Her Majesty the Queen - v. -, 2016 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 097 Date: August 3, 2016 Information: 90116007 Location: Lloydminster _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.M.P. Appearing: P. Scott For the Crown J.M.P. Self-represented ORDER RESTRICTING PUBLICATION: Pursuant to s. 486.4 of the Criminal Code , the Court has ordered that no one may publish, broadcast or transmit any information that could disclose the identity of the complainant. JUDGMENT S.P. WHELAN , J Introduction

[1] J.M.P. was charged with a sexual assault of his six-year old daughter contrary to s. 271 of the Criminal Code. [2] Two issues arose in this trial:

a) The use of the complainant’s statements to third persons.

b) The credibility and reliability of the witnesses. [3] In criminal proceedings, the Crown is charged with the burden of proving its case beyond a reasonable doubt.

My decisionrested principally on my assessment of the credibility and reliability of the evidence of the witnesses and in making my findings, I havebeen mindful of the criminal burden of proof. [4] As my review of the evidence discloses, I had considerable doubt about the reliability of the evidence of the complainant I.P.and this was due in part to concern that the mother had exercised inappropriate influence and that her daughter was presenting evidencethat she believed her mother wanted. [5] I have found J.M.P. not guilty of the charge of sexual assault and this judgment outlines my review of the evidence and myreasons for reaching this determination. [6] As many of the witnesses, both family and friends, are closely identified with the identity of the complainant, I.P., I havebeen careful to identify such witnesses by their initials.

Only those testifying from a professional or employment capacity have beenidentified by their full names. Discussion of the Law

b) The use of the complainant’s statements to third persons. [7] Several witnesses, introduced by the Crown were asked questions by the Crown about complaints of sexual assault by I.P. tothird parties. I agreed to hear the testimony and determine its use after all of the evidence was in for two reasons:

i) the Crownmaintained that the testimony was not being introduced for the truth of the statements but rather for the fact of the complaint and as partof the narrative. ii) J.M.P. wanted the testimony to be heard as it was endemic to the history and position of the defence which was thatI.P.’s complaints, represented in the admitted video-taped evidence and the testimony of I.P., were suspect because of the role of themother and her influence upon the daughter. I was mindful that J.M.P. was self-represented and had no legal training.

As the intendeduse, particularly by the defence, was not clear at the outset, I elected to hear the testimony and leave its use to be determined after all theevidence was in and argument was presented. [8] The statements with which the court was concerned were introduced by three Crown witnesses: I.P.’s mother, A.P., a familydoctor and a child protection supervisor who spoke with I.P. immediately before and following the visit with J.M.P. as well as twodefence witnesses: a psychologist and a child protection supervisor who spoke with I.P. in relation to events at an earlier time, not withrespect to the existing allegations.

The Crown sought to introduce statements through its three witnesses in addition to a video-tapedstatement by the complainant which was admitted pursuant to s. 715.1 of the Criminal Code. [9] In R v D.C.B., (MB CA), [1994] 91 CCC (3d) 357, (Man CA) the defence did not object to theintroduction of statements to a school counsellor and used the evidence in an attempt to further its case. The Court wrote: 14 Failure to object at trial will not turn inadmissible evidence into admissible evidence: R. v. D. (L.E.), (SCC),[1989] 2 S.C.R. 111 at pages 126-127.

On the other hand, if a party does not object to the admissibility of evidence, and uses thatevidence in an attempt to further his or her own case (as, for example, in an attack upon the credibility of a witness), he or she may beprecluded from advancing a contradictory position on appeal: Stirland v. D.P.P., [1944] A.C. 315 (H.L.(E.)); R. v. Owens (1986), (ON CA), 33 C.C.C. (3d) 275 (Ont. C.A.); R. v. Ivey (Ont. C.A., February 8, 1993, unreported); and R. v. R.G. (1993), (ON CA), 80 C.C.C. (3d) 130 (Ont. C.A.).

[10] In R v Foster, (1995) (SK CA), 128 Sask R 292, at paragraph 19, our Court of Appeal discussed the narrativeexception to the rule against prior consistent statements, and adopted the following statement of the law found at paragraph 42 in R vJ.E.F., (1994) (ON CA), 85 CCC (3d) 457, a decision of the Ontario Court of Appeal: 42 To summarize. Recent complaint evidence is not admissible at the instance of the Crown as an exception to the rule against priorconsistent statements unless and until the accused raises the issue of recent fabrication.

Then, and only then, evidence of the fact of priorconsistent statements is admissible to rebut this attack. The Crown can, however, lead evidence of prior consistent statements as part ofthe res gestae (a limited tool) or as part of the narrative. To qualify as narrative, the witness must recount relevant and essential factswhich describe and explain his or her experience as a victim of the crime alleged so that the trier of fact will be in a position tounderstand what happened and how the matter came to the attention of the proper authorities.

In all cases where evidence is admittedunder the rubric of prior consistent statements, the trial judge is obliged to instruct the jury as to the limited value of the evidence. Thefact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecutionso that they can understand the conduct of the complainant and assess her truthfulness.

However, the jury must be instructed that theyare not to look to the content of the statements as proof that a crime has been committed. [11] The Saskatchewan Court of Appeal then concluded at paragraph 19: The evidence in question in this case falls squarely within the narrative exception to the rule against previous consistent statements.

Theevidence was relevant and necessary to enable the court to understand the chronology of events, the relationship of the appellant to thecomplainants, the experience of the complainants and how it influenced their course of action, the reasons for delay in bringing thematter to the knowledge of the appropriate authorities, and how it came to the knowledge of those authorities.

It was relevant to anunderstanding of the conduct of the complainants and to the assessment of their credibility. [12] In R v D.G.S., 2013 MBCA 69, the Manitoba Court of Appeal discussed the narrative exception in paragraphs 6 to 25 andstated: [15] Thus, in some circumstances, evidence regarding prior consistent statements may be led by the Crown as part of the narrative. One such circumstance is where the case relates to an historic sexual assault against a child. In this type of case, the child complainanthas delayed reporting the abuse to the police.

This court, and others, have long held that in historic sexual assault cases, the fact thatprior consistent complaints were made by the child falls under the narrative exception to the general exclusionary rule (see R. v.D.C.B. (1994), (MB CA), 95 Man.R. (2d) 220 (C.A.)). See also, Dinardo at paras. 37-38;Curto at para. 31; R. v. C.(G.) (1997), (ON SC), 8 C.R. (5th) 61 (Ont. Gen. Div.); R. v. O.B. (1995), 1995 NSCA 220 , (NS CA), 146 N.S.R. (2d) 265 (C.A.); R. v.

Ay (1994), (BC CA), 59 B.C.A.C. 161; and R. v. [F.](1993), (ON CA), 16 O.R. (3d) 1 (C.A.). [16] Typically, when such an exception is granted, the Crown is permitted to lead evidence to establish only that the priorconsistent complaints of the wrongdoings were made, not to establish the truth of their contents.

In order to give the trier of fact a morecomplete picture and understanding of the reasons for the delay in reporting the child sexual abuse to the police, the Crown is entitled tohave the complainant explain why she did not tell anyone at that time, why she did complain when she did, why it did not go any furtherand how it ultimately came to the attention of the police. [13] I have endeavoured to apply the principles in the decisions referred to above in my use of the evidence.

There had clearly been discussions between the Crown and defence about the use of the evidence and I believe the Crownwas doing its utmost to be fair to the defence.

b) The credibility and reliability of the witnesses. [14] J.M.P. was charged with a sexual assault in relation to his young daughter. Except for the cross-examination of his daughter,he represented himself in these proceedings.

As J.M.P. presented defence evidence and testified in his own defence, I have reviewed thelaw with respect to the assessment of defence evidence and proof beyond a reasonable doubt, importantly, R v W(D) (1991), (SCC), 63 CCC (3d) 397 (SCC) and R v Klemenz, 2015 SKCA 89 in which the Saskatchewan Court of Appeal reconsidered Rv M. (P.N.), (1996) (SK CA), 141 Sask R 221, 106 CCC (3d) 1 (Sask CA) and provided clarification regarding thefirst step in the stages of decision making insofar as the evidence presented by an accused, summarized as follows:

"First, if you believe the accused, obviously you must acquit and if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Secondly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Thirdly, 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." The Evidence and my findings [ 15 ] The trial began with a voir dire concerning the video-taped statement of the complainant, I.P., who was six years of age then and at the time of the trial.

She is the daughter of the accused, J.M.P. Officer Thomas Yu, the officer who interviewed her, presented the video-taped recording interview. At the conclusion, pursuant to s. 715.1 of the Criminal Code , I found the evidence admissible.

Section 715.1 provides: 715.1

(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice. [ 16 ] The complainant, I.P., attended for the interview in the company of her mother, A.P.

The interview concerned allegations between the 6 th and 10 th of November, 2015 and took place on November 25 th , 2015 at the Prince Albert Police Service. [ 17 ] Officer Yu, who has conducted between 18 and 24 child forensic interviews since 2009, provided some background to the interview. He described I.P. as “very well spoken”. During the course of the video statement, I.P. was asked to label the parts of a boy and girl on two separate drawings (Exhibit P-1).

According to Officer Yu, I.P. labelled the crotch area on the girl drawing as “jay jay” and used the expression “jay jay” to describe that area of the body where she goes to the bathroom. She used “jay jay” to label the crotch area of the boy as well. She was unable to give a name to the buttocks on the picture of the girl. She labelled the buttocks on the boy as the “bum”. [ 18 ] On cross-examination Officer Yu was asked about whether he was aware that I.P. had been interviewed pertaining to this charge, prior to the interview he conducted on November 25 th ; he was not.

It was established in evidence that I.P. was interviewed by an employee of the Ministry of Social Services, Jennifer Connolly on November 10 th and by Dr. Anderson also on November 10 th . In cross- examination, he was unable to advise about the risks associated with multiple interviews beyond saying that it was harmful to the complainant. He was also asked if during the interview he asked I.P. any questions with a view to screening for false information or influence from others.

He advised that he was not trained to screen, but rather to get the information without leading the complainant. [ 19 ] Prior to presenting the video-taped statement in the voir dire , I.P. asked if she could do this another day. A break was taken and at the conclusion the mother brought her into the soft room. The mother and child exchanged kisses and the child did not want her mother to leave. Her testimony resumed. Video-taped statement of I.P. [ 20 ] At the time of the statement I. P. was just six years of age and in grade 1, her birthday being November 5 th .

She talked about celebrating it with some cousins and friends from her school. Asked to spell her first, middle and last names; she was able to spell her first name. She seemed quite comfortable and talked freely. She was brought to the interview by her mother and a friend named Margaret. At the time of the incident she was attending a public school but as of the date of the trial she was being homeschooled by her mother. [ 21 ] The officer initiated a conversation about good and bad things that may have happened to her. She spoke of her mother being a good thing and her dad, being “not something good”.

She said that she didn’t want to be with him and wanted help not to be with him.

She described her dad as “really rude to be with”. The officer then asked her to tell him more about her dad and she replied: Well, he put his fingers in my jay-jay and I didn’t really like it. So I said, “Stop that.” And he didn’t stop it. And I said . . . when I turned around, I was just getting dressed cause I had to be with my dad.

I didn’t want to. . . [ 22 ] Officer Yu then said: “And then what happened after that?” This exchange followed: I.P.: And then when I got upstairs cause I had to be downstairs in the dark by myself . . . and when I got upstairs, he just did it again, and again, and again lots of times. Cst. Yu: Okay. Can you tell me more about that?” I.P.: Ahm. . . well, every morning he just doesn’t let me eat much. Cst. Yu: Okay. I.P.: And I’m always awfully hungry. Cst. Yu: Mmm-hmmm. I.P.: And I always get . . . sometimes I get a little because he doesn’t feed me enough.

And that’s bad news about my dad. . . [ 23 ] The statement that upstairs, “he just did it again and again and again, lots of times” was troubling as there was no evidence of such opportunity. There were many people in the home that weekend, including the mother of J.M.P., who was present in the home the entire time that I.P. was in the home.

In her testimony, discussed below, which narrows the complaint down to one occasion when she said her dad was getting her dressed, she placed three others in the home upstairs: J.M.P.’s mother C.P., his girlfriend L.L., and her son B.L. [ 24 ] When cross-examined about her statements that her father doesn’t give her enough to eat, she agreed that he just didn’t give her food that she liked. When asked about serving her pancakes she complained that he gave her pancakes every morning and she said she doesn’t like the way he makes them; she likes her mom’s pancakes.

Credible defence evidence from several sources indicated that there was ample food, and that after the first night, she ate well. All of the meals were described and pancakes were not mentioned by anyone. C.P. and L.L. testified that pancakes were not served that weekend. I.P. was described as a picky eater by L.L., the girlfriend of J.M.P. who, next to his mother was present more than any other adult. [ 25 ] Constable Yu reviewed the parts of the body on a “boy” and “girl” diagrams and then redirected I.

P. to the complaint against her father but she was contradictory and then complained about being required to bath and brush her teeth: Cst. Yu: Okay. I know earlier you had said that ahm. . . your dad touched your jay-jay there. I.P.: Yeah. Cst. Yu: Yeah? Okay. Can you tell me the last time that happened? I.P.: Ahm. . . I don’t know. Like he was [unintelligible] it was once . . it was all the time. I saw him and [unintelligible] that’s . . . forget what it was. Cst. Yu: Okay. I . . . I need you to remember and tell me everything . . . what happened there, I.

I.P.: Well, all the time, they would just make me brush my teeth every day. [ 26 ] Some difficulty with time was to be expected with a child this age. Having said that in this disjointed response, contradictory statements, surfaced again: “it was once. . . it was all the time.” [ 27 ] Constable Yu, once again attempted to direct I.P. back to the subject of the complaint:

Cst. Yu: . . . I know you had mentioned your dad had . . . had touched you earlier. Can you tell me more about that? I.P.: Ahm . . . that’s all I actually remember. Cst. Yu: Okay. And where did he touch you again? I.P.: Right here. Cst. Yu: Yeah? Wat do you call that? I.P.: A jay-jay. Cst. Yu: Jay-jay? Okay. Can you tell me who. . . who else was there at that time? I.P.: Ahm. . . well, it was just the boy, B., his mother ah. . . B.’s mom, and their dog. Cst. Yu: Okay. Yeah. I.P.: And then his mother called C. Cst. Yu: Mmm-hmmm.

I.P.: . . . and then my dad. [ 28 ] In the foregoing exchange when asked she said “Right here,” she pointed to the crotch area between her legs. Constable Yu then asked about the location of the complaint. Cst. Yu: Okay. So where . . . where did this happen? I.P.: In Turtleford. . . . Cst. Yu: . . . So where in Turtleford did this happen? I.P.: Well, it’s this little place and it’s a little house. . . . Cst. Yu: Okay. Where. . . where in the house did this happen? I.P.: Ah. . . it . . .

I don’t actually know which place it is. [ 29 ] The Officer was unsuccessful in determining from I.P. when it happened, but in the somewhat disjointed discussion that followed in which she recounted being with her mother, being at school, being told that she had to go with her dad and complaining that her mother was forced to leave her, she appeared to be referring to the November weekend visit with her father.

J.M.P. admitted that his daughter was with him from November 6 to 10 th of 2015 at Edam, Saskatchewan. [ 30 ] Asked again if she could tell the officer anything more about the incident, she said that was all that she remembered. She then launched into a complaint about her father pushing her down on the ground and cutting her hand on a sharp rock. She said this took place at her old house in Craven. She seemed to say that her mother told her about that incident. Officer Yu then advised that he was going out to speak with her mother.

On his return he asked I.P. about the pushing incident at Craven and asked her how she remembered it and she volunteered that no one told her about it but her response suggested that she may have been confusing what she was told with what she actually remembered: Cst Yu: Yeah. So nobody told you that that happened? You remembered that? I. P.: No. Somebody told me it, I just remembered it. I.P.’s trial testimony

[ 31 ] I.P. testified at trial remotely from a “soft room”. She was questioned further in chief about the specifics of the complaint of November 2015. She told the court: “He put his fingers in my jay jay and I did not like it .” [ 32 ] I.P. was asked several questions about when this took place. Asked when it happened in relation to when she talked to the police officer; she replied that it happened every time she saw him. I.P. was unable to say when she last saw her father in relation to the interview with the police officer. Asked when it occurred in relation to her birthday, she said she didn’t know.

Asked where it happened she said she didn’t know. Asked what she meant when she said she was at his friend’s I.P. added “anywhere I was he kept doing it to me.” It was late in what had been a very long day for I.P. and I suspected that she was showing impatience but possibly confusion given the history of reported complaints that have been attributed to her and are discussed below. [ 33 ] I.P. was then asked if she was told where she was when it happened and she said J.M.P. told her that it was in Turtleford at a house, in a bedroom downstairs, while she was getting dressed.

At the time she said they had an exchange in which she told him to quit and he said that he was not doing anything and she insisted “yes, you are.” I.P. said it happened when there were others in the house and she named J.M.P.’s mother C.P., his girlfriend L.L., and her son, whom she said were upstairs when it happened. She said that after it was over she went upstairs to eat. This testimony was consistent with the essentials of the single complaint evident in the video-taped testimony.

However, the evidence was that Sunday was the only morning when L.L. would have been present when I.P. was getting dressed and the corroborated testimony was that L.L., J.M.P. and C.P. participated in getting her dressed on Sunday. It was J.M.P.’s recollection that on Saturday when he returned from an early call to his work, 29 km away, I.P. was dressed and he thought that his mother had gotten her dressed. Saturday morning L.L. left early for work in Lloydminster.

It’s possible that I.P. was mistaken about who was home, but that seems unlikely as she reported that she went upstairs afterwards. [ 34 ] She was asked by both the Crown and defence counsel, what her father did with his hand. She replied to both that he held it straight out. When asked to demonstrate this she held out her hand, thumb up and straight out, while her arm was directed forward away from her body, much as someone would when about to shake hands, but more rigid. I.P. was asked to explain their relative positions while this was happening.

She said that she was bending so she could pull up her shirt and pants and he was behind her. Defence counsel asked I.P. to demonstrate in relation to a stuffed tiger that she was holding. After considerable restatement of the question and hesitation or misunderstanding on her

part I.P. put her fingers between the legs of the tiger. [ 35 ] There were problems with the physical setup outside the courtroom and with movement to and from the soft room from which I.P. testified. The soft room became very warm and it was decided, that the door should be left open to improve ventilation. This became problematic because her mother and others with an interest in the proceedings were in the waiting area onto which the door opened.

After one of the breaks taken during I.P.’s testimony, counsel for cross-examination of I.P. objected to the mother having contact with her on the breaks during her testimony. After some discussion, Crown counsel offered to and spoke to those involved. After a further break, this counsel again reported that she been had harassed and insulted by a number of people in the waiting area. The court was not in a position to address these concerns except in a very perfunctory fashion, the main aim being to endeavor to protect the proceedings and upon my instruction, Crown counsel advised them to go home for the day.

They were to be advised that they could return the next day. At another point during the testimony the support person, whom the court later learned had been in a counselling role with I.P. and who was present in the soft room throughout, began to speak. A break was taken and the Crown spoke to her and reported back that she immediately realized her mistake and she apologized.

There were two things about these events, which require comment: 1) These events occurred in the latter part of what was a very long, emotional and tense day. 2) While regrettable, these events did not in my view detract from my ability to properly assess the evidence having regard to the burden of proof in criminal proceedings, beyond a reasonable doubt. [ 36 ] Upon cross-examination by counsel appointed for that purpose, I.P. told the court that her mom was her best friend and it would seem only friend.

She reiterated that she is homeschooled and reported that she sleeps with her mom. [ 37 ] Upon further cross-examination, counsel reviewed with I.P. the events of the November long weekend in her father’s company. She didn’t have any positive remarks. She didn’t like to sleep in the basement. She recounted only one present that she received for her birthday, deer meat, which she didn’t like. She didn’t like her grandmother, J.M.P.’s mother C.P. and she didn’t like L.L., her father’s girlfriend or her son, B.L. She didn’t like L.L. because she took pictures of her.

She initially had no reason for not liking B.L., whom she initially described as “somebody’s kid” but after being pressed on this, she criticized him for trying to distract her while L.L. was taking pictures. She denied playing with B.L. I was surprised at these remarks which suggested that she was very much aware that everything was being observed, including the events of the weekend. Skype video [ 38 ] A video of a Skype conversation between I.P. and her mother on Saturday evening was played for the court. It was recorded

by A.P., I.P.’s mother and disclosed by the Crown to the defence during the trial. The Crown gave it to J.M.P. at the earliest opportunity. A.P. indicated that she’d given it to the RCMP. [ 39 ] In the video I.P is upset from the outset and this continues throughout. The only reason she gives for her upset is that she misses her mother and wants to be at home. Her mother’s expression from the outset and throughout is one of concentration and worry.

There is only a hint of a positive expression when she utters endearing remarks to I.P. [ 40 ] I.P. was asked by the Crown if that was from the same day that “he was touching you”, she replied, “yes he actually was.” The next question posed, was whether she remembered why she was so upset and she replied, “cause I wanted to be with mom”. [ 41 ] Early on in the Skype video I.P.’s mother makes reference to the last time that they saw each other and blames the adults for not letting the two of them say goodbye to each other.

She undoubtedly was referring to the Friday exchange at the school immediately preceding the visit with her father. The evidence presented at the trial was that it was a very upsetting exchange and it was not clear why. Tana Hansford, child protection supervisor for the Ministry of Social Services, advised that the mother was not supposed to be present for the exchange. [ 42 ] After several attempts to divert and calm I.P. with a number of questions, A.P. settles on reading her a book; it had the desired effect as the tears dry up for a time.

When I.P. begins to cry afresh, her mother speaks to her from the perspective that neither of them want her to be away from home. When she resumes reading I.P.’s tears dry up again. At the close of the story, her father says something in the background; it would seem that he says it’s time to say goodbye. The mother suggests that she ask her father to talk for a few more minutes. Their parting is tearful. Mom suggests another Skype the next day. [ 43 ] During cross-examination I.P. advised when asked if she has any friends, “me and my mom.” She agreed that she wants to be with her all the time.

She confirmed that she sleeps with her mom. She agreed that she feels bad when she’s not with her mother and that her mother gets sad when they’re not together too. She agreed that during the Skype video she felt bad when her mother said that she missed her. [ 44 ] Another video taken by J.M.P.’s girlfriend, L.L., discussed below, depicts a weekend in sharp contrast to the one depicted in the Skype video and testimony of I.P. [ 45 ] Further assessment of the reliability of I.P.’s testimony will be discussed below, in the context of all of the evidence.

Doctor Barbara Anderson [ 46 ] Doctor Anderson was a witness for the Crown. She is a family doctor, practicing in Saskatoon. She was presented to testify regarding a conversation that she had with I.P. regarding the alleged assault. The Crown was not suggesting that it be admitted for the truth of its content. The defence did not object to its introduction and as became evident as the trial progressed; the fact of the complaint fit in with the overall answer to the allegation, which was that it was one of many complaints orchestrated by the mother. [ 47 ] A.P. took her daughter, I.P., to see Dr.

Anderson on November 10, 2015, immediately following her visit with her father. This necessitated a drive from Prince Albert to Saskatoon. There was no evidence that this was discussed with the Ministry of Social Services whom she knew had interviewed I.P. upon the return to the school that morning. Ministry evidence during the trial was that the mother had repeatedly been encouraged to first report allegations of abuse to the Ministry, her lawyer, or police to avoid multiple interviews and examinations. [ 48 ] Despite what A.P. testified to the court, I accepted Dr.

Anderson’s testimony that A.P. told her, in the presence of I.P., that she had just arrived back from spending four days with her father and she had some concerns: she told Dr. Anderson that I.P.’s behaviour was unsettling and she wanted her examined. [ 49 ] Dr. Anderson interviewed I.P. after her mother left the room. She testified about I.P.’s report to her of a sexual assault. There was no evidence of a recording; Dr. Anderson read from her notes with respect to the content of what I.P. said.

[ 50 ] She examined I.P. and provided a memorandum of her examination, Exhibit P-4. In her testimony it was necessary to caution her to discuss only the visit of November 10 th . She had examined I.P. on November 3 rd and reported that I.P.’s weight was down, from 27 kg to 26.7 kg. Dr.

Anderson reported an excessive cheesy discharge from I.P.’s vagina; however, according to her mother no treatment was obtained and the apparent discomfort that I.P. had with urinating resolved on its own. [ 51 ] I.P. has been into her clinic at other times before and after visits with her father at which time her weight was recorded. Apart from estimating that this could have happened about five or six times over the space of a year, Dr. Anderson could not advise of the purpose of these visits or indeed the purpose of the visit on November 3 rd . She had not brought her case notes to court.

She reported that I.P. has complained about abuse by her father before, but this was the first time she interviewed her and received such information in the absence of her mother. [ 52 ] Upon cross-examination, Dr. Anderson acknowledged that she had no training in forensic interviewing or examination. Asked why she had not referred I.P. to a pediatric assault specialty team, she replied that the medical community does not have a “grand functioning team” at present and that it was difficult to get an examination done. She was aware that I.P. had been seen by such a team in Regina in the past.

She did not share the outcome of her interview and examination with A.P. as she expected that corroborating stories would be important and did not want her to be influenced by it. She advised A.P. that she’d be reporting it to the police. I found that A.P. took I.P. to see Dr. Anderson with a view to gathering evidence for court proceedings. It occurred to me that I.P. may have come to expect such visits with Dr. Anderson and as well as what she was expected to say. [ 53 ] While I did not doubt Dr. Anderson’s good intentions, her evidence concerning the fact of I.P.’s complaint was unreliable for several reasons.

Dr. Anderson had assumed an advocacy role in relation to I.P. and the mother’s concerns expressed over time. The evidence from the Ministry of Social Services, discussed below suggested that in taking I.P. to see Dr. Anderson, the mother was manipulating the gathering of evidence. Dr. Anderson had known I.P. since birth and had cared for her mother during the pregnancy. Both I.P. and A.P. are her patients.

She wrote a letter “To Whom It May Concern”, Exhibit D-2, dated February 2, 2015, which preceded the current complaint, in which she expressed grave concern for the welfare of I.P. regarding unsupervised visits. The letter contains hearsay information which was provided to her by I.P.’s mother or grandmother. It ends with a prayer to “the court” to discontinue visits until Dr. Arnold has reported his findings. Dr. Anderson quite appropriately referred I.P. to Dr. Arnold, a child psychologist for an assessment regarding abuse but as well to address the conflict issue.

She had testified previously in family court proceedings concerning I.P. Cross-examined about her role in writing this letter, Dr. Anderson said that she tries to be objective when she makes such statements but that there were times when objective evidence is not absolutely clear and present and at that point she has to have some faith in the patient. [ 54 ] While I did not rely upon Dr.

Anderson’s evidence regarding the content or the fact of the complaint with respect to the charge before the court, I could not help but notice the similarity in wording to the complaint made by I.P. to the Ministry both on November 6 and November 10 th : that her dad had put his fingers in her “jay jay” and slapped her jay jay and she didn’t like it at all. [ 55 ] Dr. Anderson’s testimony was unnecessary. It was not presented for the truth of its contents, nor did it come within an exception to the rule against hearsay.

It could not be presented to corroborate as a previous consistent statement as there was no allegation of recent fabrication. It was unnecessary as part of the narrative as it was not presented with a view to explaining the actions of the complainant, such as is sometimes necessary for historical sexual assaults. A.P., the complainant’s mother [ 56 ] A.P., is the mother of the complainant and former spouse of J.M.P. She attended the school in Prince Albert to pick up I.P. about 8:30 a.m. on Tuesday, November 10, 2015.

The Ministry of Social Services was in attendance and they received I.P. from her father and took her into their vehicle to speak with her before returning her to her mother. [ 57 ] She said that I.P.’s hair was dishevelled, she looked kind of pale and rundown, and her lips were dry and cracked. She held on tightly to her mother’s hand. Once in her vehicle she was abnormally quiet and didn’t want to talk or have a snack. There were others in the vehicle with them.

She said that when she stopped at the post office she took I.P. with her and once through the first set of doors, I.P. stopped, her eyes filled with tear and she said, “Daddy did it again.” [ 58 ] The testimony was interrupted at this point as the court inquired about the purpose of this hearsay. The Crown indicated that it was to describe the circumstances and demeanour of the disclosure. After further discussion it was agreed that the evidence could be

introduced but its use was subject to a ruling after discussion at a later time. [ 59 ] A.P. was taken back to the point of her testimony and she added that I.P. told her that: “ he put his fingers in my “jay jay.” She said she asked I.P. to repeat herself and she then said she didn’t like it and started to cry. A.P. denied saying anything to prompt this statement. [ 60 ] A.P. then took I.P. to the family doctor, Dr. Anderson. She denied having a conversation with Dr. Anderson before she met alone with I.P. [ 61 ] She reported major changes in I.P.’s behaviour since the visit in November 2015.

She said that I.P. is afraid to go into her bedroom by herself and needs all of the lights on in order to go to sleep. She doesn’t sleep well and wakes in the night with nightmares. She cries in the night. She needs to be with her mother when she goes to a different floor of the house. If someone knocks on the door, she runs and hides. She said it was impossible to get her to go to school after the visit. When being dropped off at school, she cried and followed her mother out of the room.

A.P. said that after several attempts to get I.P. to go to school, in December she began to homeschool I.P. and before that the school had been sending homework to them. She contrasted this with I.P.’s behaviour before this last visit, saying that she slept in her own room with a night light, liked school and was in fact too friendly with strangers. [ 62 ] On cross-examination by J.M.P. she was asked about the Friday pick up at the school prior to the November weekend visit. A.P. said that he had arrived early.

She had been told to meet with the Mobile Crisis Worker there with I.P. and her bag and wait in her vehicle until he arrived. On the way to get I.P. with the Mobile Crisis worker, J.M.P. and his mother came up the school stairs. She said that I.P. became very scared when she saw them and ran around the corner to avoid seeing him. She cried. She said that the worker questioned her about what was wrong and that I.P. answered that she didn’t want to go with her dad and that every time she goes with him he hurts her “jay jay”.

I.P., A.P. and the worker stepped inside the classroom and when he tried to come in I.P. ran and hid under her desk. The worker then asked him to step outside and once he had, she began to question I.P. about her complaint. They went to the principal’s office and waited for a bit. They were joined by another woman who asked to speak to I.P. and told her that I.P. had to go on the visit as it had been court ordered. A.P. then went to get the bag and gave it to the worker. She asked to say goodbye to I.P. as she was clinging to her and was told that she could not.

A.P. apologized for not saying goodbye and told I.P. she would be back. [ 63 ] It was not clear what A.P. meant when she asked for an opportunity to say goodbye as she was with I.P. at the time. The order referred to was no doubt that of Justice Mills, of the Court of Queen’s Bench of Saskatchewan, dated October 9, 2015, the evidence having ultimately been completed on September 11, 2015.

The November access from November 6 to 10 th was the first time that J.M.P. had had access since the date of the October 9 th order. [ 64 ] A.P. was questioned about her actions after I.P. was said to have made the disclosure about the weekend visit and specifically why she drove to Saskatoon to have I.P. examined while she lived in Prince Albert. She maintained that she wanted to take I.P. to see her family doctor.

I was surprised, when she said that there was no discussion with the others in the car, her mother and friend, about what I.P. had said and that she didn’t tell the friend in whose care they were travelling, why they were travelling to Saskatoon. Asked how she felt when her daughter made this apparent disclosure, she said she didn’t know. She recalled asking I.P. if she had reported this to the ladies in the car (referring to the Ministry of Social Services workers present upon the return to the school November 10 th ).

Asked how she responded to her daughter on this occasion, she maintained that she merely hugged her. She maintained that she tried to be comforting by listening and hugging her without saying anything about the event. [ 65 ] J.M.P. questioned A.P. about her response to the disclosure of November 2015 and in particular how she expressed concern she said that she took I.P. to the doctor. He asked whether she took I.P. for counselling after the disclosure in November. She said that counselling began in March, 2016.

When it was suggested that she didn’t try very hard to get I.P. to a counsellor earlier, she maintained rather fantastically that every counsellor she contacted told her that they were familiar with the name and that they had been warned by the father not to see his daughter. She told the court that she had been told not to talk about these disclosures. Prior to the visit in November 2015, A.P. reported that I.P. last saw a counsellor, before Dr. Arnold’s involvement, when they separated in 2012. [ 66 ] J.M.P. cross-examined A.P. about why visits with Dr. Arnold were suspended in 2015.

She replied, in part that Dr. Arnold had started cancelling appointments with her. A.P. said that when she asked Dr. Arnold about it he apparently said he’d been on holidays and on his return found a threatening letter from J.M.P. In re-examination she confirmed that after receiving the “threatening” letter Dr. Arnold cancelled appointments until further notice. Asked again why sessions were cancelled she said that when I.P. was going through a very difficult time dealing with supervised visits, he wasn’t available.

A.P. maintained that when she later brought up the idea of her returning to see him that I.P. didn’t want to go. Testimony from Dr. Arnold about the reasons for cancelling visits contrasted sharply with the explanations given by A.P. I accepted Dr. Arnold’s testimony over that of A.P. in this regard.

[ 67 ] A.P. denied speaking to Dr. Anderson at all, either at the outset or conclusion of I.P.’s visit with her on November 10 th . A.P. also denied discussing I.P.’s disclosure on the drive with her mother and a family friend from Prince Albert to Saskatoon that day. This was surprising given her response, “as far as I know” in answer to the question whether the other occupants in the car heard the disclosure. A.P. acknowledged being told not to talk to I.P. about a disclosure, “as much as possible”. [ 68 ] A.P.’s testimony raised doubt in my mind about her role in relation to the evidence presented by I.P.

This increased with evidence that she was prepared to circumvent the usual lines of inquiry and investigation by taking I.P. to see Dr. Anderson in Saskatoon rather than direct the complaint to the Ministry of Social Services. The evidence of Ms. Connolly and Ms. Hansford demonstrated that this was a longstanding pattern and that A.P. was well aware that she should have taken any concerns to the very people who interviewed I.P. before and after the visit, or to her lawyer or to the police, directly.

I was not persuaded that I.P. needed medical attention before and after the visit and noted that no treatment was prescribed. [ 69 ] I have given no weight to the content of the alleged disclosure to the mother. It would have been sufficient for the mother to simply testify to the fact of the disclosure, her daughter’s demeanour and her actions as a result. Having said that, I noted that the phrase bore striking similarity to the disclosures discussed by Jennifer Connolly who interviewed I.P. on both November 6 th and 10 th . [ 70 ] Where there was a difference in the evidence between A.P. and J.M.P.

I accepted the evidence of J.M.P. I gave little or no weight to the evidence of A.P. overall. Jennifer Connolly [ 71 ] Ms. Connolly is a child protection supervisor, employed by the Ministry of Social Services. On November 6 th , she attended at the school before the start of the weekend visit with the father for the purpose of interviewing I.P. as they had received a report on the family. Ms. Connolly testified that I.P. told her on November 6 th that her father had put his fingers in her “jay jay” and slapped it and she didn’t like it.

The Crown maintained that this evidence was introduced for the purpose of narrative and to address I.P.’s demeanour. The interview was not recorded and she could not say how long the interview took place. The Ministry did not interfere with the visit as a result of the interview. [ 72 ] Ms. Connolly also attended the school on November 10 th to see I.P. after the visit with her father and interviewed her again. Ms. Connolly witnessed her arrival in the company of J.M.P. and his mother and saw I.P. give both of them hugs and say goodbye.

She testified on cross-examination that I.P. made a very similar disclosure as she did on November 6 th , that her father had touched her “jay jay”, slapped it and she didn’t like it. Asked further about the interview on the 6 th , she apparently said that her father had touched her lots of times, every time she saw him.

Upon re-examination the witness added that with respect to the November 10 th interview, she said he did it lots when she was at his house. [ 73 ] In response to the November 10 th interview the Ministry decided to seek a family service agreement with A.P. as they were concerned about I.P.’s wellbeing when in her mother’s care, more specifically the concern was emotional abuse which was explained to mean the number of times I.P. has been examined by a doctor. A case plan was discussed and the Ministry sought a three-month supervision order. [ 74 ] Ms.

Connolly, who had reviewed the Ministry’s records concerning I.P. prior to November 2015, described in a

summary fashion the involvement of the Ministry with I.P. and her mother, from September 2012 to February 2014 when the file was closed: i. September 14, 2012, A.P. contacted the Ministry because she was concerned about court ordered (order dated September 12, 2012) unsupervised access the following week. On September 25, 2012 Regina Mobile Crisis on behalf of the Ministry of Social Services attended the Regina General Hospital regarding concerns of sexual abuse reported by A.P. ii. October 31, 2012 there was another report of sexual abuse by A.P. iii.

March 31, 2012 the Ministry met with the Pediatric Outpatient Department in Regina to document the frequency and nature of I.P.’s contact with the medical system at the instance of A.P., to assess the safety of I.P. being in the custody of her father, to document Child and Family Services medical reasons for concerns, to discuss options regarding court ordered custody arrangements, and to consider whether a third party case review was needed regarding the possibility of medical child abuse. I.P. had

been seen by the child abuse clinic four times due to allegations of sexual assault and in this regard I.P. had had two sexual assault examinations and two physical examinations, which included examining and photographing her vaginal area. These examinations were inconclusive and no signs of trauma were found. iv. June 10, 2013 I.P. was apprehended due to emotional abuse and because A.P. was unwilling to address a safety plan to address concerns raised by doctors and the RCMP. v.

July 16, 2013, the Ministry obtained a two-month consent supervision order requiring that A.P. complete a psychiatric assessment, refrain from making reports with respect to I.P., except as necessary and in consultation with the Ministry and her counsel, that she refrain from taking unnecessary inappropriate photos of I.P. and that she and J.M.P. work cooperatively with the Ministry which included allowing access by the Ministry to their homes. Exhibit D-5 is the Order of Justice McMurtry of the Court of Queen’s Bench. vi. The file was closed February 4, 2014. vii.

The next direct involvement of the Ministry was on November 6, and 10, 2015, after which the Ministry sought a psychiatric assessment of the parents as a result of the ongoing concerns of the Ministry with A.P. [ 75 ] The Ministry found interactions with J.M.P. to be cooperative and with A.P., uncooperative. She was unaware of any restrictions on his contact with I.P. at the behest of the Ministry. [ 76 ] I found that it was suitable to hear the disclosures of I.P. through Ms.

Connolly as it was relevant to I.P.’s behaviour and in particular the Ministry’s actions and testimony about the history of its involvement with the family. Needless to say, the disclosures were not accepted for the truth of the contents. Ms.

Connolly’s evidence about the frequency with which I.P. came in contact with doctors to address allegations of sexual abuse, A.P.’s reluctance to cooperate with the Ministry in this regard and in particular the Ministry’s overall concern for I.P.’s emotional wellbeing in A.P.’s care, raised questions in my mind about possible manipulation and inappropriate influence by the mother with respect to the sexual assault allegation before this court. Doctor Arnold [ 77 ] Dr.

Arnold was qualified to testify as an expert witness on behalf of the defence in the area of clinical impressions and observations based on an extensive counselling relationship with I.P. He has worked with children who have suffered physical or emotional abuse since 1988 and has previously testified in this regard. [ 78 ] Dr. Arnold met with I.P. and her mother, A.P., from January to July of 2015. The mother contacted him for an appointment, having received a referral from Dr. Anderson.

At the outset he was given background information about what he described as a high conflict divorce and family situation and he was made aware of allegations of sexual impropriety by the father, J.M.P. There were twelve sessions with I.P., four sessions with A.P. and two with J.M.P. When he met with I.P. he spent between 20 and 40 minutes alone with her and the balance of the one-hour session would be with A.P. or with A.P. and I.P. Overall he described I.P. as a very robust child with a high level of verbal skills; she was not inclined to be persuaded otherwise once she had made a decision.

He observed some situational emotional reactions and some agitation but saw no signs of a mental health issue. [ 79 ] He explained that the sessions stopped in July 2015 because of an investigation by police. He was then subpoenaed to testify for A.P. in a family court proceeding scheduled for September of 2015 and felt that sessions should not resume until it was concluded. Following that he received an email from A.P. on October 25, 2015 in which she withdrew consent for further clinical services from him. An appointment arranged by J.M.P. to see Dr.

Arnold during the November visit had to be cancelled when A.P. withdrew her consent. [ 80 ] Dr. Arnold discussed with I.P. her use of the term “jay jay”. It was a term shared between the mother and her and was derived from Oprah Winfrey’s use of the term “vjayjay”. She told Dr. Arnold that her father had touched it in the process of spanking her; his hand had come in contact with her between her anus and vestibule area around the vagina and urethra. She was more offended by the physical discipline during which he had touched the area. She gave him this information spontaneously. [ 81 ] At times I.P. told Dr.

Arnold that she wanted to live with her mom and see J.M.P. His assessment was that there were some barriers to J.M.P. having contact and he planned to deal with those barriers so that contact could resume. They were developing a list of her complaints during their sessions. His clinical objective was to facilitate telling J.M.P. how he had offended I.P. and then within a therapeutic process have J.M.P. explain himself. I.P. had not raised a concern of a sexual nature about J.M.P. and he felt that she had provided quite a comprehensive list of her complaints.

[82] He was asked about the influence of a parent who brings a child to see him and whether it is important to meet both parents.He agreed and elaborated saying that: Children are responding to the cues, both overt or what the parent actually says and they’re also responding to what they pick up innonverbal ways, more covert or not expressed by a parent and those queues then prompt the child to respond in particular ways to whatthe matter under discussion is. [83] He observed that I.P. responds very well to her mother.

He detected a degree of “loyalty conflict”, which he defined to meanwhere a child is aligned with one parent and reluctant to align themselves with the other parent because they feel that parent onedisapproves of parent two and they don’t want to align themselves with parent two for the sake of displeasing parent number one. [84] Asked about her level of understanding regarding what is real or true he said that I.P. was typical in the sense that childrenmay or may not separate reality from fiction depending on the circumstances. [85] Dr.

Anderson agreed that I.P.’s mother was creating an atmosphere of concern around I.P. spending time with her father. [86] The Crown did not object to any of the testimony by Dr. Arnold. The defence lead evidence of the conversations with I.P., nodoubt to highlight that despite earlier allegations of sexual abuse, she did not disclose any instance of same to him. The one incidentdescribed by Dr. Arnold was relevant to clarify that it was not a sexual touching. [87] There was some question in mind about the suitability of Dr.

Arnold giving expert testimony in two areas, regarding “loyaltyconflict” and I.P.’s understanding of the truth. These areas of testimony might not have met the requirements of relevance and necessity,and I was concerned that they may have impinged upon the fact-finding process. See R v Mohan, (SCC), [1994] 2 SCR9, R v Parrott, 2001 SCC 3 and R v D.D., 2000 SCC 43. Consequently, while there was no argument in this regard, I have been cautiousabout these areas of testimony. I.P.’s out of court statements to Dr. Arnold could not be used to disprove the current allegations orquestion her credibility.

Doctor Savoy [88] J.M.P. called Dr. Savoy who was qualified to give expert testimony regarding his general mental health status based onclinical subjective and objective evaluations. She has worked for 21 years in the field of adult clinical psychology. She has previouslytestified in and provided reports for court proceedings. Her report was filed with the court as Exhibit D-8. [89] J.M.P. began a counselling relationship with Dr. Savoy as a result of the term of a probation order which required that hereceive ongoing counselling. He continued to see her after the order expired.

She had no concerns about J.M.P.’s mental health orstability and advised that he coped very well with stress, that he has a support system and takes care of himself. [90] While Dr. Savoy’s evidence cannot assist directly in an assessment of whether J.M.P. sexually assaulted his daughter, hiscommitment to counselling put his character in a positive light. C.P., the mother of J.M.P. [91] C.P., a retired school teacher, is the mother of J.M.P. She was present throughout the entire visit from November 6th to 10th.

She was there when J.M.P. picked up and returned I.P. at her school on the 6th and 10th in Prince Albert. [92] She recalled that on November 6th A.P. was there, that there had been a delay and that she and her son were then ushered intoa room with social workers as there were some issues. She described I.P.’s manner that day; she said that by the time they left she was

fine. She described walking out of the school holding hands at which time she did not cry nor did she seem visibly upset although she was quiet. [ 93 ] C.P. went through a series of photos (Exhibit D-3) taken during the visit at J.M.P.’s home. There were several other family and friends there for I.P.’s visit and birthday celebration. In photo A depicting I.P. at the table during meal time she described I.P. as being very happy. She recalled that as I.P. became more comfortable with the surroundings she became her usual self.

She was asked pointedly about I.P.’s eating during the weekend and said that the only time she didn’t eat during the visit was the first evening and she said that there were no pancakes served that weekend. She explained that meat was not among the presents but that she brought some sausage made by her husband. She didn’t witness any distress or fear of J.M.P. [ 94 ] During cross-examination she recalled that Saturday morning there was a period of time when her son was downstairs while she was upstairs in the house.

G.F., a friend of J.M.P. [ 95 ] G.F. and his family visited during the days of Sunday and Monday of the long weekend. They arrived after lunch on Sunday November 8 th . He described the activities that I.P. and his two young children participated in and in reviewing the photos in Exhibit D-3 described I.P. as a “normal, happy kid”. The last time that he’d seen I.P. was in November 2014 when I.P. and her father visited his family in their home and stayed overnight. On that visit as well he found I.P. to be happy and witnessed no distress on her part.

L.L. the girlfriend of J.M.P. [ 96 ] L.L. is the girlfriend of J.M.P. She brought her son and they visited during the November 6 th to 10 th weekend, arriving Friday evening and leaving early Monday morning. She recalled that when she and J.M.P. showed I.P. her bedroom, she was excited to have her own room. Later that evening she recalled that J.M.P. read bedtime stories to I.P. and her son in her bedroom. [ 97 ] On Saturday morning she left about 9:00 a.m. for work in Lloydminster and C.P. and J.M.P. were home with the children until her return around 8:00 p.m.

The kids were excited to show her the baking that they’d done with C.P. They started the bedtime routine. While her son showered, I.P. had a Skype conversation with her mother. She observed that I.P. had been quite upset when she finished the call. They got the kids ready for bed and went into I.P.’s room again to read as they did Friday evening. The kids didn’t go to sleep readily so they let I.P. and her son watch a movie on the couch in the living room and I.P. fell asleep while watching TV. That night I.P. asked to sleep on the couch with L.L.’s son. [ 98 ] Sunday morning the kids had cereal for breakfast.

Then they got ready to go to church and she noted the that I.P. did not have a lot of clothes packed; there were not enough outfits for each day of the visit. More family and friends began arriving Sunday. [ 99 ] L.L. described I.P. as being happy until the Skype call with her mother. That was the only time that she saw her in distress. Otherwise she found I.P.’s demeanour to be pretty consistent throughout the weekend. She thought that I.P. was a picky eater but they always found something for her to eat.

She didn’t see pancakes prepared while she was there. [ 100 ] Some of the photos and the video of the children playing outside with J.M.P. were taken by L.L. The video, taken on Sunday, shows four children, including I.P., her son and G.F.’s two little girls being swung around by J.M.P. in turn. On two occasions, I.P. approached her father for a turn at being swung around. Everyone appeared to be enjoying themselves. [ 101 ] The testimony of J.M.P.’s mother C.P., his girlfriend L.L., and his friend G.F., as one would expect of family and friends, was supportive of J.M.P.

While acknowledging their interest, their testimony as a group was notably consistent in depicting a weekend in which I.P. was well fed, engaged in a variety of activities, and with the exception of the Skype call, happy. They depicted a celebratory atmosphere in which I.P. was surrounded by people who were interested in her welfare. Tana Hansford

[ 102 ] At the time of the trial Ms. Hansford was a supervisor in the Child Protection Unit of the Ministry of Social Services. Prior to that she’d been a child protection worker. She attended a meeting in May 2013 with the Child Abuse Medical team in Regina during which several concerns were addressed, including that I.P. had been examined by the Child Abuse Team, which included physical exams, on four separate occasions.

During this meeting she saw a large number of photos of I.P., taken by her mother, the majority of which were pictures of I.P.’s genitals, of her toileting, and close up photos of her vagina and buttock areas. [ 103 ] She described her involvement in the events of June 10, 2013. She was contacted by the Lumsden RCMP with a request to attend the home of A.P. On an earlier weekend when a visit between I.P. and J.M.P. was to take place there had been a high level of conflict so the RCMP had been called and attended.

The RCMP asked for her assistance in performing a child welfare check on the 10 th as A.P. did not want the RCMP at her home. When they attended no one was home; a missing persons’ report was filed because I.P. was supposed to be with J.M.P. that weekend and she could not be found. [ 104 ] Against Ministry recommendations, A.P. had continued to make reports of abuse and really struggled to enter into a safety plan to minimize the harm to I.P., so they attended the home to confirm I.P.’s welfare and discuss the concerns raised at the May 2013 meeting. Ms.

Hansford enumerated two safety threats that had been identified at the meeting: 1) that I.P. was likely to experience emotional trauma and 2) that A.P. had been reluctant with following through with child protection and criminal investigations. The Ministry felt that they needed an outside monitor to insure that the parent followed through and as A.P. was unable to do that, the Ministry resolved to apprehend A.P. [ 105 ] At the time of the apprehension on June 10, 2013, as they drove away, I.P. offered up information without prodding that her daddy had touched her “jay jay”.

She said that her daddy is very scary and mean. Ms. Hansford asked as she normally does, whether anyone told her to say this and she said that her mommy told her to say it. In response, Ms. Hansford stopped asking questions immediately. I found that this statement by I.P. was relevant to explain Ms. Hansford’s actions and was also necessary to a discussion of the steps taken by the Ministry.

Needless to say no weight was given to the content, only the fact of it being made was pertinent. [ 106 ] As the Ministry was aware that there was a joint custody agreement, J.M.P. was contacted and I.P. was taken to him with a view to placing I.P. in his care. She wanted to watch their interaction before leaving her and saw that I.P. was happy to see her father and she cuddled on his knee for quite a while.

Shortly afterwards A.P. entered into an agreement with the Ministry which included a condition that should she have concerns of abuse that she take those concerns either to her protection worker or her lawyer first. This was with a view to avoiding I.P. being interviewed by a large number of people. I.P. was then returned to her mother.

The Ministry continued to seek a supervision order from court as the concerns continued. [ 107 ] As the Ministry was concerned about the level of conflict between the parents, it was proposed that there be an intermediary to participate in the exchanges of I.P. between parents. [ 108 ] Ms. Hansford’s evidence reinforced concern about the reliability of I.P.’s testimony given the mother’s history of single minded preoccupation with sexual assault allegations. J.M.P. [ 109 ] J.M.P. provided a history of previous child abuse allegations with a view to putting the current allegation in context.

This included a synopsis of their custody and access dispute, allegations of sexual abuse by him, which he said were unsubstantiated and allegations of emotional abuse by A.P. [ 110 ] I.P.’s parents separated in May 2012 when she was 2 ½ years old. Prior to the separation J.M.P. had been very involved in her parenting. After encountering difficulty reaching agreement over parenting time he brought a court application in September 2012 and A.P. countered with an application for supervised access. On September 13, 2012 the Court of Queen’s Bench ordered frequent unsupervised access.

A.P. made two subsequent allegations of sexual abuse in September 2012. A third allegation arose in April 2013. Access was delayed while investigations were conducted and allowed to continue once they were found to be unsubstantiated. [ 111 ] He recalled the June weekend in 2013, discussed by Ms. Hansford, when he was to have exercised overnight access, and a missing persons’ report was filed when no one was found at A.P.’s home. I.P. was apprehended on June 10 th and placed with him. She

remained in his care until the beginning of July and he was allowed unsupervised parenting thereafter. Minutes of Settlement dated October 16, 2013 included one week’s access in every three. By then he’d moved to Turtleford for employment and this continued until mid-May 2014. After a custody and access report came out A.P. unilaterally cancelled access. A further agreement was mediated with court assistance and he was to have unsupervised access that contemplated the school year. A consent divorce judgment, dated July 4, 2014, incorporated this custody and access arrangement.

At that time A.P. was living in Prince Albert. The parties had been referred to high conflict mediation. Soon after the consent order, A.P. began to deny access again. [ 112 ] Problems arose again after a weekend access at the end of November 2014. A.P. denied access in December 2014. In January 2015 when he applied to have access enforced, A.P. countered with allegations of molestation. Notwithstanding an interim Queen’s Bench Order, dated July 2015, granting unsupervised access, A.P. refused to permit access to I.P.

After trial, judgment dated October 9, 2015, ordered a return to the access contained in the divorce judgment of July 4, 2014, compensatory access and encouragement to resume counselling with Dr. Arnold. Justice Mills found that J.M.P. had refuted the allegations of sexual abuse. The first period of unsupervised access following this judgment was the weekend in question, Friday November 6 to 10 th .

Some detail about that weekend is in order as it is relevant not just with respect to the allegation of sexual assault but as well other complaints suggesting that I.P. was miserable and poorly fed and cared for by J.M.P. [ 113 ] When J.M.P. arrived at I.P.’s school in Prince Albert on November 6 th , A.P. was there with I.P. and she had locked them inside a classroom. A Mobile Crisis worker, who had been there to facilitate the exchange, called in a worker from the Ministry of Social Services.

After some time, a worker came to tell them that A.P. had been asked to leave and that I.P. could go with him but was in some distress. I.P. was crying and screaming, saying that she wanted her mom back and didn’t want to go with him. J.M.P. managed to calm her down a bit, his mother offered to hold her hand, and they walked to his car together. Ministry workers escorted them as they drove out of Prince Albert. [ 114 ] Almost immediately, I.P. fell asleep in the car. She awoke in good spirits shortly before they arrived at J.M.P.’s home. She hadn’t seen it yet and was excited to have her own room.

She said she wasn’t hungry. His girlfriend, L.L. arrived with her son about 7:00 pm. At bedtime all three adults participated in the routine: J.M.P., his mother C.P. and girlfriend, L.L. His mother’s bedroom was adjacent to I.P.’s bedroom. [ 115 ] Saturday morning, L.L. left about 8:30 as she had to work that day in Lloydminster. J.M.P. had gotten up about 7:30 a.m. to make breakfast. The kids, I.P. and B.L. woke-up as L.L. was leaving. They had cereal and fruit for breakfast.

J.M.P. was unavoidably on call that weekend and he received two calls at 9:00 and 11:00 a.m. to go to his place of work which was 29 km’s from his home. His mother, C.P. watched the kids while he was away. The kids played Wii games that morning. [ 116 ] He recalled that on his return about 11:30 a.m. that his mother had gotten I.P. and B.L. out of the pajamas and dressed; he was fairly certain that they got dressed while he was away at his work. Saturday, is the morning when the allegation of sexual assault was said to have taken place.

He denied touching her in a sexual or other inappropriate way that morning or at any time. [ 117 ] Saturday’s lunch included grilled cheese, soup, fruit and vegetables. He noted in photo A, Exhibit D-3 taken during that lunch, that I.P. was happy and said that this was consistent with her manner throughout the weekend. The Skype phone call with her mother was the exception. He said that I.P. ate better as the weekend progressed. [ 118 ] That afternoon, I.P. went riding on her new bike. Photos B and C of Exhibit D-3 were produced to illustrate this and J.M.P. said she was smiling and quite excited.

The three of them, J.M.P., I.P. and B.L. then went to the school playground in Edam. See photos D and E of Exhibit D-3. They played on the swings and jungle gyms. Tag followed until I.P. wanted to practice riding her bike so they went to the nearby Esso for ice cream. They then went across town to a windmill monument. Photo F of Exhibit D-3 was taken there while he is above the kids and he noted that I.P. was holding her ice cream and happy. They returned home where baking was underway for the birthday party the next day. Photo G shows I.P. in the kitchen and J.M.P. noted the look of concentration on I.P.’s face.

Photos H and I depict I.P. in front of a cake and pies. She enjoyed it but was surprised when told that the birthday cake was made from beans. I.P. can be seen taking a mouth full of pie in photo J. [ 119 ] The kids asked for spaghetti for supper and they had sausage brought by his mother as well as fresh vegetables. After supper they had popcorn and watched a movie. About 8:30 p.m. L.L. returned from work. I.P. was whimpering and said that she missed her mom so J.M.P. suggested that they Skype. The call lasted about 15 minutes and I.P. was upset throughout. Meanwhile B.L. showered for bed.

The call ended when I.P.’s bath was ready. He’d been advised long ago that I.P. was sensitive to vulvovaginitis so he put a ½ cup of vinegar in the water as recommended by a pediatrician.

[ 120 ] J.M.P. bathed her with the door to the bathroom open and remembers his mother walking by a couple of times. His mother took over, with shampoo, shower and brushing of teeth. The bedtime routine turned to stories, followed by a movie. I.P. asked to watch the movie with B.L. She slept on the couch while B.L. slept on the loveseat. [ 121 ] Sunday morning the kids woke up at about 8:30. L.L. and his mother helped him get I.P. dressed. There was very little in her suitcase to accommodate a four-day visit: no toothbrush, no toiletries, and no swimsuit, though they had asked that one be sent.

They got ready for church at St. Walburg about 45 minutes away. After lunch family and friends began to arrive for the birthday party. Before opening presents, they went into the yard to play. The video which is Exhibit D-9 was taken by L.L. at this time. [ 122 ] Photos helped depict the birthday celebration in which I.P. was surrounded by family and friends. She received a lot of “neat” presents including a “Frozen” doll and story book, an arts and crafts package, and play makeup from L.L. J.M.P. is shown sitting next to her as she opens presents in photos L., M., N. and O.

It was I.P.’s idea to spin the bottle to determine which present to open next. For lunch they had burgers, hotdogs, veggies and cheese and all the kids ate well. He felt that I.P. had a good time. Most of the guests left before supper. Bedtime included stories for I.P. and B.L., followed by movies till they fell asleep. [ 123 ] Monday morning he recalled helping I.P. get dressed. He didn’t recall having any help and noted that I.P. was pretty much dressing herself that weekend. His mother, C.P. was up and in the house at the time. According to J.M.P. this is the only time that he helped dress I.P. alone.

L.L. and her son had left early that morning. After breakfast they returned his work vehicle. There I.P. played with a batch of kittens. On their return the three of them, J.M.P., C.P. and I.P, played “Sorry” in French. Lunch included left over sausage, cold cuts and vegetables. See photo O of Exhibit D-3. [ 124 ] They went to North Battleford at about 1:00 pm for a date with his friend, G.F., his wife and their two little girls. They ate an early supper with his friend’s family. I.P. ate sausage, perogies and vegetables with the rest of them.

After supper they were off swimming; I.P. loves swimming and can tread water. Luckily they were able to get I.P. a swimsuit at the swimming pool. Photos Q and R were taken by J.M.P. as I.P. enjoyed fun in the pool. He and his mother went into the family change room with I.P. where he got her into the swimsuit. Back home he read bedtime stories and they had a bit of a heart to heart talk. I.P. had a big piece of her birthday cake on Monday and she said it tasted just like chocolate cake but with beans. [ 125 ] Tuesday morning they had to be up early so he set an alarm but I.P. woke him up before it went off.

She tapped on his door and whispered. He called her in and she climbed into bed where they cuddled for a while. No one had breakfast as it was so early but I.P. had water and a juice box for the trip to Prince Albert. When they arrived at the school there were three vehicles belonging to the Ministry of Social Services. He pulled up next to a car and introduced himself to Jennifer Connolly who asked to interview I.P. in her car before turning her over to her mother. They got out her bags and I.P. gave he and his mother hugs and kisses goodbye.

Assessment of the Evidence I.P., the complainant [ 126 ] The allegation of sexual assault was isolated to the Saturday morning of the November 6 to 10 th , 2015 weekend. Ultimately I.P. gave sufficient detail to determine the approximate time, place and description of the event; she said it happened while her father was getting her dressed and it took place in her bedroom in the basement while others were upstairs. She may have been mistaken about whether or not L.L., her son and C.P. were upstairs at the time, or it may not have happened at all.

I.P.’s testimony, allowing for the gaps that may be attributed to any six-year old, such as difficulty with chronology and time, contained inconsistencies and confusion between what she knew to have happened and what she may have been told. [ 127 ] There was ample evidence of her closeness to her mother, her desire to please her mother and be with her mother. The court heard evidence about her emotional upset at the school on November 6 th and during the Skype call on November 7 th .

In light of all of the evidence presented and relying upon common sense knowledge of how a child’s mood can be manipulated, I could not help but wonder if her upset was a reflection of her mother’s mood and a desire to impress her mother with her love and devotion. She may well have reasoned that she should not be seen to be happy in her father’s company as this would displease her mom. Certainly her consistently negative and inaccurate descriptions of the weekend served to support this conclusion.

Not wanting to put too much emphasis upon the somewhat manipulative elements of the evidence, a six-year old child can simply miss her primary parent and everything that’s familiar. That can be enhanced of course when there has been a lot of discord between the parents.

[ 128 ] I.P.’s evidence cannot be considered without regard to her mother’s influence which seems unhealthy. Her mother has been preoccupied with restricting contact and gathering evidence of sexual assault to support this, since I.P. was less than three years old. Since December of 2015, shortly after the latest allegation, she has been almost exclusively in her mother’s company, having been taken out of school and often sleeping in the same bed. A.P. described a child who is not only bonded but one who clings to her as they move about their home.

While she attributed this behavior to the most recent allegation of sexual assault, it is problematic in any event. [ 129 ] I suspect that I.P. was coached to make the latest allegation of sexual assault, perhaps not overtly, but as a product of the history of assault allegations, depicted by the Ministry witnesses. I was struck by I.P.’s often insistence that her father has repeatedly sexually assaulted her every time she has been with him. In fact, she claimed that he assaulted her again and again while upstairs in the home on the weekend in question when this was simply not possible.

It was not difficult to understand her reluctance to testify (she wanted to do it another day), even perhaps to demonstrate how her father placed his hand, but the use of oft repeated phrases and exaggeration raised questions about possible rehearsal. J.M.P. [ 130 ] I accepted the evidence of J.M.P. and was wholly satisfied with it. It was internally consistent and essentially corroborated by the evidence of family and friends. I was impressed with his forbearance, especially as he was representing himself. [ 131 ] I wish to thank Mr.

Scott for the thoughtful and gentlemanly way in which he conducted this prosecution. Conclusion [ 132 ] I find J.M.P. not guilty. An acquittal will be entered in the record. _____________________________ S. P. Whelan, J