R. v. L.W., 2017 MBPC 10

Restriction on publication : By court order under s. 486.4(1) of the Criminal Code, any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way. CITATION: R. v.

L.W. , 2017 MBPC 10 Date: 02 14 2017 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Sara Minshull ) for the Crown ) and ) ) ) L.W. ) Kevin Minuk and Shimon Segal ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 14, 2017 MCKENZIE P.J. [ 1 ] The accused is charged with two counts of sexual assault and two counts of sexual interference involving two separate incidents with two female complainants. The two incidents occurred sometime between March 1, 2014 and May 31, 2014 and June 20, 2014 and August 13, 2014. The complainants were 12 and 13 years old. [ 2 ] The Crown elected

summary proceedings on the first day of the trial. There were a number of agreements made that include: the identity of the accused, that the jurisdiction was in Manitoba, that the accused’s statement was voluntary and to be filed for the purpose of cross-examination, and that the two complainants’ video statements were admissible under s. 715.1 of the Criminal Code if adopted by the witnesses, which was done.

[ 3 ] The evidence in this matter was originally heard as part of a voir dire on a similar fact evidence application which I allowed with reasons to follow within this decision. The evidence applied mutatus mutandas to the trial. Evidence [ 4 ] The first complainant, A.B., is a friend of the daughter of the accused. She was very close with the family and spent a lot of time at their home, including sleepovers. [ 5 ] The second complainant, F.M., is the accused’s great niece and normally resides in St. Theresa Point, Manitoba with her mother, P.M., and her brother.

F.M. often stayed with the accused and his wife for a variety of reasons while in Winnipeg, including that her mother would disappear for periods of time leaving F.M. and her brother with not only the accused, but other extended family. A.B. Allegations [ 6 ] A.B. referred to the accused as “dad” and it was not unusual for the two to share a hug when she was arriving at the accused’s home. The hug she described was very different than those they had mutually shared in the past. [ 7 ] On the day of the incident A.B. had come over to the accused’s residence. She was 13 years old at the time.

The accused’s family was having a barbeque on that particular day. A.B. had recently been released from the hospital for cutting behaviour. She admitted to also having had hallucinations around that time, but prior to the incident she was medicated. [ 8 ] During the barbeque her friend was upstairs in the bathroom and A.B. was alone in the main living area of the home when the accused approached her from behind putting his arms around her where he started feeling her breasts and kissing the back of her neck. She said she could feel his wet lips on her neck and that she did nothing as a result.

She stated that the accused touched her for five minutes over her clothes, but was trying to go under them. The accused stopped when her friend came from the bathroom and he went outside and acted like nothing had happened. She told her friend about the incident by writing in an art book in the friend’s bedroom that same day.

According to the police witness, Patrol Sergeant Jacqueline Chaput, she was unable to interview the friend as she could not obtain parental consent. [ 9 ] During cross-examination A.B. testified that this was not something she imagined, that the incident could not have been accidental, that his lips did touch her neck, but that the moisture she felt could have been from sweat. She was clear on cross- examination that this incident happened and that the touching was not accidental. This incident was something that she is not likely to forget.

She also testified to knowing F.M., but never discussing this incident with her or having any relationship with her other than a couple of times when she was present at the accused’s home, but never without the accused’s daughter. [ 10 ] The accused testified that A.B. was like a daughter to him and she called him “dad”. He also confirmed that around June 26, 2014, he hosted a barbeque at his home for a birthday party. He recalled on that particular day that approximately 20 people were invited to the house and that the party was actually in the backyard.

He confirmed that people were in and out of the house and he was mostly in charge of barbequing the meat outside. This was also confirmed by the wife of the accused. [ 11 ] He testified that at one point he was alone with A.B. when she was sitting on the arm of the couch and he hugged her from behind while leaning into her stated, “Be a good girl, listen to your mom.” He demonstrated the hug, using his lawyer as a prop. It was raised in cross-examination that during his initial statement to the police he stated that he only touched A.B.’s shoulders with his hands and never mentioned a hug.

His response was that he actually did demonstrate a hug when speaking with the police. F.M. Allegations [ 12 ] F.M. testified that she and her brother had stayed with the accused and his family several times during April and May of 2014 when she was 12 years old. She had been staying at the accused’s house for approximately a week, which was not unusual, and had been sleeping in the accused’s daughter’s room. The accused came into the room to wake up the siblings because they were going over to their Aunt’s residence. The accused sat on the end of her bed.

When her brother got up to go to the washroom the accused touched her breasts and vagina over her clothing. The touching stopped when her brother came back from the washroom at which time F.M. got up to use the washroom. She waited in the washroom until she believed the accused had left, but when she came out the accused was there and he tried to direct her to his bedroom so she fled downstairs.

She testified that this incident occurred the last time that she slept at the accused’s home and that neither the accused’s daughter nor his wife were home at the time. [ 13 ] F.M. almost immediately disclosed this incident to her brother, who was never interviewed by police, and she asked him not to tell anyone.

She had no intention of disclosing the incident until one day when her mother mentioned that the accused and his wife were no longer living together because he had touched one of his daughter’s friends. [ 14 ] F.M. testified that she knew who A.B. was, but only as she was friends with the accused’s daughter. She denied knowing any details of any incident with A.B. or speaking to her about this matter. She also denied hearing any details about A.B.’s allegations from the accused’s daughter. [ 15 ] F.M. agreed that the accused and his wife had spoken to her about her mother’s leaving her when she was out drinking.

That she did want her mother’s attention and to be with her. It was suggested in cross-examination that either F.M. made up this story to get her mother’s attention or that her mother put her up to both fabricating the story and proceeding with her disclosure. F.M. disagreed with counsel and testified that she remembers this incident very clearly because the accused “hurted” her. [ 16 ] P.M., F.M.’s mother, was originally subpoenaed to testify in this matter and the Crown advised she had to be flown in from St. Theresa Point, Manitoba.

On the date she was scheduled to testify she was at the courthouse, but the evidence of the earlier witnesses took longer than the Crown and defence had anticipated and the Court closed the proceedings for the day at 6:00 p.m. before she had an opportunity to testify. It was anticipated that she would reappear, but the Crown chose not to call her.

[ 17 ] In relation to F.M., the accused testified that F.M. and her family had stayed with him for approximately one school year and that the family also stayed with them from time to time while in Winnipeg visiting from St. Theresa Point, Manitoba. He confirmed that F.M. and her brother stayed with them regularly during March, April, and May of 2014 because P.M. was out drinking. He described one evening when F.M. was missing and everyone was looking for her. This was a scary incident so he remembered it in detail. The incident culminated in F.M. and her brother sleeping over at his home in his daughter’s room.

In the morning he woke the children up, including his daughter. The accused had to go back threes time to get them moving. On the third time he went into the bedroom at which time F.M. was now on the futon. Both his daughter and F.M.’s brother were still in the room. He sat on the bed and touched F.M.’s feet and teased her about how big they were. At some point he tapped F.M. on the stomach and told her to get going. He testified as to what they had for breakfast, that he told his wife he had to get his car keys upstairs, and eventually to dropping F.M. and her brother at their Aunt’s place.

In cross-examination the accused agreed that F.M. had stayed over on many other occasions, including after this incident, but was unable to provide any specific details of any other stay. [ 18 ] The accused’s wife also testified about the incident with F.M. and her being missing and also recalled teasing F.M. about her big feet. She admitted that she and the accused had discussed the allegations with one another. She also testified as to the reason F.M. and her family were in Winnipeg in the spring of 2014 which was specifically because their mother was drinking too much and basically abandoned them.

There had been confrontations between herself and F.M.’s mother including a concern that Child and Family Services might need to be involved. Arguments Defence Argument [ 19 ] Defence argued that the accused was credible and that his evidence was reliable given the corroboration of his wife. The Court should have reservations about the reliability of the evidence of A.B. given that she was having hallucinations at the time and that the incident described was seconds and not five minutes as she had testified.

He submitted that although similar fact evidence has been admitted, it cannot be used for reliability, only for credibility, and that her evidence simply cannot be trusted. [ 20 ] In relation to F.M., the defence argued that F.M.’s evidence should also not be trusted. Arguing that she was influenced by her mother and that her disclosure was prompted by leading questions. Further, the Court should draw an adverse inference from the Crown’s failure to call P.M.

Specifically, because the Crown proffered from the start of the trial that they intended to call P.M., defence tailored their case with an eye to her testifying which would have established a motive for F.M. to fabricate the evidence. [ 21 ] They argued that the accused established a reasonable doubt and therefore should be acquitted. Crown Argument [ 22 ] The Crown argued that no adverse inference should be drawn as a result of the Crown not calling P.M. as a witness.

The witness was at court on the date she was subpoenaed for, but after time constraints precluded her from being called that day, the Crown reevaluated the case given that it would require some time to fly P.M. back to Court and her evidence was not material regardless. P.M. remained under subpoena and the defence had the ability to call the witness if they felt she was material and did not do so. [ 23 ] As the accused testified, the Crown acknowledged that the Court would have to engage in a W.(D.) analysis. In looking at the accused’s evidence, he corroborated most of A.B.’s evidence.

Specifically that he was a trusted person to her, that the barbeque took place during the summer months of 2014, and that something happened when they were alone in the living area. However, the accused’s evidence had so many internal inconsistencies between his statement and his viva voce evidence making it beyond belief.

For an unremarkable day he recalled who was in and out of the house and a level of detail that defies common sense. [ 24 ] In relation to the accused’s evidence surrounding F.M., the Crown argued that there was no reason for the accused to have assumed the day after F.M. went missing was the date that she was alleging the incident occurred. That coupled with the level of detail for what would otherwise have been an unremarkable day, even with the events from the night before he would have no reason to recall any of the details as described.

The Crown also argued that the evidence of the accused’s wife should not be believed given the obvious collusion given she would have no reason to remember these unremarkable details as well. The accused should not be believed nor has he raised a reasonable doubt. [ 25 ] Whereas, the Crown argued, the two complainants describe incidents where everyone was getting along, there were no relationship issues, there was no motive to fabricate and there was no animus between the complainants and the accused.

They both withstood vigorous cross-examination and their evidence was reliable, both at the time of their statement with the police and in their viva voce evidence. Their evidence was straight forward, they were not embellishing.

There was no indication A.B. was suffering from hallucinations and while the defence argues that P.M. manipulated F.M. to lie, it simply was not borne out by the evidence of F.M. in direct or cross-examinations. [ 26 ] Further, the purpose of the similar fact evidence application was to establish a modus operendi, to support credibility, and to rebut recent fabrication, but even without the similar fact evidence and completely separating out the evidence, the Court has enough evidence to support a finding of guilt and convict the accused as charged.

Decision on Similar Fact Evidence Application [ 27 ] As articulated in my earlier oral decision, I found that the Crown met their onus on their application for similar fact evidence

and these are the Court’s reasons for that decision. [28] Similar fact evidence is prima facie inadmissible. This is twofold. First of all, the trier of fact may be confused by themultiplicity of incidents and give the evidence more weight than it deserves. Secondly, the trier of fact may find an accused guilty, notfor what he did on the occasion before the court, but for what he did on another occasion. While the risk is much less in a judge alonetrial than where a case is tried by a jury, it cannot be disregarded completely. [29] Similar fact evidence is evidence of the accused's propensity to do something.

As noted in R. v. Handy, 2002 SCC 56, [2002] 2S.C.R. 908 (S.C.C.): ...it is not that propensity evidence is not relevant, rather, the concern is that it is too relevant, which is why it can be distracting to thetrier of fact. For this reason, the probative value must displace the prejudicial effect for the evidence to be admissible.

This means thatthe evidence must demonstrate a very specific set of circumstances linking the accused to the crime rather than a general propensity toact unlawfully, or even commit a certain crime. [30] Both the specific conduct, and the context or circumstances surrounding the behaviour can be relevant. As noted by the OntarioCourt of Appeal in R. v. B.(L.) (1997), (ON CA), 116 C.C.C. (3d) 481 (Ont.

C.A.): ...More importantly, the context in which the various incidents were alleged to have occurred was a key feature in assessing whetherthere was a sufficient degree of similarity to give the proposed evidence probative value. The nature of the relationship between theappellant and the complainant and each of the witnesses, the position of trust and authority involved, and his conduct as a sexual predatorin his own home were features of the evidence capable of giving the proposed evidence substantial probative value.

Furthermore, theproposed evidence was relevant to an important issue in the trial — the credibility of the complainant's allegations of abuse in thecircumstances she described. [31] To be admissible, the evidence must be of such a nature to satisfy the court that the degree of similarity is sufficient to establishan improbability of coincidence. It must also be reasonably capable of belief. R. v. E.(T.I.), 2012 MBQB 239, 2012 CarswellMan 519,[2012] M.J. No. 328, 103 W.C.B. (2d) 1102, 283 Man.

R. (2d) 200. [32] Balancing probative value and prejudice are difficult concepts and are very case specific depending on the issue. The issue inthis case is the actus reus and credibility therefore the degree of similarity need not be as high as in identification cases. With twoincidents it is difficult to call this a pattern of conduct, but the circumstances and the similarities of the acts alleged do show that theseare similar acts.

Specifically, I find that the two incidents occurred within a short period of time of one another, that the incidentsoccurred in the accused’s home when other people were present in situations that he could feign an innocent explanation if caught, thatboth incidents were of a similar nature which included a groping of breasts even though one included a vagina grope and the other kissingof the neck. I find that both incidents involved girls of a similar age who were both in vulnerable circumstances and who both trusted theaccused as a parental figure.

While both incidents are alleged to have occurred on different floors of the home, the fact that the personwith the victims went to the restroom while the offences are alleged to have occurred are beyond mere coincidence.

While thesesimilarities in and of themselves do not demonstrate a distinctive calling card they do demonstrate a modus operandi, and are verysimilar in nature and quality and are also probative of the issue of credibility, and to rebut recent fabrication. [33] I note that the two complainants did know one another prior to the disclosures of the incidents and I find that there is no air ofreality that collusion occurred.

The mere fact that the two girls knew one another does not raise the potential for collusion. [34] On the issue of whether to draw an adverse inference at this stage of the proceedings due to the Crown’s decision to not callP.M. on the voir dire on the issue of collusion, I decline to do so.

While F.M. was cross-examined about her disclosure to her motherthere was nothing to suggest that she colluded or fabricated her evidence and on a balance of probabilities this argument falls far short ofestablishing an adverse inference. [35] I am satisfied that the Crown has established on a balance of probabilities that the evidence was not concocted by eithercomplainant, is reasonably capable of belief, that the probative value for credibility, to rebut fabrication, and to establish the actus reus isoutweighed by any prejudicial effect and that the similar fact evidence is therefore admissible.

Analysis Adverse Inference on the Trial [36] At the close of the defence’s case they again asked the Court to draw an adverse inference on the admissibility of F.M.’sevidence. They did not specifically ask the Court to dismiss the charges involving F.M. as a result, but that was the implied remedy. [37] At the outset of trial the Crown advised the Court that they intended on calling F.M.’s mother, P.M., as a witness. The Crownadvised the Court on the morning P.M. was to testify that she had been flown in from St. Theresa Point, Manitoba and that she waspresent and prepared to testify.

The evidence of the other witnesses took longer than counsel had estimated and at almost 6:00 p.m., aftera long day of hearing evidence, the Court made the determination that the proceedings for the day had to be concluded and thereforeP.M. was not called. The plan was for the Crown to call P.M. at a subsequent date for both counsel to arrange. On August 2, 2016, theCrown advised they would not be calling P.M. and proceeded to argument on the similar fact evidence application. The Court did notdraw an adverse inference in relation to that application.

The Court’s decision was given on August 29, 2016, with reasons to follow. The trial was again adjourned to October 14, 2016, where the defence called two witnesses and proceeded to arguments with the trialconcluding on that date. Defence argued that the Court should draw an adverse inference as a result of the Crown’s failure to call P.M.as a witness. Arguing that the defence prepared and conducted themselves on the understanding that P.M. would be called to testify.

They again argued that the evidence of P.M. would have established a motive for F.M. to fabricate her evidence. [38] The leading case in this area is the decision of the Supreme Court of Canada in R. c. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751(S.C.C.). There are a number of principles outlined in the caselaw in this country regarding when the Court should draw an adverseinference. The court in R. v. Maxie, 2014 SKCA 103 at 38 states: A number of principles emerge from the reading of those authorities including, but not limited to, the following: (

i) Generally, witnesses should be called by the party that wants their evidence heard. (See: R. v. Cook at paras. 27 and 28; R. c. Jolivet atpara. 15 and R. v. Lapensee, 2009 ONCA 646 (Ont. C.A.) at para 41, (2009), 247 C.C.C. (3d) 21 (Ont. C.A.)); (ii) The Crown has a broad discretion in prosecuting offences which includes a right to determine what evidence it will call. As such theCrown does not have a duty to call all witnesses who have relevant testimony. (See: R. v. Cook at paras. 19 and 24; R. c. Jolivet at para.16; and R. v.

Horkoff at para. 20.) (iii) In certain circumstances an adverse inference may be drawn against a party for failing to call a witness. (See: R. c. Jolivet at para.24; R. v. Horkoff at para. 20; and R. v. Lapensee at para. 44.) (iv) Adverse inferences should only be drawn where the witness has relevant information pertaining to a material issue. A witness neednot be called if his or her evidence is collateral, peripheral, cumulative or inferior to other evidence called. (See: R. v. S. (C.R.) (1998), (NS CA), 133 C.C.C. (3d) 559 (N.S. C.A.) at para 62; R. v. Lapensee at para. 43.) (

v) There is a stronger basis for drawing an adverse inference when one party has special access to the witness. (See: R. c. Jolivet at para.27; R. v. Lapensee at para. 44; and R. v. Rudge, 2011 ONCA 791 (Ont. C.A.) at para 78, (2011), 283 C.C.C. (3d) 3 (Ont. C.A.)); (vi) An adverse inference should only be drawn where there is no plausible explanation for the failure to call the witness. (See: R. v.Cook at para. 51; R. c. Jolivet at para. 26; R. v. Rudge at para. 78 and R. v. Lapensee at para. 42.) (vii) Attention must be paid to the nature of the adverse inference to be drawn.

Failure to call a witness may, depending on thecircumstances, amount to an implied admission that their evidence would be contrary to the party's case or at least not support it.However, "in many cases, the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily thatit would have been adverse." (See: R. c. Jolivet at para. 28; and R. v. Rudge at para. 78.) [39] The Court declines to find an adverse inference as the defence has argued, for the following reasons: i.

On the date that P.M. was to testify she did not do so as a result of lengthy examinations of other witnesses. TheCrown had flown P.M. in from St. Theresa Point, Manitoba and she was available to testify. Due to the late hour of the last witness, itwas the Court and not the Crown that ended the proceedings on that particular date which resulted in her not testifying when scheduled. ii. On August 2, 2016, the Crown notified the Court that they would no longer be calling P.M. advising they did notwant to prolong the proceedings given where P.M. resides.

The Crown later provided an additional explanation that in addition topotential delay they decided her evidence was peripheral and unnecessary given the complainant’s (F.M.). evidence. There is nothing tosuggest an ulterior motive. iii. Regardless if P.M. was available or not, the Crown has discretion to call witnesses as they deem appropriate for theirown trial strategy. They are under no obligation to call witnesses even when they signal that they are going to do so at the start of thetrial. There is nothing to evidence that the witness would be adverse to the Crown.

The accused and his wife had ongoing issues withP.M. and her parenting, this was not a new problem. There was also nothing in the evidence to suggest that F.M. was acting as a result ofan influence from her mother. iv. There was no evidence of any animus or reason for fabrication from F.M. The accused and his wife had spoken toF.M. about the problems with her mother in the past. This was not a new situation and there was nothing to suggest F.M. was upset withthe accused or his wife as a result of their concerns. The evidence shows that they were trusted people in her life. v.

Further, there is absolutely no reason why the defence could not have called P.M. when they learned that the Crownwas not calling her. This trial proceeded over several months. The Crown signalled on August 2, 2016, that they did not intend oncalling any further evidence. On August 29, 2016, after my ruling on that issue, the Crown closed their case and the matter wasadjourned to October 14, 2016 where the defence called the accused and his wife to give evidence. There is no indication that thedefence made any effort to have P.M. testify. vi.

Finally, while the evidence of the accused and his wife established that P.M. had a reason to be upset with them, it didnot raise a motive for F.M. to fabricate her evidence. When F.M. was directly asked about her mother’s involvement there was nothingin the evidence to remotely suggest that F.M. was influenced by her mother to fabricate the evidence.

R. v. W.(D.) Analysis [40] The accused testified in these two matters and therefore the Court must engage in an analysis as outlined in the case of R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742 and consider in light of the totality of the evidence whether: i. Do I believe the accused, if so, I must acquit; ii. Even if I do not believe the accused has he left me with a reasonable doubt, if so I must acquit; and iii.

Even the accused has not left me with a reasonable doubt, has the Crown proven the elements of the offence beyond areasonable doubt, if not I must acquit. [41] In relation to the complainant, A.B., there is no dispute in the evidence that a hug took place on or about June 26, 2014, whilethe complainant was sitting on the arm of the couch in the living area of the accused’s home. The accused came up from behind her andhugged her. He described it as innocuous and that he told her to be a good girl and listen to her mom.

A.B. testified to something verydifferent. [42] Defence argued that the accused’s evidence was corroborated by his wife. I disagree. The evidence is parallel with thecomplainant’s up until the alleged breast touch. The adults, whose home it was and who were throwing the party, obviously had moredetails about the party than their daughter’s 13 year old visiting friend.

The wife was one of many partygoers who did not see anythingbecause she was not in the room when the incident occurred. [43] The accused’s evidence also had contained internal inconsistency between his statement to police and his viva voce evidencethat cannot be overlooked. After reviewing the video statement in court and in reviewing the evidence, I do not agree that in his videostatement he demonstrated a hug or anything that looked like the hug demonstrated in court. The accused in his statement to the policedenied ever hugging the complainant.

His demonstrations, despite his assertion that he did, are not observed in the video. Further, thepolice officer gave the accused every opportunity for an innocent explanation as to why A.B. may have thought he touched her breastand he denied the possibility except if from above or as walking away. Hugging a 13 year old girl from behind around her waist fromabove certainly leaves the possibility of an inadvertent touch of a breast, but that was not his evidence. His evidence in relation to A.B.is simply not credible.

In all of the circumstances, I do not believe the accused nor am I left in a reasonable doubt by his evidence. [44] In relation to F.M., the Court is at a loss as to how the accused could have possibly gleaned the date alleged by F.M. was thedate that he and his wife described. F.M.’s evidence was that this incident happened on the last day that she ever slept over at theaccused’s home. The accused testified that she slept over after the incident he described. F.M. testified that the accused’s wife anddaughter were not home when it happened.

That day, he argues, nothing happened and the accused’s daughter and wife were home. Shetestified that she had slept at the accused’s house all week and he testified this incident happened after she had been elsewhere the nightbefore. [45] I have no doubt that the accused and his wife recall details after F.M. was missing as it was a scary incident, but I do not agreethat anything about the day they describe was the one F.M. testified about nor did she adopt the defence’s suggestion that it was. Thoseevents may very well have happened, albeit the level of detail about an otherwise innocuous morning is suspect.

There is however,nothing to suggest this was the day this incident occurred and while plausible, it is completely illogical for this date to stick out in theaccused’s mind given the evidence. [46] I also find that there was collusion between the accused and his wife as she had absolutely no basis to believe this was the dateof the allegations unless the accused told her it was. [47] The accused’s version of events offers little more than a day that nothing happened nor is alleged to have happened.

In all of thecircumstances, I do not believe the accused’s version of events as they simply do not make sense nor has he left me in a reasonabledoubt. A.B. [48] The defence has acknowledged that A.B. was a credible witness. I agree. She testified in a forthright manner that was articulateand sincere. More importantly, her evidence was consistent. There was nothing in her evidence that suggested she was fabricating herevidence or embellishing what happened.

Her evidence was also largely corroborated by both defence witnesses except as to theultimate issue. [49] The defence argued that A.B.’s evidence, while credible, was not reliable. I disagree. i. A.B.’s evidence was consistent and unshaken on cross-examination. ii. There is no evidence on the date of the incident that A.B. was suffering from any type of distress or other mentalhealth issue. She acknowledged appropriately that she had had issues in and around the time, but there was nothing to support anythingon the day of the incident from A.B., the accused or from the accused’s wife.

In fact, A.B. testified that after the medication she wasdoing much better at that time.

iii. While I agree with the defence that this incident could not have possibly lasted for five minutes, I do not find this onedetail sufficiently concerning as to her ultimate reliability. iv. The timing of when A.B. disclosed the incident to her mother, just prior to her being admitted to the children’spsychiatric unit, also does not support a concern for reliability.

There was nothing in the evidence to suggest that she was suffering fromany condition that would alter her reality at that time either. [50] Defence counsel also argued that despite her credibility on the witness stand, her subsequent conduct simply does not makesense. The fact that she stayed at the accused’s house after the incident and the fact that she slept over on at least one other occasionafterwards he argues, defies logic. I disagree. The Crown aptly put a response to this in her submission, what defies logic is why anyonewould touch a 12 or 13 year old girl in a sexual manner.

Victims of this type of sexual behaviour have no wrong or right way to behave. The acts perpetrated upon them are violations of their bodily integrity that defies logic and common sense which precludes a certainstandard of behaviour. This is especially so of children. (R. v. D.(D.) (2000), 2000 SCC 43). [51] There was no evidence of collusion as between A.B. and F.M.

The testimony of A.B. was that she knew F.M., but that the onlypeople she told about the incident were the accused’s daughter and her own mother. [52] I find that A.B. was a credible witness and that there are no significant issues with her reliability. F.M. [53] F.M. was 14 years old at the time of her testimony. The bulk of her direct evidence was from her video recorded statement withthe Winnipeg Police Service. It was clear from her manner of testifying that she was thinking about the questions posed to her.

Sheremained consistent between her testimony in direct and during cross-examination. [54] Defence argued that the exact date of the offence was not established and while that is correct, F.M. testified that this incidentoccurred in the spring of 2014. This was confirmed with her during cross-examination and the Crown amended the date range as aresult. In addition, she testified that the incident occurred on the last date she slept over at the accused’s home which greatly narrows thetime frame.

I am satisfied that the Crown proved that the offence occurred within the time range. [55] I am also satisfied that F.M.’s evidence was credible and reliable. I reiterate that the accused attempted to tie the allegations to aspecific date which simply was not supported by the evidence. It is completely reasonable that F.M. did not agree with or recall thesuggestions made to her in the evidence as that day was of no particular significance. The evidence of F.M. and the accused and his wifewere that F.M. slept at their home regularly.

F.M. was firm that the accused’s wife and daughter were not present on the morning of theincident and that this incident happened. She testified that she remembers the details because the accused “hurted” her. [56] There is nothing in the evidence to suggest that F.M. fabricated the evidence as a result of any animus. To the contrary, theaccused and his wife had always been very good to F.M. In fact, F.M. believed that she had been placed at their home by Child andFamily Services on a prior occasion and she was still happy to stay at the accused’s home.

When questioned about whether P.M. hadtalked to F.M. about the accused and his wife, F.M. testified that she had not. The defence suggestion of a motive for F.M. to fabricateevidence at the suggestion of P.M. resulting from P.M.’s dispute with the accused’s wife is simply not supported by the evidence. [57] As with A.B., there is no evidence that F.M. colluded with A.B. [58] As with A.B., I also put zero weight on F.M.’s decision to not disclose this incident at the time it happened or for the timing ofher disclosure when raised by her mother. There is nothing to suggest she fabricated the allegations.

Nor is there any inference to bemade as a result of the timing of the disclosure. [59] I accept F.M.’s evidence as credible and reliable. Application of Similar Fact Evidence to the Decision of the Court [60] I ruled on the admissibility of similar fact evidence based on a number of factors detailed in this decision. Similar fact evidenceis propensity evidence that is normally inadmissible.

While I ruled that it is admissible for the purposes of establishing a modusoperandi towards the complainant’s credibility and to rebut recent fabrication, I agree with the Crown that it is unnecessary for the Courtto rely on the similar fact evidence in making a determination on each of the two cases. Decision [61] Therefore, on the third prong of W.(D.), I find that the Crown has proven the two cases against the accused beyond a reasonabledoubt and I find the accused guilty on all charges. The Crown and defence can address whether the case of R. v.

Kienapple (1974), (SCC), [1975] 1 S.C.R. 729 is applicable. “Original signed by:” _________________________ MCKENZIE P.J.