R v WS, 2023 MBPC 36

CITATION: R v WS , 2023 MBPC 36 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) J. Negrea for the Crown – and – ) ) W. S. Accused ) ) M. Bhangu for the Accused ) ) ) ) Judgment delivered: July 11, 2023 Restriction on Publication Pursuant to ss. 486.4(1) and (2.2) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. C.A.

DEVINE, P.J. [ 1 ] The accused was charged with sexual assault and sexual interference of his step-daughter KF that occurred over several years, between January 1, 2014 and December 31, 2019, when KF was between the ages of 9 and 13. The accused had been her mother’s partner since KF was three years old, so he was in the position of being her father. She and her younger sister both called him dad and he was for all intents and purposes her father. [ 2 ] The Crown called as witnesses the complainant KF, now 17 years of age, and her mother, ML.

The accused and his mother testified in his defence. [ 3 ] KF alleged several instances of sexual touching, over her clothing, except for an incident where he put his finger in her belly button in a sexually offensive manner. [ 4 ] The surrounding circumstances are that the accused’s marriage and final separation with the child’s mother was volatile and fraught with arguments, physical violence, drugs, alcohol and frequent breakups. KF is very close to her mother.

It is the allegation of defence that the sexual abuse complaint by KF was motivated by getting back at the accused for his poor treatment of her mother, and as a show of support of her mother. Both ML and the accused, as well as KF, testified that the relationship became toxic by the last five years and the breakups were occurring as frequently as every two weeks. The couple finally broke up in August 2020 (except for a brief return by the accused in October, after he injured both his arms), and ML obtained a protection order against him in December 2020.

In August 2021, KF’s sister disclosed to their mother that the accused sexually abused her, and KF told her mother it happened to her too. [ 5 ] On one occasion, ML was in hospital for two weeks and the accused would have had sole parenting responsibility for the girls. [ 6 ] The accused did drugs during the relationship, specifically crack cocaine, and also drank quite heavily. [ 7 ] KF testified that the accused was mean to her from the time she first met him.

She recalled one time, she had a very bad cold and cough and she was trying to cough into her pillow to avoid upsetting him, but she could not stop the coughing and he was yelling at her to stop. Her mother corroborated that the accused would become impatient with KF, who was always singing and telling little stories with accents. KF remembers the accused getting angry and yelling at her when she joined the table with adults visiting. She remembers the accused being really nice to his much older biological son, but the accused was mean to her and she was terrified of him.

She frequently heard yelling and arguing between her parents and frequently saw physical violence. THE ALLEGATIONS [ 8 ] The allegations against the accused involved several types of sexually inappropriate behaviour and assaults, as follows. The Crown is asking for sexual assault and sexual interference convictions on the first three incidents that follow. The other incidents of

sexually-inappropriate behaviour do not constitute these offences, but are relevant to the atmosphere in which the offences occurred. [ 9 ] The accused grabbed or touched KF’s breasts and vulva over her clothes constantly when she and her sister were at his mother’s apartment, whenever her sister or grandmother were not in the same room, or not looking. These grabs would happen when KF was standing and walking by, or when the accused was walking by.

They would be fleeting, and individually, not memorable. [ 10 ] One time when KF was about 11 years old, and she and the accused were in the kitchen at his mother’s apartment, the accused put his finger in her belly button, wiggled it around and asked her if she felt anything “down there”, inferring her vaginal area. She answered “no” and he went on to say that he heard something about having a feeling “down there” if you moved a finger around in your belly button.

She thought it was weird and gross and she felt confused; she just left and went to the bathroom. [ 11 ] The accused frequently asked her to lay on the couch beside him. One time at his mother’s apartment she did, with him laying on his side behind her and her on her side in front of him, in a “spooning” position. He rubbed his hand hard against her vagina through her clothing, so that it hurt, and he was using his finger to push into her vagina through her clothing. She used the excuse of going to the bathroom and got up.

When she urinated, it burned. [ 12 ] Those are the allegations the Crown is asking I find are proven beyond a reasonable doubt as sexual assaults or sexual interference. [ 13 ] There were several other incidents that do not constitute sexual assault or sexual interference, but are sexual in nature and impacted negatively on the complainant. [ 14 ] One time she was sick at home and about six years old, the accused had set her up in the bed in the basement in front of the television to watch Sponge Bob. He was in the same room, stoned, and watching pornography at the computer and masturbating.

The accused was wearing only a shirt, but no pants or underwear. KF testified that she could see him very clearly from her position on the bed. She saw his penis but could not tell if it was erect, nor did she know if he ejaculated. [ 15 ] One night, KF and her sister slept over at the accused’s mother’s apartment. The accused was sleeping on the couch, where he always slept at the apartment. The girls were on the floor (on top of pillows and blankets) around the coffee table, with KF being closest to the accused. He asked her if she was touching herself.

She did not really understand masturbation at the time, but the comment made her feel very uncomfortable. [ 16 ] When they were still living at the Donwood house he would make comments about her boobs getting bigger and how she looked good in a shirt. It made her feel uncomfortable. [ 17 ] He often claimed he had to pee when she was in the bathroom having a shower. It was the only bathroom in the house, so her mother would let her or her sister know that dad had to pee and then she’d let him in. One time, he pulled the shower curtain aside and looked in when she was in the shower.

He would give her “a look” that made her feel uncomfortable when she was leaving the bathroom in a towel after a shower, so she started taking her clothes into the bathroom to change into. [ 18 ] She tried to avoid him when they were changing in and out of their bathing suits at the grandmother’s apartment. One time when she was changing in the bathroom, he tried to go in. [ 19 ] KF testified that when she was a bit older and the accused was touching her frequently, he was “nicer” to her and also started giving her money.

She understood that he was giving it to her as extra insurance that she would not tell her mother what he was doing. [ 20 ] He would take a lot of pictures, especially of her, in her bathing suit, and one time when she was wearing jean shorts. He would sit at the shallow end of the pool and take photos. She doubted that it was done innocently. [ 21 ] On more than one occasion he tried to show her nude photographs of her mother on his phone. She found it disgusting and did not want to see them.

She would turn her head and let him know she did not want to see them, but she had to be nice about it because she was so scared of him. [ 22 ] After she had her own telephone in 2017, the accused sent her sexualized text messages addressed to her mother on approximately 10 occasions. After the first or second time, she told her mother, and ML was very angry. The accused claimed this was accidental, but the texts continued and he told her not to tell her mother. She recounted to the best of her memory and wrote down one of these messages during her videotaped interview at the Toba Centre.

It was subsequently filed as an exhibit in the trial. It contained sexually explicit language inviting cunnilingus, fellatio, sexual intercourse and inviting the mother to have intercourse with another man so the accused could watch. [ 23 ] The accused told KF frequently after the touching not to say anything about it to her mother, or it would “ruin everything”. KF testified that she was scared of him because he was violent and she was worried that her mother would “freak out” if she told her.

And, despite these incidents, which bothered her, she still did not want to be responsible for breaking up the family. [ 24 ] She knew that the touching, the texts, the masturbation in front of her and things he said to her were not normal and not right. [ 25 ] She did not disclose these occurrences because she was scared of the accused and wanted to maintain calm in an otherwise tumultuous household.

She testified about one time when her mother asked her and her sister if anything had happened, after ML had been in hospital and the accused was looking after her and her sister for two weeks, and KF denied that anything occurred. She testified that it was sad that she had to lie, but “it was scary to spit those words out”. Even when her mother applied for the protection order in December 2020, after the couple had been split up since August (except for two weeks in October when he was allowed to stay with them because he had a broken arm and a sprained arm), KF did not disclose.

She testified that it was because she felt the relationship between her parents was finally over, and with the protection order in place, she would be safe from any continued abuse by the accused, so there was no need to tell anyone about the sexual abuse behaviours. She finally disclosed after reading some of her sister’s

“heartbreaking” letter disclosing sexual abuse. She finally felt like it was her opportunity to tell her mother. She only told her motherthat the accused touched her boobs. It felt like a relief, but it was so hard to actually say it. She testified that before that she did not have“the guts” to say anything.

ISSUE [26] The threshold issue in this case is whether the three incidents, which the Crown argues constitute sexual assault and sexualinterference, do contain all the elements of those offences. [27] The central issue in this case is whether the Crown has proven beyond a reasonable doubt that the behaviour alleged by thecomplainant took place. I must resolve this by an analysis of the credibility and reliability of the evidence of the witnesses.

THE OFFENCES [28] The defence argued that only the touching of KF’s breasts and vulvar area, and the digital rubbing of the vagina constitutesexual interference or sexual assault. The Crown argued that the belly button incident was also a sexual assault, given the context andwords the accused used accompanying sticking his finger in her belly button. [29] I am satisfied that sticking his finger in KF’s belly button, wiggling it around and asking her if she could feel anything “downthere”, if true, constitutes a sexual assault or sexual interference.

It involved a non-consensual and intentional application of force of asexual nature which had the effect of violating KF’s sexual integrity. The words which the accused spoke in the context of them beingalone in the kitchen, and in the larger context of general, sexualized behaviour and continuing sexual assaults, make it clear that thisassault was of a sexual nature. WHETHER THE OFFENCES OCCURRED [30] The defence theory of the case is that the complainant concocted these allegations after the protection order as revenge and toshow support for her mother.

He argued that the so-called “disclosure” of these allegations was not actually a delay, but false allegationsfabricated out of animus towards the accused. He also states that the original complaint by KF was limited to an allegation that theaccused touched her breasts; additional allegations should be treated with concern.

Finally, he argued that there was little to noopportunity for the accused to have done these things, because his mother or others were always present. [31] The Crown argued that the complainant provided detailed, unshaken and believable evidence about the allegations and anyinconsistencies in her evidence were on non-material issues, whereas the accused simply denied the allegations and in his testimonybecame evasive, argumentative and inconsistent, which raises serious credibility issues about his evidence. Moreover, the lack ofopportunity defence evidence became strained and incredible.

THE LAW WITH RESPECT TO CHILDREN’S EVIDENCE and CHILD SEXUAL ABUSE ALLEGATIONS [32] The law of evidence has shifted in the past three decades with respect to the admission and consideration of children’s andyoung people’s evidence. Justice McLachlin stated in R v W(R), (SCC), [1992] 2 SCR 122 (at para 24): The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. (Emphasis added; and see R v DD, 2000 SCC 43.) [33] Justice McLachlin went on to state (at para 26): In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of theage of the witness at the time of the events to which she is testifying. (Emphasis added.

Also see R v Storheim, (24 January 2014) Winnipeg (Man.QB.) at para 24.) [34] In R v B(G), (SCC), [1990] 2 SCR 30, Justice Wilson stated at paragraph 48: [A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult.I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it.

In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards ofoath-taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before thecourts must, of course, be carefully assessed, but the standard of the “reasonable adult” is not necessarily appropriate in assessing thecredibility of young children. [35] As Justice Doherty stated for the Ontario Court of Appeal in R v LO, 2015 ONCA 394 at paragraph 35, “An isolated, minor

inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on L.F.'s credibility andreliability than would several material inconsistencies going to the heart of her allegations.” [36] This does not change the rigorous analysis of evidence with respect to credibility and reliability that is necessary to ensure thatan innocent person is not convicted. The same standard of proof applies, whether the complainant is a child or an adult (W(

R) at para25). [37] The defence argued that the delay by KF in making these allegations to anyone until 2021 belies her complaint and makes itunreliable and untruthful. He argues similarly that the fact the complainant made additional allegations after the disclosure only of“touching her boobs” would make it dangerous for me to convict. [38] It is well-settled law that there can be significant delays in disclosure by children who have been sexually abused (see R vL(DO), (SCC), [1993] 4 SCR 419 at paras 29 and 77; R v PS, 2019 ONCA 637 at para 21; R v WEB, 2012 MBCA 23 atpara 20).

As Justice L’Heureux-Dubé stated in L(DO), the reasons for this are several, but it is often out of fear of reprisal or of what theconsequences will be, the power imbalance between the child and the abuser, especially when the abuser is a trusted and beloved familymember, such as a father or stepfather (at para 75): [C]hildren, for a number of reasons, are often apt to delay disclosure. As McLachlin J. wrote in R. v. W. (R.), supra, at p. 136: . . . victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.

Studies abundantly confirm this fact as part of the child abuse syndrome. (See, among others, R. C. Summit, "The Child Sexual AbuseAccommodation Syndrome" (1983), 7 Child Abuse & Neglect 177, at pp. 181-88; and G. Renaud, "Judicial Notice of Delayed Reportingof Sexual Abuse: A Reply to Mr. Rauf" (1993), 20 C.R. (4th) 383.) [39] There is also a broader and overarching reason for the reticence of teenage girls and young women to report sexual abuse: thesystemic gender inequality of society including the criminal justice system.

Justice L’Heureux-Dubé outlined this in L(DO) (at para 30): The innate power imbalance between the numerous young women and girls who are victims of sexual abuse at the hands of almostexclusively male perpetrators cannot be underestimated when "truth" is being sought before a male-defined criminal justice system. Inthis light, I suggest that throughout this analysis one must continue to have regard to the context exposed by this Court in Seaboyer,supra.

We cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight frominstitutions within the criminal justice system which hold stereotypical and biased views about the victimization of women.

In the reportof the Solicitor General of Canada, Canadian Urban Victimization Survey: Reported and Unreported Crimes (1984), the statistics in thisregard are noted at p. 10: Analysis of reasons for failure to report incidents confirms many of the concerns which have already been noted by rape crisis workers --that women fear revenge from the offender (a factor in 33% of the unreported incidents) and, even more disturbingly, that they often failto report because of their concern about the attitude of police or courts to this type of offence (43% of unreported incidents). (See also L. L. Holmstrom and A. W.

Burgess, The Victim of Rape: Institutional Reactions (1983), at p. 58, and P. Marshall, "SexualAssault, the Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216, at p. 217.) These stereotypical views are equally relevant wherechildren are involved. A recognition of the gendered nature of child sexual abuse and of the way in which young women are particularlyvictimized does not, of course, imply the denial of the trauma and pain experienced by boys and adolescent victims of sexual abuse.

Theyare also too often silenced by a society which tends to disbelieve them and to stigmatize them by calling into question their sexualidentity once they do disclose the abuse. We live in a society which continues to blame even the most innocent of victims. (Emphasis added.) [40] As Justice McLachlin noted in W(

R) and the Supreme Court later noted in DD, 2000 SCC 43, many children never disclose theabuse that has been perpetrated against them. In DD, the Supreme Court was dealing with the issue of whether expert evidence wasadmissible to rebut the presumption that a late disclosure of sexual abuse by a child supported an inference that she was not telling thetruth.

The majority determined it was not necessary, because the law had abolished the doctrine of recent complaint, and the law ofevidence had encompassed the knowledge behind its abrogation, namely, that (at para 65): [T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediatecomplaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at leastinclude embarrassment, fear, guilt, or a lack of understanding and knowledge.

In assessing the credibility of a complainant, the timing ofthe complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, willnever give rise to an adverse inference against the credibility of the complainant. [41] Related to this, it is also not uncommon for children to disclose instances of sexual abuse incrementally and not necessarily todisclose all the instances of abuse at one time.

THE PRESUMPTION OF INNOCENCE AND CREDIBILITY ANALYSIS OF TESTIMONY [42] It is a foundation of Canadian criminal law that an accused person is presumed innocent.

[43] Many evidentiary and procedural rules support the presumption of innocence. In determining whether a person is to beconvicted or acquitted of a criminal offence, the onus on the Crown is high. The Court must be satisfied of the accused’s guilt, on thewhole of the evidence, beyond a reasonable doubt (R v CLY, 2008 SCC 2 at paras 6-8).

Justice Karakatsanis writing for the SupremeCourt in R v Vuradin, 2013 SCC 38 at paragraph 21 stated as follows: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. However, trial judges are notrequired to explain in detail the process they followed to reach a verdict: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para.29. [44] In order not to lose sight of the proper approach to be taken in such a case, to avoid a human tendency simply to compare andchoose which evidence is preferable, the Supreme Court provided direction to trial judges, in R v W(D), (SCC), [1991] 1SCR 742. As Justice Cameron explained the W(

D) analysis in R v Menow, 2013 MBCA 72 at paragraph 16: In W.(D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidenceor the Crown’s evidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is leftwith a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focused on the principle of reasonable doubt,the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (Emphasis added.) [45] The exact wording used by the Supreme Court in W(

D) is not required, but the trier of fact must always ensure that the onlyexercise is to determine if the Crown has proven the charge beyond a reasonable doubt. [46] A judge must assess each of the witnesses’ evidence in the context of all the evidence at trial and in terms of its inherentreliability and the likelihood that the events happened as they testified to the events happening. ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT [47] KF was an articulate and bright 17-year-old witness. There is no need to consider her evidence as “children’s evidence”.

Atthe same time however, she was testifying about events that happened when she was much younger, between the ages of 8 or 9, and 14. She provided the videotaped statement to police on September 3, 2021, when she was 15 years old. [48] She adopted the contents of her videotape and it was entered into evidence. Delay [49] The defence made much of the fact that KF did not disclose any allegations of sexual impropriety to her mother, the accused’smother or anyone until 2021. KF testified several times about why she was too frightened and uncomfortable to disclose the abuse. Iaccept her evidence.

The accused had a history of being mean to her and violence towards her mother, one time breaking or badlyinjuring ML’s hand, and KF was simply too scared to tell and rock the boat. Viewing the videotaped statement and observing andconsidering all KF’s evidence, it has been consistent throughout her statement and her testimony that she finds it very difficult to talkabout these matters, even in safe spaces where she is not confronting the accused. [50] KF disclosed the abuse to her mother in August 2021 after her younger sister disclosed sexual abuse by the accused in a noteshe handed to her mother.

ML showed the note to KF, who was able to read only some of it before becoming too upset and crying. Shetold ML the same thing happened to her. [51] Although defence attempted to argue that there was a correlation between obtaining the protection order and KF’s disclosure,the chronology does not support that argument. ML obtained the protection order in early December 2020. KF was aware her motherwas making the application, and wanted to help, so she wrote a letter to the judge (as she thought it would be decided by a judge).

Shedid not disclose the sexual allegations until August 2021, nine months later. [52] The precipitating impetus was her sister’s disclosure, not the protection order. [53] There were many reasons for KF to delay disclosing in this case, all legitimate and consistent with what we know from thejurisprudence, as outlined earlier in this decision: - The accused was the child’s father.

Although he is her step-father, and not her biological father, he came into her life at the age ofthree and she called him dad and she never knew her biological father; - The accused had told her not to tell her mother or it would ruin everything;

- The accused was abusive and violent towards her mother, one time breaking or badly injuring ML’s hand; - Despite the physical domestic abuse, and even though her parents broke up many times, her mother always allowed him back; - Even after she showed her mother two of the sex texts allegedly intended for her mother, her mother “freaked out” but still allowed the accused to live with them. [ 54 ] When she finally disclosed, the accused had been separated from her mother for a year and nine months after the protection order; it could no longer be considered her fault for breaking up the family.

Significant time had allowed breathing space for KF to feel safe enough to disclose. [ 55 ] Considering all the facts and what the law recognizes as Child Abuse Syndrome, I find as a fact that the reason and timing of the disclosure had nothing to do with the protection order or revenge towards the accused, and that the delay in disclosure does not affect the credibility or reliability of KF’s evidence. KF’s Evidence [ 56 ] KF’s evidence was clear, detailed, and completely unshaken by cross-examination. Her evidence was internally consistent. She was not argumentative. She was not evasive. She did not exaggerate.

Her answers to all questions were responsive and appropriate. When she offered some analysis or speculation to try to understand certain things that happened, that was clear, and I am able to separate the “facts” from her analysis of those facts.

Overall, her testimony was entirely believable and compelling. [ 57 ] She had a remarkable memory about all events, not just these abusive incidents, for example, her ability to recall details of a school trip in grade eight, and even the names of most of the girls sitting at the table over French fries and talking to a new, young teacher. [ 58 ] She provided significant detail about all of the allegations and the circumstances of her life and the instances of abuse. When she did not remember something, she advised the court of it.

But generally, her memory seemed to be very good. [ 59 ] The defence argued strenuously that testifying that the accused touched her breasts and vulvar area with no further detail is overly general and very concerning and makes it dangerous for me to convict on that evidence. I note the observation of Justice Wilson in B(G) , where she stated at paragraph 28: “The factual matters which underlie some offences permit greater descriptive precision than in the case of other offences.” KF testified that the accused would grab her in passing, these grabs took place at his mother’s apartment.

These grabs and gropes occurred frequently and were fleeting in duration. They do not permit greater detailed description. [ 60 ] The defence also argued about an inconsistency between KF’s videotaped statement and her testimony in court, namely that she told police that the accused never did anything physical at the Donwood house until after the accused’s mother moved out of the Edison apartment.

However, there is no evidence of the accused doing anything physical to her at all at the Donwood house. [ 61 ] The defence argued there was another inconsistency between what she told the interviewer and her evidence in court. He argued that she told the interviewer that the only time that something happened without her clothes on was after his mother moved out of her apartment. The defence argued that there were no allegations of any sexual offence when she was not clothed. But that is not what KF said.

She said, “ The only time something happened without my clothes on was…” (Interview of KF Transcript (September 3, 2021), at page 78, line 13. Emphasis added). The next thing she discussed was the accused coming into the bathroom and opening the shower curtain while she was showering. [ 62 ] I find as a fact that KF was referring to being naked in the shower.

That was the thing that happened when she did not have her clothes on. [ 63 ] The defence argued that although KF testified that she was telling the truth and that it hurts her to lie and she gave an example of that, her mother testified that KF once lied about using a vape to smoke. The evidence was specifically that she initially told her mother that the vape belonged to a friend, but within minutes she confessed to her mother that it was hers. I am not concerned about this previous example of lying.

First, she confessed within minutes of the lie, and secondly, a teenager lying about a vape does not rise to the seriousness of accusing your father of sexually abusing you. [ 64 ] There was no evidence of collusion. ML testified that she does not know the details of the allegations complained of by KF even now – they have never discussed the details. [ 65 ] Although KF testified to being terrified and scared of the accused throughout her childhood, and testified about many behaviours that were unflattering at the very least about the accused, she did not demonstrate any need or desire to speak ill of him.

Although the defence argued that KF had significant animus against the accused, and that was the reason for these allegations, I disagree. I also agree with the Crown who argued that it made little sense for the complainant to fabricate allegations of sexual abuse months after seeing the accused and months after the protection order was in place. [ 66 ] She was nine years old when the abuse started, 15 years old when she disclosed it and told the interviewer, and 17 years old when she testified.

The law recognizes that children’s ability to recall this type of information is not as sophisticated as that of adults. [ 67 ] I have already outlined changes in evidence law to allow for the proper reception of children’s evidence in court. The law requires that a child’s evidence is approached not from the perspective of rigid stereotypes, but on what Justice Wilson in B(

G) called “a common sense” basis (at para 48). [ 68 ] I would be concerned if KF was not able to recall details of what she alleged happened to her. That was not the case here. She remembered the details very well and was consistent throughout her testimony.

[69] There were no material inconsistencies going to the heart of the allegations in this case. Not only was the essence of hercomplaint consistent, but the essential and even non-essential details of what occurred are consistent, despite cross-examination (See R vCCF, (SCC), [1997] 3 SCR 1183 at para 49). The Accused’s Evidence [70] The accused’s evidence was largely consistent with that of KF and ML, except for the sexual offences, which was a blanketdenial. He denied ever being alone with KF.

He also denied putting his finger in her belly button and wiggling it around. [71] The accused testified that he had a Grade 11 education with no post-secondary education beyond that. He was not asked abouthis drug use.

He largely agreed with the testimony of ML about the nature of their relationship being on and off and eventuallybecoming toxic, with breakups becoming more and more frequent until near the end, where they were broken up every two weeks. [72] In many respects however, the accused’s evidence was internally inconsistent, argumentative and implausible. [73] For example, he testified that he was never alone with KF and her sister. He testified that when he was at his mother’sapartment during the periods of time he and ML were broken up, and the girls came to be with him, he was never alone with them.

Hetestified his mother would always be around. He testified she never left the apartment to run errands or go shopping when the girls werethere. When pressed, he testified that in the five years the girls were coming there, his mother never once left the apartment to runerrands when the girls were visiting. He testified that if his mother would go out for errands he would go with her or stay home. Whenpressed in cross-examination, he conceded that it is possible his mother went to the bathroom or the kitchen or her bedroom to change orto his adult daughter’s bedroom, while KF and her sister were visiting.

He testified that although his mother was working in a grouphome, she was semi-retired and that work would have been mornings and afternoons and the girls were there in the evenings. [74] I do not accept that evidence. I do not think it is possible that his mother never once left the apartment when the girls visitedover the five-year period she lived there. His mother GH also testified that she was home when the children came over, because it was a“big deal” and she wanted to visit with them. I generally accept GH’s evidence, but not her evidence about the lack of opportunity herson had to sexually abuse KF.

She was too quick to try to assure the court he was never alone with the girls. [75] The insistence that there was never an opportunity to sexual assault KF because his mother was always there, strains credulityand impacted negatively on the accused’s credibility. [76] Moreover, even if his mother was always at home when KF was there, there was plenty of opportunity to grab and grope. Thekitchen cannot be seen from the living room, because of a partial wall separating it from the living room area. The television was on inthe household.

GH played gambling through Manitoba Lotteries on the computer and at the same time she would be listening to thetelevision. And, the touches were alleged to be very fleeting. [77] In his statement, he told to police that he never watched pornography. But at trial he agreed he did. [78] In his statement he told police that after he and ML broke up in August 2020, the girls still went to see him frequently. Hetestified that they would go out to restaurants, swimming, and so on, up to the time of his arrest, essentially.

He told police that if theallegations were true, why would the girls continue to come and visit him, after he had been broken up with their mother for a year. Attrial, he agreed that he did not see the girls after August 2020. [79] The defence theory is that ML wanted revenge and KF was supporting her mother in obtaining a protection order and then inconfabulating these allegations. [80] It appears that it was actually the accused who was vengeful. For example, he called Child and Family Services (CFS) afterML called him asking for some money because she did not have any food for the children.

He testified that it was out of concern for thechildren. When he was challenged about this answer in cross-examination, to suggest that a more helpful, less harmful response wouldhave been to get money from his mother, his adult daughter, or get some food at the food bank for them, he disagreed, stating that “CFSis there to help”. I do not accept that answer. He knew very well the impact this call would have on ML and the girls.

It was topersecute ML and cause her grief with the child protection authorities, as opposed to trying to be helpful. [81] This is case where the accused has denied the allegations mainly on the basis of lack of opportunity in the face of very strong,convincing evidence from the complainant. [82] While nothing in KF’s evidence caused me concern about her credibility, there is much about the accused’s evidence thatraises credibility concerns, as I have indicated. [83] When I consider all the evidence in the trial, I do not believe the evidence of the accused and neither his evidence nor thedefence have been able to raise a reasonable doubt in my mind.

The evidence I do accept has satisfied me beyond a reasonable doubt ofthe accused’s guilt. DECISION [84] I am satisfied beyond a reasonable doubt that WS sexually assaulted and sexually interfered with KF. By reason of R vKienapple, (SCC), [1975] 1 SCR 729, the Crown has asked for a conviction only on the sexual interference. I thereforeconvict him of sexual interference and stay the sexual assault charge. Original signed by Judge Devine

C.A. DEVINE, P.J.