R. v. R.A.H., 2021 BCPC 236

Citation: R. v. R.A.H. 2021 BCPC 236 Date: 20210924 File No: 9200-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act, S.C. 2002, c. 1 REGINA v. R.A.H. BAN ON PUBLICATION Pursuant to

Section 486.4(2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CAMPBELL Counsel for the Crown: L. Berman Counsel for the Defendant: C. St. Germain Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 10, 11, 12, 13, 31, June 30, July 9 and August 4, 2021 Date of Judgment: September 24, 2021

[ 1 ] R.A.H. (“Mr. H.”) is charged with three counts of sexually touching a person under the age of 16 years, contrary to

section 151 of the Criminal Code . The offences are alleged to have occurred when Mr. H. provided child care for three young brothers in their home. Mr. H. was a young person as defined in the Youth Criminal Justice Act at the time of the alleged offences. [ 2 ] J.A., A.A. and R.A. are the children of D.C.A. (“Ms. A.”) and R.A.A. (“Mr. A.”). In the summer of 2015, Mr. and Ms. A. were in need of a babysitter due to their work schedules. At the time, A.A. and R.A. were just turning eight years old and J.A. was 10. [ 3 ] Because the boys needed child care for 8 to 9 hours a day, Mr. and Ms.

A. hired a number of babysitters to work half-day shifts. Mr. H. often worked the afternoon shift. Although Mr. and Ms. A. have different recollections of how long he worked for them that summer, Mr. H. recalled that he worked at the A. home from the end of the school year to late August or early September. Mr. H. was asked to babysit again for the family one or two further times later that year or the following year. [ 4 ] A.A., R.A. and J.A. testified in this trial. At the time of their testimony, A.A. and R.A. were 13 years old and J.A. was 16 years old.

Following their disclosure to their parents in June 2018, all three provided video-taped statements to the police. These statements were admitted pursuant to s. 715.1 of the Criminal Code . A.A. [ 5 ] A.A. testified that Mr. H. babysat in the summer of 2014. He was adamant that it was 2014, although other evidence establishes that it was 2015. A.A. recalled that the babysitters worked on weekly shifts. He said that one babysitter would work for an entire week, and then rotate to another babysitter the following week. [ 6 ] A.A. testified that Mr. H. sexually touched him during the times that he babysat.

These incidents of sexual touching happened every time that Mr. H. babysat. It happened in the living room when A.A. and Mr. H. were sitting on the couch watching YouTube. A.A. described it as happening under his clothing to his “crotchular” region. He adopted that word after hearing it on a TV show. [ 7 ] In A.A.’s video-taped statement to the police on June 28, 2018, he said that it was difficult for him to talk about the touching. He stated that he could not remember how it happened.

He was visibly agitated and uncomfortable during the police interview. [ 8 ] A.A. testified that R.A. was sometimes present and witnessed Mr. H. touching A.A., but that R.A. did not intervene. A.A. said that sometimes the touching happened when he and Mr. H. were alone. [ 9 ] A.A. said that he also saw Mr. H. touching R.A. under his clothes. This also occurred in the living room. [ 10 ] A.A. testified that after that summer, Mr. H. babysat again in approximately May 2016 when his father went to a Trump rally. He said that Mr.

H. attempted to touch him again at that time but A.A. told him to stop. [ 11 ] In July 2016, A.A. saw a YouTube video that caused him to make a connection to Mr. H. The video was a comedy skit featuring puppet characters. In the video, one of the characters is spanked by his father and mistakenly reports it as rape. The police are called and the father is arrested and wrongfully imprisoned as a sex offender. A.A. testified that watching the video made him think of the incidents with Mr. H. [ 12 ] A.A. testified that in November 2016, he discussed the touching incidents with his brother R.A.

In his police interview, A.A. said that R.A. told him not to tell anyone. He testified that his police statement was incorrect and that it was actually the other way around. He recalls that it was he, A.A., who said that they should not tell anyone. R.A. [ 13 ] R.A. testified that Mr. H. touched him under his underwear on a number of occasions during the time that Mr. H. babysat. Like A.A., he described the touching as happening to his “crotchular” area. The touching happened while he and Mr. H. were sitting on the couch watching YouTube. R.A. was sometimes wrapped in a blanket when the touching occurred.

He said that the touching incidents lasted for approximately 5 to 15 seconds. [ 14 ] R.A. said that the touching happened a couple of times every couple of days that Mr. H. babysat. He did not think that anyone else was in the room during the touching. [ 15 ] Mr. H. also asked him on some occasions to get naked or to take his clothes off, but R.A. did not do so. [ 16 ] R.A. testified that he initially thought that he was the only person that Mr. H. had done this to. Later, he talked to A.A. and found out that it had also happened to A.A.

He testified that he kept forgetting about it but that A.A. would remind him. [ 17 ] He and A.A. discussed the touching on the same day that A.A. disclosed it to their parents. A.A. said that he was going to report it to the police, but R.A. told him that he should tell their parents. A.A. disclosed it to their parents, and then R.A. also reported it to their parents. J.A. [ 18 ] J.A. testified that Mr. H. touched him on one occasion when J.A. was in his bedroom. J.A. was upset about a video game and went to his room. Mr. H. came into his bedroom and lay down on his bed. J.A. told Mr. H. why he was upset. Mr.

H. put his hand down J.A.’s pants and squeezed his genitals. Mr. H. said something like “What if I did this?” or “Would it be better if I do this?” J.A. said no, and Mr. H. took his hand away and left the room. J.A. said that he felt violated and awkward. [ 19 ] J.A. testified that he did not know that anything had happened to A.A. or R.A. until the night of the disclosure to their parents in June 2018.

The Disclosure [20] A.A., R.A. and J.A. disclosed the sexual touching to their parents in June 2018. Prior to the disclosure, the A. family haddiscussed the possibility of Mr. H. babysitting again in the summer of 2018. Mr. H. had recently visited the A.’s home in Marchrequesting a reference letter. A.A. did not want Mr. H. to come back to babysit. [21] Ms. A. testified that A.A. disclosed the incidents to her. She then went to speak to R.A. separately, who also disclosed that he hadbeen touched. [22] Mr. A. also recalls A.A. disclosing to him that evening. He then spoke to R.A., who made a similar disclosure.

Mr. A. then wentto speak to J.A. in his bedroom, who also reported an incident involving Mr. H. [23] Mr. A. and Ms. A. decided that they should speak to Mr. H.’s parents. They went to the H.’s residence and notified them of whattheir sons had reported. They then went home and phoned the police. [24] Ms. A. testified that at the time of the disclosure, A.A. pounded his fist and asked why it (i.e. the abuse) had only happened tohim. This was significant to Ms. A. as it indicated that the boys had not discussed the allegations with each other. Ms.

A. asked A.A. andR.A. if they were previously aware if the touching had happened to the other brother, and their answer was no. R.A.H. [25] R.A.H. testified that he did not sexually touch J.A., A.A. or R.A. [26] Mr. H. was 14 years old and had just finished Grade 9 when he babysat for the A. family in the summer of 2015. He was 20years old at the time of his testimony at trial. [27] Mr. H. recalls that he and other babysitters would work four-hour shifts from Monday to Friday. One babysitter worked themorning shift, and the next babysitter would start at noon. Mr.

H. usually worked in the afternoons, but sometimes worked the morningshift. He recalls babysitting 2 to 3 times a week. He started at the end of June and finished at the end of August or beginning ofSeptember. He subsequently babysat for the A. family again later that year and again in 2016. [28] He was paid eight dollars an hour for the babysitting. He was saving his earnings for a laptop. [29] Mr. H. said that babysitting the A. boys was a lot to handle. Mr. H. and the A. family described some of the challenges that theboys were struggling with during that time. A.A. experienced anxiety and depression.

J.A. had been diagnosed with Attention DeficitDisorder. Mr. H. said that A.A. would often have tantrums. R.A. sometimes had tantrums, as did J.A. This occurred while Mr. H. wasproviding child care. [30] During the babysitting, Mr. H. said that A.A. and R.A. often spent their time watching YouTube or playing video games in theliving room. Mr. H. would also spend time in the living room. J.A. was more distant and spent time in his own room. Mr. H. spent moretime with A.A. and R.A. than he did with J.A. [31] Mr. H. acknowledged going into J.A.’s room on a few occasions.

He said that he sometimes went into J.A.’s room when J.A. wasupset to ask if he was okay. Mr. H. would stand by the door and ask J.A. if he was all right. Mr. H. denied sitting or laying on J.A.’s bed.He denied that he touched J.A. Positions of the Parties [32] The Crown submits that evidence of A.A., R.A. and J.A. is credible and reliable and that the charges are proven beyond areasonable doubt. The Crown submits that the evidence of the accused should be rejected. [33] The defence submits the charges are not proven beyond a reasonable doubt.

There are credibility and reliability concerns with theCrown witnesses. There are concerns regarding collusion between R.A. and A.A. The defence submits that R.A.’s evidence wasinfluenced by A.A. The defence submits that Mr. H.’s denial of the offences should be accepted.

Analysis [34] The charge of sexual interference in s. 151 of the Criminal Code requires proof that the accused touched for a sexual purposeany part of the body of a person under the age of 16 years. [35] It is not disputed that R.A., A.A. and J.A. were under the age of 16 during the relevant time period, or that the alleged touching ifproven would constitute touching for a sexual purpose. The issue is whether it has been proven that the touching occurred. [36] A fundamental legal principle of a criminal trial is the presumption of innocence.

The burden of proof is on the Crown toestablish that the accused is guilty beyond a reasonable doubt. The accused is not required to prove their innocence or to disprove theevidence led by the Crown. [37] The Crown must establish each essential element of the charge beyond a reasonable doubt. This standard of proof does notrequire absolute certainty. However, believing that an accused is probably guilty is not sufficient to meet the burden of proof. Proofbeyond a reasonable doubt is closer to absolute certainty than a balance of probabilities.

Child Witnesses [38] The three complainants were young persons at the time of the alleged offences and at the time of their testimony. It is recognizedthat the evidence of young persons should be assessed differently than adult witnesses: R. v. W.(R.), (SCC), [1992] 2

SCR 122. The evidentiary standards used to assess the testimony of adult witnesses are not always appropriate in assessing the evidenceof young persons. Children may not perceive and recall events in the same way as adults. Details that may be important to adults, such asdates and times, may be missing from their recollection. The presence of inconsistencies, particularly related to peripheral matters,should be assessed in the context of the age of the witness at the time of the events to which they are testifying.

While the threshold ofproof remains the same when assessing the evidence of children, every witness must be assessed in reference to criteria appropriate totheir mental development, understanding and ability to communicate: W.(R.) at para. 26. Law on Credibility [39] As the accused has testified, the Court must consider the framework in R. v. W.(D.), (SCC), [1991] 1 SCR 742: 1. If I believe the evidence of the accused denying guilt, the accused must be acquitted. 2. Even if I do not believe accused’s evidence, but I am left with a reasonable doubt by it, the accused must be acquitted. 3.

Even if not left in a reasonable doubt by the accused’s testimony, I must consider whether on the basis of the evidence I doaccept, I am convinced beyond a reasonable doubt that the accused is guilty. [40] A criminal trial does not involve simply choosing which version of events is more believable. This approach would misapply theburden of proof, which remains on the Crown to establish guilt beyond a reasonable doubt. As noted in the second step in W.(D.), anaccused’s evidence may not be fully believed but still leave the trier of fact with a reasonable doubt.

Even if the accused’s evidence isentirely rejected, an accused must be acquitted if any evidence raises a reasonable doubt that the accused is guilty. Similar Fact Application [41] The Crown has brought a similar fact application. The Crown applies for a ruling that the evidence of J.A. may be used tosupport the charges with respect to R.A. and A.A. The Crown also applies for a ruling that the evidence of A.A. be used to support thecharge with respect to J.A.

The Crown does not apply for the admission of R.A.’s evidence as similar fact evidence to support the othercounts. [42] Similar fact evidence is presumptively inadmissible. Generally, the trier of fact may not infer from evidence of similar acts thatthe accused has a propensity to commit the particular offence. Further, evidence with respect to one count is generally not admissibleevidence on counts involving other complainants.

Each charge must be proven independently beyond a reasonable doubt. [43] In this application, the Crown submits that the evidence with respect to the complainants is so similar that it should be admittedas proof of the actus reus on other counts and in support of the credibility of other complainants. [44] For similar fact evidence to be admissible, the Crown must establish on a balance of probabilities that the evidence of situation-specific behaviour is so similar and cogent that its probative value outweighs its prejudicial effect.

The similar fact evidence must bereasonably capable of belief, relevant to an issue at trial and capable of supporting the inferences that the Crown asks the Court to make:R. v. Handy, 2002 SCC 56. [45] The admissibility of similar fact evidence turns on a weighing of the probative value of the evidence against its prejudicial effect.Probative value is based on the degree of similarity of the alleged acts. A high degree of similarity between the acts may render thelikelihood of coincidence improbable: R. v. Arp, (SCC), [1998] 3 S.C.R. 339 at para. 43. In R. v.

J.M., 2010 ONCA 117, Watt J.A. stated at para. 91: The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which theevidence is proffered and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in supportof proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying theevents being compared: Handy at para. 81.

The cogency of evidence of similar acts may arise from the repetitive and predictable natureof an accused’s conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connectionbetween the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing atparas. 48 and 50.

The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances inwhich those acts occurred. [46] As set out in Handy at paras. 121 to 136, the following non-exhaustive list of factors may be relevant to assessing whether theacts are sufficiently similar to justify admission: 1. proximity in time of the similar acts; 2. similarities in detail; 3. number of occurrences of the similar acts; 4. circumstances surrounding or relating to the similar acts; 5. any distinctive features unifying the incidents; 6. intervening events; and 7. the strength of the evidence that the similar acts actually occurred. [47] With respect to prejudicial effect, it is necessary to consider the possibility of improper reasoning.

The concern is that a

conviction may be based on improper reasoning rather than reliable proof. Improper reasoning may arise from moral prejudice or reasoning prejudice. Moral prejudice arises from the concern that the trier of fact may convict on the basis of prior misconduct or bad character.

Reasoning prejudice arises where there is a risk that the similar fact evidence may carry disproportionate weight or confuse the trier of fact: Handy at para. 31 . [ 48 ] It has been noted that the risk that an accused would be convicted solely on the basis of improper reasoning is not a significant concern in a judge-alone trial, as a judge is presumed to know the law and the proper use of evidence: R. v. J.H ., 2018 ONCA 245 . [ 49 ] In this case, it is also significant that all of the similar fact evidence has already been introduced in this trial in support of the charges on the indictment.

This is not a case where the Crown is seeking to expand the trial to include evidence of misconduct beyond the scope of the charges before the Court, which can raise concerns about the prejudicial impact of extrinsic misconduct unrelated to the charges before the Court. [ 50 ] In assessing the probative value of the evidence in this case, I accept that the evidence is reasonably capable of belief and that there is a strong degree of similarity in the allegations. The incidents all occurred in the context of Mr. H. babysitting young brothers at their family home.

The majority of the behaviour took place within a limited time period in the summer of 2015. The descriptions of the touching incidents are similar, involving Mr. H. using his hand to fondle or touch the boys’ genitals underneath their clothing. While A.A. complained of numerous incidents and J.A. reported a single incident, I do not consider this to be a significant distinguishing feature. It is noteworthy that J.A. testified that he said “no” to the touching, which stopped the incident from continuing.

Otherwise, the touching incidents described by J.A. and A.A. were similar in nature and occurred within the same contextual circumstances. In my view, there are compelling connecting features in the incidents described by J.A. and A.A. [ 51 ] In assessing the probative value of the evidence, however, the Court must also consider whether there is any evidence of collusion. Collusion is the possibility that the complainants, in sharing their stories with one another, either intentionally or unintentionally changed or modified their evidence of the alleged offence.

Collusion does not require a finding that the witnesses conspired to fabricate their evidence. Collusion may occur through innocent or inadvertent influence: R. v. Wilkinson , 2017 ONCA 756 at para. 45 . [ 52 ] Evidence of collusion may undermine the basis on which the similar fact evidence is sought to be admitted: Handy at para. 99 .

It reduces the improbability that two witnesses would independently give evidence of similar acts. [ 53 ] Regardless of whether the collusion is intentional or inadvertent, where there is an air of reality to this concern, the Crown must establish that the evidence is not tainted by collusion: Handy at para. 112 ; Wilkinson at paras. 38-45 . [ 54 ] The Crown does not apply for the admission of R.A.’s evidence as similar fact evidence, which I understand is based in part on recognition of the evidence that A.A. had discussed the incidents with R.A.

In my view, however, the discussions between R.A. and A.A. also impact whether A.A.’s evidence may be admitted as similar fact evidence. [ 55 ] R.A. and A.A. discussed the incidents before the disclosure to their parents. R.A. recalled that there were a number of discussions. It is noteworthy that both R.A. and A.A. used similar unusual language in describing the assaults. In particular, they both used the non-word “crotchular” to describe the assaults. In another example of the impact of these discussions, R.A. reported to his parents that Mr. H. told the brothers not to discuss the touching incidents.

At trial, his recollection was that Mr. H. had told them not to tell their parents that Mr. H. let them swear, and did not specifically refer to the touching. However, A.A. had told R.A. that Mr. H. was not referring to swearing but rather the touching incidents when he told the boys not to tell their parents.

These examples lead to the inference that R.A.’s account was to some degree influenced by his discussions with A.A. [ 56 ] Given the evidence that there were discussions between A.A. and R.A. that impacted the way that they have described the incidents, I am not satisfied that it has been established that A.A.’s evidence has not been affected or modified to some degree by their discussions. I conclude that A.A.’s evidence is not admissible as similar fact evidence. [ 57 ] The admission of J.A.’s evidence based on the similarities with both A.A. and R.A. is justified.

In contrast to A.A. and R.A., J.A. did not discuss the incidents with his brothers or anyone else. There is a strong degree of similarity between J.A.’s evidence and his brothers’ accounts. I find that J.A.’s evidence is admissible as similar fact evidence in support of the other counts. ANALYSIS [ 58 ] I will approach the analysis of the evidence by first considering the testimony of Mr. H. [ 59 ] Although Mr. H. is now an adult, he was a young teenager during the relevant time period. It is necessary to assess Mr.

H.’s testimony in the context of his age at the relevant time. [ 60 ] Although his testimony must be approached by considering that he was a young teenager at the time of these events, I have a number of concerns with his testimony. His evidence significantly changed when questioned about certain issues. For example, he initially said that he had not spoken to the parents about the fact that the boys would frequently throw tantrums and have breakdowns. In cross-examination, he changed his evidence to state that he had talked to the parents about the boys’ behaviour on maybe 10 occasions.

This is a significant change in his account of events that would be distinctly memorable. [ 61 ] Mr. H. initially denied that he ever sat close to any of the boys on the couch in the living room. He recalls that he never sat less than a foot apart from the boys. He then stated that if the twins were sitting on different couches in the living room, then he would be sitting close to one of them. He then said that there were a number of times when one of the boys would be sitting close to him. He suggested that this made him feel weird and uncomfortable, like they were cuddling.

He said that it was inappropriate, and he would sometimes move away. Mr. H. said that it would not have been appropriate for him to physically touch the boys, even in a non-sexual way such as a “high-five” unless they initiated it. Mr. H.’s testimony seemed to be designed to attempt to distance himself from any kind of physical contact with the boys.

[62] Mr. H. portrayed himself as a disciplinarian in his relationship with the boys. He said that he did not allow them to swear orwatch inappropriate content on their devices. He would take away their devices or tell them to turn off the TV when they watchedinappropriate videos. He said that he spoke to their parents about the inappropriate videos that the boys were watching. [63] A.A. and R.A. described a very different relationship. Neither A.A. nor R.A. suggested that Mr. H. would restrict what theywatched or otherwise control their behaviour. R.A. said that Mr. H. let them swear and he thought that Mr.

H. was the best babysitterthey had. A.A. said that they watched videos in the presence of Mr. H., without any suggestion that Mr. H. intervened. I accept this partof A.A. and R.A.’s testimony. [64] After carefully considering Mr. H.’s testimony in the context of all of the evidence, I have concerns with respect to the credibilityof his evidence.

I do not believe that he has been truthful with respect to the key issue of whether the acts of touching occurred. [65] Although the standard of proof in a criminal trial is not met simply because the Crown’s witnesses are more believable than theaccused, it is necessary to assess the accused’s testimony in the context of other evidence at trial: R. v. Redden, 2021 BCCA 230 at paras.80-81; R. v. J.J.R.D., (ON CA), 2006 215 C.C.C. (3d) 252; R. v. Hull, (ON CA), [2006] O.J. No.3177 (C.A.) at para. 5.

These authorities establish that the trier of fact may reject an accused’s evidence “based on a considered andreasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”. As I will explain later in these Reasons,after considering all of the evidence at trial I accept the evidence of J.A. and R.A. with respect to the touching incidents. [66] In

summary, I do not believe Mr. H.’s denials of the sexual touching and I am not left with a reasonable doubt by his testimony. The Evidence of A.A., R.A. and J.A. [67] Some peripheral details in the complainants’ evidence were inconsistent or incorrect. For example, J.A. was inconsistent aboutwhether his bedroom door was open or closed when Mr. H. entered and committed the assault. J.A. also believed that Mr. H. was theonly babysitter they had that summer. [68] A.A. testified that the babysitters worked on rotating weekly shifts.

This is likely mistaken, based on other evidence that thebabysitters worked half-day shifts on a rotating basis. [69] There were also inconsistencies in what year these events occurred. J.A. believed that it happened in 2014. He changed hisevidence to 2015 after speaking to his father. A.A. also was certain that the offences happened in 2014 rather than 2015. [70] Generally, I do not consider that inconsistencies about this kind of peripheral detail detract from the witnesses’ ability toaccurately recount the central aspects of the sexual touching incidents.

These are child witnesses who testified to events that happenedapproximately six years ago. Their memory of peripheral details, such as the babysitters’ schedules or whether a bedroom door was openor closed does not raise concerns regarding the reliability of their memory of the sexual touching incidents. [71] The defence submits that the reliability of the witness’ testimony is impacted as they were emotionally fragile and seeking theattention of their parents. The parents described the boys as struggling with their mental health to varying degrees at the time.

They wereoften emotional and struggled with depression or anxiety. [72] There is a broad range of mental health conditions. It is notorious that a great number of Canadians experience mental healthsymptoms at some point in their lives. Generally, the mere fact of a mental health condition does not necessarily raise any concern withrespect to reliability. Any suggestion that a mental health condition implies that a witness may be unreliable must be supported by cogentevidence rather than stereotypical assumptions.

In the absence of case-specific evidence that a particular disorder is relevant to a triableissue, the mere fact of a mental health condition is not relevant to reliability: see R. v. M.H., 2003 BCCA 607. [73] The defence fairly acknowledges that the fact that a person has a mental health condition does not make them less worthy ofbelief.

However, the defence submits that the brothers sought attention from their parents and that they may have reported that they wereabused for this reason. [74] I agree that there is a concern with respect to the reason that A.A. made the initial disclosure, which I discuss in greater detaillater in these Reasons. However, J.A. and R.A. disclosed only after they were questioned by their parents following A.A.’s disclosure.J.A. was upset when the incidents were disclosed by his brother. The evidence does not indicate that J.A. or R.A. were seeking attentionby reporting the incidents.

A.A. [75] The defence submits that A.A.’s disclosure may have been tainted by watching the YouTube video in which one of thecharacters is wrongfully accused of sexual assault. In this video, one of the characters is spanked by his father and reports that he wasraped. The police were called and the father was wrongfully convicted. A.A. saw this video in the summer of 2016 when he was nineyears old, which caused him to make the connection that he had been abused by Mr. H. He explained that although the video wasdifferent from his own experience, watching the video caused him to think about the incidents with Mr. H.

I accept A.A.’s explanationthat although the content was different from his own experience, it caused him to make a connection to Mr. H. In my view, A.A.’sevidence of watching this video does not raise concerns that it somehow caused him to make a false allegation or that the video affectedhis memory. [76] The defence has noted that there are inconsistencies in A.A.’s evidence. He told the police that the touching happened threetimes a day every day that Mr. H. babysat. In his testimony he changed this to 1 to 2 times a day because he thought it sounded morelogical.

He had initially reported to the police that it lasted 5 to 10 minutes but changed his evidence to 2 to 5 minutes because it soundedmore logical and realistic. In considering the age of A.A. at the time of these events, it is not unexpected that a young witness may havesome difficulties estimating the passage of time or the exact number of incidents in a case involving multiple incidents. It may be tooexacting to expect a child witness to accurately estimate the passage of time or the number of incidents.

[ 77 ] However, there are other concerns that arise from A.A.’s testimony. During his police interview in 2018, he told the police that he could not remember specific details of the incidents. A.A. testified that when he told the police that he did not remember, he did in fact recall the details but it was too difficult for him to talk about it. He was clearly anxious during the interview, which might explain his responses to the police questioning.

However, in cross-examination, he said that he was being truthful when he told the police he could not remember. [ 78 ] A.A. told the police that he reported the abuse because he “could not let it slide”, meaning that he did not want Mr. H. doing this to other kids. However, he testified that this was not the reason that he disclosed the abuse. He testified that he disclosed the incidents to his parents to gain sympathy and to manipulate them into buying him things such as video games. In his own words, he stated that he wanted “leverage” over his parents and wanted to “manipulate the hell” out of them.

He said that after the disclosure, he would bring up the abuse and they would buy him things that he wanted. He was asked why he disclosed to his parents on that particular night and he said it was because he was bored. He agreed that he obtained a lot of things from his parents due to the disclosure. [ 79 ] The Crown submits this is a sign of honesty, in that if he was deceptive he would not candidly volunteer that he had an ulterior motive in reporting the abuse. This is one possible

interpretation of the evidence. However, one of the factors in assessing testimony is whether there is any apparent motive in a witness’ evidence. A.A. gained significant benefits from his parents in making his disclosure. He had a self-interested ulterior motive in his disclosure and he was dishonest with the police about his reasons for coming forward. [ 80 ] The Crown submits that the evidence of A.A.’s prior statement to his brother in 2016 about the touching incidents may be admitted to rebut an allegation of recent fabrication: see R. v. Stirling , 2008 SCC 10 at para. 7 .

There was significant cross-examination of A.A. on the reason for his disclosure and his goal of obtaining personal benefits. I agree that it is appropriate to consider the evidence of A.A.’s prior disclosure to his brother in 2016 for the purpose of rebutting any suggestion that the allegation was fabricated at a later time. [ 81 ] There is another concern that arises from A.A. and R.A.’s evidence. On the night of the disclosure, Ms. A. asked R.A. and A.A. if they knew it had happened to each other and they both said no. Ms.

A. testified that at the time of the disclosure, A.A. pounded his fist and said something to the effect of “why only me?” [ 82 ] However, both A.A. and R.A. testified that they had discussed the touching long before the disclosure. R.A. said that he and A.A. discussed it the day of the disclosure, prior to A.A. reporting it to their parents. [ 83 ] R.A. denied that he told his mother that he was not aware of it happening to his brother. It is possible that Ms. A. is mistaken about speaking to R.A. about this. However, I accept Ms. A.’s evidence of A.A. asking why it had only happened to him.

There is an air of reality to her account of her discussion with A.A. It is not clear why A.A. made this statement to his mother if he had witnessed Mr. H.’s assaulting his brother and discussed the incidents with his brother prior to the disclosure. [ 84 ] The charge with respect to A.A. is supported by the admission of J.A.’s evidence as similar fact evidence. However, there are a number of concerns that arise from A.A.’s evidence.

These concerns include misleading the police about his reason for coming forward, using his disclosure to manipulate his parents to obtain benefits for himself and misleading his parents in suggesting that the abuse had only happened to him. I conclude that there is a reasonable doubt with respect to Count 3. R.A. [ 85 ] There was no suggestion of any ulterior motive in R.A.’s disclosure. R.A. thought that Mr. H. was the best of the babysitters they had that summer. Mr. H. let them get away with swearing and other things.

R.A. only disclosed the touching once he was questioned about it following his brother’s disclosure. [ 86 ] The defence suggests that there is a concern about the reliability of R.A.’s evidence, in that A.A. may have influenced R.A.’s account. The concern with possible collusion was a factor that weighed against the admission of A.A.’s and R.A.’s evidence as similar fact evidence. It should also be considered in assessing the overall reliability of their evidence. [ 87 ] R.A. said that he kept forgetting about the incidents and that A.A. reminded him.

Like A.A., R.A. used the word “crotchular” to describe the touching. He referred to Mr. H. as a “pedophile” after hearing A.A. use that word, although he did not know what it meant. I have also noted that R.A. and A.A.’s discussions influenced R.A.’s reporting to his parents that Mr. H. had told them not to discuss the touching incidents. In fact, his recollection was that Mr. H. had told them not to tell their parents that Mr. H. let them swear. R.A. said that A.A. told him that Mr. H. was in fact referring to the touching incidents rather than swearing.

This discussion influenced R.A.’s narrative of these events. [ 88 ] I accept that the discussions between A.A. and R.A. influenced the way that R.A. has described these events, such as using the word “pedophile” and the non-word “crotchular”. In my view, however, the evidence does not indicate that R.A.’s memory of the assaults themselves is unreliable due to those discussions. [ 89 ] It is not unexpected for the brothers to have discussed the incidents.

There are significant differences in how they described the incidents, such as their estimates as to how often and how long the touching occurred. [ 90 ] R.A. was a careful, articulate and forthright witness. He provided descriptive details of the incidents, such as being touched while wrapped in a blanket or while watching a particular video. I accept his account of the touching incidents. R.A.’s testimony is also supported by the similar fact evidence of J.A. [ 91 ] I find that Count 2 is proven beyond a reasonable doubt. J.A. [ 92 ] J.A. described

an act of sexual touching on one occasion. He was not aware of it happening to his brothers until the night of the

disclosure. In his police interview, he suggested that he did not think what had happened to him was molestation but he has since come to realize that it was. [ 93 ] J.A. told his father about the incident when his father approached him after R.A. and A.A.’s disclosures. His father had previously told J.A. a number of times about his own abuse that he had experienced as a child. His father talked again about his own abuse on the night of J.A.’s disclosure. The defence submits that this sharing of information by his father may have influenced J.A. to report that he was abused when questioned about Mr.

H. [ 94 ] The Crown submits that the court may use evidence of what J.A. told his father on the night of the disclosure to show that his statements were consistent from the time of his initial disclosure. As set out in Stirling , supra at para. 7 , a prior consistent statement may be admissible to rebut any suggestion of recent fabrication by showing that the witness has made a consistent statement on a previous occasion.

Although J.A. was questioned about what he had heard about his brothers’ disclosures, I do not understand the defence to suggest that he fabricated his evidence after hearing about his brothers’ allegations or on some other prior occasion. In my view, J.A.’s prior statement to his father is not admissible for the purpose of showing consistency, as the defence has not suggested that there was a prior fabrication. [ 95 ] I found J.A. to be a thoughtful and straightforward witness. He clarified certain details from his police interview, but his account of the incident was clear and consistent.

His recollection of the circumstances and details of the incident established a compelling air of reality to his evidence. I am not able to conclude that his father telling him about his own abuse impacts the reliability of J.A.’s evidence. I accept that J.A.’s testimony was credible, reliable and truthful. Count 1 is proven beyond a reasonable doubt. _____________________________ The Honourable Judge J. Campbell Provincial Court of British Columbia