R. v. N.S., 2021 MBPC 16

CITATION: R. v. N.S. 2021 MBPC 16 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) K. Anderson for the Crown ) ) - and - ) ) ) N.S. Accused ) ) J. Gindin for the Accused ) ) ) ) Judgment delivered: April 15, 2021 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence.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 interference and invitation to sexual touching against his much younger sister-in-law T. that allegedly occurred between June 6, 2011 and June 6, 2014. The child is the youngest of eleven girls and one boy; she was between four and six years of age at the time. The accused is married to her much older sister, E. The accused was between the ages of 28 and 31 at the time of the allegations. [ 2 ] I heard this trial October 20 and 22, 2020 and then March 17, 2021. The delay was due to court closures necessitated by the COVID pandemic.

The Crown called as witnesses the complainant, T., now 14 years of age, the sister next to her in age, M., now 16, their mother, K.S., and the police officer involved in the investigation who obtained two statements from the child. The defence called the accused and his wife, E. [ 3 ] The complainant was living with her parents and unmarried siblings on a small farm north of Winnipeg, in rural Manitoba. The parents are European immigrants and very religious. The family attended church services every Sunday and had family over for Sunday lunch after church.

The parish priest was an influential figure in their family. The children were raised very strictly and had little or no involvement with the larger community. They were all home-schooled. In short, they led a strict, religious, sheltered and isolated life in the country. [ 4 ] The allegations against the accused emerged during a child welfare and police investigation involving allegations of child abuse by the family patriarch, E.S., who is T.’s father. The defence did not tender any evidence of sexual activity pursuant to a Criminal Code

section 276 application; I was simply made aware that there was such an investigation occurring concurrent to the investigation and charges involving the accused. [ 5 ] T. testified about seven different incidents where the accused touched her legs or vagina or forced her to touch his penis.

The incidents took place “in plain view,” insofar as they occurred at T.’s family home on Sundays when the accused and his wife and young children and many other family members were visiting, at church, and on one occasion when T. and her sister M. had a sleepover at the home of the accused and his wife. [ 6 ] The accused denied all the incidents. His wife testified that she did not see any concerning or questionable behaviour by her husband towards her little sister, nor would there have been opportunity, because there were always other people around and she always

knew where her husband was. [ 7 ] The Crown’s evidence consisted mainly of the evidence of the alleged victim, T. The evidence about the seven incidents is as follows. All of the events took place on Sundays after church at T.’s family home, unless otherwise stated. (

i) Outside her bedroom T. testified that she and her sister M. were in the large entranceway and spilled some milk which they were going to feed to the pigs. The entranceway is large; the complainant testified it is one-quarter the size of the courtroom and the accused testified it is the size of a family kitchen. It is a hub for the living room, kitchen and the hallway to the bedrooms. The hallway to the bedrooms can be seen from the entranceway. The entranceway is a high traffic area. M. went to get a cloth and the accused found T. alone.

T. testified that she “got a little worried” so went to her bedroom and hid behind her door. The accused followed her and she tried to run away, but he grabbed her by the wrist, and pulled her into the hallway right in front of her bedroom. He held his hand over hers on his bare penis and forced her to rub it.

It stopped when M. came back and started calling her to come back to the entranceway. (ii) The Entranceway T. testified that she had forgotten that the accused would be at her house and she came in the front door and while she was in the entranceway he tried to grab her arm, but she got away and sat with her parents in the living room.

She was worried when he came into the house because “he has done it before.” (iii) Another time in the Entranceway T. testified that another time when she was younger she remembers that the accused took her to the entranceway and pulled his penis out of his pants and forced her to rub it. (She provided more detail of this incident in her statement to the police, where she said she thought he was going to tell her a joke or something, so she was totally willing to go with him, “and then he waved around his whizzer in my face and I really didn’t like that.”) She testified he did this every Sunday and she told him to stop and he stopped, but he was a little bit weird around her for about a week.

She testified that she remembered more at the time of her statement. (iv) In the Living room T. testified that a lot of family members were in the living room, including her parents and the accused’s wife and she went to sit beside the accused because he had a phone and she had never really seen one before. She was about five or six years old. She testified that the accused was next to her on one side, and the arm of the couch was on the other side. The accused’s wife was on the other side of him. He started rubbing T.’s back and then moved his hand further down so that she was sitting on it.

And then he started rubbing her inner thighs under her skirt. She was uncomfortable, so she started to get up and walk away and he took his hand away. She testified that it was not accidental. (

v) The Swimming Pool The family had an above-ground pool with sides about three feet high that was given to them by T.’s brother when he moved to Alberta. The pool was in front of the house between 30 and 100 yards from the house. T. testified that she and her sister M. were in the pool and taking turns putting their heads under the water because they were scared of water at the time.

M. went to the house to get towels and while she was away, the accused came over with his oldest son, D., who was “maybe around one or two.” The accused was on the ground beside the pool on the side away from the house and told her to come and look at his phone. She got out of the pool and crouched beside him on the ground to look at the phone. There was a picture of a naked woman, which made her a little uncomfortable. She started to “scooch away and he grabbed my hand and forced me to rub his penis again.” When M. came out of the house with towels, the accused got up and started nonchalantly walking away.

She remembers her sister asking what he was doing and she told M. nothing. (vi) The Sleepover T. testified that one time she and her sister M. had a sleepover at the home of the accused and his wife, E., their older sister. M. and E. went outside to do the chores, which is feeding and watering the animals and making sure they are okay. While E. and M. were outside, the accused sat beside her and started rubbing her legs, moving his hand up her legs until he touched her vagina. She tried to scooch away unsuccessfully.

She started crying and the accused got up right away and got worried and was asking if she wanted some water. She went outside to her older sister E. and she asked why T. was crying, and that was all she could remember. She did not tell E. what had happened. She testified on cross-examination that she tried to push him away with her feet and then she testified that she kicked him. In her statement to the police she said she kicked him in the face. T. testified that she told the police officer that she kicked the accused in the face when he touched her vagina because she did not want to make herself look bad.

She testified that when she met with the Crown before trial, she said she kicked him, but not in the face. (vii) At Church T. testified that she could not remember how many times the accused did something to make her uncomfortable at church, but she remembered one time she testified about. She was sitting with the accused and E. and their baby started crying. E. took the baby to the basement and the accused started touching her leg, and she kept trying to put his hand down and away. He was rubbing or stroking her thigh with his fingers. M. also testified about this incident.

M. testified that it was the only time she saw anything inappropriate. She testified that she was sitting in the pew in front of T. and she turned around and saw the accused rubbing T.’s leg. M. testified that the accused was touching T.’s leg, “all around her leg” on her thigh and knee. She testified that E. was present and sitting beside them when

this was going on. She testified that “every time I looked back, he would pull his hand away.” It happened multiple times, over a half hour, but she was not sure. She testified that she told her sister A. (also an adult at the time), her father and E. Generally [ 8 ] T. did not testify to anyone seeing what the accused did to her other than her sister M., when they were both children. It was years before she told the first adult, and that was Corporal Lacey Clarkson of the R.C.M.P. in 2017. She did not tell any adults because she was worried she would get punished for lying, because her parents are very strict.

The child’s mother, K.S., testified that she never saw anything suspicious between the accused and T., or she would have acted on it. She also testified that she never saw T. and the accused wrestling around. [ 9 ] T. testified that there were other incidents involving the accused that did not involve sexual touching, but she could not recall them at trial, other than one time when she ran out of the house and up a tree, her “secret hiding spot” because she was scared of the accused. He saw her, so she jumped out of the tree and hurt her ankle, but then rode away on her bike.

She remembered the accused saying something to her in an angry tone, but she could not remember what he said. [ 10 ] She testified that after awhile, she was expecting it to happen and she would always try to be somewhere else when he came to their house. She could tell something was about to happen because the accused would start breathing very heavily through his nose. The abuse did not stop until she was removed from the home. [ 11 ] M. testified that T. told her about something that happened with the accused when they were about six to eight years old.

She testified about an event that took place in the church, which she testified, was about two years before she made her statement to the police. I infer that the statement was made in 2017, around the same time as her sister made her statement. This would mean that the incident in the church occurred in 2015. She testified that she was 13 years old at the time. The Phone Call [ 12 ] K.S. is T.’s mother, and the mother-in-law of the accused. She testified that nearly two years after the allegations against the accused arose, she and her husband received a phone call from their daughter E. the accused’s wife.

E. told them to go to their bedroom and put the phone on speaker. E. and the accused were at the parish priest’s house and the accused told them over the phone, “I’m guilty of everything I am accused of and I’ll do everything I can so T. can come home soon.” [ 13 ] Both the accused and his wife testified about this phone call. E. testified that at the time, her husband was required to live outside their home because of the allegations, and she was single-parenting six young children, including infant twins.

She was receiving no help with the children. “I was holding on by a thread.” Her father was calling her every single day trying to get her to doubt her husband. [ 14 ] During this time one of her sisters gave her the impression that she had seen something. She testified that she completely “lost it.” She talked to the priest and her husband and the priest put pressure on the accused to confess and take responsibility for what he had done, for peace and the sake of the families, telling them that it was the right thing to do and it might help to get T. back.

She said that her husband “looked stunned.” She and the priest handed him the phone and he said he was guilty of everything. She could not remember his exact words. [ 15 ] In a few days she spoke to her husband again and he told her he had not done what he said in the phone call, or anything, and he was shocked to think she believed he had done something wrong. She called her mother and told her that it was not what she thought, and basically that the accused had recanted his confession. [ 16 ] The accused testified that he got a call from his wife that they had to go and see the priest.

It was a day or two before his father-in-law E.S. was going to be in court to face his own child abuse charges. The priest told them they needed to repair the family, “So I should just be a sacrificial lamb.” His wife agreed with the priest, because he is the priest. The accused testified that he was sick to his stomach. He thinks that what he said was “I’m guilty of everything I was accused of. I pray you can get T. back soon.” A few days later, E. called him and he told her he could not go through with this, because it was not true. [ 17 ] I do not accept the words spoken by the accused to be a true confession.

Given the family’s isolated religious history, the circumstances facing the families, the extreme stress and pressure that E. was under raising six infants on her own, the role of the priest, and the apparent pressure being exerted by the family patriarch, E.S., I find it is quite possible that the accused, in a moment of desire to return the families to peace and normalcy, said he was guilty of everything.

It is illogical to think that his confession about abusing T. would assist in her return to her family’s home, since he did not live there and the child had been removed from the home not because of the allegations against him, but rather because of the allegations against her father. Issue [ 18 ] There is no question that the acts complained of constitute sexual interference and invitation to sexual touching in law. The only issue in this case is whether the Crown has proven beyond a reasonable doubt that the behaviour alleged by the complainant took place.

I must resolve this by an analysis of the credibility and reliability of the evidence of the witnesses. The Law with Respect to Children’s Evidence and Adults or Teenagers Testifying to Childhood Events [ 19 ] There are many inconsistencies in T.’s evidence, both internally, and in the context of other witnesses’ evidence. There are many things about her evidence that are difficult to understand. It is difficult to understand how some of the things that she testified

about could occur. [20] I state this mindful of the high incidence of child sexual abuse in family groups, and that often offenders offend against children“in plain view” as it were, under the noses of other family members. [21] I am also aware that I should not treat the evidence of T. or M. through the lens of adults testifying about things that occurredwhen they were adults. [22] Children’s evidence is no longer considered to be inherently unreliable. It is not necessary to treat all children’s evidence withspecial caution.

I am aware however of the requirement that there may be special attention paid to the reliability of a witness’ testimonywhen they are testifying about childhood events. (R. v. Sanichar, 2012 ONCA 117 per Laskin JA dissent, upheld 2013 SCC 4). [23] The law of evidence has also developed in the past three decades to appreciate that children are not little adult witnesses, suchthat the approach to admitting and considering their evidence must be different. Justice McLachlin stated in R. v.

W.(R)., (SCC), [1992] 2 S.C.R. 122: 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. (at para. 31; and see R. v.

D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275) [24] 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 standard of proof remains, whether the complainant is a child or an adult. (W.(R). at para. 26): . . . Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. (At para. 27) Also see R. v. Storheim, (24 January 2014) Winnipeg (Man.QB.) at 24.

Reasonable Doubt and the Approach to Analyze Evidence in Canadian Law [25] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [26] 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.

C.L.Y., 2008 SCC 2 at paras. 6-8). “The paramount question in a criminal case iswhether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” (R. v. Vuradin, 2013SCC 38 at para. 21). [27] 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] 1 S.C.R. 742. As Justice Cameron explained the “W.(D.)” analysis in R. v.

Menow, 2013 MBCA 72: 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. [28] The exact wording is not required; the key point the Supreme Court was making is that the trier of fact must always ensure thatthe only exercise is to determine if the Crown has proven the charge beyond a reasonable doubt. [29] A judge must assess all the witnesses’ evidence in terms of its inherent reliability and the likelihood that the events happenedas they, the events happened. [30] Justice Mainella provided a practical guide for considering how to analyze witnesses’ credibility in Storheim: Some of the things to consider are: did the witness seem honest?

Is there any reason why the witness would not be telling the truth? How did the witness appear when giving evidence? Was the witness forthright and responsive to questions, or was he or she evasive orhesitant? Was the testimony of the witness reasonable and consistent, or did the witness contradict himself or herself? Was the witness'stestimony consistent with the testimony of other witnesses? Do any inconsistencies in the witness's evidence make the main the points

of the testimony more or less believable and reliable? Did any inability or difficulty the witness had remembering seem genuine or did it seem made up as an excuse not to answer questions? Was there something that helped the witness remember the detail of the event that he or she described? (At p. 32) Analysis of the Evidence in this Case [ 31 ] The accused denied the allegations. His wife also denied seeing anything that raised suspicion. So did T.’s mother, K.S. The only other witness who saw anything was M.

The other adult sister, A., who allegedly told E. that she saw something, did not testify. [ 32 ] This is not a case where it is necessary for me to find that I believe the evidence tendered by the accused or that it has raised a reasonable doubt. In this case, the evidence of the Crown witnesses leaves me with a reasonable doubt. I say this for the reasons that follow. [ 33 ] I preface my analysis of the shortcomings of the Crown’s evidence by stating that I was impressed with T. as a witness. She was forthright and responsive to all the questions asked of her. She was neither evasive nor hesitant.

She seemed genuine. [ 34 ] However, I am concerned about several aspects of her testimony that render her evidence on the whole unreliable. There are gaps in the evidence which might be explained by other evidence, but that evidence was not before me. [ 35 ] I have a doubt about the incidents that occurred in the front entrance area. It is a large, open area that acts as a hub for the rest of the house. Not only did no one see anything unusual, but I have a doubt that any accused would take the chance of taking his penis out of his pants and have a child rub it in that very public area.

Similarly, I have a doubt that any accused would pull a child out of her bedroom into the hallway to take his penis out of his pants and force her to rub it, when the hallway could very likely be seen from anyone walking through the entrance. At these times, there were between a dozen and 20 people present in the home, including children, who would be running about. [ 36 ] I also have a doubt about the incident that allegedly occurred on the couch where several other family members were present.

I cannot understand how it was physically possible for the accused to be rubbing the child’s back and then move his hand down her back until his hand was under her bum and then be touching her on the inside of her thigh. It would require me to guess and infer certain other evidence, which is not the role of the judge. [ 37 ] I also have a doubt about the accused touching her vagina during the sleepover at his house. There was a lot of inconsistent evidence about the sleepover. Both the accused and his wife and M. testified that there was only one sleepover. T. thought they slept over once or twice.

I would have had no concern about that answer, but T. went on to testify during cross-examination that she would not have slept over at the accused’s home after what happened there, but her sister M. forced her to. M. was not asked if she forced T. to go on other occasions; she testified they slept over only once. [ 38 ] There is cogent evidence that explains why the girls slept over only once. E. testified that the girls were peeking into her and her husband’s bedroom while they were in bed, which she believed was inappropriate.

She raised it with her mother, and she did not intervene, so E. decided the girls should not sleep over again. M. was asked on cross-examination if anything unusual happened during the sleepover and she said yes, “Me and T., we were talking about how we wanted to listen…”, but then she was cut off by counsel. Perhaps she was about to testify about her and her sister wanting to spy on their older sister and husband. I do not know.

None of the Crown witnesses were asked about the girls spying on E. and the accused Nor was the mother asked if E. had spoken to her about it, asking that the girls refrain from peeking into their bedroom. I cannot put too much weight on it. It remains unclear and unknown. [ 39 ] T.’s evidence about the sleepover is not the same as any other witness’ testimony. She testified that little D. was in the living room watching a movie with her. The accused and E. testified that D. was not yet born. T. testified that D. was watching a movie and then she testified that he was playing with his toys.

She testified that E. and M. had gone outside to do the farm chores. All the other witnesses testified that E. and M. were in the house the entire time. Both the accused and E. testified that there as a bush fire not too far from their home, so the adults were hyper alert to the fire coming any closer. The accused testified that no one was going out into the yard. T. testified that she ran outside crying after the accused touched her. All the other witnesses denied this. [ 40 ] There was also testimony about the touching that was difficult to understand.

T. testified that the accused touched her vagina, but she could not remember whether it was over or under her clothing. This was the only allegation of touching on her vagina. I find it difficult to accept she would not know whether it was over or under her clothing. [ 41 ] She testified that the accused was sitting beside her on the couch and was rubbing her leg higher and higher until he touched her vagina. She testified during her direct examination that when he touched her vagina she started crying and the accused got up and was worried and asked if she wanted water and she ran outside crying to E.

When the Crown Attorney asked her if she could remember anything else about how it stopped, she testified that she could not. [ 42 ] But, she told police in her second statement that she kicked the accused in the face when he did this. When she was preparing for trial with the Crown Attorney, she told her that she kicked him, but not in the face. When asked about these apparent omissions or inconsistencies on cross-examination, she testified that she did not kick him in the face. She testified that she tried to push him away with her feet.

When she was asked on cross-examination about telling the Crown Attorney that she kicked him somewhere else, she testified that she kicked him somewhere other than the face, but she could not remember where. These inconsistencies were concerning. [ 43 ] It is also difficult to understand how and why she kicked the accused in the face or elsewhere when they were sitting side by side on the couch. [ 44 ] The cross-examination continued in that vein, where T. agreed that she changed her story so that she would not look bad.

There may be many explanations for that, that have to do with child abuse victims’ perception of adults not believing them, or blaming them for what happened, but without more testimony on those points, I am unable to infer more. It leaves me with doubt.

[ 45 ] There were also inconsistencies about what happened at church and I have a concern about how the touching could have happened as M. testified that it did. T. testified that the accused started touching her leg after E. left with the baby. M., who testified that she saw the touching, testified that E. was sitting there throughout. It is difficult to believe that the accused would touch T. inappropriately with his wife sitting in the same church pew close to him. M. testified that the accused continued to rub T.’s leg and she kept catching him in the act every time she turned around in the church pew.

It is unlikely that an adult touching a child for a sexual purpose would continue to do so if he was caught one time. I do not believe this occurred as M. testified to it. Her evidence is not realistic or reasonable. The evidence of T. is more believable, but I am cautious to accept it, because it is inconsistent with the evidence of M. and every other witness. [ 46 ] The only incident where something occurred that seemed possible was the incident beside the swimming pool.

Because the accused and T. were squatted or sitting on the ground on the far side of the pool it is possible that they would have been hidden from view of anyone looking from the house by the three foot or higher sides of the pool. But, there are other details about that event where there are inconsistencies. Only T. testified that M. left the pool. The accused testified that he ran out to the pool angrily because T. and M. had D. in the water and he was just a two or three year old toddler and they were young. E. testified that T. and M. were in the pool together with D.

She testified that the accused was upset because he did not think T. and M. were old enough to be supervising D. E. testified that T. and M. were about six and eight years old at the time. Both she and the accused testified that once he went outside, he stayed and held up D. in the pool. If M. was in the pool the entire time, which all the witnesses other than T. testified to, then it is unrealistic that the accused would have his penis out and would force T. to touch it. [ 47 ] There is no evidence that T. had any animus towards the accused that would motivate her to lie about these matters.

In fact, by all accounts, he was a favourite brother-in-law that she loved to play with and wrestle with and be around. This would be unlike a situation where there is evidence the victim hates the accused or has previously denied that the events occurred. ( Sanichar ONCA at para. 77). But there is some evidence of a motive to fabricate or simply confusion about what was going on.

The child’s father was also charged with offences involving abuse of his children and a lot of pressure was laid to bear on this accused to take responsibility so that T. could return home. [ 48 ] I am concerned that there may have been some offending behaviour by this accused against T. when she was a child. As I already indicated, she held no animus towards him. She presented as an honest witness. And I do not doubt that adults take advantage of the fact that it is often easy to offend against children “in plain view” as it were. Because no one would ever suspect them.

Particularly in a church, after church, and in a large, religious family. History has shown us unfortunately that these are the very places where bad things happen to kids. I was also struck by the single piece of telling evidence by T. that would be very difficult to concoct, it was so remarkable – before the accused would do anything he would start breathing heavily through his nose. However, suspicions and concerns do not meet the stringent legal test required to convict a person of a criminal offence.

Decision [ 49 ] In the end, I am left with a reasonable doubt about the fabric of the allegations constituting these charges. I am not satisfied beyond a reasonable doubt. [ 50 ] I must therefore acquit N.S. of the offences of sexual interference and invitation to sexual touching. “Original signed by:” C.A. DEVINE, P.J.