. credible and reliable as a witness, despite his self-admitted issues recalling precise dates. Given the otherwise mundane nature of events and the lack of a reason to specifically recall precise dates, this is understandable and did not greatly detract from his overall credibility and reliability.

Noting as well the rule in Browne v. Dunn , 1893 CanLII 65 (FOREP), and that Incident #4 as described by M.R. was never put to Mr. M.R., I was restricted in the use I could put his evidence in relation to that specific alleged incident. 6. EVIDENCE OF THE ACCUSED E.J.M. Assessing the reliability of E.J.M.’s evidence

[58] E.J.M. testified in his own defence and was the only defence witness. He is 76 years old, has a grade 8 education and worked as acertified welder and mechanic in the oil and gas industry. He retired fully in 2014 and has lived on the same rural property forapproximately 25 years, where he enjoys metal work, mechanics and building items. No evidence was heard regarding medical or otherreasons that would interfere with his ability to observe, recall or recount events, and I found his evidence on the whole to be reliable.

Itremains then to assess whether his evidence, or that which is ultimately accepted as reliable, is also truthful. E.J.M.’s demeanour while testifying [59] E.J.M. testified in chief and cross-examination in a calm and measured fashion. Nothing in his demeanour detracted from hiscredibility. Internal consistency of E.J.M.’s evidence [60] E.J.M.’s evidence was largely consistent between his direct and cross-examination. He believed he first met Mr. M.R. around2013, but in cross-examination, agreed this was likely as early as 2008 or 2009. His evidence in direct closely matched that of Mr.

M.R.regarding frequency of visits to his property and he was unshaken in cross-examination. E.J.M. testified that M.R. and her brother werediscouraged from spending time in his home or shop due to his cigarette smoking and smoke created by metal work in the shop, but heagreed he was occasionally alone with M.R., although she was most often in the company of her brother. E.J.M. denied any of the actsalleged by the Crown, but did agree that he would occasionally give M.R. a goodnight hug. [61] In cross-examination, E.J.M. volunteered that when he first met Mr.

M.R., the family owned a motorhome, but was certain theydid not stay overnight until they had purchased the truck camper from him. Questions about this earlier motorhome were never placed toany other Crown witness, nor the alleged restriction on the children entering his home or shop due to his smoking and the smoke fromautomotive work. E.J.M. agreed that when the family would stay over on Saturday nights, all the adults would consume alcohol andwere likely intoxicated, but not excessively so. External consistency of E.J.M.’s evidence [62] No evidence was heard regarding any out-of-court statement by E.J.M.

Independent evidence to support or contradict E.J.M.’s evidence [63] It was uncontested that E.J.M. severely injured his right hand in an accident in June 2016 and that immediately after that, he hadpins extending out his fingertips for a few months, during which he lost a great deal of hand dexterity and strength. After that, hesuffered extreme pain in his right hand to the point that lifting 40 pounds was very painful, which he continues to experience to this day. [64] The photo at Exhibit 3 was date stamped 26 April 2016, and it was uncontroverted that it was taken while the camper was still onE.J.M.’s truck.

Foliage and the ground visible in the photo are consistent with late spring in the Charlie Lake area. Although the Crownput it to E.J.M. that M.R.’s family had camped at his property prior to purchasing the camper, he disagreed that this had occurred. The “balance” of E.J.M.’s evidence [65] E.J.M. demonstrated no animus towards M.R.

He did not speculate other than to challenge whether the necklace at Exhibit 1 wasindeed gold and stated in any event that he had no memory of gifting it to M.R. [66] In answer to cross-examination, E.J.M. was unshaken in his recollection that no touching of a sexual nature, as alleged or at all,ever occurred.

He admitted in cross-examination that he likely did spend unsupervised time with M.R. and her brother and that while thechildren’s mother did not like them in his house or the shop due to his smoking, he would stop smoking to permit the children to watchTV in his home or to come and play in his shop. [67] An assessment of credibility also rests in part on a determination of a witness’ motive to fabricate, which in the case of anaccused is complicated by their entitlement to the presumption of innocence. Both the innocent and the guilty accused have an interest innot being found guilty of a crime.

Therefore, any assumption that an accused person will lie to secure an acquittal is contrary to thispresumption of innocence, as an innocent person “presumably, need only tell the truth to achieve this outcome” (R. v. Laboucan, 2010SCC 12 , at para. 12). The plausibility of E.J.M.’s evidence [68] E.J.M.’s evidence was plausible. E.J.M. denied any suggestion he touched M.R. in a sexual way at any time, but did concede helikely gave her goodnight hugs and had affection for her as a child. When his memory was challenged, E.J.M. conceded that he has goodrecollection of some things but not others.

Conclusion regarding E.J.M.’s reliability and credibility [69] E.J.M. was found both reliable and credible. He testified in a calm, forthright manner and seemed genuinely puzzled by theallegations. He made admissions regarding spending time alone with M.R. that the Crown characterized as admissions of opportunity,but his answers appeared neither calculated nor evasive. 7. DISPOSITION [70] The disposition of this matter revolves around the testimony of two people, the complainant M.R. and the accused E.J.M.

This isnot a simple credibility contest; rather, I must consider the evidence as a whole as directed in M.R.E. Given the testimonial ability of thetwo key witnesses involved, one a youth and in relation to events that occurred while she was a child, and the other an adult, it would bean error for me to engage in any form of parallel or symmetrical analysis (R. v. M.P.H., 2022 BCCA 216, at para. 48).

[ 71 ] As already indicated, I did not find that M.R.’s evidence involved “recovered memory”. The complainant described the triggering memories of things she always knew had happened, but that she had not thought of for a while. That description of memory retrieval is common, as for example when hearing a song, one may recall a past summer or something that had not been thought of in a while, but the memory has always been there. The memory is familiar, not a new discovery or revelation.

I likewise disagree with the defence that I should provide less weight to M.R.’s evidence simply because she had received counselling prior to reporting to police. [ 72 ] I do not find many of the very minor inconsistencies in M.R.’s evidence of import. These were peripheral details, from a child or youthful witness and given her age, I assigned these discrepancies very little weight. [ 73 ] I therefore find that M.R.’s evidence was compelling; however, when I consider the whole of the evidence, I am left with a reasonable doubt regarding both counts. This is no reflection on M.R.’s testimony or anything she did.

It simply reflects the strict standard which must be applied in all criminal cases. She frankly admitted her memory changes over time and as pointed out by counsel, it appears her memory has very significant inconsistencies. She told the Court one incident was most traumatic, then adopted having related a significantly more sexually traumatizing version of that incident to police and another still to her counsellor – only admitting these objectively more serious sexual details when cross-examined. [ 74 ] I also heard no evidence of any attempt by E.J.M. to keep the alleged sexual touching a secret.

It was all alleged to have occurred in either of two locations, both which were frequented by M.R.’s parents who could be expected to enter at any time and with little warning. Likewise, no evidence was heard of grooming behaviour, beyond the simple presentation of gifts to a child that were not attached to promises for silence or of future compliance. Lastly, there was no evidence that any threats or promises were made to secure M.R.’s compliance or to hide what E.J.M. was alleged to have been doing.

I do not engage in any form of stereotypical reasoning requiring evidence of any, or all, of these to be present – however, it is permissible for me to require some evidence that E.J.M. would have taken some step to keep his alleged sexual touching from his friend and M.R.’s father, whom he testified he still regards positively and all agreed was a protective parent. [ 75 ] I do not disbelieve the complainant. My finding that a reasonable doubt remains on both counts is not an indictment of her belief in her evidence.

The burden is on the Crown to prove both charges beyond a reasonable doubt and I find the evidence in this case does not meet that very high standard. Both charges are dismissed . _____________________________ The Honourable Judge D.T. Reeves Provincial Court of British Columbia