R. v. R.F.L., 2022 BCPC 334

Citation: R. v. R.F.L. 2022 BCPC 334 Date: 20220909 File No: 42633-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. R.F.L. BAN ON PUBLICATION - s. 486.4(1) CCC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: B. Ward Counsel for the Accused: F. Mark Rowan, A. Hall and M. Rowan, Articled Student Place of Hearing: Courtenay and Powell River , B.C.

Dates of Hearing: May 16, 17, 26, 27, August 8, 9, 10, 11, 23, 25, 2022 Date of Judgment: September 9, 2022 INTRODUCTION [ 1 ] The accused, R.F.L., is charged with one count of sexual exploitation contrary to s. 153 of the Criminal Code . He is charged with sexually interfering with the complainant, G.C., between and including March 1, 2004 and August 25, 2005, at or near Courtenay, British Columbia. [ 2 ] Mr. R.F.L. is an uncle by marriage of Ms. G.C. The offence period charged in the information covers the time from when Ms.

G.C. was approximately sixteen and a half years of age until the day before her eighteenth birthday. [ 3 ] Mr.

R.F.L. pled not guilty to the charge and a trial was held over several days during a period beginning on May 16, 2022 and ending on August 25, 2022. [ 4 ] During the trial, the Court heard testimony from six witnesses. [ 5 ] The Crown called the complainant, G.C., the former wife of the accused S.J., and another uncle of the complainant, G.P. [ 6 ] After the close of the Crown’s case, the defence sought a judicial stay of proceedings based upon the assertion that the Crown had been unable to provide police records in connection with an investigation of a complaint of possible sexual impropriety between Mr.

R.F.L. and Ms. G.C. which he said was made in or about 2005. A Charter voir dire was held. During the voir dire , the Crown called a civilian employee of the Comox Valley RCMP, D.S. and the defence called the complainant’s father, Mr. G.C. [ 7 ] Upon hearing the evidence followed by submissions of counsel, I found that Mr. R.F.L.’s right to full disclosure as protected by s. 7 of the Charter had been breached. I did not, however, grant the remedy of a judicial stay of proceedings.

That is because, in the end, I was not satisfied that this is one of those rare clearest of cases where a stay is the appropriate remedy. [ 8 ] After I gave my decision on the voir dire , counsel agreed that the testimony of G.C. given during the voir dire would become evidence in the trial proper. Counsel also agreed that after the voir dire was concluded, Mr. G.C. would answer some further questions in the trial proper. [ 9 ] The defence elected to call evidence in the trial.

R.F.L., who was the only defence witness, testified in his own defence. [ 10 ] Following the completion of all of the evidence, Crown counsel and defence counsel provided the Court with very helpful written and oral submissions. FACTS NOT IN DISPUTE [ 11 ] I find that certain facts are not in dispute. The undisputed facts include the following: 1. The complainant, G.C., is the niece through marriage of the accused R.F.L. Her mother, L.C., is the sister of Mr. R.F.L.’s former wife, S.J. 2. Ms. G.C. was born on [omitted for publication]. Mr. R.F.L. is approximately 22 years older than Ms. G.C. 3. Mr.

R.F.L. began a relationship with Ms. S.J. in 1990 when they were both employed with the Canadian military. They were married in 1996. They have two children namely, B.L. who is about six years younger than Ms. G.C. and A.L. who is about two years older than B.L. Mr. R.F.L. is the biological father of B.L., but not of A.L. 4. Mr. R.F.L. first met members of Ms. S.J.’s extended family in New Brunswick in about 1991. He likely met the complainant for the first time then. 5. Mr. R.F.L. never had a close relationship with Ms. S.J.’s extended family, which included Ms. G.C. and her parents. 6. Mr. R.F.L., Ms.

S.J. and their two children lived in New Brunswick until 2003 when they moved to Courtenay as a result of Ms. S.J.’s transfer to the Canadian Forces’ base in Comox. By that time Mr. R.F.L. had left the military because of work related injuries and was receiving disability benefits. 7. The L. family purchased a house located at [omitted for publication] in Courtenay where they then all lived. 8. In or about March 2004, Ms. G.C. travelled from New Brunswick where she was living to Courtenay to visit with the L. family. At that time she was not getting along with her parents, particularly her father G.C.

Prior to coming out to British Columbia, she had been staying in the home of the minister of her church. 9. The complainant travelled to Courtenay without her parents’ knowledge or consent. Initially, the plan was that she would stay with the L.’s for only a week or so over the school spring break and then fly back to New Brunswick. 10. As things transpired, Ms. G.C. stayed at the L. residence for about one year. In March 2005 she returned to New Brunswick and stayed there for several months.

11. In November 2004, Ms. S.J. went on a six month military tour to the Middle East. She returned to Courtenay for a break in or about March 2005. 12. Ms. S.J. finished her tour abroad and then returned to Courtenay at the end of May or beginning of June 2005. A short time later, she separated from Mr. R.F.L. She and the children moved into [omitted for publication] in Comox. 13. Soon after Ms. G.C. returned to New Brunswick in March 2005, she and Mr. R.F.L. began communicating through email and MSN Messenger. None of those messages were available as evidence. 14. In September 2005, Ms.

G.C. returned to Courtenay and lived with Mr. R.F.L. at [omitted for publication]. She remained living there with him until April 2006 when things became unhappy and Mr. R.F.L. told her to leave. She then returned again to New Brunswick. 15. Ms. G.C. and Mr. R.F.L. engaged in frequent consensual sexual activity together from the time Ms. G.C. returned to Vancouver Island in September 2005 until she left Mr. R.F.L.’s home in April 2006. [ 12 ] There is a dispute as to when sexual activity between the accused and the complainant began. [ 13 ] Ms. G.C. testified that Mr.

R.F.L. began having sex with her in 2004 within a month or so of her arriving at [omitted for publication]. She testified that the frequency of the sexual activity increased after her aunt, S.J., went on military tour in November 2004. [ 14 ] Mr. R.F.L. testified that he engaged in sexual activity with Ms. G.C. but that there was no sexual activity until after she had turned eighteen years old and returned to Courtenay in September 2005. [ 15 ] Mr. R.F.L. says that, when Ms.

G.C. was living at [omitted for publication] the first time and was under eighteen, he was not in a position of trust or authority towards her and that she was not in a relationship of dependency with him. THE EVIDENCE [ 16 ] Having outlined facts which I find are not in dispute, I will now set out the material evidence given by each of the witnesses. In doing so I rely on the thorough submissions of counsel and on the notes I made during the course of the testimony of each witness. I would like to make it clear that in setting out evidence given by the witnesses I am not making findings of fact.

G.C. [Complainant] [ 17 ] I will first refer to the testimony given by the complainant, G.C. It includes the following: 1. She was born on [omitted for publication] and was sixteen and a half to seventeen and a half years old between March 2004 and March 2005. 2. She is Mr. R.F.L.’s niece by marriage. Her mother, L.C., is the sister of Mr. R.F.L.’s former wife, S.J. She came to know Mr. R.F.L. through that relationship. She met him at a handful of family functions prior to 2004 while living in New Brunswick and they had a normal uncle - niece relationship. 3. In 2004, Ms.

G.C. was having problems with her parents, particularly with her father G.C. Sometime earlier she had learned that he was not her biological father. Knowing this, damaged her relationship with him. 4. She made allegations to an aunt or aunts against her father which were not true. 5. She received and accepted an invitation to fly out to British Columbia for a short vacation during spring break in March 2004. She believes one of her mother’s sisters, D., who lived in Victoria, paid for her flight to British Columbia. At the time she left New Brunswick, she was living in the home of the minister of her church. 6.

Ms. G.C. did not tell her parents she was going to British Columbia to visit the L. family and they did not consent to her doing so. 7. After arriving in British Columbia, Ms. G.C. stayed with the L. family at their house at [omitted for publication] in Courtenay. Living there at the time were Mr. R.F.L., Ms. S.J. and their two children, A.L. and B.L. B.L. is about six years younger than Ms. G.C. and A.L. is about two years older than B.L. 8. The house at [omitted for publication] was two stories.

The top floor included a master bedroom/bathroom, kitchen/dining area, living room, bathroom as well as another bedroom where A.L. slept. The basement included a family room, laundry room, computer room and a larger room that Ms. G.C. shared with B.L. 9. Soon before she was due to fly back to New Brunswick, Ms. S.J. and B.L. talked about how it would be nice if she continued to stay with them in Courtenay. Mr. R.F.L. spoke to her about it and made it clear to her that she could extend her stay with them. 10. Ms.

G.C. was enrolled at [omitted for publication] High School in Courtenay for the 2004 to 2005 school year. She continued to live in the L. home until March 2005. 11. While living in Courtenay, she received no financial support from her parents. Ms. S.J. and Mr. R.F.L. paid for all of the costs associated with her stay with them. Mr. R.F.L. was not working and was in receipt of disability benefits. She understood that Ms. S.J. was paying the mortgage. She did not contribute financially to the costs associated with her living with the L. family. 12. To her knowledge, her parents did not give Mr. R.F.L. or Ms.

S.J. any direction with respect to her care. She understood that

both Mr. R.F.L. and Ms. S.J. had the authority to discipline her but said they did not do so because it was never necessary. There were basic house rules that she and all members of the L. family were expected to follow. There were no special rules or restrictions which applied to her. Unlike B.L. and A.L., she did not have a set bedtime. 13. Ms. G.C. did not have a driver’s license and wanted to obtain one. Ms. S.J. and Mr. R.F.L. began giving her driving lessons in their minivan. She believes that Mr. R.F.L. provided her with most of the lessons. 14.

Approximately one month after she arrived in Courtenay, a sexual incident occurred with Mr. R.F.L. during a driving lesson in the family’s green coloured van (the “Van Incident”). It was dark and she was driving when they pulled into the paved circle of a dead end road. Mr. R.F.L. turned off the van and asked her to come into the back of the van to talk. He kept saying that she was the hottest thing he had ever seen. He began kissing her and she reacted with confusion. Mr. R.F.L. told her that everything was okay and began feeling her body. She described him touching her thighs, vagina and breasts. 15. Mr.

R.F.L. removed her pants and underwear and then removed his own pants and underwear. She recalled he was wearing green pants and a belt with a large cowboy style buckle. After Mr. R.F.L. removed his pants he positioned himself over her and began rubbing his penis on her vagina. She was lying on her back on the rear bench seat of the van. He inserted his penis into her vagina and had intercourse with her. He was not wearing a condom. She was confused and did not want to upset him so she did not say no. The incident was memorable for her, in part, because she was a virgin and experienced a lot of pain. 16.

After the sexual activity was over, Ms. G.C. and Mr. R.F.L. got dressed and drove back to the house. Shortly before they arrived, Mr. R.F.L. said words to the effect of “if you tell S.[J.] about this, you’ll have to go back to New Brunswick.” 17. After the Van Incident, things became awkward for Ms. G.C. However, she continued living in the home and carrying on as she had before. 18. After the Van Incident, Mr. R.F.L. engaged in further sexual activity with her. Sexual intercourse occurred about two or three times per month.

Sexual activity, which included intercourse and oral sex took place in the van a couple of more times but occurred mainly in the house. The sexual activity in the house happened when Ms. S.J., A.L. and B.L. were out of the house or were all asleep. 19. An incident with Mr. R.F.L. occurred on the couch in the living room of the house while her Aunt D. and Uncle G.P. were visiting on a holiday weekend (the “Couch Incident”). 20. About 2 a.m. Ms. G.C. was laying on her side on the couch and experiencing stomach problems related to an ulcer. Mr. R.F.L. was laying behind her.

He was grinding his erect penis against her bottom and rubbing her stomach. 21. Suddenly her uncle G.P. appeared and observed them. Mr. R.F.L. jumped up and said that he was just rubbing her belly. She felt “petrified” because she thought that being observed on the couch with Mr. R.F.L. by her uncle G.P. could result in her having to leave the L. residence and return to New Brunswick. 22. Defence counsel put it to Ms. G.C. in cross-examination that following the Couch Incident the police attended the house and questioned her about it and any other sexual activity that Mr. R.F.L. may have engaged in with her.

She said she had no memory of the police attending the house and speaking with her. She said further that if she had been questioned by the police at that time she would have said nothing happened because she did not want to have to return to New Brunswick. 23. In November 2004, Ms. S.J. was deployed overseas with the military. After Ms. S.J.’s deployment, Ms. G.C. continued living in the house with Mr. R.F.L., B.L. and A.L. She was still not receiving any financial support from her parents and understood that Mr. R.F.L. was in charge of paying the bills. Mr. R.F.L. bought the groceries and prepared meals. 24.

After Ms. S.J. was deployed, the frequency of sexual activity with Mr. R.F.L. increased. After B.L. and A.L. went to bed, Mr. R.F.L. would ask her to join him in the master bedroom where he would have intercourse with her. He would set an alarm for four or five a.m. to wake her up and have her go downstairs and sleep in the bedroom she shared with B.L. 25. Mr. R.F.L. had sex with her fifteen to twenty times per month. She would sleep with him in his bed unless she was having her period. 26. While more frequent, the sexual activity with Mr. R.F.L. was essentially the same as it was before Ms. S.J. went overseas.

It would usually begin with Mr. R.F.L. touching her vagina and breasts. If asked she would touch his penis or perform oral sex on him. It would usually progress to sexual intercourse. Mr. R.F.L. would ejaculate and then go to sleep. There were a few times when Mr. R.F.L. performed oral sex on her. 27. In or about March 2005, she returned to New Brunswick. She believes she used the credit in respect of her return flight which she did not take earlier. She went home to New Brunswick because she wanted to visit people.

After returning she stayed at different times with her half-sisters, with her boyfriend and with her parents. She still did not get along well with her parents. 28. During the first month after she returned to New Brunswick, Ms. G.C. had contact with Mr. R.F.L. through email and MSN Messenger. The frequency of their communication increased over time. Mr. R.F.L. communicated that he was the only one who loved and cared for her. She does not recall the communication later becoming sexual in nature. 29. She came back to Vancouver Island in September 2005, by which time she was eighteen years of age.

She does not recall who paid for her flight. 30. After Ms. G.C. arrived, Mr. R.F.L. picked her up from an airport in his truck. On the way to Courtenay, Mr. R.F.L. stopped the truck on a dead end road. He then had sexual intercourse with her while she was on the hood of the vehicle.

31. After first arriving, she and Mr. R.F.L. stayed briefly at a farm belonging to one of Mr. R.F.L.’s friends. They then resumed living at the house at [omitted for publication]. 32. By the time that Ms. G.C. was back in British Columbia, Mr. R.F.L. and Ms. S.J. were separated. Ms. S.J. invited Ms. G.C. to live with her and the two children in [omitted for publication] in Comox; however, she declined her offer. 33. Ms. G.C. remained living at [omitted for publication] with Mr. R.F.L. until April 2006. She continued to work at Mr. R.F.L.’s friend’s farm, largely without any pay. 34. Ms. G.C. and Mr.

R.F.L. engaged in frequent sexual activity together throughout this time from September 2005 to April 2006. The sexual activity was similar to that during the period from November 2004 to March 2005. 35. Towards the end of her stay with Mr. R.F.L. in Courtenay, she became very depressed and resorted to self-harm. They fought and she accused Mr. R.F.L. of making her a housewife. 36. At the end, Mr. R.F.L. told her to get out of the house. She went briefly to friends’ houses and then to her Aunt H.’s home in Gibsons before returning to New Brunswick.

S.J. [ 18 ] The testimony of the Crown’s second witness, S.J., includes the following: 1. She is the former wife of Mr. R.F.L. and is Ms. G.C.’s maternal aunt. She and Mr. R.F.L. met in 1990 when they were both in the military. They got married in 1996. 2. Mr. R.F.L. would have first met Ms. G.C. in New Brunswick in about 1991 when they travelled from Ottawa so he could meet her extended family. 3. From 1995 to approximately 2003, Ms. S.J. and her family lived in [omitted for publication], New Brunswick. She would see Ms. G.C. and her family on a regular basis. They had a Bible study on Wednesday evenings and Ms.

G.C. and her family would often come to her house before and after. 4. Ms. G.C.’s parents did not like Mr. R.F.L. and her father would not come over to see Mr. R.F.L. 5. In 2003, she was posted to Comox with the military. She and Mr. R.F.L. purchased the house at [omitted for publication] in Courtenay. They then lived there with their two children. By that time Mr. R.F.L. was no longer employed with the military. 6. G.C. came to Courtenay for a visit in March 2004. She understood that Ms. G.C. was having difficulties with her parents. A pastor contacted her about Ms. G.C. coming to stay with them.

She believes that her sister D. paid for Ms. G.C.’s flight from New Brunswick. 7. Ms. G.C.’s parents did not want her staying with the L. family and stopped talking with Ms. S.J. after Ms. G.C. arrived. 8. She treated Ms. G.C. like her own children. Ms. G.C. was expected to follow the house rules, ate meals with the family and shared a room with B.L. 9. She and Mr. R.F.L. received no financial support from Ms. G.C.’s parents. At the time, Mr. R.F.L. was not working and only received disability benefits. Therefore she used the income she earned to pay most of all the costs associated with Ms.

G.C. staying with them. 10. She enrolled Ms. G.C. at [omitted for publication] High School and gave her a cell phone to use. 11. She and Ms. G.C. were very close. She would take Ms. G.C. and her own children to different places, including Victoria. 12. Ms. G.C. had stomach problems and, on at least one occasion, got into bed with her and Mr. R.F.L. to be comforted. 13. She never saw Mr. R.F.L. discipline Ms. G.C. 14. After Ms. G.C. arrived, she and Mr. R.F.L. began taking her for driving lessons in their green Dodge Caravan. 15. She recalls the Couch Incident.

Sometime before she was deployed overseas, her sister D. and husband G.P. visited them. One day when they were visiting she woke up about two or three in the morning and heard someone saying “what’s going on?” She walked to the living room, saw Mr. G.P. and observed Ms. G.C. laying on the couch with Mr. R.F.L. laying behind her with his hand on her stomach. Mr. R.F.L. explained that he was rubbing Ms. G.C.’s stomach because it was upset. 16. She knew that Ms. G.C. had been having stomach problems and, without any further discussion, accepted Mr. R.F.L.’s explanation.

She never contacted the police about the Couch Incident and was not present at any time when the police came to the house at [omitted for publication]. She and Mr. R.F.L. never discussed the police attending at the house. 17. In November 2004, she was deployed for a tour overseas. After she left home, Mr. R.F.L. was responsible for caring for their children and for Ms. G.C. 18. She returned home to Courtenay in or about March 2005 during a break from her tour. Ms. G.C. was no longer living at the house at that time. She recalls that fact because she had a ring with Ms.

G.C.’s birthstone which she had intended to give her but was not able to do so.

19. She returned from her overseas deployment on June 1, 2005. Within about one month of getting home she separated from Mr. R.F.L. and moved with B.L. and A.L. into [omitted for publication] in Comox. She recalls that Ms. G.C. was in British Columbia at the time of her separation from Mr. R.F.L. She recalls this because she remembers inviting Ms. G.C. to stay with her. She was surprised that Ms. G.C. wanted to live with Mr. R.F.L. again. 20. She never suspected that Mr. R.F.L. was engaging in any sexual activity with Ms. G.C. G.P. [ 19 ] G.P. was the third and final witness for the Crown.

His testimony includes the following: 1. He is retired and lives in Victoria. He had a career as a [omitted for publication] with the Canadian Navy. 2. He was previously married to Ms. G.C.’s Aunt D. and met Mr. R.F.L. in or about 2000 at a family gathering. 3. He remembers the Couch Incident. His recollection is that it happened in about July 2005. On a weekend then he and his wife and children had come from Victoria and were visiting the L. family at their residence in Courtenay 4. He had been shopping in Courtenay with his wife and Ms. S.J. and returned to the residence sometime between 10 a.m. and 3 p.m.

He entered the living room with his wife and Ms. S.J. behind him. He then observed Ms. G.C. and Mr. R.F.L. laying together on the couch. They were on their sides with their bodies touching. Given their niece-uncle relationship he felt it was inappropriate. He observed them to quickly shift their position. He does not recall saying anything. 5. He has no recollection of ever speaking to the police about the Couch Incident. He also has no recollection of talking about the Couch Incident with Mr. R.F.L., with Ms. S.J., with Ms. G.C. or with Ms. G.C.’s parents. G.C. (Complainant’s Father) [ 20 ] Mr.

G.C. testified both during the Charter voir dire and briefly after it was concluded. All of his evidence became evidence in the trial proper. His testimony includes the following: 1. He is G.C.’s father. While not her biological father, he began caring for her when she was about six months old. His relationship with her became dysfunctional when, at the age of thirteen or fourteen, she learned that he was not her biological father. After learning this, Ms. G.C. started creating untrue stories about him and making him out to be a “monster”. He removed the door to her bedroom because she kept slamming it. 2.

As a result of their poor relationship, Ms. G.C. moved out of their residence and began living at the home of V.H. about fifteen minutes away. 3. He later learned that his daughter travelled to Vancouver Island and began living with the L. family. She did not tell him she was going to BC and he did not give her permission to go or to stay with the L. family. He did not know who paid for her flight there. 4. He recalled that Ms. G.C. stayed at the L. residence two separate times. He did not have any contact with Ms. S.J. or Mr. R.F.L. during the first period when she was staying with them.

While he expected that they would treat his daughter as family he did not communicate any of his expectations to them. He found the situation to be very stressful and shut himself down. 5. Sometime during the first period when Ms. G.C. was staying at the L. home he learned about the Couch Incident from his wife. He said that she told him that her sister D. told her that her husband G.P. had observed Mr. R.F.L. and Ms. G.C. laying on the couch together. It seemed wrong to them and Mr. G.C. was not comfortable with it. 6. Upon receiving this information about the Couch Incident, he called the Comox Valley RCMP.

He asked the police to go to the L. residence and check on his daughter’s well-being. A few days later he received a call back from a police officer who told him that he had attended the home but did not see anything or hear anything and that there was nothing the police could legally do. 7. Mr. G.C. was not able to provide the name of the police officer he spoke to or dates when he did so but was certain that it was during the first period of time when his daughter was staying at the L. residence. R.F.L. [ 21 ] Mr. R.F.L. gave evidence in his own defence. His testimony includes the following: 1.

He believes that he met Ms. G.C. for the first time in or about 1991 when he and Ms. S.J. travelled from their home in Ottawa to visit Ms. S.J.’s extended family in New Brunswick. 2. Ms. S.J. was transferred by the military to New Brunswick and they had a short marital separation. After a period of time they reconciled. He was medically discharged from the military and moved to [omitted for publication], New Brunswick to be with Ms. S.J. and the children. 3. He had limited interactions with Ms. S.J.’s extended family while living in New Brunswick. He and they did not get along.

He was told stories about them and they were told stories about him. When Ms. G.C.’s parents or grandparents visited she would often come with them and play with his daughter B.L. He did not have interactions with Ms. G.C. but agreed that she and he were not strangers to one another. 4. About a year after he moved to [omitted for publication], they sold their home to Ms. G.C.’s parents and moved to [omitted for publication] in [omitted for publication].

5. He had suffered significant injuries to his back while working testing tanks in the military. As a result he then underwent back surgery which caused him nerve problems. He suffered constant pain and took “handfuls” of pain medication. Sometime between 1996 and 2004 he was working and was hit in the head with about 200 pounds of lumber. He was still taking pain medication at the time that Ms. G.C. was in Courtenay. Doing so did not affect his memory. 6. He did not have advance notice of Ms. G.C. coming to Courtenay in March 2004.

When she arrived he expected that she would just be staying for a short time during the spring break. At some point Ms. S.J. told him that Ms. G.C. had been physically abused by her father and that she would be staying with them longer because she was afraid to go home. He agreed to Ms. G.C. staying longer but was not the one who first told her she could do so. 7. When Ms. G.C. first arrived she slept in the upstairs bedroom which later became A.L.’s room. When it was decided that she would be staying with them for a longer time she began sharing the downstairs bedroom with B.L. 8. While Ms.

G.C. was expected to follow the same house rules as members of the family she had no additional restrictions or rules to follow. 9. He was receiving disability benefits in the amount of only about $500 per month. As a result, Ms. S.J.’s income was used to pay almost all of the living expenses. He never purchased anything directly for Ms. G.C. but she did have the use of items in the house and did not pay for anything. 10. He never disciplined Ms. G.C. but agreed that if it had been necessary he had the authority to do so. He agreed that she was a person under his care. 11. He knew that Ms.

G.C. had serious stomach problems. He recalled that one night she came into the master bedroom where he and Ms. S.J. were sleeping and complained of terrible stomach pain. For comfort, she got into their bed next to Ms. S.J. Either he or Ms. S.J. got Ms. G.C. a hot water bottle. 12. Both he and Ms. S.J. gave Ms. G.C. driving lessons. Until it was sold, they used their green Dodge Caravan to do so. 13. Mr. R.F.L. adamantly denied having any sexual contact with Ms. G.C. in the van. He was certain that he did not take Ms. G.C. for driving lessons in the dark because it would have be unsafe to do so.

He would not have tried to get into the rear seat of the van because of his injured back. 14. The only green pants he had at the time were a pair of military issue track pants which he wore a lot. They did not require a belt. He did not own a belt with a large cowboy style buckle at that time but later obtained one when he purchased a saddle for horseback riding after his separation from Ms. S.J. 15. Mr. R.F.L. firmly denied engaging in any sexual activity with Ms. G.C. before Ms. S.J. was deployed overseas or while she was overseas. 16. He agreed that after Ms.

S.J. was deployed, he was the only adult in the house and that consequently Ms. G.C. was in his care. He said that, while Ms. S.J. was deployed, he was responsible for running the home and that he took care of financial matters following her clear directions. 17. He agreed that if he had asked Ms. G.C. to leave the home at anytime, she would have had to do so. 18. Mr. R.F.L. recalled the Couch Incident. It occurred when Ms. S.J. was back home during a two week leave from her tour overseas. Initially, he said it occurred in February or March of 2005. In cross-examination he said it happened in March. 19.

The Couch Incident occurred about 1 or 2 a.m. He was on the couch in the living room watching something on the television when Ms. G.C. came into the room complaining of stomach pain. He may have gotten up to get her a water bottle. She lay down on the couch in front of him so he could comfort her. While they were laying on the couch G.P. walked into the room. Mr. G.P. looked at them, said nothing and then walked away. 20. In cross-examination, Mr. R.F.L. said that he saw nothing inappropriate about laying on the couch with Ms. G.C. He said that, at the time, he did not wonder whether Mr.

G.P. would have thought it was inappropriate. He testified that he would have comforted almost any house guest in pain in the same way. 21. Sometime in March after the Couch Incident, two police officers attended his residence. A uniformed female officer told him they were investigating a complaint made by G.P. She asked him about the Couch Incident and also if he had had sexual activity with Ms. G.C. at any time. He explained the Couch Incident to the officer and said that he had not engaged in any sexual activity with Ms. G.C. The officer interviewed him for about an hour and took notes while doing so.

He believes that the second officer took Ms. G.C. to a different room. After the police left, Ms. G.C. told him that she been asked about the Couch Incident and denied that any sexual activity occurred. He discussed the police attendance with Ms. S.J. She was home on a break from her deployment but was not in the residence when the police attended. 22. After Ms. G.C. returned to New Brunswick the first time in March 2005, he and she communicated through MSN Messenger and email. Sometime after Ms. G.C.’s eighteenth birthday she informed him that she was eighteen.

In cross-examination he said that he received a message from Ms. G.C. with words to the effect of “ooh ah, now I’m 18, now I’m legal.” He testified that after that some of their communication became sexual in nature. 23. Ms. G.C. returned to British Columbia from New Brunswick within a month or two of her eighteenth birthday. He picked her up in his truck late at night from the Nanaimo Airport. He was very tired driving back to Courtenay. He couldn’t keep his eyes open and stopped along the way for a rest. They were stopped and he was resting from driving and then they had sex on the hood of the truck. Ms.

G.C. was bent over the front of the truck and he was standing. Given the side effects of medication he was taking for pain he could notreach an orgasm unless standing. 24. This was the first time he had any sexual interaction with Ms. G.C. When asked in cross-examination who had initiated thesexual activity he could not remember. 25. At the time that Ms. G.C. returned to Vancouver Island he was looking after a friend’s farm. He and she went there for a timeupon returning from the airport. After that they lived together in the house at [omitted for publication]. 26. Mr. R.F.L. and Ms.

G.C. frequently had sex at the house. His recollection was that the sexual activity only occurred in hisbedroom. During that time frame B.L. was never in the house and A.L. was only there occasionally. 27. The prosecutor questioned Mr. R.F.L. about having sexual relations with his niece and asked him whether he thought it wasinappropriate. Mr. R.F.L. said that he did not think so. The prosecutor then suggested that Mr. R.F.L. kept his sexual relationship withMs. G.C. a secret. Mr. R.F.L. said that it was not a secret and that sex is just not something he talked to people about.

He said that henever spoke to his children or others about his prior sexual relationship with Ms. S.J. THE LAW The Criminal Standard of Proof [22] In a criminal trial such as this, the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. To secure aconviction the Crown must prove each element of the offence in question beyond a reasonable doubt: R. v. Morin (SCC),[1988] 2 SCR 345 at para.40. [23] In R. v.

Lifchus, (SCC), [1997] 3 SCR 320 at para 39, the Supreme Court of Canada suggested certaininstructions that a judge might give a jury on the requisite standard of proof in a criminal trial. The recommended instructions include, inpart, the following: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice.

Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short, if based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. Credibility [24] Judges often speak of assessing the credibility of a witness. When “assessing credibility” the trier of fact generally considers boththe credibility and reliability of the witness. [25] There is a distinction between credibility and reliability. Credibility has to do with the veracity of a witness’s testimony.Reliability refers to the accuracy of a witness’s testimony.

Accuracy depends on a witness’s ability to accurately observe, recall andrecount events. A witness whose evidence on a point is not credible will not give reliable evidence on the point. However, a witnesswhose credibility is not in question may still not give reliable evidence on the point: R. v. HC, 2009 ONCA 56, at para. 41. Credibility and Reasonable Doubt [26] The criminal standard of proof beyond a reasonable doubt applies when assessing the credibility of witnesses’ testimony. [27] In the decision of R. v.

WD, (SCC), [1991] 1 SCR 742, the Supreme Court of Canada sets out how a judge mayinstruct a jury in respect of assessing credibility in the context of the standard of proof applicable in criminal cases. The framework setout applies to cases such as this one where an accused person gives evidence. It is as follows: 1. First, if you believe the evidence, obviously you must acquit. 2. Secondly, if you do not believe the testimony of the accused but are left in a reasonable doubt by it, you must acquit. 3.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [28] In the case of R. v. CWH, (BC CA), [1991] B.C.J. No. 2753, the British Columbia Court of Appeal suggestedadding a further instruction to the WD instruction.

That is, if after careful consideration of all of the evidence you are unable to decidewhom to believe, you must acquit. [29] A verdict should not be based upon a choice between the accused’s evidence and the Crown’s evidence, but on whether, based onthe whole of the evidence, there is a reasonable doubt as to the accused’s guilt: R. v. CLY, 2008 SCC 2 at para. 8.

[ 30 ] In the case of R. v. J.R.B, 2021 BCPC 242 the accused was tried on one count of sexual assault. The central issue for resolution revolved around the assessment of the credibility and reliability of the testimony of the complainant and the accused. After reviewing the applicable case law, Judge Challenger states as follows at para. 16: I must not base my verdict on whether I believe the defence evidence or the Crown’s evidence. The issue is whether on the whole of the evidence, I am left with a reasonable doubt as to the guilt of the accused.

I must not assume the complainant’s testimony is true when weighing the accused’s credibility. Nor can I reject exculpatory evidence merely because I believe the complainant. I must be able to articulate reasons to disbelieve any exculpatory evidence. Even if I do not believe any exculpatory evidence I must nonetheless consider whether it or the whole of the evidence has raised a reasonable doubt in my mind. I find that in this passage the judge accurately and clearly summarizes the task of a trial judge in cases such as this. Sexual Exploitation [ 31 ] Mr.

R.F.L. is charged with committing an offence contrary to s. 153 of the Criminal Code . The offence is known as sexual exploitation. At the material time, the applicable part of s.153 read as follows: 153(1) Every person who is in a position of trust or authority towards a young person or as a person with whom the young person is in a relationship of dependency and who:

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person [….]

b) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on

summary conviction. Section 153(2) defined “young person” as “a person 14 years of age or more but under the age of 18 years”. [ 32 ] The actus reus of the offence requires proof that: 1. the complainant is a young person as defined by the section; 2. the accused touched the body of the complainant; and 3. the accused was in a position of trust or authority towards the complainant, or that the complainant was in a relationship of dependency with the complainant. R. v.

L.V.R ., 2014 BCCA 349 at para. 49 . [ 33 ] The mens rea of the offence requires proof that the accused intentionally touched the complainant for a sexual purpose. [ 34 ] In this case there is no dispute that, during the period of the alleged offence, Ms. G.C. was a young person as then defined by the Criminal Code . [ 35 ] There is also no dispute that sexual activity occurred between Mr. R.F.L. and Ms. G.C. [ 36 ] There are two issues which the Court must decide. They are: 1. Did sexual activity between Mr. R.F.L. and Ms. G.C. occur before Ms. G.C.’s eighteenth birthday? 2. If, so was Mr.

R.F.L. in a position of trust or authority, or was Ms. G.C. in a relationship of dependency with him during the period of the alleged offence? [ 37 ] I will have to consider the nature of the relationship between the accused and the complainant if satisfied that the Crown has proven beyond a reasonable doubt that the accused engaged in sexual activity with the complainant before she turned eighteen years of age on [omitted for publication]. [ 38 ] In determining whether the Crown has proven beyond a reasonable doubt that Mr. R.F.L. engaged in sexual activity with Ms.

G.C. before she was eighteen years old, I must assess the credibility and reliability of the witnesses. SUBMISSIONS OF COUNSEL AS TO THE EVIDENCE OF THE WITNESSES G.C. [Complainant] [ 39 ] The Crown submits that Ms. G.C. presented both as a credible and reliable witness and notes the following: 1. She was not argumentative or evasive. 2. She made appropriate concessions when her memory failed her and was firm about events that she did recall. 3. She was prepared to make admissions against her own interest in that she conceded that in 2010 she denied to Ms. S.J. that any sexual activity had occurred with Mr.

R.F.L. and she also conceded that she would have denied having a sexual relationship with Mr. R.F.L. had she been interviewed by the police during the period 2004 to 2006. 4. Her explanation for her delayed disclosure is understandable. She testified that she was embarrassed and felt like she was in the wrong for a long period of time and until she spoke to a counsellor.

[ 40 ] The Crown further submits that I should accept the evidence of Ms. G.C. including her testimony as to Mr. R.F.L. engaging in sexual activity with her before she turned eighteen. [ 41 ] The Crown acknowledges that, in certain respects, there are reliability issues with some of the evidence of the complainant and of other Crown witnesses.

The Crown says, however, “that these issues relate principally to peripheral events that are not critical to the Crown case and are understandable given that the witnesses are testifying about events that occurred between sixteen and eighteen years ago.” [ 42 ] The defence notes that the events described by Ms. G.C. unfolded approximately seventeen years ago and submits that distilling the truth from the recounting of distant memories has serious dangers. [ 43 ] The defence says that the complainant has consistently been unable to accurately recall dates, details and times.

The defence submits that the memories of the complainant and the other Crown witnesses are simply too unreliable to meet the criminal standard of proof. [ 44 ] It further asserts that Ms. G.C. selectively claims to have no memory of some things that she sees as unfavourable to her, embellishes evidence which she thinks is favourable to her and alleges a lack of memory of things favourable to Mr. R.F.L. The defence points to the following things which it says supports this submission: 1. Ms.

G.C. easily recalled the details of the Couch Incident but said she has no recollection of the police later attending the house and speaking with her. 2. She said she does not recall telling Mr. R.F.L. that she had told the police that nothing had happened between the two of them which was sexually inappropriate. 3. She recalled that at some point Mr. R.F.L. began seeing another woman but does not remember how she felt or reacted to it. 4. She said she could not recall the specifics of the bad behaviour that she alleged towards her father. 5.

She said she could not remember what exactly she told B.L. about what happened with Mr. R.F.L. 6. She said she did not remember any of the communication she had with Mr. R.F.L. towards the end of the summer of 2005 being sexual in nature. [ 45 ] The defence submits that Ms. G.C. was not being truthful in her statement to the police in 2019 and when giving evidence in court when she said she had no memory of the police attending at the L. residence and speaking with her in 2004 or 2005. [ 46 ] The defence notes that Ms.

G.C. testified that when, during the Couch Incident, she saw G.P. looking on she felt “petrified” because she believed it might indirectly cause her to have to return to New Brunswick where her father was. [ 47 ] The defence says that if Ms. G.C. had a good recollection of the details of the Couch Incident because she was petrified when she saw Mr. G.P., the same should be the case with respect to the police attending the residence and questioning her. [ 48 ] In the course of submissions, I asked defence counsel why Ms.

G.C. might have lied to the police and to the Court about not remembering the police attending the L. residence given that her evidence in court was that if she was questioned by the police at that time she would have said she had had no sexual interaction with the accused. [ 49 ] Defence counsel responded saying that when Ms. G.C. spoke to the police in 2019 she would have remembered that she had been questioned by the police years before and had told them then that she and the accused had not engaged in any sexual activity.

Counsel says that when speaking to the police in 2019 she would have very likely thought that if she told them that she had been interviewed years before and had denied having engaged in any sexual activity with Mr. R.F.L. it might undermine or weaken her allegations. [ 50 ] The defence says further that having told the police in 2019 that she did not remember speaking to the police at the L. residence years before, she felt obliged to say the same thing when testifying during the trial.

I believe that this submission has some merit in explaining why the complainant may not have been truthful when saying she had no memory of speaking to the police at the L. residence. [ 51 ] The defence notes that although Ms. G.C. testified that if she had been questioned by the police after the Couch Incident she would have told them that nothing sexual had occurred because she feared having to return to New Brunswick, she voluntarily did just that in March 2005. She then stayed in New Brunswick for over five months.

She stayed part of the time with her father and mother. [ 52 ] The defence argues that it has been shown that the complainant conducted herself dishonestly by lying to her aunt or aunts about abuse committed against her by her father. [ 53 ] In its written submission the defence states as follows: Ms. G.C. has attempted to portray herself as someone who is terrified of returning to New Brunswick. It is clear that her alleged reasons for being terrified were false. She lied about the abuse by her father because she did not like living with her parents and the rules.

Her whole premise for coming to British Columbia was based upon lies and manipulation, and she has continued those lies and manipulation before the Court today. It is very clear, from her own actions, that she was lying about being terrified. She went home within a very short period of time after the Couch Incident. [ 54 ] The evidence regarding allegations of abuse come from the complainant and from her father. [ 55 ] The complainant’s father, G.C., testified that his relationship with her became dysfunctional after she learned that he is not her

biological father. He said she started creating untrue stories about him and made him out to be “a monster”. [ 56 ] The relevant evidence from Ms. G.C. was given in cross-examination. It is set out in the defence’s written submissions as follows: Q You told one or more of your aunts stories about your father being a monster, didn’t you? A I did, I was a child. I hated him at that point. I didn’t get along with him. Q Did you tell them that he did things to you? I don’t mean sexual. I mean treated you badly? A I told them he treated me bad, yes. Q What did you tell them? A I honestly don’t know.

That was 18 years ago. Q Did you tell them that he was a monster towards you? A Probably. Q Can you remember any of the specifics of the bad behaviour that you alleged towards your father to your aunts? A Getting yelled at a lot. I can’t remember. Q Did you tell your aunts that he was physically abusive to you? A I believe I did. Q I suggest to you told your aunts stories about your father that were not true? A The only thing I can remember is that there was one physical part, but he wasn’t beating me. Q You exaggerated your father’s treatment of you to your aunts didn’t you. A I was a child, so yes.

Q You were 16 in August 2003? A Correct. [ 57 ] Ms. G.C. testified that during the Couch Incident she could feel Mr. R.F.L.’s erect penis grinding against her bottom. In cross- examination she acknowledged that when giving her statements to the police she said he was rubbing against her but never said anything about him grinding his erect penis on her. [ 58 ] The defence submits that Ms. G.C. fabricated this evidence in an attempt to sexualize the Couch Incident. The Crown notes that Ms.

G.C. testified that she did not know she had to be so specific when speaking to the police and says that she may not have been comfortable speaking to them about it. [ 59 ] In cross-examination, Ms. G.C. agreed that a few years ago it came to light that her son had been sexually inappropriate with her daughter and that as a result her son was removed from her home. She agreed that Child Services put blame on her suggesting she was a “lousy parent”. [ 60 ] She testified that she saw a counsellor at that time.

She said that she told the counsellor about what happened with the accused and the counsellor told her she had been manipulated and victimized by him. She then told her parents and went to the police. [ 61 ] In its written submissions the defence states: … it is more likely than not that Ms. G.C. created these allegations as an explanation for what happened in her own home to divert blame from herself. While possible, this theory is speculative. S.J. [ 62 ] The Crown submits that Ms. S.J. presented as a sincere witness.

It acknowledges that she had difficulty recalling dates and that her evidence conflicted on some points with that of Ms. G.C. [ 63 ] The defence submits that, for the most part, Ms. S.J. was an unreliable witness. G.P. [ 64 ] The Crown submits that Mr. G.P. was a sincere witness. Both the Crown and defence agree that he was significantly mistaken as to the date and time of the Couch Incident. G.C. (Complainant’s Father)

[ 65 ] The Crown says that Mr. G.C. appeared to be genuine, though clearly supportive of his daughter. It notes that he had difficulty recalling dates and specifics but raises no credibility or reliability concerns about his evidence. [ 66 ] It seems that the defence agrees with the Crown’s assessment of Mr. G.C. R.F.L. [ 67 ] The defence submits that Mr. R.F.L. testified candidly before the Court and made no effort to embellish or to avoid answering questions that could hurt his position. The defence says further that there is nothing in the evidence of Mr.

R.F.L. that would indicate that he has made any attempt to deceive the Court. [ 68 ] This case is a “he said she said” case. Unlike many other cases, the parties do not disagree as to whether or not sexual activity occurred or whether the sexual activity which did occur was consensual. They disagree about the timing of sexual activity. Mr. R.F.L. clearly and adamantly denied engaging in any sexual activity with Ms. G.C. before she turned eighteen. He openly acknowledged engaging in frequent sexual activity with her after she had turned eighteen. [ 69 ] His testimony was internally consistent.

He did not contradict himself. In particular, his evidence that he and Ms. G.C. had no sexual activity until after she had turned eighteen was not shaken in cross-examination. He did not waver. [ 70 ] The Crown submits that parts some of Mr. R.F.L.’s testimony are very implausible and that, therefore, his assertion that he only began engaging in sexual activity with the complainant once she was eighteen years of age should be rejected outright. [ 71 ] The Crown says that the following aspects of Mr. R.F.L.’s evidence are not plausible: 1.

Even after being questioned by the police, he denied seeing anything improper with having a sexual relationship with his niece after she had turned eighteen. 2. He denied thinking of Ms. G.C. in a sexual way until after her eighteenth birthday. 3. He said he would have comforted almost any distressed guest in his home in the manner he comforted Ms. G.C. during the Couch Incident. 4. Mr. R.F.L. said that at the time of her leaving for New Brunswick in March 2005 he felt only “somewhat close” emotionally to her. 5. He testified that he engaged in sexual activity with Ms.

G.C. for the first time after picking her up at the Nanaimo Airport in September 2005, but said he could not remember what lead up to it or who initiated it. 6. He claimed that he would have likely been physically incapable of climbing into the back seat of the van but said he would go horseback riding and do work at his friend’s farm. 7. He testified that because of the effects of medication he was taking he could only ejaculate if standing up. 8. Mr. R.F.L. was reluctant to agree to anything which would have supported a conclusion that he was in a position of trust or authority with respect to Ms.

G.C. or that she was in a relationship of dependency with him. [ 72 ] Ms. G.C. testified that during the period from just after Ms. S.J. was deployed until Ms. G.C. first returned to New Brunswick in March 2005, she and Mr. R.F.L. were having sex fifteen to twenty times per month. She said the sexual activity occurred mostly in the master bedroom which was next door to A.L.’s room. She testified that Mr.

R.F.L. regularly set an alarm for four or five o’clock in the morning to wake her up and have her go downstairs and continue her sleep in the bedroom she shared with B.L. [ 73 ] The defence argues that if what Ms. G.C. alleges in this regard is correct that one of the L. children would likely have heard or seen something. Neither B.L. nor A.L. testified during the trial. I have no knowledge as to why neither of them were called as Crown witnesses and certainly cannot assume that they had no relevant evidence to give.

ANALYSIS [ 74 ] It is well understood that the passage of time negatively affects people’s memories as to past events. [ 75 ] In this case the question is not whether the accused engaged in sexual activity with the complaint but when he did so. Timing is critical. [ 76 ] All of the witnesses who testified in this case were, to varying degrees, uncertain about when things occurred and had difficulty remembering things accurately or at all.

This is most evident when considering the evidence about the Couch Incident. [ 77 ] The different evidence given by the various witnesses regarding the Couch Incident demonstrates the inherent unreliability of evidence given by witnesses testifying about events which happened years before. For example, while it is clear on the totality of the evidence that the Couch Incident occurred in the early morning hours at a time when Ms.

G.C. was living at the L. residence, G.P., a witness who seemed to be objective and doing his best to give a reliable account of his observations, testified that the Couch Incident occurred between 10 a.m. and 3 p.m. on a day in July 2005. It is clear on all of the evidence that Ms. G.C. was not in British Columbia in July 2005. He also said that he observed the Couch Incident after returning from shopping. It is very unlikely that he and others would be out shopping at 1 a.m. or 2 a.m. in the morning. [ 78 ] I find that on all of the evidence it is impossible to know when exactly the Couch Incident happened.

Given Ms. G.C.’s evidence that she felt petrified when seen by G.P. on the couch with Mr. R.F.L. because she feared it would lead to her having to return to New

Brunswick, the timing of the Couch Incident in relation to March 2005, when Ms. G.C. returned to New Brunswick is rather important.

The closer the Couch Incident was to March 2005 when she voluntarily went home to New Brunswick the less plausible her evidence about being petrified. [ 79 ] As I stated earlier, in the course of the trial the defence made application for a judicial stay of proceedings based upon the assertion that the accused’s right to full disclosure as protected by s. 7 of the Charter had been violated. [ 80 ] Based upon the evidence presented during the Charter voir dire , I found as a fact that sometime following the Couch Incident the police attended [omitted for publication] and interviewed both Mr. R.F.L. and Ms. G.C.

I also found that some record of the police’s inquiry or investigation would have been made. [ 81 ] The defence had made ongoing requests from the Crown for disclosure of the records which would have been created. The Crown was very diligent about following up on the requests for disclosure with the Comox Valley RCMP. Despite extensive efforts by the RCMP, no records could be found. [ 82 ] I found that the defence had proven on a balance of probabilities that Mr. R.F.L.’s right to full disclosure had been breached.

I did not, however, grant a stay of proceedings because I was not quite satisfied that it was one of those clearest of cases where a stay was the appropriate remedy. [ 83 ] The police records would have very likely accurately established the timing of the Couch Incident and of the subsequent police interview. In my view the fact that the records should have been preserved but were not should not be detrimental to Mr. R.F.L.’s case. Accordingly, on all of the conflicting evidence, I find that the Couch Incident may have occurred soon before Ms.

G.C. returned to New Brunswick in March 2005. [ 84 ] When assessing the evidence of a witness, the Court may accept some, all, or none of the witness’s testimony as being true. [ 85 ] Having carefully considered all of the evidence, I must decide whether the Crown has proven beyond a reasonable doubt that the accused, R.F.L., engaged in sexual activity with the complainant, G.C., before she was eighteen years of age. [ 86 ] If I find that the Crown has met the burden and proven this, I must go on to consider the nature of the relationship between the accused and the complainant at the material time. [ 87 ] I have considered the evidence of both Ms.

G.C. and of Mr. R.F.L. in the context of all of the other evidence. [ 88 ] I have concerns about the accused’s credibility. I find that some aspects of his evidence are simply not plausible when considered in light of the other evidence, common sense and common human behaviour, [ 89 ] Those aspects of Mr. R.F.L.’s evidence which I find to be most implausible, and do not accept as being true, raise concerns as to his honesty. The evidence of Mr. R.F.L. which I find to be most implausible includes the following: 1. That he would have comforted almost any other house guest who was in pain in the way he did for Ms.

G.C. on the couch. If G.P., or another male house guest, had had stomach pain would he have comforted him by laying behind him on the couch? I don’t think so. 2. That as of March 2005 when Ms. G.C. left to return to New Brunswick after spending a year of living at the L. residence, Mr. R.F.L. felt, at most, “somewhat close” to her. This is implausible given the Couch Incident and the fact that they began communicating by way of email and MSN Messenger soon afterwards. 3. That Ms. G.C. announced through a message to Mr. R.F.L. that she had turned eighteen and was “now legal”.

I find this to be very unlikely, especially given Ms. G.C.’s evidence that it was many years later when she first learned that an adult having consensual sex with a person under eighteen may, depending on their relationship, be unlawful. 4. That he denied thinking of Ms. G.C. in a sexual way until she had turned eighteen. I find this to be implausible given that he had sexual intercourse with her, Ms. G.C., a short time later on the way home from picking her up from the Nanaimo Airport. 5. That he thought he would be physically unable to get into the back of the van with Ms.

G.C. but engaged in day to day activities including riding horses. [ 90 ] I agree with the Crown that Mr. R.F.L. was very reluctant to give answers which might support a conclusion that he was in a position of trust or authority with respect to Ms. G.C. or that she was in a relationship of dependency with him. [ 91 ] While I reject certain aspects of Mr. R.F.L.’s testimony, I recognize that it does not necessarily follow that he could not be telling the truth when he testified that he had no sexual activity with Ms.

G.C. before she was eighteen. [ 92 ] Just as I have concerns about the veracity of some of the evidence given by Mr. R.F.L., I have some concerns about the credibility and reliability of the complainant. [ 93 ] Even though she was only sixteen years old at the time, I feel uneasy about the fact that Ms. G.C. made allegations about her father abusing her which were not true. Her explanation that at the time she was a child and hated her father reduce but do not eliminate my concerns. I wonder whether in making untrue allegations about her father, Ms.

G.C. was being somewhat manipulative. [ 94 ] I have difficulty accepting that Ms. G.C. does not recall what false allegations she made about her father. She gave no clear evidence as to in what way her father mistreated her. She was very clear in her evidence that her bad relationship with her father was a significant reason why she flew to British Columbia in March 2004 and was the reason why she did not want to have to return to New Brunswick. This was one reason she gave for not telling anyone at the time that the accused was engaging in sexual activity with her and

for why she would have told the police that he was not doing so. It is hard to believe that she would know and agree that she said things about her father’s behaviour to her aunt or aunts which were not true but cannot remember what allegations she made about him. [ 95 ] I also find it somewhat troubling that Ms. G.C. testified that she was petrified by the notion of having to return home to New Brunswick and then afterwards, perhaps very soon afterwards, did so of her own choice and then stayed for several months. [ 96 ] I am troubled by Ms.

G.C.’s evidence that she does not have any recollection of the police attending the L. residence and speaking with her. While I am not able to find as a fact that the complainant has lied about not remembering the police attending [omitted for publication], I agree with the defence that, for the reasons suggested, it is difficult to accept that she has no memory of this. [ 97 ] Whether or not the defence is correct that, in order to sexualize the Couch Incident, Ms. G.C. fabricated her evidence that she could feel Mr.

R.F.L. rubbing his erection against her, the fact is that there is a clear omission in this respect in her statements to the police. [ 98 ] While the concerns I have noted have a negative effect on my opinion as to Ms. G.C.’s overall credibility, I understand that it does not necessarily follow that her evidence as to the sexual activity which she engaged in with Mr. R.F.L. before she was eighteen is not true. [ 99 ] Despite the concerns I have identified as to aspects of Ms. G.C.’s evidence, I find that her testimony as to the sexual activity which she alleges Mr. R.F.L. engaged in with her was clear.

But for the omission in her statements to the police as to the accused having an erection during the Couch Incident, I cannot think of any inconsistencies being shown between her testimony and prior statements as to the sexual activity which occurred. [ 100 ] Ms. G.C. clearly distinguished what she says was the first incident of sexual activity with Mr.

R.F.L. from what he says was the first incident of sexual activity with her on the basis that the first time it was painful because she was a virgin and it took place in the green van which the accused no longer had when she returned in September 2005. [ 101 ] In considering whether the Crown has proven beyond a reasonable doubt that the accused engaged in sexual activity with the complainant before she was eighteen, I find the evidence of Ms. S.J. to be of some importance. [ 102 ] Ms.

G.C. testified that she and the accused began engaging in sexual activity within about a month of her arriving at the L. residence in March 2004. Ms. S.J. lived in the residence from the time Ms. G.C. arrived until she went away on a tour about seven months later. Yet, Ms. S.J. testified that she did not even suspect that anything of a sexual nature was going on between Mr. R.F.L. and the complainant. She said she had no suspicions, even after she witnessed the Couch Incident. I am somewhat surprised that if her husband and the complainant were in an ongoing sexual relationship during that time that Ms.

S.J. would not feel any sense that perhaps something was going on. [ 103 ] This evidence of Ms. S.J. is consistent with Mr. R.F.L.’s assertion that he had no sexual activity with Ms. G.C. before Ms. S.J. was deployed in November 2004. [ 104 ] As I stated earlier, I have found as a fact that sometime after the Couch Incident the police attended [omitted for publication] at the request of Mr. G.C. and spoke to the accused and to the complainant. It seems clear that after doing so they took no further action.

That suggests not only that the complainant denied having engaged in any sexual activity with the accused up to that time but that the police likely accepted her denial. The fact that the police looked into the circumstances at that time and concluded that they had no basis to investigate further is something I consider. [ 105 ] I must bear in my mind that the standard of proof in criminal trials is beyond a reasonable doubt. [ 106 ] I find that there are many unanswered questions in this case. That is likely because so many years have passed since the events occurred.

Overall, I find that I am left with a rather murky picture of what exactly happened and when. [ 107 ] Given that the Mr. R.F.L. testified in his own defence, in deciding whether the Crown has proved beyond a reasonable doubt that he engaged in sexually activity with Ms. G.C. before she was eighteen years of age, I must apply the test set out in R. v. W (D). [ 108 ] First, if I believe the evidence of the Mr. R.F.L., obviously I must acquit him. [ 109 ] Secondly, if I do not believe the testimony of Mr.

R.F.L. but am left in a reasonable doubt by it, I must acquit him. [ 110 ] Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of all of the evidence which I do accept, I am convinced beyond a reasonable doubt. [ 111 ] First, given that I reject aspects of Mr. R.F.L.’s evidence because they are very implausible, I cannot say that I believe the evidence of the accused. [ 112 ] Secondly, and for the same reason, the evidence of Mr. R.F.L. does leave me with a reasonable doubt. [ 113 ] Therefore, I must move to the third step. The evidence of Mr.

R.F.L. raises some doubt in my mind but, on its own, does not raise a reasonable doubt. I must go on and consider his evidence together with all of the other evidence. [ 114 ] Of the evidence given by witnesses other than the accused and the complainant, I find the evidence of Ms. S.J. as to having no suspicions whatsoever that her husband and Ms. G.C. were involved in any sexual activity to be the most significant. CONCLUSION [ 115 ] I find that the evidence which Ms. G.C. gave as to the sexual acts which she said occurred before she turned eighteen was quite

clear and quite compelling. However, as I have already stated, I have some overarching questions as to her credibility. [ 116 ] I recognize that, for the most part, the portions of Ms. G.C.’s evidence about which I have concerns are separate from her allegations as the sexual activity which occurred. Nevertheless, those troublesome aspects of her testimony taken together with the other evidence, including that of Ms. S.J., and with Mr. R.F.L.’s steadfast denial leave me with a nagging reasonable doubt as to whether Mr. R.F.L. engaged in sexual activity with Ms.

G.C. before she was eighteen years of age. [ 117 ] I would like it to be clear that I would have had such a reasonable doubt without my finding that Mr. R.F.L.’s right to receive full disclosure as protected by s. 7 of the Charter was breached.

That is, my reasonable doubt in no way depends upon the Charter violation which I found was established. [ 118 ] Given that I am not satisfied beyond a reasonable doubt that the accused engaged in sexual activity with the complainant when she was under eighteen, I need not answer the question as to whether, during the period of the alleged offence, he was in a position of authority or trust in respect of her or whether she was in a relationship of dependency with him. [ 119 ] Mr. R.F.L., I find you not guilty. ______________________________ The Honourable Judge R. Lamperson Provincial Court of British Columbia