R. v. S.P.J., 2021 BCPC 276

Citation: R. v. S.P.J. 2021 BCPC 276 Date: 20211110 File No: 9487-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.P.J. BANS ON PUBLICATION:

SECTION 486.4 AND 517 OF THE CCC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Crown: D. Brennan Counsel for the Defendant: R. Nielsen Place of Hearing: [Village One] , B.C.

Dates of Hearing: January 14, 15, 16, February 25, 26, 2020; March 23, 24, 25, June 7, 17, July 9, September 16,2021Date of Judgment: November 10, 2021 Introduction [1] S.P.J. is before the court under Information 9487-1, charged with 20 offences: seven sexual offences against his daughter P.R.C.;ten sexual offences against his granddaughter E.M.; and three violent offences against his son V.T.M.

The offences traverse four decadesand four generations. [2] P.R.C. claims she was sexually abused by her biological father, S.P.J., on four occasions: once when she was a child; twice as anadolescent; and once as an adult. She says the offences occurred between January 1, 1979 and December 31,1995, in [Village One] andPrince George, BC. [3] E.M. says she was sexually abused by her grandfather, the same S.P.J., both as a young child and an adolescent. She says theseoffences occurred between January 1, 2000 and December 31, 2008, in Prince George, [Village One] and [Village Two and VillageThree], British Columbia.

P.R.C. and E.M. describe sexual violence involving sexual touching and forced intercourse. [4] V.T.M. complains that while a teenager, he was a victim of physical violence at the hands of his father, S.P.J. [5] This case is a tragic story of an Indigenous family besieged and traumatized by transgenerational substance misuse, residentialinstability, marital discord, family violence and child abuse.

Issues [6] The salient issues in this case are whether the Crown has proven S.P.J.’s guilt of any of the charges beyond a reasonable doubt.More particularly, the defence says there were no sexual or physical assaults and furthermore, the accused lacked the opportunity tocommit many of the alleged offences. Identity is not in issue. [7] The trial spawned a plethora of evidentiary issues, including: (

a) the reliability and credibility of the witnesses; (

b) adultwitnesses testifying to historical childhood events; (

c) myths, stereotypes and common sense in sexual assault cases; (

d) the confrontationrule; (

e) collateral fact evidence; (

f) discredible conduct evidence; (

g) collusion and fabrication; (

h) prior consistent statements; (i)similar fact evidence; (

j) after-the-offence conduct; and (

k) alibi. The legislative framework [8] The offences charged under Information 9487-1 span 30 years, the oldest of which is alleged to have occurred over 40 years ago.The offences are said to have occurred in (

a) Prince George, British Columbia; (b) [Village One], British Columbia, which encompasses[omitted for publication], a [omitted for publication] First Nation reserve community located within the municipal boundaries of [VillageOne]; and (c) [Village Three], British Columbia, also a remote [omitted for publication] First Nation’s reserve community located[omitted for publication] near [Village Three], British Columbia. [9] In this case the identity of the accused and the jurisdiction of the court are not contested. The crown must prove the essentialelements of each offence charged: a.

To prove the offence of sexual assault pursuant to 271(1) of the Criminal Code in force on the offence date as charged in Counts 1, 3,7, 15 and 16 , the Crown must prove beyond a reasonable doubt: (

a) three criminal act (actus reus) elements, namely (

i) touching; (ii) thesexual nature of the contact; (iii) the absence of consent; and (

b) two criminal intent (mens rea) elements, namely (iv) intention to touch;and (

v) knowledge, recklessness or wilful blindness about lack of consent. In this case, because of their age and/or degree ofconsanguinity to the accused, the complainants were incapable of consenting to the sexual activity; b. To prove the offence of sexual interference with a person under the age of 14, contrary to s. 151 of the Criminal Code in force on theoffence date as charged in Counts 2, 4, 8, the Crown must prove beyond a reasonable doubt, (

a) the accused touched a part of the body ofthe complainant directly or indirectly with a part of his body; (

b) the accused touched the complainant for a sexual purpose; and (

c) thecomplainant was under the age of 14 years at the time; c. To prove the offence of invitation to sexual touching to a person under the age of 14 pursuant to s. 152 of the Criminal Code then inforce as charged in Counts 5 and 9, the Crown must prove: (

a) the complainant was under 14-years-old at the time; (

b) the accusedinvited or counselled the complainant to touch the accused’s body; and (

c) the touching that the accused invited was for a sexualpurpose; d. To prove the offence of incest (s. 155(2)) of the Criminal Code charged in Counts 6, 10 and 14, and s. 150 of the Criminal Code thenin force at the time with respect to Count 12, the Crown must prove two constituent elements: (1) sexual intercourse; and (2) knowledgethat the victim is a blood relation (parent, child, brother, sister, half-brother, half-sister, grandparent or grandchild); e.

To prove the offence of an indecent assault of a female (s. 149 of the Criminal Code then in force) as charged in Counts 11 and 17,the Crown must prove beyond a reasonable doubt the accused, knowing that the complainant (who was not his wife) did not or could notconsent, did commit the act of indecent assault. Indecent assault under former

Section 149, has been judicially interpreted as an assault incircumstances of indecency, R. v. Chase, (SCC); f. To prove the offence of sexual intercourse with a female under 14, (s. 146(1) of the Criminal Code then in force) as charged inCount 13, the Crown must prove beyond a reasonable doubt, (

a) the accused is a male person, (

b) the complainant is female; (

c) thecomplainant was under the age of 14 at the time of the offence; (

d) the complainant was not his wife; (

e) the accused had sexual

intercourse with the complainant; g. To prove the offence of assault with a weapon as charged in Counts 18 and 19, the Crown must prove beyond a reasonable doubt theaccused assaulted the complainant and in committing this assault, he carried, used, or threatened to use, a weapon; and h. To prove the offence of assault as charged in Count 20, the Crown must prove the accused intentionally applied force to thecomplainant, the complainant did not consent to that force the accused applied and the accused knew the complainant did not consent tothe force he applied. Jurisprudence on legal issues (

a) assessing reliability and credibility [10] In this case, I heard from five Crown witnesses and seven defence witnesses. Assessing their reliability and credibility is crucial.This is a highly contextual, fact-specific exercise. Reliability and credibility are not the same. Reliability involves the accuracy of thewitness’s testimony. It engages consideration of the witness’s ability to observe, recall and recount: R. v. H.C., 2009 ONCA 56, para. 41.Credibility, on the other hand, concerns the witness’s veracity – to speak the truth as the witness believes it to be: R. v. Morrissey, (ONCA), at p. 526.

Simply put, credibility addresses whether a witness is lying, whereas reliability is about honestmistakes. [11] I can believe none, part, or all of a witness' evidence and may attach different weight to different parts of a witness' evidence: R.v. D.R., (SCC). [12] To varying degrees the reliability of all the witnesses who testified in this trial is compromised by the passage of time. They weretestifying to events that occurred several years ago and in some cases, decades ago. Memories have faded; key witnesses have died orbecome otherwise inaccessible; evidence has been lost.

Despite these evidentiary deficiencies, I must undertake this truth-seekingprocess fairly and impartially and hear and decide the case in its entirety. I have done so to the best of my ability. This is my decision andreasons for judgment. [13] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’s evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent (

f) the witness’s demeanour while testifying, meaning not so much what is said but how it is said. (

b) adult witnesses testifying to childhood events [14] I am mindful that in this case many of the Crown and defence witnesses are adults testifying to experiences that happened whenthey were children. In assessing the credibility of a witness in these circumstances, McLachlin J. in R. v. W.(R.), (SCC),states: . . . 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. (

c) myths, stereotypes and common sense [15] The appellate courts have repeatedly cautioned trial judges from relying on myths, stereotypes and unfounded inferences toground credibility assessments. In R. v. Greif, 2021 BCCA 187, the BC Court of Appeal recently stated at para 60 and 61 [citationsomitted]: [60] In Canadian criminal law, triers of fact may rely on “reason and common sense”, “life experience”, and “logic” in making credibilityassessments: . . . However, it is an error of law to draw an adverse inference about a witness’s credibility based on stereotypes,generalizations, or assumptions about how individuals would behave in a particular circumstance that are not (

a) grounded in theevidence, or (

b) so uncontroversial that they could properly be the subject of judicial notice. … [61] Credibility assessments tainted by improper speculation or stereotypical reasoning have been particularly problematic in the contextof sexual offences, where cases (like the one at bar) often turn on credibility findings. Triers of fact must be aware “there is no inviolablerule on how people who are the victims of trauma like a sexual assault will behave” . . . Reliance on myths, stereotypes, or unfoundedinferences to ground credibility assessments is an error, whether it is applied against a complainant or an accused . . .

It is an errorwhether it is applied to undermine or to support the witness’s credibility . . . Also see R. v. C.M.M., 2020 BCCA 56, at paras.128-139. [16] A tenacious stereotype is the now debunked doctrine of recent complaint that once recognized a presumptive adverse inferenceagainst the credibility of a rape victim who failed to complain at the first reasonable opportunity. It was abrogated by the 1983amendments to the Criminal Code. The courts have not preserved the doctrine in relation to pre-amendment offences: R. v. W.B., (ONCA).

Despite the doctrine having been relegated to the jurisprudential wasteland, litigants persist in arguing a failure tomake a timely complaint ought to adversely affect a complainant’s credibility. [17] Another pitfall in assessing credibility in sexual offence cases is the presumption a complainant’s incremental disclosure ofsexual violence reflects negatively on their credibility. Recently, in R v Garford, 2021 ABCA 338, the Alberta Court of Appeal grappled

with the impact of incremental disclosure in the context of a sexual assault case where the complainant testified to a detail of the offenceat trial that was not mentioned in her formal statement to the police officer at her initial reporting. The appellate court stated: [20] Our understanding of sexual assault has evolved over time. Courts now recognize that there is no “inviolable rule” for the wayvictims of sexual assault behave: R v DD, 2000 SCC 43[DD] at para 65. Some will come forward to make an immediate complaint;others will delay in their disclosure of the abuse, whether in whole or in part.

Reasons for delay are “many” and include at least“embarrassment, fear, guilt, or a lack of understanding and knowledge”: DD at para 65. They may also include, as in the present case,the recovery of repressed or buried memories. [21] This is not to say such evidence is necessarily inadmissible or irrelevant; as a general rule, it can and should be probed during cross-examination.

It will be for the trial judge to assess and weigh the explanation for the incremental disclosure, the breadth and scope ofnew allegations or details, and weigh them individually and collectively, in the overall assessment of the complainant’s credibility.

Atrial judge, who sees and hears the complainant, is in the best position to determine whether the added particulars are of such amagnitude that they leave her with a reasonable doubt, or whether they are adequately explained in the context of all the evidence. [22] The point is simply that the mere fact a complainant’s reporting, particularly that of a child, is not a verbatim recitation over time oris revealed in a piecemeal fashion, is not in and of itself the conduit to infer negatively on a complainant’s credibility: R v DP, 2017ONCA 263, leave to appeal ref’d, (SCC); R v Ramos, 2020 MBCA 111, aff’d 2021 SCC 15.

It is not necessarily aninconsistency. It is not necessarily a fatal blow in the ultimate credibility assessment. Disclosure may well be a progressive exercise. Thepain or trauma inherent in most decisions to disclose can be painful for victims. It is therefore not surprising that it may take somecomplainants more than one occasion to shed this burden and reveal the full picture. … (

d) the confrontation principle [18] The difficulties in assessing credibility in this case were compounded by the myriad of evidentiary issues, including the defenceconfronting Crown witnesses with contradictory evidence to which no witness testified and failing to confront the Crown witnesses withcontradictory evidence to which a defence witness did testify. The latter is a breach of the confrontation principle also known as the rulein Browne v. Dunn, 1893 CanLII 65 (FOREP).

The problem the rule seeks to address usually arises from failure to confront a witnesswith contradictory evidence later called by the defence. The Court of Appeal in R. v. Murray, 2020 BCCA 42 , explains[citations omitted]: [70] The principle of confrontation is fundamentally a question of trial fairness. Enforcing it in appropriate circumstances promotesfairness to the witness and enhances the truth-seeking function of the trial . . .

The principle is only triggered when thepotential contradiction relates to a matter of substance: . . . [19] One of the permissive options to rectify a breach of the confrontation rule is to recall the witness. Another option is for the trialjudge to take into account the failure to cross-examine when assessing a witness’ credibility and deciding the weight to be given to thatwitness’ evidence: R. v. Podolski, 2018 BCCA 96 , para. 146., leave ref’d (SCC). (

e) collateral fact [20] An issue which arose more than once in this trial was the Crown’s objection to the defence adducing contradictory evidencesolely to test the credibility of the complainant on a collateral fact not directly connected or not relevant to a matter the Crown had toprove for a proper determination of this case: R. v. Krause, (SCC). Generally, a party cannot impugn a witness’credibility by contradicting the witness on matters which are collateral, even where credibility is a core issue: R. v. P.S.P., [2000] B.C.J.1512.

The rule does not impact the scope of cross-examination, but rather limits what contradictory evidence can be called to refute awitness’ answer. The rule seeks to preserve trial efficiency and avoid confusion and distraction by preventing the litigation of issues thathave only marginal relevance: R. v. CF, 2017 ONCA 480, citing David Watt, Watt’s Manual of Criminal Evidence, (Toronto: ThompsonReuters Canada, 2016), at p. 316. (

f) discredible conduct of the accused [21] In this case, the court received evidence of discredible conduct of S.P.J. Discreditable conduct or bad character can be highlyprejudicial to the accused’s right to a fair trial. As the trial judge, it is incumbent upon me to closely scrutinize the probative value of theevidence and the purposes for which the evidence is tendered. The probative value of the evidence lies in its ability to advance or refute alive issue at trial derived from either the facts alleged in the charge, or the defences advanced by the accused or reasonably anticipated bythe prosecution.

Evidence of misconduct by the accused that goes beyond the charges and which does no more than blacken hischaracter is presumptively inadmissible: R. v. Handy, 2002 SCC 56, at paras. 69, 73-75. [22] In R. v. A.L., 2020 BCCA 18, leave to appeal ref’d, [2020] S.C.C.A.

No. 83., the Court of Appeal considered the admissibility ofdiscredible conduct in the context of a historical sexual abuse case: [139] As the appellant concedes, evidence of extrinsic misconduct may be admitted by exception in cases of this kind to demonstrate asystem of control over others that could explain why the abuse occurred and continued unreported, or as part of the narrative to providenecessary context for subsequent events: B. (F.F.) at 732; R. v. F. (D.S.) (1999), (ON CA), 132 C.C.C. (3d) 97 atparas. 22, 26 (Ont. C.A.); R. v. R.O., 2015 ONCA 814 at paras. 16, 18, 25.

In F. (D.S.), the court noted that in cases involving allegationsof sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist thetrier of fact in understanding: (1) the nature of the relationship between the parties and the context in which the alleged abuse occurred;and (2) why the complainant did not leave the relationship or report the abuse at an earlier time, particularly where the complainant’sfailure to so act is (or will be) relied on by the defence to undermine her credibility: see also J.A.T. at para. 54. [140] Further, in spousal and sexual assault cases, it is not uncommon for extrinsic misconduct evidence to be led concerning events that

predate the allegations set out in the indictment: see F.(D.S.) at paras. 25–26; R. v. R.(B.S.) (2006), (ON CA), 212C.C.C. (3d) 65 at para. 38 (Ont. C.A.). (

g) collusion and fabrication [23] The defence argues the complainants have colluded to fabricate all the complaints charged in Information 9487-1. Collusionmeans sharing of information among complainants in order to make their testimony against the accused seem more similar orconvincing: R. v. D.G., 2018 ONSC 6612 , para. 138. Fabrication means a false story. “Recent fabrication” means making up afalse story to meet the exigencies of the case at some point after the event in question: R. v. O’Connor, (ONCA); R. v.Stirling, (2008) 2008 SCC 10 . [24] The courts have defined collusion broadly. In R. v.

Clause, 2016 ONCA 859 , Justice Brown explains [citationsomitted]: [81] Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that canhave the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: . . . the“reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also bythe influence of hearing other people’s stories, which can tend to colour one’s

interpretation of personal events or reinforce a perceptionabout which one had doubts or concerns.” [25] Where there is an air of reality to the allegation that evidence is tainted by collusion, the trial judge must carefully consider itsreliability having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence andthe possibility that these opportunities were used for such a purpose: R. v. Burke, (SCC), para. 45. [26] Recently, the Ontario Court of Appeal, discussed “innocent collusion” in R. v.

E.M.M., 2021 ONCA 436 , [citationsomitted]: [19] Innocent collusion occurs when, through mere conversation, false memories are implanted and overwhelm independent recollection.However, courts must be wary of jumping to the conclusion that that a witness’s evidence is no longer independent, and has been taintedby innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happenedimmediately after offending behaviour takes place . . . (

h) prior consistent statements of the complainants [27] On two occasions during the course of the trial, I permitted the Crown to lead evidence of prior consistent statements to rebut thedefence allegations of recent fabrication. Prior consistent statements are presumptively inadmissible because they are hearsay, lackprobative value and are self-serving. Such statements can be admitted if they are necessary for the trial judge to understand:

a) thechronology of events;

b) how the matter came to the knowledge of police; or

c) the conduct of the complainant. See: R. v. C.M.M., 2020BCCA 56, para. 144 to 147; R. v. Dinardo, 2008 SCC 24, at para. 37; R. v. Stirling, 2008 SCC 10, at para. 5; R. v. Ellard, 2009 SCC 27,at para. 33; R. v. M.C., 2014 ONCA 611, 58-66. [28] In R. v. Stirling, 2007 BCCA 4, aff’d 2008 SCC 10 , the BC Court of Appeal held an allegation of recent fabricationneed not be explicit. The court can look at all the circumstances of the case. Still, before the Crown is permitted to adduce evidence ofprior consistent statements to rebut an allegation of recent fabrication, it is essential that such an allegation be a live issue. (

i) similar fact evidence [29] This Court has before it a multi-count Information involving three complainants, two who allege historical sexual assaults. TheCrown applied to have the evidence of each of the sexual offence complainants admitted as similar fact evidence from count to count.The Supreme Court of Canada has articulated the applicable legal principles for similar fact evidence in R. v. Handy, 2002 SCC 56, andR. v. Shearing, 2002 SCC 58. In Handy, Binnie J. states at para. 72: Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law.

Discreditable disposition orcharacter evidence, at large, creates nothing but “moral prejudice” and the Crown is not entitled to ease its burden by stigmatizing theaccused as a bad person. [30] The evidence of one count can be admissible on another if it meets the test for the admission of similar fact evidence. The Crownbears the burden of establishing on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect:Handy, p. 55. [31] Before the court can consider similar fact evidence, the Crown must negative collusion. The defence bears no onus of provingcollusion.

If collusion is present, "it destroys the foundation on which admissibility is sought": Handy at para. 104. It bears reiterationthat “collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that canhave the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”, R. v. B.(C.), (ONCA), at para. 40. (

j) after-the-fact conduct [32] Exhibit 1 in the trial is a letter dated July 3, 2018, which S.P.J. wrote and had delivered to J.M.J., a Crown witness. The Crownsubmits that Exhibit 1 is evidence of S.P.J. attempting to intimidate P.R.C. and E.M. from proceeding with their complaints. [33] In R v White, 2011 SCC 13 the Supreme Court of Canada stated at para. 17: [17] It has long been accepted that actions taken by an accused person after a crime has been committed can, under certain circumstances,

provide circumstantial evidence of their culpability for that crime. Examples of such actions include flight, the destruction of evidence, orthe fabrication of lies. . . . (

k) alibi [34] As the focus of the defence has been lack of opportunity, I have heard extensive evidence as to who lived where and when andsometimes why. It is not entirely clear whether the defence was positively asserting an alibi or simply challenging the plausibility ofCrown’s evidence. This is relevant because in R. v.

B.(G.), (SCC), at p. 51, the Supreme Court held the Crown neednot prove the date of a sexual offence unless time is an essential element of the offence, as when an accused defends the charge byproviding evidence of an alibi for the date or time period alleged. [35] An alibi is a defence which is proved with evidence showing the accused was elsewhere at the time the crime was committed.

Irecognize that where the Information provides a broad range of dates for the offence, it is difficult for the accused to provide a list ofdates or times when he was not in the location where the offence is alleged to have occurred. [36] In R. v. T.A.D, 2021 BCSC 376 , Justice Marchand discusses the alibi defence: [73] To constitute an alibi, the evidence at issue must be determinative of the accused’s guilt or innocence.

In other words, the evidenceat issue must be to the effect that it was impossible for the accused to have committed the alleged offence because, at the time of itscommission, the accused was elsewhere: R. v. M.R., (ON CA) . . . [37] At para. 72, Justice Marchand references R. v.

M.J.H., 2019 YKCA 15, where the Yukon Court of Appeal outlined the essence ofthe defence, the obligation to provide adequate and timely notice and the consequences of failing to do so [citations omitted]: [72] . . . [31] When the accused advances an alibi defence, they are claiming that they were elsewhere when the offence was allegedly committedand therefore could not have committed it. An accused raising an alibi has an obligation to give notice of the alibi in order to provide thepolice or Crown a meaningful opportunity to investigate it.

The obligation of the accused to disclose to the Crown the substance ofan alibi defence they plan to raise at trial is a limitation on the accused’s constitutional right to silence. . . Where the accused fails todisclose that information in a timely way, the trier of fact may draw an adverse inference. [32] But that adverse inference can only be drawn against the defence itself: . . . The distinction between drawing inferences about thedefence itself and about the accused’s guilt is vital to the careful but fair treatment of alibis.

Late disclosure in and of itself does not giverise to an adverse inference of guilt. [33] Failure to make timely disclosure of an alibi can bear on the credibility of the defence: . . . [Emphasis in original.] [38] Neither the Crown nor defence addressed the issue of alibi notice. The Crown’s objections were primarily with respect to thedefence’s failure to comply with the confrontation principle espoused in Browne v. Dunn. Assessing reasonable doubt [39] Although S.P.J. did not testify, the defence did call a considerable amount of evidence in this trial. In R. v.

W.(D.), , the Supreme Court of Canada provided the trial courts with an analytical framework to assess reasonable doubt in the context ofconflicting testimony in a criminal trial. Justice David M. Paciocco, in his paper Doubt about Doubt: Coping with R. v. W.(D.) andCredibility Assessment, recasts the W.(D.) test as follows: a. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; b. A trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; c.

Even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true, there is areasonable doubt and an acquittal must follow; d. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and e. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

Background information [40] I will sometimes refer to the parties by their first names. In doing so, I mean no disrespect. I do this for clarity and convenience,and this is how the witnesses referred to one another. Accused S.P.J. [41] The accused S.P.J. was born in 1954 and is now 67-years-old. He resides in [Village Three], with his current spouse D.J. and twoof their four adult children. [42] Years ago, S.P.J. was in an intimate relationship with B.C.

They have four children: P.R.C., born [omitted for publication] 1973,J.J. born [omitted for publication] 1975, E.J., born [omitted for publication] 1976, and A.R.J., born [omitted for publication] 1982. I will

refer to this family collectively as the “J-C family”. [ 43 ] The J-C family lived in [Village One] and Prince George and briefly in Fort Nelson. S.P.J. and B.C. separated in late 1994 or early 1995. [ 44 ] S.P.J. formed an intimate relationship with D.J., exactly when is unclear. D.J. moved in and began living with S.P.J. at 102 T. Street, [Village One], in the spring of 1996. S.P.J. and D.J. married on [omitted for publication] 2017 .

They have four children: S.M., born [omitted for publication] 1998, now 23-years-old (“S.M.”); V.T.M., born [omitted for publication] 1999, now 22 (“V.T.M.”); P.M.M., born [omitted for publication] 2001, now 20 (“P.M.M.”); and C.M., born [omitted for publication] 2002, now 19 (“C.M.”). S.M., V.T.M. and P.M.M. were born in Prince George; C.M. was born in [Village One].

I will refer to this family as the “J-M” family. [ 45 ] Over the years, the J-M family lived in various residences in [Village One, Village Four, Village Two, and Village Three]. [ 46 ] The J-C and J-M families are members of the [omitted for publication] First Nation. Witnesses who testified at trial [ 47 ] S.P.J. did not testify at trial. I heard from five Crown witnesses, including the three complainants. I heard from seven defence witnesses. I received varying amounts of personal information and antecedents of these witnesses.

Complainant P.R.C. [ 48 ] P.R.C. was 47 when she testified at trial on January 16, 2020. She describes a troubled childhood, plagued with residential instability, family violence, marital discord and alcoholism. She says her family moved constantly, never living in one residence for more than six-to-eight months at a time. She describes the accused S.P.J. as a nasty drunk who abused his spouse and children. [ 49 ] P.R.C. completed her primary education at [omitted for publication] Elementary School in Prince George and attended high school at [omitted for publication] Secondary School.

She graduated in 1991 when she was 18-years-old. That same year she met J.M.J., who had just moved to Prince George from Alberta. They married on [omitted for publication] 1992 at the [omitted for publication] Church in Prince George. [ 50 ] P.R.C. and J.M.J. have three children: E.M., born [omitted for publication] 1994; their son L.J., born [omitted for publication] 2004; and H.F.J., born [omitted for publication] 2008, now 13.

L.J. is J.M.J.’s cousin who was adopted into P.R.C. and J.M.J.’s family [omitted for publication]. [ 51 ] P.R.C. admits misusing alcohol at various times in her life to “numb [her] pain from childhood.” P.R.C. ultimately stopped drinking in 2008, although a few years ago she relapsed and became a closet drinker for nine months. She quit again and since then has maintained her sobriety. Crown witness J.M.J. [ 52 ] I understand J.M.J. is approximately 13 years older than P.R.C. He is a member of the [omitted for publication] First Nation in [omitted for publication].

J.M.J. has two daughters and one son from a prior relationship. In the early years of his relationship with P.R.C., J.M.J. was sober, contemplative and a religious leader. [ 53 ] J.M.J. struggled with alcohol misuse at various times throughout his adult life. This excessive drinking led to residential instability and family violence. [ 54 ] On February 18, 2008, J.M.J. pled guilty to assaulting P.R.C. and causing her bodily harm. After this calamity, J.M.J. sought and received major help. J.M.J. achieved lasting sobriety 12 years ago when his daughter H.F.J. was born.

He has returned to the religious life to which he had adhered prior to his descent into alcoholism. Complainant E.M. [ 55 ] E.M. was 25-years-old when she testified at the first day of trial on January 14, 2020. E.M. is P.R.C. and J.M.J.’s first born. She was raised in [Village One] and Prince George. She resides in [omitted for publication], with her husband and two young sons who are now in elementary school. [ 56 ] Like her mother, E.M. also suffered a troubled childhood, plagued by her parents’ residential instability, family violence and substance misuse.

Crown Witness M.W. [ 57 ] M.W. was 25-years-old when she testified at trial. She was E.M.’s friend and classmate. M.W. was called to rebut the defence allegations E.M. recently conspired with P.R.C. to fabricate her allegations of sexual abuse. Complainant V.T.M. [ 58 ] V.T.M. is the second child of S.P.J. and D.J. He has one older sister, S.M., and two younger sisters, P.M.M. and C.M. V.T.M.’s maternal grandfather is C.H. V.T.M. was 20-years-old when he testified at trial.

He was born in Prince George on [omitted for publication], 1999, and grew up in Prince George, [Village Four, Village Two, Village Three, and Village One]. V.T.M. went to school in [Village Two]. Defence witness J.J.

[ 59 ] J.J. was 45 when she testified at trial. She is the second child of S.P.J. and B.C. She too was raised in [Village One] and Prince George. For many years she too has suffered from alcoholism and drug misuse. Defence witness E.J. [ 60 ] E.J. was 43-years-old when he testified at trial. He is the third child of S.P.J. and B.C. Defence witness A.R.J. [ 61 ] A.R.J. is the fourth and youngest of S.P.J. and B.C.’s children. He was raised in [Village One] and Prince George. Has suffered from a number of psychological, emotional and physical traumas as a young adolescent and as an adult.

He resides in [Village One]. He is married and works for [omitted for publication]. Defence witness R.C. [ 62 ] R.C. was born on [omitted for publication] 1978, and was 42 when he testified at trial. He was born in [Village One] and was raised in Prince George. R.C. is the son of R.W., who is S.P.J.’s sister and R.C.’s uncle. When he was 14- or 15-years-old, R.C. returned to [Village One] and lived for two years at 882 BCT with his grandmother. R.C. has struggled with addiction for much of his life. At the time of trial, he had been clean and sober for three years.

Defence witness K.C. [ 63 ] K.C. was born on [omitted for publication] 1980, and was 40-years-old when he testified at trial. He was born in [Village One] and was raised primarily in Prince George. He is R.C.’s brother, R.W.’s son, and S.P.J.’s nephew. K.C. recalls moving from Prince George to [Village One] in 1994, when he was 15-years-old. Defence witness R.T. [ 64 ] R.T. is 70-years-old. He grew up with S.P.J. and they went to school together. R.T. had a car accident in 1985 and sustained nerve damage in his eyes. He is now legally blind and is dependent on others to drive him around.

Defence witness H.T. [ 65 ] H.T. is the granddaughter of C.A., who is S.P.J.’s sister. The Complaints of P.R.C. Counts 11, 12 and 13: P.R.C.’s allegations of sexual violence from January 1, 1979 to December 31, 1981, in [Village One], BC [ 66 ] In P.R.C.’s formative years, the J-C family lived in [Village One]. S.P.J. and B.C. drank heavily and fought frequently.

They often left P.R.C., J.J. and E.J. in the care of their maternal grandparents, A.A.C. and J.T. (the “Grandparents”), who lived at 882 BCT, [Village One]. [ 67 ] At various times the Grandparents had relatives live with them, including: S.C., E.C., R.G.C., R.C., as well as the J-C family. [ 68 ] P.R.C. describes 882 BCT as a one-storey four-bedroom residence which housed many relatives. Specifically, she states: a. The Grandparents and P.R.C.’s youngest auntie occupied the first bedroom; b. P.R.C.’s other aunties occupied the second bedroom; c. P.R.C.’s uncle occupied the third bedroom; d.

The J-C family slept on two double beds in the fourth bedroom, located across from the washroom (the “Fourth Bedroom”). S.P.J. and B.C. slept in one bed and the children, the other; e. The Fourth Bedroom had an outside window with two sides, one which could be opened and one which could not; f. There was a television in the Fourth Bedroom as well as one in the common living area; and g. E.C. used to stay in the Fourth Bedroom and take care of P.R.C., J.J. and E.J., while S.P.J. and B.C. went out drinking.

E.C. was only five or six years older than P.R.C. [ 69 ] P.R.C. testified the first incidence of sexual violence occurred in the Fourth Bedroom around the time of her birthday, which was [omitted for publication]. She was six or seven years old. At the time, the J-C family residence was on C. Street, [Village One]. [ 70 ] On the evening of the offence, E.C. was watching P.R.C., J.J. and E.J. in the Fourth Bedroom. Neither S.P.J. nor B.C. was present. It was late and E.J. and J.J. were asleep on S.P.J. and B.C.’s bed. They would have been approximately three- and four-years-old.

The light in the room was off but the television was on. P.R.C. and E.C. were on the children’s bed watching television. [ 71 ] S.P.J. crawled in the window of the Fourth Bedroom – something he often did when drunk. P.R.C. jumped up and said, “Hey, Dad, where is mom?” S.P.J. was intoxicated and stunk of alcohol. He ordered E.C. out of the bedroom and she left. S.P.J. closed and locked the bedroom door. [ 72 ] S.P.J. dragged P.R.C. onto the children’s bed. He pulled down her pants and underwear and pulled his pants halfway down. He

began touching P.R.C.’s vagina with one hand and with the other, stood “playing with his penis”. P.R.C. said, "Dad, what are you doing?" S.P.J. got on top of P.R.C. and “slipped his penis” inside her vagina. P.R.C. started screaming and crying for help. She kept saying, “Dad, quit it. No!” S.P.J. slapped her and told her to shut up. She was scared and in a lot of pain and “thought the rape was never going to end.” E.C. went and fetched A.A.C. and S.C. The women came to the Fourth Bedroom and began banging on the locked door, yelling at S.P.J. to open it.

S.P.J. got off P.R.C., dressed, crawled back out the window and left. By the time A.C.C. and S.C. managed to unlock the door, S.P.J. was gone. [ 73 ] A.C.C. and S.C. rushed P.R.C. into the washroom and placed her in the bathtub. P.R.C. was in shock. It took a long time for the women to calm her down. P.R.C. does not recall if she ever received medical attention as a result of the incident. P.R.C. testified: All of my life, the only ones that pretty much knew were the ones that were in our household.

There was a lot of us living in that house. [ 74 ] Although her caregivers were aware of S.P.J. sexually assaulting P.R.C., nobody reported the incident to the police. P.R.C. said that she and her auntie talked about it once in a while because “it bothered [them] so much.” P.R.C.’s mother and grandmother were strong Catholics. A.C.C. traditionally told P.R.C. in their native language, "Let the Lord deal with him". [ 75 ] P.R.C. did not see S.P.J. for a long time after this incident. P.R.C. and her siblings continued to live with their maternal grandparents at 882 BCT.

P.R.C. continued to attend the [omitted for publication] Catholic School, where she completed kindergarten and Grades 1, 2 and 3. P.R.C. was midway through Grade 4 in 1984 when S.P.J. resurfaced. He said he had been in treatment and returned a “preacher man.” S.P.J. and B.C. reconciled when P.R.C. was about 11-years-old and moved with their children to Prince George. Inconsistencies in P.R.C.’s evidence [ 76 ] The defence points out that P.R.C. was inconsistent in her versions of the circumstances of the offences charged in Counts 11, 12 and 13.

Defence counsel read in the following excerpts from the statement P.R.C. made on July 7, 2018, to Constable St. Pierre: Q And you mentioned that you were screaming and crying. Nobody came in the room. . . . A No. There was a lot -- . . . A There was a lot of us in the house and the house is always noisy. . . . Q Did anybody enter the room? A No. The house is always noisy. Mr. Nielsen then confronts P.R.C. in cross-examination: I can only infer from that that you meant nobody heard you screaming. Is that what you meant when you told the officer?

P.R.C. responded: A When I told the officer what happened, I totally forgot to mention, until after my memory started coming back, because this happened so long ago. As I remember, he asked my auntie to leave the room. . . . he was drunk . . . Mr. Nielsen asked: Q -- are you telling me that your memory that your aunt and grandmother were banging on the door -- . . . Q -- yelling at [S.P.J.], your father, to open the door -- that memory was not available to you in 2018?

P.R.C. responded: A So many things were going through my mind at the time and when I started recalling most of it, when I was going through conflict a lot of it was starting to come back to me, because I was only a child then. And my grandma and my Auntie S.C. are the ones that put me in the bathtub. And the only way they found out that this happened to me was because my auntie that was taking care of us went and got my grandma. [ 77 ] The court does not have a copy of P.R.C.’s July 7, 2018 statement to Constable St. Pierre.

From the excerpts read in at trial, I am not persuaded that P.R.C. was necessarily agreeing with defence counsel’s

interpretation of her comments to Constable St. Pierre. I do not find her statements to the officer as read in significantly inconsistent with her evidence at trial. According to P.R.C., no adult came into the bedroom during the assault, nor at any time before S.P.J. fled out the window. Although at trial P.R.C. surmised E.C. went and fetched her grandmother and S.C., it is a logical assumption in the circumstances. [ 78 ] With respect to P.R.C.’s comment about her “memory coming back”, I am mindful the presence of details in the complainant’s

testimony at trial not contained in their police statement does not mean that the complainant is less believable or unreliable: Garford.There is no suggestion P.R.C.’s core allegation of being raped by her father changed between her initial reporting to Constable St. Pierreand her in-court testimony. At trial, P.R.C. was merely explaining how it was her grandmother and Aunt S.C. were ultimately alerted toher peril. [79] The defence also suggests P.R.C. changed her evidence about whether or not J.J. and E.J. were asleep at the time of the allegedassault. At trial, P.R.C. said her siblings were sleeping.

In her statement to Constable St. Pierre, she said she did not know if J.J. and E.J.were asleep. In cross-examination, P.R.C. clarified she was not certain her siblings were asleep, but they did not move or say anythingwhen S.P.J. crawled through the window. In other words, she inferred from their lack of responsiveness they were asleep. In my view,this is more or less a distinction without a difference.

Recovered memory [80] In cross-examination, P.R.C. stated she could not remember if she missed a school year because she “blocked the majority of mychildhood, from all the beatings that S.P.J. had done to us, as a child.” By “us”, P.R.C. meant herself and her siblings. I regard thiscomment as a bit of hyperbole on P.R.C.’s part. [81] In R. v. B.H.C., 2021 NSSC 68 , Justice N.M.

Scaravelli noted, “Although recall or recovered memory is plausible, itcan bring into question the accuracy and therefore the reliability of [the complainant’s] memory.” In this case, there is no evidenceP.R.C.’s memory of the incident at 882 BCT was a product of recovered memory through counselling or therapy or hypnosis – a memoryof which she was otherwise unaware: R. v. J.L.-B., 2021 ONCJ 130 . P.R.C. does not assert her memory of the incident wastriggered by flashbacks or dreams of some external stimuli.

Conversely, P.R.C. claims she has never forgotten the sexual assault, in otherwords, her memories were always present. She states: . . . I remember everything, what he's done to me, and the things that he said to me and every time -- every time we always got into anargument, I would always throw it in his face. [82] I gather there are some of the details, such as S.P.J. ordering her aunt to leave the room, which P.R.C. recalled when compelledby these proceedings to think deeply about an incident.

In my view, this is typical recollection arising from P.R.C. focusing her attentionon the incident. [83] In this case, neither S.P.J. nor E.C. testified. A.C.C., J.T., B.C. and S.C. are deceased. J.J. and E.J. testified on behalf of thedefence. Defence evidence with respect to Counts 11, 12 and 13 (P.R.C.’s allegations of sexual violence from January 1, 1979 to December 31,1981, in [Village One], BC) [84] J.J. and E.J. both recall staying with their grandparents at 882 BCT as children, but neither can say when that occurred. Neithersibling has a clear memory of childhood. J.J. remembers “just bits and pieces”.

When asked in his direct examination where he lived from1976 to 1984, E.J. replied: A I remember parts of it with my grandma's and then some of it up on Centre Street. . . . Q . . . Do you recall – you mentioned you were at your grandma's house, did you live at your grandma's house? A I can't remember, but I think just for a while. I am not too sure how long ago. 'Cause we're kids, so I can't remember that far back. [85] Although she would have been around nine-years-old when the J-C family moved to Prince George in 1984, J.J. has no memoryof attending elementary school in [Village One].

She does not remember the name of any elementary school she attended in PrinceGeorge; she does not remember her age or what grade she was in when she moved there. When asked about her earliest childhoodmemory, J.J. said she has a memory of being in high school. She vaguely remembered being in elementary school when she was ten-years-old. [86] J.J. testified that occasionally she, P.R.C., E.J. and A.R.J. spent the night at 822 BCT. J.J. does not remember how old she was orthe length of these visits. She says 882 BCT was too small for her and her siblings to have their own bedroom.

She describes it as havinga kitchen, living room, bathroom and two bedrooms, one belonging to her grandparents and the other to her Uncle R.G.C. J.J. says whenshe and her three siblings spent the night, they slept with blankets and pillows on the living room floor. The children never slept on a bedor in a bedroom, except those times when J.J. laid down in the bed with her grandparents in their bedroom.

J.J. never mentioned S.P.J.and B.C.’s whereabouts during these sleepovers. [87] J.J. says there was only one television at 882 BCT which was positioned on top of the refrigerator at such an angle that thechildren could watch it from the living room and her grandfather could watch it from his bedroom. It was always tuned to the familychannel. J.J. loved being at her Grandparents’ home. Analysis [88] I understand the defence to Counts 11, 12 and 13 is one of implausibility. [89] P.R.C. says these offences occurred when she was six or seven. This means J.J. would have been around four-years-old and E.J.,three.

A.R.J. was not yet born. Assuming she is being truthful, J.J. must be describing sleepovers at 882 BCT which occurred long afterthe offence date, given A.R.J. was not born until [omitted for publication], 1982.

[ 90 ] I prefer P.R.C.’s evidence over that of J.J.’s as to the layout of 882 BCT at the material time. Generally, I find P.R.C.’s memory of her childhood events far more robust than J.J.’s. P.R.C.’s evidence is specific to the offence date-range, whereas J.J. relates to a time when A.R.J. was alive and old enough to sleep on the living room floor with his sibling without an adult present to care for him. [ 91 ] The residence at 882 BCT appears to be of sufficient size to house not only the Grandparents, but also a number of their relatives. A.C.C. died in 2008.

While she was alive, many of the witnesses who testified in this trial, either for the Crown or the defence, had been inside her residence at 882 BCT. [ 92 ] Although the defence confronted P.R.C. with its theory the children slept on the living-room floor, counsel never suggested to her or any other witness the residence at 882 BCT had only two bedrooms. In my view, the plausibility of P.R.C.’s evidence on this issue is material. I find the lack of confrontation adversely affects J.J.’s credibility, but only minimally so.

I have serious concerns as to the reliability of J.J.’s recollection given her otherwise feeble memory of childhood events. Moreover, the memory she does describe relates to a time after A.R.J. had been born. [ 93 ] In sum, I do not accept J.J.’s description of the layout of 882 BCT or the children’s sleeping arrangements at the time of the offence. [ 94 ] The defence also submits it is implausible that P.R.C.’s grandmother and aunt who came to her rescue did not report the matter to the authorities or take any further steps to help P.R.C., nor sanction S.P.J.

Sadly, it is not at all implausible as evidenced by the number of historical sexual assaults that come before the court. The defence also points to A.R.J.’s evidence that 14 or 15 years after the incidents charged in Counts 11, 12 and 13, “the community” was enraged because J.M.J. broke his nose. Hence, there is no reason to believe the community would not be equally incensed at the rape of a six- or seven-year-old girl by her father. In my view, the circumstances are not comparable.

Moreover, I am prepared to take judicial notice of the deeply entrenched culture of silence stifling the disclosure of child sexual abuse where the perpetrator is a person in a position of trust, in particular, a family member and loved one. [ 95 ] The defence challenges P.R.C.’s credibility because she gives no explanation as to her mother’s whereabouts or why her father was not staying in their family residence on C. Street. I disagree. P.R.C. gave ample evidence of the dysfunctional family dynamics which defined her childhood: . . .

We never lived in any residence for no more than six months, for six to eight months at a time. We were constantly moving around. . . . we moved around a lot. We moved from grandma's, or up to my great grandpa's. And then we lived in Carroll Street. All I remember and recall is all the drinking that they did. And how many times we were ditched with my grandparents. . . . every time he was drunk he would end up beating on mom. That was almost every weekend. . . S.P.J. and B.C. used to drink quite heavily and the majority of the time we were at my grandma and grandpa's house. . . .

S.P.J. used to be very, very abusive to B.C. and they would always separate. And we'd be stuck staying with my grandparents. . . . he was always drunk when we were growing up. . . . he was very, very abusive to – not only to B.C., but he was also abusive to us as his children. [ 96 ] When asked how often she would be stuck staying with her grandparents, P.R.C. responded, “Right up until S.P.J .said that he was a Christian and he was a preacher man.” [ 97 ] P.R.C. was six or seven when the offences charged in Counts 11, 12 and 13 are said to have occurred.

The court does not expect her to make sense of the nonsensical life foisted upon her by drunken parents. In my view, it is not appropriate to assess P.R.C.’s credibility based on stereotypical assumptions about how a functional, sober, competent and loving family might behave. Counts 16 and 17: P.R.C.’s allegations of sexual violence from September 1, 1983 to December 31, 1989, at Prince George, BC [ 98 ] In 1984, S.P.J. and B.C. moved with their children to Prince George. Their first residence in Prince George was in the [CG Apartment] on Central Street.

Later, they lived in residences on Kelly, Victoria, Diefenbaker, McIntyre, and Central Street (again). [ 99 ] Counts 16 and 17 encompass two incidents of sexual abuse. P.R.C. testified the first of the two occurred not long after the J-C family moved to Prince George. At the time they were living in the [CG Apartment] on Central Street. P.R.C. was completing Grade 4 at [omitted for publication] Elementary School. [ 100 ] P.R.C. was caring for her younger siblings who were playing with other children in the neighbourhood. It was hot outside and she went inside the residence to get some drinks for the children.

B.C. was upstairs “napping or something.” S.P.J. was on the couch watching television. S.P.J. came into the kitchen and tried to touch P.R.C.’s vagina over her pants. She pulled his hand away and said, "What are you doing?”, then ran outside, leaving the drinks on the counter. P.R.C. did not return until B.C. called the children in for supper. [ 101 ] P.R.C. says the second of the two incidents of sexual violence charged in Counts 16 and 17 occurred when she was 15-years-old and attending [omitted for publication] Secondary School.

She did not recall where they were living at the time, other than in Prince George. P.R.C. was cooking in the kitchen. S.P.J. came into the kitchen and tried to “fondle” her as he had done in the previous incident. Again, she asked him, “What are you doing?” Later that night, after everyone was in bed, P.R.C. snuck out of the house and ran away from home. She stayed with her friend C.L.Y. for a few days. J.J. followed P.R.C., but returned home after a day or two when S.P.J. warned her if she did not, she would get in trouble with the police. P.R.C. did not return home.

Instead, she stayed with another friend, R.T., and her friend’s mother L.T. After four or five days, B.C. appeared at the door with P.R.C.’s Aunt J. L.T. told P.R.C. she had to speak to them. Eventually, her Aunt J. convinced P.R.C. to come home. P.R.C. went home because she thought she would be safe, but

upon her return, received a “beating” from S.P.J. for running away. External Inconsistencies [ 102 ] In her direct evidence, P.R.C. said the first incident of sexual touching in Prince George occurred “not too long after we moved to Prince George.” In her statement to Constable St. Pierre on July 7, 2018, P.R.C. said the first incident of sexual touching was “maybe about a year after we moved to Prince George.” When asked about the discrepancy at trial, P.R.C. maintained the incident occurred “shortly after we moved to Prince George.” [ 103 ] In her statement to Constable St. Pierre, P.R.C. said, A Back, oh, God.

I was only fourteen, fifteen, 'cause we moved. They -- my dad came back to my mom, saying he came back from treatment and saying that he was a preacher man. And so, mom fell for it and took him back 'cause they were separated for quite some time. At trial P.R.C., stated: A No, no, no, no, no. I'm mistaken that year because that was the second incident when I was thinking of that age group, because I remember running away at that age. Q Okay. So, it's incorrect because the remaining of the statement, you are now talking about living in [CG Apartment] and making -- A Yeah. That was my early teens. Q Okay.

So, you -- that was incorrect when you say 14 and 15 years old? That was not the age you were when you're alleging this first incident took place? A That was the second incident. [ 104 ] It seems to me that P.R.C. likely misspoke in her statement to Constable St. Pierre, by referencing her age at the second incident when she was speaking about the first.

Defence evidence with respect to Counts 16 and 17: P.R.C.’s allegations of sexual violence from September 1, 1983 to December 31, 1989, at Prince George, BC [ 105 ] J.J. and E.J. confirmed the J-C family resided at the [CG Apartment] on Central Street when they moved to Prince George in 1984.

Like P.R.C., neither J.J. nor E.J. could say where in Prince George they were living in 1988 or 1989. [ 106 ] The defence offered no response to P.R.C.’s allegations as to sexual touching when she was in Grade 4, beyond J.J.’s generic assertion that S.P.J. never physically abused any of his children. [ 107 ] The defence to P.R.C.’s allegation as to sexual touching when she was 15-years-old was to challenge her professed reasons for running away from home. P.R.C. says she ran away in an effort to escape the abuse.

J.J. and E.J. say she ran after a boy. [ 108 ] J.J. depicts P.R.C. as an angry, rebellious teenager, who always ran away and was always forced to return. J.J. followed P.R.C. on two of these occasions. On one, she learned P.R.C. intended to run off and spend time drinking and smoking marijuana with her friends at some pre-arranged gathering. J.J. followed P.R.C. to make sure she was “okay”. J.J. did not like where P.R.C. went or what her friends were doing and returned home. Specifically, she objected to them drinking alcohol and smoking weed.

J.J. believes P.R.C. was 15- or 16- years-old, but could not recall her own age, even though she knew both their birthdates. J.J. says she stayed away from home for a couple of days; P.R.C. stayed away longer. [ 109 ] J.J. said that at the time, P.R.C. was dating C.L.Y. The young man proposed to P.R.C. and B.C. intervened and “stopped them” because P.R.C. was too young. This upset P.R.C., who ran away to drink, smoke weed and party with her friends.

J.J. testified that P.R.C. “didn’t even want to be around anymore.” [ 110 ] In his cross-examination of P.R.C. with respect to this incident, defence counsel stated: Q And I'm also going to suggest to you, P.R.C., that your sister, J.J., also left at the same time, to watch out for you? A Correct. Q Correct? And she stayed with you at your friend's house for a few days? A Correct. Q Correct? And J.J. left and returned back home when she was told that she'd get into trouble by the police if she did not return? Is that not correct? A That's the threats that S.P.J. was making to us, yes.

Q So, J.J. had been with you? That, you're agreeing with? A For, I'd say, about a day or two, yes. . . . [ 111 ] In her direct examination, J.J. was asked about her and P.R.C. running away. J.J. testified:

Q Do you recall how long P.R.C. stayed? A I don't know. I wasn't keeping track of how long she was gone for. Q But she stayed longer than you? A Yes, she did. Q All right. A She stayed way longer. Q And on this occasion, I just want to be clear, on the day that you were there for a couple nights, were you fearful that the police were going to come and arrest you if you did not return? A No. I was afraid of being gone a certain amount of time, yes. And I was getting quite worried. Because we were gone. Like I was gone a long time. And I was trying to find a way to see when I can go home.

I couldn't make her walk me home because she was getting too drunk most of the time too much and I didn't -- I couldn't rely on her to walk me home. Q Do you -- do you recall whether your father or your mother were threatening to get the police to bring you home? A I wouldn't remember that one. [ 112 ] E.J. did not get along with P.R.C. when they were young. He described her as argumentative and bossy. He remembers P.R.C. running away for five or six days. He was in Grade 8 at [omitted for publication] Secondary School in Prince George. E.J. followed P.R.C. one day and observed her holding and kissing C.L.Y.

E.J. told his mother, who told P.R.C. she had to stop seeing C.L.Y. because he was her cousin. E.J. claims P.R.C. protested, “that’s the love of my life” and stormed off and went to her room. Later that evening, P.R.C. took off and was gone for five or six days. Analysis [ 113 ] P.R.C.’s evidence as to the two incidents of sexual touching while the J-C family lived in Prince George is largely uncontested. Although her evidence at trial did not echo precisely what she told Constable St. Pierre on July 7, 2018, there is no glaring inconsistency.

In one case, P.R.C. simply misspoke and corrected herself. [ 114 ] The Crown submits the court ought to treat E.J.’s evidence with scepticism, given he could not remember or feigned not remembering an incident giving rise to his making a statement to the police on February 24, 1995. I do not need to decide to what degree J.J. and E.J. may have embellished their evidence with respect to Counts 16 and 17. I am not persuaded their views on their older sister’s penchant for running away contradicts P.R.C.’s evidence of S.P.J. fondling her in the kitchen.

It is not surprising that if she was intent on running away, P.R.C. would run to a friend’s house. I suspect that 33 years ago, a teenage girl fleeing from an abusive home had limited options. Moreover, it is well-known that children who are sexually-abused are vulnerable to all manner of emotional turbulence and self- destructive behaviours: R. v. Friesen , 2020 SCC 9 , para. 79 fwd. P.R.C.’s anti-social behaviours may be symptomatic of that abuse. Discredible conduct [ 115 ] In her direct examination, P.R.C. testified that S.P.J. was abusive to B.C. and all his children.

P.R.C. cited specific examples of this abuse: a. Every time he was drunk, which was almost every weekend, S.P.J. would end up beating on B.C.; b. When A.R.J. was a toddler and S.P.J. was in a “very, very angry mood”, he “backhanded A.R.J. As a result, A.R.J. went flying down the stairs and broke his arm; c. If they displeased them, S.P.J. would spank the children, or “whip their ass” with a broom or mop, or lock them in a “pitch dark” bedroom; d. While growing up, S.P.J. beat P.R.C. and used her as a punching bag; e.

If the children were to cry even a little, S.P.J. would tell them to shut up, backhand them, or whip them on their ass and say, "Do you want something to cry about? I’ll give you something to cry about”; f. When S.P.J. was angry, P.R.C. preferred to stay away and listen because she did not want to get beaten; g. J.J. told P.R.C. that while in Fort Nelson, S.P.J. gave her Nyquil and when she awoke, S.P.J. was raping her; h. S.P.J. was charged with “sexual rape” in or around 1995, and was “supposed to be serving time weekends”; i.

S.P.J. was on conditions not to leave Prince George in or around 2000-2001 because “he sexually molested a fourteen year old girl”; and j. A few years ago, S.P.J. hid in the basement of her house for six-to-eight months because of “what he did to R.” [ 116 ] J.J., E.J. and A.R.J. all deny S.P.J. was ever physically abusive to his children.

J.J. testified that the only form of discipline the children endured was being forced to “either clean up or sit in the room and read a book.” They were not allowed to watch television, but they were “not whipped.” J.J. denies S.P.J. ever sexually abused her or that she told P.R.C. this occurred. All her siblings deny P.R.C.

ever disclosed to them that she was being sexually abused by her father. [ 117 ] I denied counsel’s request to call defence evidence to rebut P.R.C.’s allegations S.P.J. had caused A.R.J. to fall and break his arm when he was a toddler. I determined it was a collateral fact not directly connected or not relevant to a matter the Crown had to prove for a proper determination of this case. [ 118 ] I conclude the only use I can make of P.R.C.’s evidence of discredible conduct is that as a result of what she personally observed or experienced as a child, P.R.C. may have been fearful of her father.

This may explain why she ran away and delayed reporting the abuse. I will simply ignore the rest of P.R.C.’s evidence of discredible conduct, much of which is inadmissible hearsay in any event. Counts 14, 15: P.R.C.’s allegations of sexual violence from January 1, 1995 to December 31, 1995, in [Village One], BC [ 119 ] For the first year or so of their relationship, J.M.J. and P.R.C. lived with S.P.J. and B.C. in a duplex on Central Street in Prince George. In 1993, B.C. obtained a newly built home at 51 H. Street in [Village One]. S.P.J., B.C., P.R.C., J.M.J., J.J., E.J. and A.R.J. all moved into 51 H. Street.

Sometime in 1994, P.R.C. and J.M.J. obtained and moved into their own residence at 102 T. Street, in [Village One]. E.M. was born on [omitted for publication], 1994. [ 120 ] S.P.J. and B.C. separated in late 1994 or early 1995. S.P.J. moved out of the family residence at 51 H. Street and B.C. remained behind with E.J. and A.R.J. S.P.J. became homeless and P.R.C. and J.M.J. invited S.P.J. to stay in their basement bedroom of 102 T. Street. P.R.C. testified: It was getting colder out and we felt bad that he was living on the streets, drinking all the time.

So, we allowed him to move in with us. [ 121 ] P.R.C. believes S.P.J. moved into 102 T. Street in the late summer of 1995. She says the incident of sexual violence charged in Counts 14 and 15 occurred approximately two months after S.P.J. moved in. [ 122 ] On the evening of the incident, B.C. took E.M. to her house. P.R.C. does not say how old E.M. was, other than she was young. P.R.C. and J.M.J. invited a few friends over for drinks. S.P.J. was also present and drinking alcohol. As the evening wore on, [P.R.C. and J.M.J.] decided it was time for bed.

P.R.C. says that she and J.M.J. were a little tipsy, but not intoxicated. [P.R.C. and J.M.J.] asked their guests to leave. S.P.J. went to his room downstairs. P.R.C. and J.M.J. went into their bedroom, disrobed and went to sleep. [ 123 ] P.R.C. awoke to the bed moving and a man on top of her having sexual intercourse with her. She felt his penis inside her vagina. At first P.R.C. believed the man on top of her was her husband. When she grabbed for the sheets, she saw that J.M.J. was asleep beside her. She realized the person having intercourse with her was her father, S.P.J. He reeked of alcohol.

P.R.C. said, "What are you doing, Dad? . . . You've got to be sick”. She began hitting him and pushing him off her, while at the same time, tried to rouse J.M.J. Despite punching and shaking him, J.M.J. did not wake up. S.P.J. jumped off P.R.C. and ran out the door while pulling up his pants. [ 124 ] P.R.C. got out of bed and dressed. At that point J.M.J. awoke and asked her where she was going. P.R.C. was angry and upset. She did not tell J.M.J. what had just happened. She told J.M.J. she was going to pick up E.M. P.R.C. just wanted to be with her mother. P.R.C. arrived at B.C.’s house in tears.

She told her mother what happened. B.C. became angry and went to confront S.P.J. P.R.C. went home and then later that evening went out with her mother, leaving J.M.J. at home to care for E.M. [ 125 ] P.R.C. says in the aftermath of the incident giving rise to Counts 14 and 15, S.P.J.’s family began threatening her and J.M.J. P.R.C. and J.M.J. went to Prince George with a view to relocating there. When they found a residence in Prince George, they returned to [Village One]. Upon their return, P.R.C. and J.M.J. discovered that in their absence, S.P.J. had changed the door locks and seized possession of 102 T.

Street. E.M.’s clothes and toys were scattered on the lawn. At this point, [P.R.C. and J.M.J.] had resided at 102 T. Street for less than one year. Crown witness J.M.J. [ 126 ] The Crown counsel called J.M.J. as both an eye witness and to rebut allegations of recent fabrication. [ 127 ] J.M.J. testified the events giving rise to the offences charged in Counts 14 and 15 occurred at 102 T. Street around June 1995, when E.M. was nine-months-old.

S.P.J. was going through a period of marital strife with B.C. and coming over and staying at [P.R.C. and J.M.J.’s] residence “for a bit here and there.” [ 128 ] J.M.J. testified that he, P.R.C. and S.P.J. were all drinking at 102 T. Street. E.M. was with B.C. because he did not want his child around people who were drinking. J.M.J. became heavily intoxicated to the point of passing out. He believes that he and P.R.C. retired fully clothed, because when they are drinking, “some people just pass right out and go to sleep.” J.M.J. woke to find P.R.C. very angry and upset, but she would not say why.

P.R.C. got dressed and said she wanted to go to her mother’s house and see E.M. S.P.J. was gone. J.M.J. did not witness any assault. [ 129 ] The following evening, S.P.J. came to [P.R.C. and J.M.J.’s] residence with his son E.J. and his two nephews. The group had “things in their hands” and they wanted to fight J.M.J. for “some odd reason”. S.P.J. wanted J.M.J. to “step outside” and wanted to beat him together “with all whoever was there.” J.M.J. declined the invitation to a beating.

He told S.P.J. he had E.M. with him and did not want to expose her to violence in the home. [ 130 ] J.M.J. telephoned P.R.C. and told her what was happening. S.P.J. and his entourage left, after which P.R.C. returned home. When she arrived, P.R.C. told J.M.J. about waking up and finding S.P.J. on top of her, with his penis inside of her, having sex with her while she was sleeping. This was the first time J.M.J. heard of the incident. He described P.R.C. as “really devastated”.

He was also very upset, but did not know what to do or what to say. [ 131 ] J.M.J. testified, “. . . after what my wife was sharing and she wanted to get away for a while, so we went to Prince George.” When they returned, they found S.P.J. had seized possession of their residence at 102 T. Street and consequently, for a while, they were left

homeless, living in their van. [ 132 ] S.P.J. never did explain to J.M.J. why it was he wanted to fight him. Defence’s evidence with respect to Counts 14, 15: P.R.C.’s allegations of sexual violence from January 1, 1995 to December 31, 1995, in [Village One] , BC Defence witness A.R.J. [ 133 ] A.R.J. remembers his family living in a duplex on Central Street in Prince George. The J-C family moved to [Village One] from Prince George in the fall of 1993 just before A.R.J. started Grade 5 at [omitted for publication] Elementary School. Upon their return to [Village One], A.R.J.’s parents and siblings moved into 51 H.

Street. A.R.J. described his family in 1993 as “a big happy family in a house. Everyone was living there, parents and all us children” A.R.J. would have been 10-years-old when he started Grade 5. [ 134 ] A.R.J. recalls his parents separating in 1994, but could not say when. S.P.J. left the family home and A.R.J. and E.J. remained with their mother at 51 H. Street. A.R.J. usually visited his father at V.J.’s or N.W.’s residence. A.R.J. did not recall the address, but V.J. also lived on H. Street.

A.R.J. did not say how long S.P.J. lived with V.J. or N.W. [ 135 ] A.R.J. says that in the fall of 1994, he went to live with P.R.C. and J.M.J. at their residence at 102 T. Street, but “was hardly there.” He had just started Grade 6 at W.K.E. A.R.J. spent little time at [P.R.C. and J.M.J.’s] residence because he was traumatized by the bullying he experienced upon his return to [Village One]. A.R.J. spent most of his time at his friends’ homes, who comforted him. [ 136 ] A.R.J. describes an incident of family violence which occurred three months after he moved into [P.R.C. and J.M.J.’s] residence.

It was late fall and cold – around the onset of winter. E.M. was newly born. A.R.J. returned to 102 T. Street in the company of his friend DL.M. DL.M. had brought with him a Saga game system, which he and A.R.J. began playing. J.M.J. yelled at A.R.J. to clean “his house”, which A.R.J. protested because he had just got home. S.P.J. arrived at the door. J.M.J. pushed S.P.J. down the hill and onto the road. DL.M. packed up his game and left. [ 137 ] A.R.J. says J.M.J. grabbed his hair and punched him, breaking his nose. A.R.J. ran to his Auntie R.W.’s home, crying. S.P.J. was present.

R.W.’s sons, F.W., A.W. and ML.W., were angry when they saw A.R.J.’s gushing nosebleed. He believes they went to confront J.M.J. at his residence. S.P.J. stayed behind with R.W. to help A.R.J. A couple of days later, J.M.J. came and apologized to A.R.J. J.M.J. asked him to care for E.M. while he and P.R.C. packed up their belongings as they were moving to Prince George. A.R.J. arrived in the evening to care for E.M., with J.M.J. assisting with the feeding and diapering.

Meanwhile, [P.R.C. and J.M.J.] transported five loads of their belongings from [Village One] to Prince George. [ 138 ] A.R.J. claims [P.R.C. and J.M.J.] abandoned their residence at 102 T. Street in 1994 within a month of J.M.J. breaking his nose. He says it was not simply the “R.W. boys” who caused [P.R.C. and J.M.J.] to leave town, but it was the “community in general that didn’t like [P.R.C. and J.M.J.], what they’d done to [him].” [ 139 ] The morning after P.R.C. and J.M.J. had packed up and left 102 T. Street, the [landlord] did a “walk through” and told A.R.J. he had to leave.

A.R.J. returned to his mother’s residence at 51 H. Street for a while, then started hanging around with his friends, D,L.M. or P.W.Jr. A.R.J. says he returned to his mother’s house whenever he felt like eating or sleeping. [ 140 ] In February 1995, A.R.J. says that he and K.C. moved into 102 T. Street, where they lived with S.P.J. and E.J. for two or three years. In his direct examination, A.R.J. says he moved with S.P.J. and D.J. into an apartment off Ospika in Prince George in 1997 and in 1998, he moved in with his mother B.C.

In his cross-examination, A.R.J. said he did not move back to Prince George until 1998. A.R.J. does not mention R.C. or D.J. living at 102 T. Street between 1995 and 1998. [ 141 ] A.R.J. said he never returned to stay at 51 H. Street after moving into 102 T. Street because his mother was drinking too much and her boyfriend did not like him. In cross-examination, the Crown confronted A.R.J. with a police report indicating on February 24, 1995, A.R.J. was asleep in his mother’s bedroom at 51 H. Street with his friend J. when the police attended to arrest S.P.J. A.R.J. steadfastly maintained he was not at 51 H.

Street and denied any memory of the incident. [ 142 ] J.J. did not testify as to her role in assisting A.R.J. babysit E.M. while P.R.C. and J.M.J. packed and moved their belongings in 1994. Defence witness E.J. [ 143 ] E.J. testified that he graduated high school in 1994. He says that for all of 1994 and 1995, his parents, siblings and J.M.J. lived together at 51 H. Street. The Crown confronted E.J. with a statement he made to the police on February 24, 1995, which indicated that as of that date, S.P.J. was no longer living at 51 H. Street. Initially, E.J. claimed he could not recall the incident.

He admitted the signature on the statement was his but denied any memory of making the statement. After much prodding, E.J. reluctantly admitted he was present at 51 H. Street on February 24, 1995, the night S.P.J. was arrested: A Well, when that night when he got arrested and that, I was in my room and that, and after I got the drink. . . . A Like I said, I can hardly remember hardly anything . . . [ 144 ] When the Crown confronted him that he was not telling the truth when he said S.P.J. was living at 51 H.

Street with the entire family in 1995, E.J. responded: A At the beginning of the month probably -- at the beginning of the year probably is.

[ 145 ] E.J. did not testify that he ever lived with his father at 102 T. Street. [ 146 ] E.J. did not testify with respect to his presence in the mob that showed up with S.P.J. at [P.R.C. and J.M.J.’s] residence in either 1994 or 1995, nor did he testify as to S.P.J.’s sobriety during this period. Defence Witness K.C. [ 147 ] K.C. recalls moving from Prince George to [Village One] in 1994, when he was 15-years-old. He lived off and on with various family members until at some unspecified date in 1995 when he began living with S.P.J., A.R.J. and E.J. at 102 T. Street.

K.C. did not know when S.P.J. began living at 102 T. Street, but it was after S.P.J. had separated from B.C. K.C. did not know what month or even season he moved into 102 T. Street except to say it was “in ‘95, somewhere around there.” [ 148 ] K.C. lived at 102 T. Street until S.P.J. moved to Prince George, which K.C. believes was in 1998. When they left, K.C. began living with his Aunt B.C. at 51 H. Street. K.C. was vaguely aware that [P.R.C. and J.M.J.] moved to Prince George, but could not say when. [ 149 ] While K.C. was living at 102 T. Street, S.P.J. was truck driving for a diamond mine.

K.C. says S.P.J worked daily, returned home round 7:00 p.m., watched television, went to bed, and then went back to work in the morning. During the time he resided at 102 T. Street, K.C. never saw S.P.J. intoxicated or drink alcohol. [ 150 ] In cross-examination, K.C. testified that on weekends, S.P.J. was either at home or working.

When confronted with the fact that in 1996, S.P.J. was serving an intermittent jail sentence on some weekends at the local RCMP detachment, K.C. responded, “I can't remember, it was so long ago.” When pressed on this issue, K.C. stated: A I was mostly gone on weekends, I was hanging around with my friends so -- Q So you don't know what he was doing on weekends then. A All's I know is that he wasn't home on -- when I got home on weekends. But on the weekdays he was mostly working. [ 151 ] K.C. makes no mention of sharing the residence at 102 T. Street with R.C. or D.J.

Defence Witness R.C. [ 152 ] When he was 14- or 15-years-old, R.C. returned to [Village One] and lived for two years with his grandmother, A.A.C., at 882 BCT. R.C. was 17-years-old when he moved into 102 T. Street sometime in May 1995, shortly after his birthday on [omitted for publication]. K.C. “landed there at the same time”. R.C., S.P.J., A.R.J., E.J. and K.C. all lived at 102 T. Street. R.C. stayed for nine months to a year, after which he moved in with his aunt R.W. at 1025 CT Street. [ 153 ] R.C. said that while he was living at 102 T. Street, S.P.J. worked every day as a truck driver.

He left for work at approximately 5:00 a.m. and returned at 6:00-to-7:00 p.m. in the evening. R.C. observed S.P.J. consume alcohol, but not every day. He confirmed that R.T., who he called “B.”, lived next door with his brother B.T., and came to 102 T. Street to go to church with S.P.J. on S.P.J.’s days off. [ 154 ] R.C. admits that at this time of his life he was heavily under the influence of drugs and alcohol and in and out of a lot of houses. He rarely came home at night. Instead, he hung out with his friends at various house parties.

Because of his unhealthy lifestyle, his Aunt R.W. took R.C. in to settle him down. R.C. has been “clean” now for over three and one-half years. He admitted his life was “a bit of a merry-go-round” and it was really hard to say exac

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