R. v. J.F.D.V., 2023 BCPC 210

Citation: R. v. J.F.D.V. 2023 BCPC 210 Date: 20230927 File No: 65927-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. J.F.D.V. BAN ON PUBLICATION UNDER S. 486.4(2) OF THE CRIMINAL CODE OF CANADA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. VANDOR Counsel for the Crown: P. Fullerton Counsel for the Defendant: J. Currie Place of Hearing: Richmond , B.C. Dates of Hearing: February 6, 7, 8, 9, April 6, May 24, 25, 26, June 28, 2023 Date of Judgment: September 27, 2023 [ 1 ] These Reasons for Judgment were delivered as oral reasons. They have since been edited for distribution. Overview

[ 2 ] J.F.D.V. (“Mr. D”) is charged with one count of sexual assault and one count of sexual touching of a person under the age of 16 years. The charges relate to four incidents that are alleged to have occurred between December 1, 2015 and July 22, 2016 in Richmond, British Columbia. The complainant is his niece. [ 3 ] In these reasons for judgment, I will not refer to the complainant by name because there is a publication ban under s. 486.4(2) of the Criminal Code . I do not want to “depersonalize her experiences”, but rather, “preserve her dignity and privacy to the greatest extent possible”: R. v.

Snell , 2021 BCSC 673 at para. 2 ; R. v. C.C.C. , 2020 BCSC 1367 at para. 2 . [ 4 ] The issue is whether the Crown has proven beyond a reasonable doubt that Mr. D committed these alleged offences. The case centres on credibility and reliability issues. Background [ 5 ] The complainant and her grandmother (“Ms. M”) testified for the Crown. Mr. D and the complainant’s twin sister (“Ms. S”) testified for the Defence. [ 6 ] The following facts are not in dispute. The complainant has a twin sister and older brother. When the complainant was a baby, they were placed into the care of Ms.

M who raised her grandchildren in her home. The complainant says her biological parents were “not in the picture” growing up. She remembers her father coming home drunk and staying the night from time to time. [ 7 ] Mr. D is Ms. M’s son and the complainant’s uncle. His nieces viewed him as a “father figure”. Mr. D also lived in Ms. M’s home with his wife, Ms. D. They have two biological children together. Their first child was born in October 2015. Their second child was born in February 2018.

Thus, during the Indictment period, the complainant was living in a home with her siblings, grandparents, uncle, aunt, and one baby. [ 8 ] The family went to church on Saturdays, took one family trip to a large indoor water park in Richmond called Water Mania, and travelled to Los Angeles. The complainant and her sister also spent time in her uncle and aunt’s bedroom. Evidence of Crown Complainant [ 9 ] The Complainant was 12 years old during the alleged incidents and 19 years old at the time of trial.

She gave her first police statement when she was 16 years old, and two months later, she gave her second statement. She describes four incidents of touching. She does not remember when they occurred or in what order. She is not sure if this is the order, but this is how she remembers them. She says that: • Mr. D touched her breast in a vehicle after returning from church (“Vehicle Incident”). • Mr. D touched her vagina when they were both lying on the bed watching videos with her sister, Ms. S, in his bedroom (“Bedroom Vagina Incident”). • Mr.

D touched her vagina in a pool during a family trip to Water Mania (“Pool Incident”). • Mr. D pressed his penis against her buttocks in his bedroom (“Bedroom Buttocks Incident”). [ 10 ] The complainant is not sure when the first incident happened, but remembers telling her grandmother about the incidents during a family trip to Los Angeles. Ms. M [ 11 ] Ms. M denies that the complainant disclosed any inappropriate touching during the Los Angeles trip. The only disclosure that Ms. M remembers the complainant making is a spontaneous disclosure of an accident after seeing cockroaches. Ms.

M says that, after seeing cockroaches, the complainant spontaneously disclosed that Mr. D had struck her in the groin area while they were play wrestling in his bedroom. [ 12 ] An important detail in Ms. M’s evidence was the location of that disclosure. She denies the complainant disclosing any inappropriate touching in a private place (alone in a room). She says that her granddaughter disclosed one incident of accidental touching in a public place (on a street after seeing cockroaches in the presence of her sister). Evidence of Defence Accused [ 13 ] Mr. D denies all of the allegations. Mr.

D gave a detailed description of his professed lack of opportunity to commit the crimes, the clearest example being that he was never alone with the complainant and his wife, Ms. D, was always with him. This was an important detail in his evidence, because it contradicts the complainant’s evidence that she was alone with him when three of the incidents took place. [ 14 ] Mr. D denies touching the complainant’s breast in a vehicle after driving home from church.

When asked to respond to the allegation that the incident took place in the front passenger seat of a Dodge Caravan, he says that he did not own the Dodge Caravan during the Indictment period. He says that his wife always sat in the front passenger seat of the vehicle he drove to and from church. [ 15 ] Mr. D denies touching the complainant’s vagina during the family trip to Water Mania. He says that he was never alone with the complainant in the wave pool. He says that he was with other family members in other areas of that indoor water park.

[16] Mr. D denies touching the complainant’s vagina in his bedroom. He says that she was never on his bed. He says that she wasnever in his bedroom watching any shows. He expressly denies watching any videos of “Clash of Clans” with his nieces in his bedroom.His evidence is “that never happened”. [17] Mr. D denies pressing his penis against the complainant’s buttocks in his bedroom. When asked would he ever be “chilling” witheither of his nieces on his bed, his answer was “no”. He says that he was never alone with the complainant in his bedroom. He says thatthe complainant was never on his bed. Ms. S [18] Ms.

S says that none of the incidents her sister described could have happened because they were always together and she did notwitness them. [19] Ms. S denies that her uncle touched her sister’s breast in a vehicle after church when they were 12 years old because they alwaystravelled together in her grandmother’s vehicle, they never travelled in her uncle’s vehicle, and when they did travel in her uncle’svehicle, her sister never sat in the front passenger seat. [20] Ms.

S denies that her uncle touched her sister’s vagina in the wave pool during the family trip to Water Mania because she wasalways with her sister in the wave pool and she did not see it happen. [21] Ms. S denies that her uncle touched her sister’s vagina when they were watching videos with her uncle in his bedroom becauseher sister was never on the bed and her aunt was always there. [22] Ms. S denies that her uncle pressed his penis against her sister’s buttocks in his bedroom because she was always with her sisterin his bedroom and her aunt was always there.

Analysis Presumption of Innocence and Proof Beyond Reasonable Doubt [23] Mr. D is presumed innocent. That presumption remains in place until the Crown proves his guilt beyond a reasonable doubt. Theburden of proof rests on the Crown and never shifts. Mr. D does not have to prove anything: Snell at para. 35. [24] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is basedon reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus at para.36.

The standard of reasonable doubt applies to the totality of evidence: R. v. Vallee 2022 BCCA 11, at para. 236. [25] Because Mr. D testified, I must apply the principles and framework in R. v. W. (D.) . The Supreme Court ofCanada in W.(D.) recommended that I consider the evidence in three steps, which I paraphrase as follows: • First, if believe Mr. D’s testimony, then I must acquit. • Second, even if do not believe Mr. D’s testimony, but his evidence or any other evidence leaves me with a reasonable doubt, then Imust acquit. • Third, even if I do not believe Mr.

D’s testimony and it does not leave me with a reasonable doubt, and even if any other evidencedoes not leave me with a reasonable doubt, if, on the whole of the evidence, I am left with a reasonable doubt, then I must acquit. [26] Further, if I am not sure who to believe, then I must acquit: R. v. Kaplan 2019 BCCA 356 at paras. 59-62. [27] The law is clear that it is not simply a matter of deciding who is more believable: Snell at para. 39; R. v. D.J.H., 2022 BCSC 765at para. 136; R. v. Henry, 2021 BCSC 1943 at para. 8. It is not a credibility contest.

The Crown must prove each element of the offencebeyond a reasonable doubt. [28] In this case, there is no dispute about the elements of the two offences. If the allegations made against Mr. D are proven beyonda reasonable doubt, then his conduct would constitute sexual touching of a minor within the meaning of s. 151 of the Criminal Code andsexual assault within the meaning of s. 271 of the Criminal Code. [29] Proof beyond a reasonable doubt is a high standard. It requires evidence that is both credible and reliable. It is much closer to“absolute certainty” than to a “balance of probabilities”: R. v.

Starr 2000 SCC 40 at para. 242. At issue is whether, based upon theevidence before the court, I am “sure” that the accused committed the offence: Lifchus at para. 39. Assessing testimony of youthful witnesses [30] The complainant and Ms. S were both 12 years old when the alleged offences occurred, 16 years old when they gave their firststatements to police, and 19 years old when they testified at trial.

Although they are now young adults, I found it helpful to review thecase law on assessing the evidence of child witnesses because they testified about events that happened years earlier when they werechildren. [31] The court must assess their evidence with a proper appreciation that children “experience the world differently from adults”:D.J.H. at para. 141.

When testifying “about events that transpired when they were a child – especially on matters such as time andlocation, or about precise details – their evidence must be assessed differently taking into account their age, level of maturity and thepassage of time”: R. v. J.P. 2023 ONCA 570 at para. 37. In assessing their credibility, I must keep in mind that children may not perceiveand recall events in the same way as an adult, and in particular, regarding “peripheral matters”: Snell at para. 41.

[32] To be clear, there is no lower standard or poof of lesser degree of scrutiny applied to their evidence. Rather, the court must bearin mind that there may be limitations in their ability to recount precise details or communicate the “when and where” of an event fromchildhood: R. v. Hernandez-Lopez 2020 BCCA 12 at para. 20. The case law refers to academic literature recognizing suggestibility, howchildren are questioned can affect what they are able to communicate: D.J.H. at para. 141; R. v. C.J.C.A. 2017 BCPC 152 at paras. 58-61. In .R. v.

E.A.G. 2020 BCSC 1691, Madam Justice Warren explained it this way: [202] This does not mean that the credibility and reliability of a child’s evidence should not be carefully assessed or that the standard ofproof must be lowered when dealing with children. A “solid foundation” is required for a verdict of guilt, whether the complainant is anadult or a child. The point is that a flaw, such as a contradiction or inconsistency, in a child’s testimony should not be given the sameeffect as a similar flaw or inconsistency in the testimony of an adult. As Justice Wilson observed in R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30 at 54-55, “[w]hile children may not be able to recount precise details and communicate the when and where ofan event with exactitude, this does not mean that they have misconceived what happened to them and who did it”. [203] The same point was made by the Court of Appeal in R. v.

P.E.L., 2017 BCCA 47 where it was noted, at para. 26, that one wouldexpect as a matter of common sense that years later one would recall the most traumatic childhood experiences, and not the details suchas physical surroundings or other routine matters. [204] In addition, the courtroom environment can be particularly stressful for children. That may cause them to exhibit behavioursusually associated with unreliability and they are more likely than an adult to become confused by a skillful cross-examination even ifthey are telling the truth: R. v.

D.W.L., 2018 BCSC 2480 at para. 87. [33] While it may be expected that some details important to adults may be missing from the complainant’s recollection, protectingthe liberty of Mr. D and guarding against wrongful conviction requires that I carefully assess the complainant’s testimony: Snell at para.43 citing R. v. W.R. (SCC), [1992] 2 S.C.R. 122 at pgs. 133-134 and R. v.

B. (G.), (SCC), [1990] 2S.C.R. 30 at pgs. 54-55. [34] In doing so, I must avoid stereotypical reasoning, which in the present circumstances would include reasoning to the effect that ifthe alleged offences occurred then the complainant would have made repeated attempts to report it: R. v. A.R.J.D., 2017 ABCA 237 atpara. 58, aff’d 2018 SCC 6; R. v. Pastro, 2021 BCCA 149 at para. 52.

However, I must also be cautious not to apply problematicstereotypical thinking in the other direction, thereby improperly reversing the presumption of innocence, for example, by assuming thatthe complainant would not expose herself to trial if her evidence of the alleged touching was not true: Snell at para. 44. STEP 1: Do I believe the evidence of the Accused? [35] Mr. D gave his evidence through a Spanish interpreter, which added some complexity to my assessment of his evidence. Forexample, when describing accidentally touching the complainant’s groin, the court interpreter said that Mr.

D used the term “encaje”,which means like embroidery on wedding dresses or garter belt. Mr. D explained using the term “encaje” to refer to the area surroundingthe “vagina”. [36] Mr. D was a relatively articulate witness. There is no suggestion that his ability to perceive, recall, or communicate were cloudedby any form of disability or substance misuse. He seemed to have relatively good recall with respect to at least some of his interactionsgoing back a number of years. Mr. D says that he first heard about the complainant’s allegations against him in October 2020. Thismeans that Mr.

D had to remember events around five years after they allegedly occurred. Given the passage of time, there was nothingunusual about his inability to recall precise details such as the exact date when he purchased the Dodge Caravan. [37] Mr. D was a polite and attentive witness. He did not get angry or flustered during cross-examination. He remained calm despitethe obvious stress he was under.

He provided testimony that could be considered contrary to his interests, including driving his family tochurch on Saturdays and going to Water Mania. [38] Despite the positive aspects to his testimony, I had serious concerns about Mr. D’s credibility on material matters. In all of thecircumstances, I do not believe his denial of having engaged in the acts alleged against him because there were internal inconsistenciesand external inconsistencies with other credible and reliable evidence on material points.

As I will explain further below, theseinconsistencies undermine the truthfulness of his testimony rather than the accuracy of his recollection. Vehicle Incident [39] In all of the circumstances, I do not believe Mr. D’s testimony that he did not touch the complainant on the breast in a vehicleafter driving home from church. While I accept his evidence that he did not own the Dodge Caravan when the complainant was 12 yearsold, I do not believe his testimony that his wife always sat in the front passenger seat of the vehicle that he drove to and from church fromDecember 2015 to July 2016.

That his wife was sitting in the passenger seat is a material detail in his evidence. On that material detail,his evidence is inconsistent. [40] Mr. D testified at length about the number of vehicles that he owned and when he owned them. Of relevance is the fact that Mr.D did not own a Dodge Caravan during the Indictment period. He bought a white “Dodge Caravan” in April 2018 after his second childwas born. He bought a white “KIA” car in June 2016. Before that, he owned a green “Mustang” car. There is independent evidencecorroborating when some of these vehicles were purchased and by whom. [41] Despite this, Mr.

D’s evidence in direct examination was not clear on how many children he had and whether he drove a vanduring the Indictment period. He repeatedly said that he drove his wife and “kids” to church in the “Dodge Caravan” in 2016. He thenclarified his evidence that he drove the “Mustang” and “KIA” at that time. When asked whether he was driving any large vehicle at all in2015 or 2016, his response was “no”. When asked who would go to church with him in early 2016, his response was “my wife and mykids”. When asked to specify “who is all”, his response included “kids”. He then clarified “I had one child”.

He says it is not possiblethat the incident took place in a car and not the van because “there was always my wife and the kids”. He then clarified “not the kids, thebaby”. By the end of direct examination, his evidence was that he only had one child and did not drive the Dodge Caravan between

December 2015 and July 2016. [ 42 ] The complainant described an incident happening in the front passenger seat of a vehicle after a Saturday church service. Mr. D acknowledges driving his vehicle to and from church on Saturdays. In direct examination, Mr. D says that the complainant never sat in the front passenger seat of any vehicle he drove to and from church on Saturdays because his wife was always there and attended church with him every single time.

When asked whether there was any time when his wife did not attend those Saturday church services, his response was probably when she was sick but he does not remember this happening anytime in late 2015 or 2016. [ 43 ] In cross-examination, Mr. D says that the complainant never sat in the front passenger seat of any vehicle he drove to and from church on any Saturday in the first six months of 2016. He agrees that the first six months of 2016 is from January 1, 2016 to June 30, 2016. He agrees that would amount to as many as 26 church visits on Saturdays.

He says there is not a single instance of any of those 26 visits where the complainant could have sat in the front seat of any vehicle that he was driving to and from church because his wife was always there. When asked about his ability to remember events that occurred so long ago, his evidence is that he can remember significant events that happened years ago. However, his evidence on what events were significant is not consistent. He says that the only significant event from 2015 and 2016 was the birth of his child.

When put to him that driving to and from church is not significant, he says that everything is significant especially when related to church. [ 44 ] This brings me to a material internal inconsistency in Mr. D’s testimony. His evidence is that the complainant could not have sat in the passenger seat of any vehicle that he drove to and from church because his wife was always there. Thus, his wife sitting in the front passenger seat of the vehicle he drove is a material detail in his evidence. On this material detail, his evidence is internally inconsistent.

He says that his wife would sit in the front passenger seat “every single time” and in the back seat with his baby “sometimes”. If it was true his wife sometimes sat in the back seat with his baby, then it was not correct for Mr. D to say quite categorically in direct examination that his wife always sat in the front passenger seat. The fact is that Mr. D presented two different positions in his testimony. One was the categorical assertion that his wife always sat in the front seat. The other was his concession that she sometimes sat in the back seat with their baby.

One way of looking at this inconsistency would be to say that Mr. D was imprecise in his language. Another way of looking at it would be to say that Mr. D could not keep his story straight. Certainly, if it were the only inconsistency in his evidence, it would be easier to place it in the former category rather than the latter. [ 45 ] I do not attribute this inconsistency to any misunderstanding on Mr. D’s part given the questions asked. This is not a case where Mr. D was referring to his wife sitting in the front passenger seat every single time in 2016, and then sitting in the back seat sometimes in 2018.

In cross-examination, Mr. D answered questions where his wife would sit in the first six months of 2016 and where his wife would sit in the KIA car that he started driving in June 2016. He also answered questions about where his wife would sit within the first 8 1/2 months of his baby’s life from October 2015 to June 2016. When asked where his wife would sit when he drove the KIA, he answered that his wife sometimes sat in the back with the baby. When confronted with the possibility that the front passenger seat would now be empty, Mr.

D denied that possibility based on his evidence that the baby bag was in the front seat. He does not agree that having a baby bag more than an arms-reach from the person sitting with the baby is impractical. This is despite acknowledging that his baby was less than a year old, and at that age, babies can be messy and explosive from their mouths or bums. [ 46 ] Mr. D was also asked questions in direct examination, and again, in re-direct examination about where his wife would sit when he was driving the Dodge Caravan.

In direct examination, his evidence was that his wife was always in the front seat and his nieces sat in the back when they went with them. In re-direct examination, his evidence was that his wife would always sit in the front seat when they had the two babies. I have given little weight to this evidence because, by his own admission, Mr. D was referring to after his second child was born in 2018. Bedroom Incidents [ 47 ] In all of the circumstances, I do not believe Mr.

D’s testimony that he did not touch the complainant on the vagina in his bedroom because I find material aspects of his testimony to be inconsistent or contradictory with other credible and reliable evidence on the record.

Material details in his evidence include that the complainant was never on his bed, never in his bedroom watching any shows, and that it would never be the case that his nieces would ever by lying on his bed because they do not have permission to lay on his bed. [ 48 ] First, I reject his evidence that the complainant was never on his bed because it is contradicted by other credible, reliable evidence on this point. For reasons that I will explain, I find that the most credible and reliable source of evidence on this topic is the testimony of her sister. Ms. S saw the complainant play wrestling with Mr.

D on his bed before falling off the bed in what she had described as an accident. Ms. S was in the best position to see where they were play wrestling because she was watching them. I find that Ms. S was truthful on this point because her admission goes against her interest and the interest of her uncle. [ 49 ] Second, I reject his evidence that the complainant was never in his bedroom watching any shows because his evidence is internally inconsistent. His evidence is that the complainant was “never” in his bedroom watching any shows and “not that he remembers”.

If it is true that he does not remember the complainant watching shows in his bedroom then it was not correct for Mr. D to say quite categorically that the complainant was never in his bedroom watching any shows. Once again, Mr. D presented two different positions in his testimony. [ 50 ] Mr. D expressly denies watching videos of “Clash of Clans” with his nieces in his bedroom. However, his evidence is contradicted by other credible and reliable evidence on this point.

Leaving aside for the moment the evidence of the complainant, I find that the most credible and reliable source of evidence on this topic is the testimony of Ms. S. Ms. S’s evidence is that she and the complainant watched videos of “Clash of Clans” with Mr. D in his bedroom when they were 12 years old more than once. Her opportunity for knowledge is strong because she was watching those videos with them. I find that she was truthful on this point because this admission goes against Mr.

D’s interest. [ 51 ] Third, I reject his evidence that his nieces did not have permission to lay on his bed because it is contradicted by other credible and reliable evidence on this point. I find that the most credible and reliable source of evidence on this topic is the testimony of Ms. M who says that her granddaughters did have permission to be on his bed. Of all the witnesses, I find that Ms. M was in the best position to

give evidence about the rules that she set for her granddaughters in her home because she raised them and they needed her permission todo things. [52] In reaching this conclusion, I reject any suggestion that Mr. D did not intend for his evidence to be taken literally. In directexamination, when asked would it ever be the case that he would be lying on the bed with the complainant or Ms. S, his response was“no”, they do not have permission to lay on his bed. When asked, even if they do not have permission, did it ever happen that theywound up on the bed, his response was “no”.

In cross-examination, when asked was there ever a time when he was on the bed and hisnieces were on some other part of the bed, his response was that they sat in chairs when they came into the bedroom to see the baby. [53] In all of the circumstances, I do not believe Mr. D’s testimony that he did not press his penis against the complainant’s buttocksin his bedroom because I find material aspects of his testimony to be inconsistent or contradictory with other credible and reliableevidence on the record.

Material details in his evidence include that the complainant was never on his bed and he was never alone withher in his bedroom. I have already explained why I reject his evidence that she was never on his bed. [54] I reject his evidence that he was never alone with the complainant when she was 12 years old because it does not reconcile withhis other evidence that he is not able to remember all of the events with the complainant when she was 12 years old. If it is true that hedoes not remember all of the events with her when she was 12 years old then it was not correct for Mr.

D to say quite categorically thathe was never alone with her. In reaching this conclusion, I reject any suggestion that Mr. D did not intend for his evidence to be takenliterally. In direct examination, his evidence is that none of the incidents that the complainant described could have happened because hewas never alone with her. In cross-examination, he says that he was never once alone just him and the complainant. When asked how heis able to recall never being alone with the complainant given the years that have passed, his response was that he was never alone withher regarding the allegations that she made.

He was adamant that he never spent any time alone with the complainant. Pool Incident [55] The complainant described an incident happening in the wave pool during a family trip to Water Mania. Mr. D acknowledgesgoing to Water Mania on that family trip. He gave a detailed description of his professed lack of opportunity to commit the crime, theclearest example being that he was never alone with the complainant in the wave pool.

In all of the circumstances, I do not believe Mr.D’s testimony that he did not touch the complainant’s vagina in the wave pool because I find material aspects of his testimony to beinternally inconsistent and inconsistent with other credible and reliable evidence on the record. [56] An important detail in Mr. D’s evidence is that he did not know where his nieces went. However, his evidence is contradictoryon this point. On the one hand, he says that he did not see them at the water park.

On the other hand, he describes seeing them go into thewave pool, jump around in the wave pool, and the waves taking them from one side to the other. [57] Another important detail in Mr. D’s evidence is that he spent the afternoon with his mother and stepfather sitting in a shallowwater area. For him, being in their presence was an important reason why he says it was not possible for him to be in the wave pool withthe complainant. I do not believe his evidence on this point for two reasons. First, it is internally inconsistent.

On the one hand, he saysthat he spent the afternoon talking and sitting with his mother, Ms. M, and stepfather. On the other hand, he also says that he spent all ofhis time with his wife and baby. When confronted with this potential inconsistency, he says that he spent all of his time with all of them:his mother, stepfather, wife, and baby. However, that explanation does not reconcile with his other evidence that they spent their time indifferent areas of Water Mania.

He described his mother and stepfather sitting in a shallow water area by the wave pool, and his wife andbaby playing at the aquatic park. [58] Second, his evidence is not consistent with the evidence of Ms. S. Leaving aside for the moment the evidence of the complainant,I find that the most credible and reliable source of evidence on this topic is the testimony of Ms. S because she was there. Ms. S does notremember seeing her uncle with her grandparents at Water Mania. When asked where her family members spent their time at WaterMania, she described them spending their time in three different areas.

She says that her grandma, Ms. M, and grandpa went into the hottub and spent their time in the hot tub or shallow part of the pools. She says that Mr. D, Ms. D, and their baby went to the aquatic park.She went into the wave pool with the complainant. I see no reason why Ms. S would find it necessary or even helpful to her position tolie about such a peripheral detail in her evidence that goes against the interest of Mr. D. [59] For these reasons, I do not believe the accused’s denial of guilt. STEP 2: Does the evidence of the Accused and any other evidence, raise a reasonable doubt? Evidence of Accused [60] Mr.

D’s testimony does not leave me with a reasonable doubt, for the same reasons. I have considered his express denial ofhaving engaged in the acts alleged against him, but I do not find his testimony credible. I find it to be inconsistent with other credible andreliable evidence, appreciating, of course, that it is not a credibility contest. The burden is on the Crown, and the evidence of the accusedonly needs to leave me with a reasonable doubt. However, based on my assessment of the evidence, I find that it does not. I now turn to aconsideration of whether any other evidence leaves me with a reasonable doubt.

No Adverse Inference [61] Before doing so, I need to explain why I am not drawing an adverse inference from the fact that Mr. D did not call his wife, Ms.D, as a witness. The Crown has asked me to draw an adverse inference. I decline to do so because the legal principles set a high thresholdthat is not met in this case: R. v. Marshall, (ONCA) paras. 41-49. I am not satisfied that the only reason why Ms. Ddid not testify was because her evidence would not have been favourable to her husband.

To draw an adverse inference in this criminaltrial risks shifting the onus of proof by imposing a burden of adducing evidence on the accused: R. v. Ellis, 2013 ONCA 9, at para. 49. Evidence of Ms. S

[ 62 ] The events that give rise to this proceeding have been difficult on Ms. S. She has been called as a witness to give evidence in a trial in which her uncle has been charged with committing a crime against her sister. By her own admission, these are important relationships in her life. I was impressed by her ability to testify in these circumstances. She was a polite and attentive witness. She listened carefully to questions. In cross-examination, she was not combative. She gave an appropriate level of detail given her age and level of maturity. [ 63 ] To her credit, Ms.

S provided testimony that could be considered contrary to her interests. For example, she acknowledged being estranged from her sister. She says that she stopped talking to her sister after her sister left the house three years ago. She explains that, “personally, for me, I did not want to continue talking to her for my mental health”. In response to the question of whether she was struggling with mental health issues, she says she had “severe depression” and “really bad anxiety”.

She explains that she “avoided school for like a whole week” until arrangements were made for her not to see her sister at school because it was “kind of a trigger” for her. In cross-examination, Ms. S says that the complainant is “not good” for her “mental health”. [ 64 ] For example, Ms. S also acknowledged not wanting anything bad to happen to Mr. D. She loves her uncle. He is important to her. She considers him a “father figure”. She says that her uncle is also an important member of their family. She says that her uncle is the only source of income for her family. She does not work.

Her grandmother does not work. Her aunt does not work. In cross-examination, she agrees that she would not want anything bad to happen to her uncle. She agrees that it is fair to say that what she might say to other people about her uncle that is negative she might not believe or want to believe. I give credit to Ms. S for being frank in her testimony about these private matters. [ 65 ] It is not surprising that Ms. S did not remember certain details. Like the complainant, Ms. S misremembered the number of babies that Mr. D had when she was 12 years old.

In direct examination, she initially remembered two babies, but later clarified that there was only one baby. She also misremembered the number of babies that Mr. D had when he drove the van. Despite Mr. D and Ms. D having two children in 2018, she only remembered one child when her uncle drove the van. She maintained that position in response to clarification questions. For example, when asked whether she remembers if they had any children when they got the van, she responded by naming the oldest child.

When asked to describe the seating arrangements in the van, she responded by describing only one child in the middle seat. I did not hold this mistake against Ms. S because both babies were born outside the Indictment period. Ms. S was being asked to remember events that occurred after the first baby was born and before the second baby was born. It is not surprising that her memory of those events was not anchored by when these babies were born. [ 66 ] Despite the positive aspects to her testimony, and those aspects discussed above, I have concerns about Ms. S’s credibility and reliability on material matters.

Ms. S’s evidence does not raise a reasonable doubt about whether her uncle engaged in the acts alleged against him for the following reasons. [ 67 ] First, in all of the circumstances, I do not believe Ms. S’s testimony that she was always with her sister when they were 12 years old. This is a material detail in her evidence because it explains why Ms. S is so sure that none of the incidents could have happened. Ms. S’s evidence in direct examination is that they were “always together” when they were 12 years old. She describes them as “inseparable”.

On the one hand, her evidence appears to be that they were inseparable in that they were literally always together. On the other hand, her evidence appears to be that they were inseparable in that they shared interests and then started to separate by having different interests. To some extent, this may not be an inconsistency, but rather, how Ms. S as a young adult describes her relationship with her sister from childhood. However, when asked to explain what she means by “inseparable” in both direct examination and cross-examination, Ms. S confirmed that, by inseparable, she means that they were always together.

It is in this context that the following inconsistency arises. Ms. S then concedes that they were not always together. Ms. S acknowledges that they did not use the bathroom together and that, from time to time, the complainant went out with her “grandma” and Ms. S stayed behind with Mr. D and Ms. D. [ 68 ] Second, in all of the circumstances, I do not believe Ms. S’s testimony that the complainant was never on the bed when they were in their uncle’s bedroom. Ms. S described how they would visit the baby and watch “Clash of Clans” videos without being on the bed.

This is a material detail in her evidence because it explains why Ms. S is so sure that the bedroom incidents could not have happened. On that material detail, her evidence is contradictory. Ms. S’s evidence that the complainant was never on the bed is contradicted by her other evidence describing the complainant being on the bed play wrestling with Mr. D when he accidentally fell on top of her and touched her groin. [ 69 ] Third, in all of the circumstances, I do not believe Ms. S’s testimony that her aunt, Ms. D, was always there when they watched “Clash of Clans” videos with her uncle in his bedroom.

When confronted with the possibility that her aunt was not always there, Ms. S’s explanations led to an implausibility to the extent that her evidence was that her aunt “was always there” and neither her aunt nor her uncle were there when they showed her uncle videos in his bedroom. [ 70 ] Fourth, in all of the circumstances, I do not believe Ms. S’s testimony that she was always with the complainant in the wave pool. This is a material detail in her evidence because it explains why Ms. S is so sure that the pool incident could not have happened. On that material detail, her evidence is inconsistent.

In direct examination, Ms. S remembers that they were always together the whole time during this trip to Water Mania. Ms. S says that she never left her sister alone in the wave pool because the complainant did not know how to swim and Ms. S has social anxiety. However, in cross-examination, Ms. S acknowledges going down the water slides. She does not remember whether she went down the water slides together with the complainant. Ms. S acknowledges the possibility of being separated going down the slides. [ 71 ] Fifth, in all of the circumstances, I do not believe Ms.

S’s testimony that she always travelled with the complainant in her grandmother’s vehicle, they never travelled in her uncle’s vehicle, and when they did travel in her uncle’s vehicle, the complainant never sat in the front passenger seat. These are material details in Ms. S’s evidence because they explain why she is so sure that the vehicle incident could not have happened. [ 72 ] Before I explain what the material inconsistencies are, I need to explain the context in which I am assessing Ms. S’s evidence. Ms. S did not remember what vehicle her uncle was driving when she was 12 years old.

She also did not remember how old she was when her uncle started driving the van. For these reasons, I do not consider her evidence that they went to church in their uncle’s van

“maybe a few times” to be inconsistent with her other evidence that they “always” went to church in their grandmother’s vehicle when they were 12 years old. Rather, I must assess Ms. S’s evidence with a proper appreciation that her memory of some of these events was anchored by her age, and her memory of other events was anchored by the van. [ 73 ] The following inconsistencies arise in the context of Ms. S being asked to remember going to church when her uncle drove a van. Ms. S acknowledges that Mr. D drove them in the van “maybe a few times” to and from church. Ms.

S denies that the incident could have happened in the van because her aunt always sat in the front passenger seat. Ms. S says that the complainant never sat in the front passenger seat of the van because her aunt was always there. This is a material detail in Ms. S’s evidence because it explains why Ms. S is so sure that the complainant never sat in the front passenger seat of her uncle’s van. On that material detail, her evidence is inconsistent because Ms. S says that her aunt sat in the front passenger seat “all of the time” and “usually”. [ 74 ] The following inconsistencies arise in the context of Ms.

S being asked to remember going to church when she was 12 years old. Ms. S denies that her uncle could have touched her sister’s breast in a vehicle after church when they were 12 years old because they always travelled in her grandmother’s vehicle. Ms. S remembers going to church with her family on Saturdays but denies taking Mr. D’s vehicle to get there. Ms. S says they went to church every Saturday, and more often on special occasions, when she was 12 years old. Her evidence is that the family took two vehicles to get to church on Saturdays. Ms. S says that Mr.

D drove his family in one vehicle, and that she and the complainant went with her grandmother in another vehicle. [ 75 ] Ms. S says that there was never a time when they travelled in different vehicles. In cross-examination, Ms. S says that it is not possible that the complainant was alone in a vehicle with her uncle when they were 12 years old because Ms. S remembers every single day when she was 12 years old. However, Ms. S also concedes that she does not remember every single day when she was 12 years old. [ 76 ] In re-direct examination, Ms.

S was asked, aside from memory, are there any other reasons why she is so sure that the complainant was never in a vehicle alone with Mr. D when they were 12 years old. Ms. S gave two reasons. Ms. S says that they would “usually” travel with their grandmother, and she travelled alone with her uncle to church for singing. However, her explanation led to further inconsistencies in her evidence. Regarding the first reason, Ms. S’s evidence that the complainant would “usually” travel with her grandmother to church contradicts her other evidence that the complainant “always” travelled with her grandmother to church.

If the complainant did not always travel with her grandmother to church then that leaves open the possibility that the complainant travelled with her uncle to church since he drove the other vehicle. [ 77 ] Regarding the second reason, Ms. S’s evidence that she went alone with her uncle to church contradicts her other evidence that she always went with the complainant to church, and they never went in Mr. D’s vehicle to get there. Ms. S offered this explanation for why she is so sure that the complainant was never alone in a vehicle with Mr. D when they were 12 years old.

Despite this, when asked how old she was when she started travelling with her uncle alone to church for singing, Ms. S says that she no longer remembers. Ms. S both does and does not remember travelling with her uncle alone to church for singing when she was 12 years old. [ 78 ] Sixth, in all of the circumstances, I do not believe Ms. S’s testimony that the complainant did not make any disclosure to her about their uncle because her evidence was internally inconsistent on whether the complainant tried to talk to her about her uncle. In direct examination, Ms. S denies that the complainant ever told her that Mr.

D touched her inappropriately. In cross-examination, Ms. S says that the complainant never told her – not a word -- and never tried to tell her about anything Mr. D did to her. After reviewing her police statement, Ms. S agrees that that there was some attempt by the complainant to talk to her about her uncle. Ms. S explained that the complainant was worried about her because she was a singer at church and she went alone with her uncle, who is also musically oriented, to church singing events. Ms. S explained: “No I think she kind of like didn’t directly ask me if he touched me.

She kind of like, it was kind of a question she was trying to hint at. But because I think she was worried because me and my uncle, we go to church because I am a singer at church.” [ 79 ] If I have a reasonable doubt about one aspect of a witness’s testimony, it does not oblige me to discard that witness’s testimony in its entirety: R. v. Russ , 2019 BCCA 455 , at para. 22 . I can believe some, none, or all of a witness’s testimony. I have already explained why I believe Ms.

S’s testimony she did not see her uncle with her grandfather at Water Mania, and that she and the complainant watched videos of “Clash of Clans” with Mr. D in his bedroom when they were 12 years old more than once. I will now explain why I believe Ms. S’s testimony that the complainant was on the bed play wrestling with Mr. D when they were 12 years old, and that they play wrestled with their uncle in his bedroom more than once. [ 80 ] As a general proposition, it is fair to say Ms. S’s memory of the events was unlikely to have improved between the date of her police statement and the date of her trial testimony.

Despite this, Ms. S gave additional details in her trial testimony that she did not mention in her police statement. The most significant example was her description of the play wrestling accident between her uncle and her sister. Although Ms. S could not remember when the accident happened, she was sure that it happened before the trip to Los Angeles. [ 81 ] I agree that this is a material and significant addition to Ms. S’s account of the interactions between her uncle and her sister. Ms. S’s evidence is that she and the complainant play wrestled with Mr.

D in his bedroom “many times” when they were 12 years old. They watched wrestling programs and practiced wrestling moves on their uncle. Sometimes, they would “sneak attack him when he was in his room”. Ms. S says that, on that day, like always, she and her sister went over to her uncle who was on his bed and started to “sneak attack” him by doing wrestling moves and pillow fights. Ms. S says that her aunt and the baby were also on the bed. Ms. S says that they began to wrestle Mr. D on the bed. At one point, Ms. S says that she was off the bed, but her sister and uncle were still on the bed. Ms.

S saw her uncle and sister play wrestling on the edge of his bed and falling off the bed. Ms. S saw her uncle touch her sister in the thigh as he was trying not to fall on top of her. Ms. S considered it an accident. Ms. S says that her sister went upstairs crying and told her grandma what happened. Ms. S says that they all went upstairs to explain to her grandma that it was an accident. That is when her grandmother said no more play wrestling. [ 82 ] To the extent that Crown suggests that Ms. S added this detail in a deliberate attempt to damage the complainant’s credibility, I disagree.

I have considered the timing of these additional details, but I cannot say they are indicative of an overall intent by Ms. S to cast doubt on the evidence of her sister as her way of trying to support her uncle. In the police interview, the questions were not just open-

ended, but also quite general. It seems quite likely to me that the new details came out at trial when Ms. S was specifically asked about them. [ 83 ] I find Ms. S’s testimony on the wrestling accident to be credible and reliable. Ms. S was in the best position to observe what happened between her sister and her uncle because she was there. Her observations give a coherent account of the context and circumstances in which this wrestling accident happened. Despite her interest in supporting her uncle, she made a number of admissions against his interest. [ 84 ] For example, Ms.

S’s evidence that the complainant was on the bed play wrestling with her uncle before the accident contradicts Mr. D’s evidence that the complainant was not on the bed before the accident. An important detail in Mr. D’s evidence was that the complainant was laying on the floor on the right side of the bed when she grabbed his arms, he fell off the bed, and he accidentally touched her groin with his right hand as he tried not to fall on top of her. Ms. S was in the best position to see where they were play wrestling because she was watching them. By his own admission, Mr. D says that Ms.

S witnessed the accident from four or five feet away. I see no reason why Ms. S would find it necessary or even helpful to her position to lie about a point that goes against her uncle’s interest and resulted in a contradiction in her evidence that the complainant was never on her uncle’s bed. [ 85 ] For example, Ms. S’s evidence that she play wrestled with her sister and her uncle in his bedroom more than once contradicts Mr. D’s evidence that he only play wrestled with the complainant once in his bedroom. In cross-examination, Ms.

S was asked questions about the frequency of play wrestling with her uncle in his bedroom. Ms. S says that they play wrestled with their uncle “many times” in his bedroom when they were 12 years old. She agrees that it was definitely more than once, probably or most likely more than two times, but beyond that, she is not sure. When asked whether it was always in his bedroom, her response was “yes”. Her opportunity for knowledge is strong because she was play wrestling with them. I see no reason why Ms. S would find it necessary or even helpful to her position to lie about such a peripheral point. Evidence of Ms.

M [ 86 ] I received the evidence of Ms. M through a Spanish Interpreter. Ms. M was a polite and attentive witness. She demonstrated some reluctance to testify, which is understandable given her evidence that she loves her family. She was testifying as a Crown witness in a trial in which her son is accused of sexually touching her granddaughter when both were living in her home. [ 87 ] To her credit, Ms. M conceded certain points that she might have considered to go against the credibility of her position. For example, Ms. M acknowledges that she primarily relies on her son, Mr. D, for financial support. Ms.

M says that Mr. D is the only one who works in her house. She says that Mr. D pays her rent every month to live in her house in Richmond. If her son is not working, she says that she has a “few little savings” to cover her expenses for at least three months. When asked who else works in her house, Ms. M says that she and her daughter-in-law, Ms. D, have gotten around to selling typical food from her country. Ms. M explains why she no longer receives income from her grandchildren. Ms. M continues to live with her adult grandchildren – Ms. S and her brother – but describes them as not working.

She says they are both on disability and receive income from their membership in an Indigenous band through their biological mother. Although she used to receive those cheques, they now go directly to her grandchildren because they are adults. I give credit to Ms. M for being frank in her testimony about these matters. [ 88 ] Despite the positive aspects of her testimony, I have concerns about Ms. M’s credibility and reliability on material matters. In all of the circumstances, I do not believe Ms. M’s testimony that the complainant did not tell her that Mr.

D had been touching her on her breasts and vagina during the trip to Los Angeles. Her denial that the complainant disclosed inappropriate touching in a room in Los Angeles directly contradicts the complainant’s evidence that she did. Her denial is based largely on her evidence that she had no conversations with the complainant about Mr. D in a room in Los Angeles. On that material detail, her evidence was contradictory because Ms. M says both that she did and did not have any conversations with the complainant about Mr.

D alone in a room where they were staying in Los Angeles. [ 89 ] I also have concerns about the state of Ms. M’s memory and ability to recall and answer questions about the events in issue. Some of these concerns tell against her credibility, and other concerns tell against her reliability. For example, Ms. M gave two statements to police. She remembers giving her first statement but not her second statement five months later. She remembers telling the first police officer that she thought the case was finished.

She both denies and does not remember telling him that she needed permission from her son’s lawyer to talk to them. For example, Ms. M could not remember the age or birthdays of some of her grandchildren, but had a very detailed memory of her son’s vehicles. Some of her answers were not responsive to the question. For example, when asked whether she was out for a walk with her nieces in Los Angeles, her response was “it was not a conversation”. [ 90 ] I have considered her evidence regarding the disclosure of an accident. Ms. M says that she was walking with her granddaughters when cockroaches appeared.

She describes the complainant’s reaction as upset and frightened. She recalled the complainant panicking and crouching down. She further described the complainant striking herself in the upper inner thigh area as she bent down, and commenting that it reminded her of a time that Mr. D struck her in the groin area. [ 91 ] I begin my discussion by explaining why I am not concerned about three inconsistencies in her evidence. First, there appears to be some inconsistencies in Ms.

M’s evidence on the direction that the complainant went after seeing the cockroaches, and on how far down she crouched when she made this spontaneous disclosure. I consider these inconsistencies to be on peripheral details because they do not inform Ms. M’s evidence on what the complainant said after seeing cockroaches. [ 92 ] Second, Ms. M’s recollection of what the complainant said is not consistent with Ms. S who does not remember the complainant saying anything. I do not find this unusual. Ms. S remembered a reaction, just not the same details of that reaction as her grandmother.

That is understandable given Ms. S’s age. It would make sense that Ms. M would remember something that the complainant said directly to her. [ 93 ] Third, Ms. M used three different verbs to describe how Mr. D’s hand came into contact with the complainant’s groin: “struck”, “hit”, and “touch”. In her trial testimony, Ms. M says that the complainant remembered being both “struck” and “hit” by Mr. D in the groin area. I do not consider this a material inconsistency in Ms. M’s evidence because these verbs convey a similar meaning in that

“struck” ordinarily means to be “hit forcibly”. However, her trial testimony is not consistent with her police statement. Ms. M acknowledges telling that police officer that the complainant said to her, “I remember when tio Juan touched me”. That is a material inconsistency because the verb “touch” does not convey the same meaning as the verbs “hit” or “struck”. When confronted with this inconsistency, Ms. M explains that she reads very little English, she spoke to the police officer in English, and it was difficult for her to say “struck” but easy for her to say “touch” to the police officer.

After considering Ms. M’s explanation, I consider it more likely that this inconsistency is due to Ms. M’s challenges expressing herself in English rather than a deliberate attempt to mislead the court. [ 94 ] However, looking at the content of Ms. M’s testimony, I would say that her testimony as a whole does not give a coherent account of the context and circumstances in which she says that the complainant disclosed this accident to her in Los Angeles. Ms. M’s evidence is that the complainant disclosed this accident to her twice. What concerns me about Ms.

M’s account is that her evidence contemplates the complainant disclosing an accident that the complainant found both upsetting and not upsetting. Ms. M’s evidence is that the complainant was upset when she spontaneously disclosed an accident during the trip to Los Angeles, but was not upset when she originally reported the accident to her grandmother in the kitchen. [ 95 ] Furthermore, Ms. M’s account does not reconcile with her earlier evidence that the complainant would not play wrestle with Mr. D. When confronted with that potential inconsistency, Ms. M conceded that the complainant did play wrestle with Mr.

D in his bedroom but only in the presence of other family members. She both did and did not remember the complainant play wrestling with Mr. D in her home. [ 96 ] That I have a reasonable doubt about these aspects of Ms. M’s testimony does not oblige me to discard her testimony in its entirety: Russ , at para. 22 . I can believe some, none, or all of a witness’s testimony. I have already explained why I believe Ms. M’s evidence that her nieces were allowed to get on top of Mr. D and Ms. D’s bed. Evidence of Accident [ 97 ] Counsel for Mr.

D argues that the court should have a reasonable doubt as to his guilt based on evidence regarding an incident of accidental touching. Ms. M and Ms. S testified about an incident involving cockroaches during the trip to Los Angeles. While I am not prepared to make an adverse inference, I do not have the complainant’s evidence because she was not asked questions about making a disclosure to her grandmother after seeing cockroaches. [ 98 ] Ms. M’s description of the spontaneous disclosure of accidental touching in Los Angeles is consistent with the incident that Mr. D and Ms.

S described in relation to the accidental touching of the complainant’s upper inner thigh area. Mr. D and Ms. S witnessed the incident of accidental touching. Ms. M was able to provide some corroboration after the fact. [ 99 ] I did not find this evidence helpful in deciding the key issues in the case because nothing turns on these facts. The incidents that bring the complainant into court do not involve her play wrestling with her uncle on his bed. The complainant does not remember play wrestling with her uncle in his bedroom. She only remembers play wrestling with her siblings.

This is not surprising given her age, level of maturity, and the passage of time: J.P. , at para. 37 . Evidence of Opportunity [ 100 ] Counsel for Mr. D argues that the court should have a reasonable doubt as to the accused’s guilt based on the evidence relevant to the issue of opportunity. Counsel argues that it is very unlikely for a man with a family and no criminal record to have touched the complainant in the way she described in circumstances where family members and others were nearby. The defence does not need to prove anything in this regard.

It is enough for the defence to point to evidence, or a lack of evidence, on which the court might be left with a reasonable doubt as to whether Mr. D committed the offences. This may include evidence indicating a lack of opportunity to be alone with the complainant in the bedroom, vehicle, or pool, in circumstances where he would be able to engage in the sexual touching alleged by the complainant, without being discovered by someone else.

After considering the evidence of each and all of the witnesses, and for the reasons set out above, I do not have a reasonable doubt as to the accused’s guilt based on the evidence relevant to the issue of opportunity. Conclusion [ 101 ] For these reasons, this evidence does not raise a reasonable doubt. STEP 3: Based on all of the evidence accepted, has the Crown proven the allegations beyond a reasonable doubt? [ 102 ] The evidence of the complainant is central to the Crown’s case. She is the only Crown witness who gave evidence about the conduct that is the subject of the charges against Mr. D.

A careful assessment of both the credibility and reliability of the complainant’s evidence is required under this step of W. ( D. ). The Credibility and Reliability of the Complainant [ 103 ] I start by noting that the complainant explained that she told her grandmother about the incidents when she was 12 years old and her grandmother told her not to tell anyone. The complainant explained that, years later, after going into foster care, she told her foster mother about the incidents when she was 16 years old. It took her some time to decide whether she wanted to report those incidents to police.

The complainant gave her first police statement approximately seven months after telling her foster mother about them. I find this to be a plausible and credible rationale for the manner in which the complainant initially disclosed her allegations. [ 104 ] In reaching this conclusion, I have considered four arguments raised by counsel for Mr. D. First, counsel argues that the complainant’s evidence about telling her grandmother is contradicted by Ms. M who denied ever having such a conversation with the complainant. I place no weight on this apparent contradiction because I reject Ms.

M’s evidence on this point for reasons I have already explained. I believe that the complainant told her grandmother that her uncle touched her breasts and vagina during the trip to Los Angeles because of the authenticity, coherency, and consistency of her testimony. In direct examination, the complainant explained the

circumstances of her initial disclosure. She waited for her grandmother to be alone in a bedroom. She came up to her grandmother and told her that she was afraid to tell her this. She spoke to her in Spanish and English. She remembers her grandmother asking what happened. She told her grandmother that Mr. D had been touching her. She remembers her grandmother asking, “what way has he been touching you?” She remembers crying and telling her grandmother that her uncle has been touching her “boobs” and “vagina”. She remembers her grandmother crying and scolding her for letting this happen.

In cross-examination, the complainant described another conversation after returning to Canada when her grandmother told her that “we can’t talk about it”, “we can’t tell no one”, and “it is just between us and God which will punish him.” [ 105 ] Second, counsel argues that the complainant did not avoid her uncle during the trip to Los Angeles. I place no weight on the apparent contradiction between – the complainant’s evidence about not speaking to her uncle – and – the evidence of Ms. S and Mr. D about their impressions that nothing was wrong. Witnesses often have different perceptions of the same events.

I did not find this evidence helpful in deciding the key issues in the case because it was impressionistic and on a peripheral matter. [ 106 ] Third, counsel argues that all of the other witnesses contradict the complainant’s evidence that she flew home early after her disclosure to her grandmother. Ms. M, Mr. D, and Ms. S, all say that everyone flew home as scheduled. The complainant may have been mistaken about why they left early, but she was not mistaken that they left early. All of the witnesses testified that Ms. M flew back with the complainant and Ms. S after three weeks, and Mr.

D and his family stayed an extra week. I find that, given her age and stage of development, the complainant was honestly mistaken about why they flew back early. She remembers her grandmother telling her that they were probably staying in Los Angeles for one or two months. She readily acknowledged guessing about why they left early. I did not find this evidence helpful in deciding the key issues in the case because it is speculative and impressionistic. [ 107 ] Fourth, counsel argues that the complainant’s evidence about confiding to her sister that Mr. D had been touching her is contradicted by Ms.

S who denied ever having such a conversation with the complainant at any time. I place no weight on the apparent contradiction. I reject Ms. S’s evidence on this point for the reasons I have already explained. I believe that the complainant had some discussions with Ms. S about her uncle because Ms. S ultimately acknowledges this fact. [ 108 ] I do not make these points to suggest that the complainant’s prior statements somehow add to the credibility of her trial testimony, as this would offend the rule against reliance on prior consistent statements to bolster credibility.

Rather, this is an observation about the circumstances of her disclosure. [ 109 ] Counsel for Mr. D says there is evidence that the complainant had a motive to fabricate allegations against her uncle. The argument is that the complainant fabricated allegations against her grandmother so that she would go into foster care, and then once in foster care, the complainant fabricated allegations against her uncle so that she would not have to return. I have considered the complainant’s evidence regarding the circumstances that resulted in her going into foster care.

She explains going into foster care after telling her school counsellor that her grandmother had been hitting her: “I did tell her that grandmother was hitting me with a belt, and as a kid, and teenager time, gone a little more worse. I just told her, I still have a mark on my arm, a bruise, and my gut feeling. I wanted to tell someone about it. Before we had this principal, I forgot her name, I was going to tell her, but I got scared, so I chickened out. I need to put my foot down.

I am tired of being treated differently than my sister, tired of getting hit at this age, and other consequences, violence and stuff. I just told her that grandma smashed a cup on my head and hit me with a belt and pushed me into my dressing drawer.” [ 110 ] The complainant says that someone else then talked to her and Ms. S separately at school. She believes it was a social worker. She remembers someone coming to the house and telling her to pack up her stuff. That is how she began living with a foster mother.

She says that shortly after going into foster care, adults started talking about returning her to her grandmother. The complainant agrees that she would “do anything to stop that from happening”, but denies that this included making up allegations against her uncle. She agrees that she was happy living with her foster mother and did not like her grandmother’s rules. However, she says that if her grandmother would stop hitting her then “I don’t mind staying there”.

Given her explanation, I do not consider the complainant’s concern about how her grandmother was treating her as a compelling basis for her to fabricate allegations against her uncle. [ 111 ] What is more, while the complainant in fact volunteered the disclosure about her uncle to her foster mother, a trusted adult in her life, it took her some time before she decided to report it to the police. The complainant explains that she “got scared” when her foster mother asked her if she wanted to report the incidents to police. She remembers saying to her foster mother, “no, I can’t, Grandma told me not to”.

She remembers her foster mother saying to her, “what do you think is right with you?” She thought about it and eventually told her foster mother that she wanted to report the incidents to police. She remembers a constable showing up at her foster mother’s house and giving her his business card to think it through if she wanted to proceed with a statement. She gave her first police statement approximately seven months after first telling her foster mother. On my assessment of this evidence, the complainant did not appear to be overly eager to report Mr. D to the authorities.

Having considered the argument that the complainant was motivated to fabricate allegations against Mr. D so that she would not have to move back into her grandmother’s house, I do not find it compelling for these reasons. [ 112 ] There is no burden on the accused to show a reason why the complainant would make false allegations against him. I must be careful not to conflate “the mere absence of evidence that the complainant has a motive to fabricate” with the “proven absence of a motive” to fabricate, as explained in R. v. Swain , 2021 BCCA 207 at para. 31 .

There is no compelling evidence of a motive to fabricate, nor is there compelling evidence that the complainant has no motive to fabricate. Having considered the issue of motive, on the facts of this case, I find that it does not tell strongly in either direction.

My decision to attach little, if any, significance to the evidence of motive to fabricate does not lead me to proceed on the assumption that the complainant is telling the truth. [ 113 ] Despite defence counsel’s skilful cross-examination and effective submissions, overall, I found the complainant to be a credible and reliable witness. [ 114 ] The complainant was an attentive, careful, and sincere witness. She listened carefully to questions, and mostly, provided responsive answers. In cross-examination, she was not evasive or combative. She conceded certain points that she might have considered

to go against the credibility of her position. For example, she admitted that it made sense to go to Los Angeles to show the baby to heraunt’s family even though she does not remember a baby being there. She admitted saying in her police statement that the first incidentoccurred in a “white van”, even though her uncle did not purchase a Dodge Caravan until two years later. Even though the complainantfairly admitted some points put to her in cross-examination, she was not overly suggestible. She was not a witness who showed aninclination to simply agree with whatever was put to her.

Indeed, counsel put some assertions to test her suggestibility, and thecomplainant did not agree with them. [115] With regard to memory, this is not a case involving a complainant who had a lapse in memory and later recalled what happened toher.

The complainant appeared to have a relatively good memory of the events in terms of where they occurred; who else was there; andmost significantly, the specific sexual acts, which she described in detail. [116] The complainant’s testimony as a whole gave a coherent account of the context and circumstances in which the touching occurredanchored to certain events in her life. Her memory of these events was anchored by the trip to Los Angeles. She is not sure when thetouching started, but she remembers telling her grandmother about it during a family trip to Los Angeles.

This is significant because thecomplainant testified about events that happened seven years earlier when she was a child. She was able to do so in a way that fit withthe religious practices, family outings, living arrangements, and relationships that existed in her grandmother’s home at the time. [117] The complainant gave an appropriate level of detail given her age and level of maturity. She presented as a youthful 19 year oldwho has some challenges in her mental development and ability to communicate. She explained being in a “disability class” and notbeing good at math.

She agreed turning 12 years old on [omitted for publication] 2015, but was unable to confirm that she was 12 yearsold between December 1, 2015 and July 22, 2016. She knew she was born in 2003, but was not sure what birthday she celebrated in2015. She had a hard time answering what 12 + 3 was. When counsel put to her that 12 + 3 equals 15, she said “yeah”. In thesecircumstances, it is not surprising that the complainant did not remember how old she was when they took the family trip to Los Angeles.Initially, she said that she was 13 years old.

There is independent evidence that they went to Los Angeles in July 2016, at which point shewould have been 12 years old. After looking at her passport, the complainant agreed that she was 12 years old when they went to LosAngeles in July 2016. [118] It is also not surprising that the complainant did not remember certain details like which incident came first, how spread out theywere, or how soon before that trip to Los Angeles the last incident occurred. This is to be expected given her age and mentaldevelopment.

She explained how her “brain works” in that she has a hard time recalling events in the order that they happened. Shereadily acknowledged that there are parts of her police statement that sound confusing: “When I was giving this statement, I was explaining the story immediately in my mind came with another part that happened, that doesnot make sense and does not add up to the story. When I was reading this at home, when I talk about it, it is confusing. I was talkingabout this day. Out of nowhere, I mentioned this thing. It is not like an order that happened. That is how my brain works.

When I wastalking about what he asked me, when I am done, that thought came to my head, and I just said it. It is not the actual order”. [119] The Supreme Court of Canada has long recognized that children experience the world differently than adults and, therefore,details like the time, place and frequency of events may be missing from their recollections because such details may be less important tothem: R. v. W.R. (SCC), [1992] 2 S.C.R. 122 at pg. 134.

For these reasons, I do not consider the inconsistencies in herevidence regarding the timeline and sequence of events to detract from the credibility or reliability of the substance of her recollections. [120] It is also not surprising that the complainant does not remember a baby. I must conclude that she was wrong on this point becausethere is independent evidence that the baby was born in October 2015. However, it does not follow that she was caught in a lie.

Shemade a number of admissions against interest and readily acknowledged that she may be mistaken in her recollection: “I thought she waspregnant but I could be wrong”. I consider this inconsistency to be on a peripheral detail because the complainant knows that her auntand uncle have two sons together. She remembers living with them when they had their babies. The detail that was missing from thecomplainant’s recollection was when the first baby was born. That is not surprising given that her memory of the incidents was anchoredby the trip to Los Angeles, not by the birth of a baby nine months earlier.

That detail is not integral to her overall account of the fourincidents because nothing turns on this: E.A.G. at para. 203. For these reasons, I do not consider this flaw in her testimony about a babyto detract from the credibility or reliability of the substance of her recollections of the four incidents. My conclusion is reinforced by theobservation that she was not the only witness who misremembered the number of babies. Both Ms. S and Mr.

D initially referred to twobabies, and then clarified their evidence that there was only one baby. [121] Overall, and for the reasons that I will explain, I considered the complainant’s version of events to be coherent, cohesive,believable, and internally and externally consistent on material points. There were inconsistencies in her evidence on peripheral details.While some details changed and some new details emerged at trial, her overall version of events has remained the same throughout theproceedings. Her evidence was not perfect.

That said, the imperfections did not undermine my confidence in the complainant’stestimony. Inconsistencies in the Complainant’s Evidence [122] That brings me to a consideration of inconsistencies in the complainant’s evidence in the context of each incident and argumentsmade by counsel for Mr. D. Vehicle Incident [123] Counsel argues that, when viewing the evidence in relation to this alleged incident in its totality, which includes Mr.

D’s denialthat he ever touched the complainant’s breast in a vehicle or anywhere else, the allegation by the complainant defies logic, credibility, orreliability and ought not to be believed. No Material Inconsistency Regarding Location

[ 124 ] I reject the argument that there is an inconsistency between the complainant’s trial testimony and police statement as to where the touching occurred because it does not accurately reflect her evidence in two main ways. First, the complainant was asked to review that police statement in cross-examination, and in particular, the following excerpt: “I know he touched my breast, I was thinking which one of the two. Like at home or in the car when we were heading back from church”. The complainant does not agree with how counsel interpreted her words in the police statement.

The complainant is sure she was in a “car”. She says, “I just remember I was in the car”. That is her memory when she gave her statement to police and when she gave her evidence at trial. She agreed that her police statement sounds confusing and gave a sincere explanation for why given how her brain works. [ 125 ] Second, that argument is based on a

summary of her trial testimony that she is certain and did not deviate in her position that it happened in the white Dodge Caravan. However, that

summary does not accurately reflect the complainant’s evidence. In direct examination, the complainant remembers that he touched her in a “car”. She says it happened in a “car”. In cross-examination, she says that she just remembers that she was in a “car”, and she was sure she was in a “car”. Defence counsel then asked, “By car, do you mean Caravan?” Her answer was “Yeah”. The complainant acknowledges describing the vehicle as a “white van” in one of her police statements. When counsel put to her that she said it was a “white Dodge Caravan”, her answer was “yes”.

Inconsistency on type of vehicle [ 126 ] This brings me to another inconsistency in her evidence. The complainant described that vehicle as both a “car” and a “van”. The complainant’s evidence on a “van” is consistent with the type of vehicle that her uncle owned, but not consistent with when he owned it. There is independent evidence that Mr. D purchased a Dodge Caravan in April 2018. To the extent that the complainant believes the incident took place in that Dodge Caravan, she is mistaken in that recollection because Mr.

D did not own this Dodge Caravan during the indictment period. [ 127 ] Counsel argues that this is a material inconsistency in the complainant’s evidence, and the impossibility of the incident occurring in a Dodge Caravan undermines the credibility and reliability of her overall account. However, the impossibility of this incident is in relation to it occurring in the Dodge Caravan, not in a vehicle. The complainant’s evidence was consistent on the material detail that the incident took place in a vehicle.

I consider her evidence on the type of vehicle to be an inconsistency on a peripheral detail for two main reasons. [ 128 ] First, her evidence is about what happened inside the front passenger seat of a vehicle when it was dark outside. Her evidence is that she was seated in the front passenger seat and Mr. D was seated in the front driver’s seat. Her evidence is that he reached over from the driver’s seat and put his right hand down her shirt to touch her left breast. Her evidence was uncontroverted that the driver’s seat is to the left of the passenger seat.

Details regarding what the outside of that vehicle looked like become less important because nothing turns on whether that front passenger seat was in a van or in a car. Details regarding what the inside of a van looks like

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