Her Majesty the Queen - v. -, 2019 SKPC 001

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 001 Date: January 10, 2019 Information: 991052259 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - RC Appearing: Adam Breker For the Crown Alan McIntyre, QC For the Accused RESTRICTION ON PUBLICATION: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. JUDGMENT J. RYBCHUK , J INTRODUCTION

[ 1 ] Parents invite a family friend from out of town to come spend the night at their house. Afterwards, their young daughter tells them the friend assaulted her during the middle of the night. The friend is RC and he is charged with: (

i) sexual assault on the daughter, JM contrary to

section 271 of the Criminal Code ; and (ii) for a sexual purpose touching, directly or indirectly, with a part of the body or with an object, hands and penis, a part of the body of JM, a person under the age of 16, contrary to

section 151 of the Criminal Code . FACTS [ 2 ] On June 2, 2017 SM came forward to the Regina Police Service indicating that her daughter, JM had disclosed to her that she had been sexually assaulted. Sgt. Jessica Gawley of the Regina Police Service interviewed JM on June 20, 2017. This interview was videoed and entered into evidence as Exhibit P-1 at the trial of this matter held on November 7-8, 2018. JM also testified in-chief and was cross-examined viva voce during the trial.

The vast majority of her evidence about the alleged assault is contained in her statement to police. [ 3 ] On January 24, 2017 RC came to Regina, SK from where he lives near Yorkton, SK to visit with his friend, AM who is JM’s father. AM had hired RC to speak at a StoryTellers event the following week, January 30, 2017 and provided RC with a cheque as advance payment for his services when he came to Regina. This occurred sometime earlier in the afternoon between 1:00 and 2:00 p.m. when RC stopped by AM’s office at work.

RC then left AM’s office and began drinking on his own before the two men eventually met up again later that day at AM’s house in Regina. AM lives at this house with his spouse, SM and their three children, including JM. They had just moved into this house in December, 2016. [ 4 ] AM and RC were drinking beer and socializing at the residence when SM got home from work shortly after 6:00 p.m. that evening. She visited with them briefly and drank one or two beer herself. SM also happened to take a photograph of RC sitting at their kitchen table that night which became Exhibit P-2 at trial.

The location details for this photo indicate it was taken on January 24, 2017 at 7:43 p.m. at their residence on a certain street in Regina, SK. The photo is of RC wearing a blue hooded sweater sitting at their kitchen table with a beer in front of him.

SM only remembered taking this photo and provided it to the police after the police told her what RC said in the statement they took from him following the disclosure of these allegations. [ 5 ] AM and RC finished drinking the 12 pack of beer they had and left the residence sometime between 9:00 and 10:00 p.m. to go to a local restaurant/bar, Triple 888’s where they continued drinking and gambled. The two men returned home between midnight and 1:00 a.m. on January 25th.

They were both intoxicated, with RC being highly intoxicated or “trashed” as AM described him. [ 6 ] It was a school night so all the kids had gone to bed at their usual time between 9:00 and 9:30 p.m. SM and the three children were all home and sleeping in their bedrooms (i.e. no one else was awake in the house) when AM and RC got home sometime after midnight. [ 7 ] The home is a split-level. SM and the youngest child slept upstairs in their bedrooms. JM and her brother slept downstairs (or in the basement) in their own respective bedrooms.

AM set up a foam mattress and sleeping area in the common area of the basement for RC to use that night. [ 8 ] RC appeared passed out and fast asleep on the basement mattress when AM went upstairs to sleep on the living room couch so as not to disturb or wake his wife SM and their other young child sleeping upstairs. AM watched some YouTube on the living room TV before eventually falling asleep himself without turning off the TV. [ 9 ] AM awoke approximately a half hour later to find RC now awake and sitting on the loveseat in the living room next to him, petting their cat and watching TV.

This surprised AM as the last he had seen of RC, he appeared to be sleeping soundly in the basement. AM may have asked RC what he was doing, but he did not wait to receive or hear any answer from RC before falling asleep again. This

means that at some point that night RC was awake and alone in the basement next to JM’s bedroom while everyone else in the house was sleeping prior to his coming upstairs for some reason. [ 10 ] The following morning, January 25 th was JM’s 9 th birthday. Both parents noticed she was not happy on her birthday and there was an immediate change in her behaviour. SM testified that JM’s head was down and she seemed sad or withdrawn that morning. AM noticed an awkward encounter between JM and RC that morning.

RC asked the kids for a hug before they left for school, but JM looked at him, frowned and did not want to hug him. AM noticed this and specifically asked her to give RC a hug. But still, she did not want to hug him, which was an unusual thing for JM to do. It was not uncommon for RC to hug the children, but JM’s reaction was “pretty weird”, atypical and stood out to AM. [ 11 ] Both AM and SM also testified about a significant change in JM’s behaviour in the weeks and months following her birthday, which culminated in the disclosure to SM days before June 2, 2017. SM noticed a drastic change in JM’s behaviour.

Before her birthday, JM was bubbly and happy. After her birthday, she started to become withdrawn, removed and eventually shut down. SM noticed JM started covering herself up a lot. They both testified that JM inexplicably and repeatedly preferred to wear a certain sweater and black leggings 24 hours a day on an almost daily basis and would only take them off to wash them.

This became a real point of concern and frustration for AM. [ 12 ] Eventually after persistent probing from both parents as to why JM insisted on wearing the same clothes day in and day out, JM broke down crying one morning and disclosed to her mother what JM had done to her by writing it down on paper as she could not say it aloud to her. [ 13 ] There was no evidence to suggest any bad blood towards RC or motivation to lie on the part of JM or her parents. To the contrary, all the evidence suggests that up until the allegations were made, they had been close family friends.

AM and SM had been friends with RC and his wife since their days at the University of Regina 10 years earlier. They both had families now and would visit and stay with each other from time to time. AM considered RC a brother. The children called RC “Uncle” despite his not being a blood relative to them. JM’s EVIDENCE [ 14 ] In her statement to police, JM indicated that on the night before her birthday she went to bed as usual in her room wearing a t- shirt and shorts. She slept downstairs with her bedroom door closed. She fell asleep and awoke to hear her door open and saw RC coming into her bedroom.

He then closed the door. It was nighttime. [ 15 ] When she saw her “Uncle” enter her bedroom, he was wearing a blue sweater. She was laying on her bed and closed her eyes to go back to sleep. RC crawled into bed with her. She thought he was just going to sleep in her bed with her, but then he began touching her with his hand on her thigh on top of her shorts and under her shirt on her tummy. RC asked, “Can I touch you?” and she said “No”.

RC responded by saying, “Yes I can if I want to” and continued touching up and down on her leg and stomach on her bare skin. [ 16 ] JM stated, “He started touching me on the legs and then on the belly and then he tried to pull me up to do something and then he was hitting something on my cheek but I didn’t know what it was.” She explained further that she had heard the sound of a belt buckle and RC was on his knees still in her bed. She described what she felt was a poking on her cheek and something smooth going across her face. [ 17 ] She told Sgt.

Gawley that RC was poking or rubbing her on the cheek with something, and that after he was done poking her, he rubbed something on her cheek and lips that was “like liquid, kind of like gel”. She said she kept her eyes closed and mouth shut the whole time. She did not taste anything. It happened for about two or three minutes. [ 18 ] After RC wiped the liquid or gel on her face, he left the room. JM then got up to go to the bathroom to wash the substance off her face and saw RC in the basement packing. She said it looked like a gel, was clear and kind of liquidy. [ 19 ] She then went back to bed.

She felt nervous, uncomfortable and afraid about what had happened. She had never seen or owned any product like the one that was on her face. She said RC did not have any products or substances in his hands when he entered

her bedroom. RC’s EVIDENCE [20] RC attended the Kamsack RCMP detachment for a voluntary interview with Cst. Pieterse on August 13, 2017. This interviewwas videoed and entered in evidence as Exhibit P-3 at trial. In his statement, RC denied ever having sexually touched JM. He said bothhe could not recall staying at AM’s new house and also denied having ever stayed at AM’s new house in Regina. [21] RC said he could not remember the last time he saw AM, but could remember that it was for the StoryTellers event when theyboth went to Triple 888’s bar.

He acknowledged having been in Regina and visited with AM when they discussed RC’s participation inthe StoryTellers program. He also recalled AM giving him a cheque for this event, but could not recall staying at AM’s house. He alsoclearly recalled being unable to participate in the StoryTellers event less than a week later because a car accident or fender benderprevented him from travelling to Regina. [22] RC told Cst. Pieterse that he could not remember the last time he stayed at AM’s house, but that it would have been two orthree years ago.

He went on further (at 8:25 p.m. of his statement) to state that the last time he remembered staying at AM’s house, AMlived somewhere else in Regina, essentially denying having ever stayed overnight at their new house. [23] Other than that, RC claimed to have always stayed at a hotel such as the Quality Inn when was in Regina. RC told Cst.Pieterse that he was quite sure he had not stayed at AM’s residence and that he had stayed at a hotel instead and could prove this with acredit card statement. [24] RC claimed that he did not like staying at their place and that he does not typically stay there.

He said he could count on onehand the number of times the families had been together over the last decade. [25] RC professed that he had only ever been to their new house once with his wife when they were first moving in and there was acontractor present, but that they did not stay the night. [26] As his statement progressed, RC indicated that as far as he knew he had never knowingly been in JM’s room when it was herroom. He assured the officer that there would be no blood or semen of his found anywhere in the house.

He stated that nothing in hispast suggests he is the type of guy to do such a thing. [27] The defence called no evidence at trial. LAW [28] The accused is charged with sexual assault and sexual interference. Sexual assault is a non-consensual touching committed incircumstances of a sexual nature such that the sexual integrity of the victim is violated. Sexual interference is a touching for a sexualpurpose of someone under the age of 16. The test to determine whether a touching is “sexual” is objective.

It asks whether the sexualnature of the contact would be apparent to a reasonable person when viewed in light of all of the circumstances. [29] The Crown is required to prove the elements of these offences beyond a reasonable doubt. The Supreme Court of Canada setout of the appropriate standard for proof beyond a reasonable doubt in R v Lifchus, (SCC), [1997] 3 SCR 320 (Lifchus)at para 39: … A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and 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 benefit of 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 not required 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 this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [ 30 ] The reasonable doubt standard is often difficult to apply in the context of sexual assault cases, which by their very nature often come down to the word of one person against another.

In R v Knox-Moffatt , 2018 SKQB 142 Elson J. adopted and quoted at length from R v Nyznik , 2017 ONSC 4392 , 350 CCC (3d) 335 ( Nyznik ) where Molloy J. provided useful guidance to judges trying such criminal cases, starting at para 12: [12] First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other – the classic “he said/she said” scenario.

In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt.

It is possible that the judge might not fully believe the defendant’s version of the events, and might find the complainant’s version to be more credible, but still be uncertain as to what actually happened.

In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant’s story is more plausible or more believable than that of the defendant. [13] To assist in the proper application of the burden of proof when there are competing versions of what happened, the Supreme Court of Canada has recommended that the issue be considered in three steps, as follows: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [14] This instruction, commonly referred to as “the W.(D.) instruction,” has become another standard instruction given to all criminal juries, and criminal trial judges will generally instruct themselves in the same manner.

However, as was said in the W.(D.) case itself, and in subsequent decisions of the Supreme Court of Canada, there is no particular magic in the incantation of these three steps. It is not essential that the trial judge rigidly follow the three steps in the W.(D.) instruction. What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does.

To treat it as such would be to improperly shift the burden of proof. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, he or she must then assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt.

In some cases, even without any evidence from the defence, it is not possible to be satisfied beyond a reasonable doubt based on the evidence of the complainant. [15] Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth.

A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable.

Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt. [16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed.

It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye- witnesses.

There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. … [198] It is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant.

Indeed, it is typically the case that there will be no other witnesses, and often the case that there will be no corroboration

on the material points. However, where there are frailties in the complainant’s evidence, as is the case here, it is useful to look forcorroboration. [31] Corroboration of a complainant’s evidence is not required in cases of sexual assault[1]. However, it is still prudent and helpfulto look for supportive or confirmatory evidence where there are inherent frailties in the complainant’s evidence. As Cornell J. stated in Rv RL, 2011 ONSC 697, (RL), at para 59: [59] At the risk of understatement, it is apparent from the evidence that S.M.(C.) had some problems with respect toher memory of these events.

On this issue, Stortini J. stated n R. v P.(L.J.) [1989] O.J. No. 906 (Dist. Ct.): In this case, J.P., because of his problems with respect to memory, because of the apparent contradictions in his testimony before threetribunals and in a written statement, is the kind of case that I believe was envisaged by the Supreme Court of Canada as having someinherent frailties in it. I deem it wise to direct myself that it would be unsafe to convict on his testimony alone, and look for someconfirmatory evidence.

Unfortunately, there is no other or no confirmatory evidence. [32] Cornell J. also quoted from R v Stewart (1994), (ON CA), 18 OR (3d) 509, 90 CCC (3d) 242 (ONCA)where Finlayson G.A. cautioned that demeanour alone should not suffice to found a criminal conviction where the credibility orreliability of a complainant’s evidence is impaired in some significant manner, at the third paragraph of page 6: It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the factthat she was not shaken in cross-examination.

I am not satisfied, however, that a positive finding of credibility on the part of thecomplainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts thecomplainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they areadults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. Theissue, however, is not the sincerity of the witness but the reliability of the witness's testimony.

Demeanour alone should not suffice tofound a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman (1993), (ON CA), 16 O.R. (3d) 295 at pp. 311-15, 87 C.C.C. (3d) 153 (C.A.), for a discussion on this subject. [33] And further down the page, three paragraphs later: Here, the trial judge accepted the evidence of the complainant, despite its obvious exaggeration, solely on the basis of her demeanour. Adetailed examination of the trial record reveals that there is no confirmatory evidence of the alleged abuse whatsoever.

I am fully awarethat confirmatory evidence or corroboration is no longer required to support a conviction but its absence from this case is significant inthe light of the considerable evidence contradicting the appellant's allegations. [34] Baynton J. expressed it in a slightly different manner in R v SEM, 2005 SKQB 213, 265 Sask R 193, that proof beyond areasonable doubt is more convincing in cases where the evidence of the complainant is supported in some material particular by otherindependent evidence.

He stated at para 37: In general terms, in a case where there is no evidence that supports the complainant’s evidence, where the complainant’s evidencediffers considerably from the evidence of other witnesses, where the complainant may have a motive to exaggerate or fabricate his or herevidence, or where the complainant’s conduct is inconsistent with his or her evidence, proof of guilt beyond a reasonable doubt is not asevident as if none of these factors apply.

In such cases, even where the court is inclined to believe the evidence of the complainant overthat of the accused or other witnesses, the court must be particularly diligent in considering whether, on the basis of all the evidence orthe lack of it, the guilt of the accused has been proven beyond a reasonable doubt. [35] As Horkins J. put it in R v Ghomeshi, 2016 ONCJ 155 at para 131: There is no legal bar to convicting on the uncorroborated evidence of a single witness. However, one of the challenges for theprosecution in this case is that the allegations against Mr.

Ghomeshi are supported by nothing in addition to the complainant’s word. There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no “smoking gun”. There is only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof.

This highlights the importance of the assessment of the credibility and reliability and the overall quality, of that evidence. [36] In R v MJM, 2011 ONSC 2717, 2011 OJ No 2779 (MJM) Goodman J. made the following comments in relation to theassessment of credibility and reliability generally, at paras 43 and 44: [43] Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’switnesses in this case, be they adults or children, and its assessment of the credibility of the accused, but a number of elements may beconsidered.

These include the perceptions of the witnesses, their memory, how reliably and accurately do they recall the events, themanner in which the witnesses’ perceptions have been communicated to the Court, and whether the information has been presented in asincere, complete and truthful manner. The Court will look to the witnesses and assess whether they are being sincere and frank orbiased, honest or careless with the truth, reticent or evasive in the evidence that they have provided to the Court.

These, and otherfactors, when combined, are what we describe as “credibility”. [44] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to beexpected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusionbetween witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story.

However, where aninconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sensedictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that mayundermine the whole of a witness’ evidence. ANALYSIS [37] In this case, the complainant and the accused gave conflicting statements to the police. An assessment must therefore bemade of the credibility and reliability of each of their evidence. RC’s Evidence [38] The accused did not call any evidence or testify himself at trial.

Instead, the video-recorded statement of the unsworn policeinterview with Cst. Pieterse at the Kamsack RCMP detachment was entered into evidence as part of the Crown’s case. It makes no practical difference whether it forms part of the Crown case or the defence case as the law is settled[2] that where the accused’s versionof events is introduced as evidence in a statement tendered by the Crown and admitted as voluntary by the defence: i. The principles enunciated in R v W(D) (SCC), [1991] 1 SCR 742 apply to it; ii.

The rule of reasonable doubt with respect to the issue of credibility in Lifchus and R v Starr, [2000] 2 SCR 144, 2000 SCC40 applies to it; iii. It becomes evidence both for and against the accused and the trier of fact is entitled to consider an exculpatory portion of itin the same way it is able to asses other inculpatory or neutral portions of it, together with the circumstances of its making and contents,as part of the whole of the evidence (See: R v Hughes, (SCC), [1942] SCR 517, 78 CCC 257); and iv.

A trial judge is free to accept or reject all, some or none of the statement in the same way as it does other evidence at trial. [39] In his statement the accused both says he cannot remember and also says he denies staying overnight at AM’s residence onthe night when the sexual assault is alleged to have occurred. This is a crucial issue in this case. I do not believe either of the accused’sstatements. First, there is the photo SM took of him at the house on the night in question that she only provided to police after theaccused gave his statement to police.

This photo clearly shows him being at the house having a beer on the night in question.

[40] Secondly, the accused remembers being in Regina around that same time and for the same reason both AM and SM say hewas in Regina for on January 24, 2017. That is, RC was picking up a cheque for the StoryTellers event he was supposed to speak at thefollowing week. He even remembers meeting with AM at Triple 888’s bar for this purpose. He also remembers not being able toparticipate in the StoryTellers event less than a week later and the reason why.

Yet, he claims not to remember being at or staying overat his friend’s new house that he had never stayed at before or since, and which occurred during the passage of time between these twoindependent recollections. RC appeared to suffer from a selective lapse in memory. [41] More pointedly, RC remembers being at the bar with AM but claims not to remember being at his house either before the baror after the bar and the next morning. This was not a fleeting detail. It is an essential detail placing RC at the scene of the allegation.

His version of events on this point cast significant doubt on the credibility of his statement. [42] RC’s version of events in his statement is suspicious, self-serving and inconsistent with known evidence. I got the distinctimpression that he was trying to distance himself from the allegation and from any interaction with JM.

He downplayed the relationshipbetween their two families by suggesting he did not like to stay at their place and could count on one hand the number of times theirfamilies had been together over the last decade, which was inconsistent with the evidence of AM and SM. [43] His statement was not sincere, complete or truthful. By all accounts, he started drinking that afternoon and continued drinkingall afternoon, evening and night at the house and at the bar. According to AM, he was highly intoxicated. This compromises hiscapacity to observe, remember or recollect events that night and his credibility in general.

He clearly remembered certain aspects of thevisit in question, but professed not to remember the rest. [44] Perhaps if RC had repeatedly stayed over at their new house over the past months or years it might be plausible that he wouldnot remember or specifically recall whether or not he slept over at the house on a particular occasion. This is not the situation herethough. RC told police he could “not ever” remember staying the night at that residence or even being at that residence on January24/25, 2017. This is clearly wrong and highly suspicious. This is inconsistent with other more credible evidence.

It is a major non-truthon a major point. His denials lack credibility when viewed as a whole in the context of his evidence which was self-serving, selectiveand not compelling. I therefore, do not believe and reject RC’s evidence wherever it conflicts with the Crown evidence I do accept. Theaccused’s evidence was not capable of raising a reasonable doubt in my mind. [45] The accused argued that as a father of five children and two foster children all under the age of nine, with no history of thistype of behaviour, that this would be an odd time in his life for him to start going down this path.

Little weight can be attached to suchreputational character evidence. In R v Profit, (SCC), [1993] 3 SCR 637 the Supreme Court of Canada discussed thevalue of character evidence in assessing the credibility of an accused in cases of sexual assault. It held that, as a matter of commonsense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconductoccurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.

As a matter ofweight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases. JM’s Evidence [46] JM’s evidence consisted of a video-recorded interview with the police and her own viva voce testimony at trial. [47] MJM was a case where the credibility of a young witness was central to the court’s analysis. Goodman J. summarized themodern legal approach to assessing the credibility of child witnesses at para 42: [42] The Supreme Court of Canada has provided guidance concerning how a trial judge should approach the credibility of youngwitnesses.

The exacting standards imposed on adults are not to be imposed on children. Contradictions in the evidence of a child (or inthis case a teenager) should not necessarily be given the same effect as in the case of an adult. Even where precise details cannot berecounted with precision, this does not mean that the child has misconceived what happened to him or who did it. The evidence ofchildren should not be viewed as inherently unreliable, but, at the same time, the onus of proof of a criminal case remains the same: proof beyond a reasonable doubt.[9] See R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30 and R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122 See also R. v. W.S., (ON CA), [1994] O.J. No. 811, Ont. C.A. [48] McLachlin J. explained this modern legal approach in R v W(R), (SCC), [1992] 2 SCR 122 as a newappreciation in the attitude of the law towards the evidence of children at para 24:

[24] … One finds emerging a new sensitivity to the peculiar perspectives of children.

Since children may experience the worlddifferently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. … [26] … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. [49] I reviewed a number of sexual offence cases involving an assessment of the credibility of children when assessing JM’sevidence in this case.

These cases included: R v GDG, 2013 MBQB 244, 298 Man R (2d) 119; R v Locke, 2013 MBQB 235, 297 Man R(2d) 204, aff’d 2015 MBCA 73; R v HC, 2009 ONCA 56, 241 CCC (3d) 45; R v Mayahi (2006), (ON CA), 207 OAC157 (ONCA); R v RW, [2006] OJ No 2272, 71 WCB (2d) 141 (OCA); R v DWS, 2007 NSCA 16, 251 NSR (2d) 228; R v CLJ, 2011 ABCA 176, 48 Alta LR (5th) 395; R v ECM, 2013 NSPC 86, 111 WCB (2d) 399; and R v MWP, 2006 ABPC 38, AJ No 115 (MWP). [50] The aforementioned cases were similar to, and different from, the present case in different ways.

I will mention only MWPbriefly, as a certain aspect of it bore a strikingly similar ring of truth as in the present case. In that case, an 8½ to 9 year old child gave adescription of being subjected to

an act of anal intercourse, saying that the assault continued until “water” came out of his anus.

Stanhope J. dealt with this aspect of the evidence as follows at para 79: [79] I am left with a situation where a very young child gives very troubling, detailed evidence of sexual contact with the youngperson and no evidence that he acquired or could have acquired knowledge about such matters, in any way other than by his ownpersonal experience. [80] Viewed through the lens of the R.W. (supra) and B.G. (supra) decisions of the Supreme Court of Canada, there was nothing in theevidence of R. which leads me to conclude that he was not an honest and sincere young man.

He was very clearly struck by thesolemnity of the occasion of attending court, and gave his evidence in an open, clear and compelling fashion. When he told the Courthow “water” had begun to come out of his anus, it was very clear that he was mystified about this, and that he did not in any sensecomprehend the significance of the information. [51] In this case, JM stated that when the accused was done rubbing something smooth on her face and poking her in the cheek, hethen wiped a “liquidy” or “like gel” substance on her lips and face.

JM clearly did not know what this substance was and did notcomprehend the significance of this information. [52] JM was able to describe the layout of her house and her bedroom. She was able to articulate the parts of the human body andanatomy, except for the male penis which she did not wish to say aloud and instead wrote it down on paper for Sgt. Gawley.

She wasable to clearly articulate who RC was, and how she knew that it was him that came into her bedroom and what he did to her while he wasin there. [53] JM’s evidence about the acts of assault was given primarily in the video-recorded interview that was admitted into evidencepursuant to

section 715.1 of the Criminal Code. Her interview consists of a clear and easy to understand narrative of her emotionalresponses to questions. Her responses were compelling and had the ring of truth. [54] In the video, JM promised to tell the truth to Sgt. Gawley. She also subsequently reviewed and adopted this video at trial. She testified that she remembered giving the statement and that she was being truthful when she gave it. The video interview with thepolice was taken approximately five months after the incident and provides the court with the best evidence of JM’s recollection aboutwhat occurred that night.

[55] It is important to keep in mind the policy rationale behind

section 715.1 of the Criminal Code when assessing JM’sstatement. In R v L(DO), (SCC), [1993] 4 SCR 419 Lamer J. speaking on behalf of a majority of the Supreme Court ofCanada stated at para 1: … s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46, is a response to the dominance and power which adults, by virtue of their age,have over children. Accordingly, s. 715.1 is designed to accommodate the needs and to safeguard the interests of young victims ofvarious forms of sexual abuse, irrespective of their sex.

By allowing for the videotaping of evidence under certain express conditions, s.715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, butalso aids in the preservation of evidence and the discovery of truth. [emphasis added] [56] This policy rationale has application in the present case as the best evidence was preserved in the police interview in a waythat could not have been replicated many months later in the courtroom. JM gave her statement to the police less than five months afterthe alleged event.

She was interacting in a safe space with a police officer trained in child forensic interviews. JM provided acompelling and pure statement of the events that night. [57] By contrast, her testimony in the courtroom occurred nearly 1½ years after the statement and nearly two years after thealleged offence. She was only ten years of age when she testified by video from a soft room with a support person and canine presentwith her. It was clear she had difficulty understanding the underlying language of questions, or forgot or was wrong about some of thedetails surrounding the events.

Very little from her testimony at trial adds to, or detracts from, her videoed statement. Notably, she wasnot questioned at trial at any length about the nature of the acts which formed the basis of the assault itself. She was not shaken on thestand. [58] JM was a credible witness who could and did accurately communicate the events of that night to Sgt. Gawley. The interviewitself was compelling and largely absent of leading questions or improper suggestion.

While some questions on cross-examinationclearly confused JM, she never gave conflicting evidence at trial about the critical features of what happened to her in her bedroom andwho did it to her. At no point did JM sway or back away from the substance of the allegations she made. While she may have beenincorrect, confused or mistaken about peripheral details, she gave no conflicting evidence in relation to the essential elements of theassault itself, nor who had done it to her. [59] I find the evidence of JM to be not only sincere and credible, but also reliable and trustworthy.

There was no suggestion ofanimus or that anybody was out to get the accused. There was no motivation for JM or her parents to lie about the events the night RCstayed over at their house. To the contrary, all the evidence suggests that RC was quite close to the family. AM regarded him as abrother, and JM regarded him as an uncle.

These allegations have resulted in the destruction of those relationships. [60] There were a number of areas of minor inconsistencies where JM was unsure, mistaken or confused such as: whether or notthis happened on the night of or before her birthday; whether she was laying on her back, stomach or side; the precise order of thetouching; whether RC had one or two braids that night; whether she saw RC leave after the incident; whether she saw RC the nextmorning and the precise timing of her disclosure to her mom.

In my view though, none of these discrepancies were serious or significantenough to give me pause when considering the evidence of JM as a whole. [61] These discrepancies do not bear on the important issues dealing with the subject matter of her disclosure. They wereperipheral matters and it is to be expected that witnesses will testify slightly different about such matters. In fact, given the passage oftime since the incident occurred one might be suspicious if all of this evidence was exactly the same from different witnesses on differentoccasions.

It is also to be expected that a child may not remember each and every surrounding detail, especially 22 months after thefact. When I consider JM’s evidence in the context of all the other evidence that I accept and the evidence that I do not accept, Iconclude that JM provided a compelling and detailed account of what happened to her that night. [62] It is clear in the video-recorded statement that JM knew who RC was. She had known him her whole life. Defence admittedidentification and so it was not necessary for anyone to identify him at trial.

In her statement, JM describes opening her eyes to see RCenter her bedroom wearing a blue sweater. This matches the photo taken of RC that night. She also said she knew it was him when hewhispered to her asking if he could touch her. JM never expressed any doubt in the video-recorded statement or at trial that it was“Uncle R” who committed these acts. [63] There was no realistic suggestion or questioning to the effect that somebody else may have done this to her. While JM referred

to her brother having a friend over to the house earlier that evening and both of them leaving the house to go to 7-11 before she went to bed later that night, it is clear from the evidence as a whole that no friend of her brother had slept over that night as it was a school night and neither AM or SM testified that anyone else was present that night when they went to bed or the next morning. [ 64 ] There was evidence from AM and SM that RC stayed over at their house that night and was still there in the morning.

There was also evidence that RC was sleeping in the basement, but at some point during the night he came upstairs and sat in the living room chair wide-awake. This means that at some point that the night, RC was alone, awake and drunk in the basement next to JM’s bedroom while the rest of the house slept. [ 65 ] At the very end of the police interview, Sgt. Gawley asked JM if there was anything else she would like to say. JM mentioned that sometimes she sees or hears things when she is asleep and opens her eyes, such as little whispers and some kind of ritual saying, “little girl”.

When asked about this in cross-examination, JM also indicated she had seen a long deceased uncle in her room who was not there. This testimony did give me some pause, as there was no expert evidence as to how such dreams, visions or apparitions should be interpreted or whether there was any psychological or Indigenous cultural significance associated with them as her mother told her it was a gift. [ 66 ] However, when I considered these visions in the context of all the evidence in this case it did not raise any doubt in my mind as to the accuracy or reliability of JM’s allegations earlier in the statement.

This was an innocuous, throwaway comment made by JM at the tail end of her interview. She knew the difference between seeing or hearing things in her room that she knew were not real and were not actually there and what happened to her that night which was real and actually happened to her. [ 67 ] They were two entirely different and distinguishable events. What happened to JM the night of January 24/25 involved more than just hearing things, but an actual conversation with RC. It also involved more than just seeing things, but actual physical contact and a physical substance being placed on her.

This is something more and entirely different from a mere image or vision that does not talk to her or touch her. It was also never suggested to JM that she may have been mistaken about the entire ordeal or that she may have imagined it instead. A review of all her evidence indicates that this was an issue she raised at the last moment that was completely separate and distinct from the very specific and detailed allegations she made throughout her interview with Sgt. Gawley. [ 68 ] I did not regard Sgt.

Gawley’s questioning of JM as to the five senses she experienced (e.g. what she saw, heard, felt, tasted and smelled?) when the accused was with her in her bedroom as leading or untoward. Indeed, it is to be expected that she would ask these questions. It is also inconsequential that a nine year old cannot remember seeing or smelling alcohol on anyone that night. [ 69 ] Sgt. Gawley did introduce the word “rubbing” when JM had only used the word “touching” in an up and down motion in her statement. However, I note that JM eventually returned to using the word “touching” again later in her statement.

Therefore, Sgt. Gawley’s change in terminology did not have any practical effect on JM’s evidence. [ 70 ] It is my observation that JM answered the questions asked of her in an age appropriate fashion and that she did not possess the ability to express or communicate herself fully yet.

For example, to her “waking up” may have meant the same thing as “getting up” from her bed, and she did not seem to regard the poking on her cheek to be the same thing as the “touching” in a strict sense (i.e. with one’s hands) that had occurred on her leg and tummy. [ 71 ] The defence also suggested that because of the delay in reporting these allegations, the greater the chance that JM’s testimony was susceptible to be influenced by improper suggestion or coaching by others. However, there was no admissible evidence of this at trial.

In fact, JM was so reluctant to discuss this matter with anybody that she could not tell her mother for months and even then, was only able to write it down on paper for her to read it. [ 72 ] The defence also took issue with some internal inconsistencies in JM’s evidence, such as the events the following morning and the timing of her disclosure to her mother that did not fit with her parents’ evidence. However, these inconsistencies were tangential to the core of her allegations which remained consistent throughout.

Furthermore, flaws such as these do not weigh as heavily against the credibility and reliability of a child as they do against the testimony of an adult. Lastly, it would be a myth or stereotype to expect victims of sexual assault to react in a certain expected fashion. [ 73 ] JM’s evidence did not suffer from any inherent frailties. Even if it did or even if I had any concerns her credibility was impaired in some manner, her evidence was supported or corroborated by other surrounding evidence and circumstances that would have

restored her credibility. The photograph and testimony of AM and SM confirm that RC had been at their house that night and was sleeping in the basement. He was wearing a blue sweater, intoxicated, awake and alone in the basement while everyone else in the house slept. He had opportunity and access to JM alone in her bedroom that night. [ 74 ] There was also evidence that JM’s behaviour changed the next morning and continued to change significantly in the succeeding months. Despite it being her birthday the next morning, JM was not happy. She was sad, withdrawn and not herself.

She had her head down and frowned when RC asked for a hug. She went from being a happy, bubbly child to a withdrawn and removed child who eventually shut down in time. There was a drastic change in her behaviour. She started covering herself up and repeatedly wearing the same articles of clothing every day. Both parents grew exceedingly concerned about JM in the days, weeks and months following her birthday leading up to her disclosure. [ 75 ] SM made an innocuous mistake when testifying.

She confused JM’s ninth birthday with her tenth birthday that had occurred between JM giving her statement to the police and the trial. This minor discrepancy went unnoticed at trial. Nothing turns on it. And it does not affect the overall narrative surrounding the allegations in the lead up to the disclosure. [ 76 ] In conclusion, there was nothing in the evidence of JM, either in the content of her evidence or in how she testified, that would cause me to disbelieve her and I do believe her evidence in this case. [ 77 ] The touching that occurred was sexual in nature.

It began when RC first touched JM with his hand on her leg and stomach while she was lying in bed and ended with RC on his knees putting his penis on the victim’s cheek and ejaculating in her face. [ 78 ] The defence suggested that because JM did not actually see a penis or use the word “penis” when describing what occurred to her, that there is no proof that RC “touched” her with his penis. JM did have her eyes closed and was trying to go back to sleep as she thought that was what RC was going to do when he crawled into bed with her.

While JM did not say she saw a penis, her description of the surrounding circumstances is telling and it would defy logic for me to come to any conclusion other than the accused had put his penis on her face. If there was any doubt as to this inference, it is quashed when JM described what she felt was RC putting a “gel-like” clear liquidy substance on her face. [ 79 ] The only rational and reasonable inference that can be drawn is that RC’s penis was exposed, it touched her face and he then ejaculated and put semen on her face.

There is no requirement that JM needs to have observed or uttered the word “penis” for me to come to this conclusion. It is understandable that JM was nervous, uncomfortable and unsure about the subject matter of this interaction.

The evidence she described though, when considered as a whole in the context of all the evidence in this case, excludes all other reasonable alternatives and leaves no doubt in my mind about what exactly happened. [ 80 ] This case is distinguishable from the Nyznik , RL and Woodland cases filed by defence counsel as those cases all involved situations where the complainant’s disclosures of sexual activity changed or were altered significantly over time. The court therefore, could not find their evidence to be reliable enough to support a criminal conviction for sexual assault beyond a reasonable doubt.

In this case, the complainant’s disclosure of the specific acts of sexual assault in the video-recorded interview with police did not change over time and was not challenged in any serious way at trial. CONCLUSION [ 81 ] When I consider JM’s evidence in the totality of all the evidence that I accept and do not accept, I am satisfied beyond a reasonable doubt of the guilt of the accused and therefore find him guilty of both counts as charged. _______________________ Rybchuk, J

[2] See: R v Woodland , 2009 SKQB 262 , 338 Sask R 244 ( Woodland ) per Popescul J. at paras 34 to 36; and R v Subramaniam , 2017 ABQB 4 , 135 WCB (2d) 371 per Goss J. at para 121.