R. v. R.R.D.G., 2014 NSSC 78

SUPREME COURT OF NOVA SCOTIA Citation: R. v. R.R.D.G., 2014 NSSC 78 Date: 20140227 Docket: CRH 412256 Registry: Halifax Between: Her Majesty the Queen v. R. R. D. G. Restriction on publication: s. 486.4 Criminal Code of Canada Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Peter Rosinski Heard: December 16, 17 and 18, 2013, in Halifax, Nova Scotia Final Written Submissions: January 28, 2014 Counsel: Perry F. Borden, Senior Crown Attorney, for the Crown Alex Embree, for the Defendant By the Court : Introduction

[1] J was born in December 1994. Her mother, M met RG, her stepfather, and they lived together as a family from the fall of1997 until September 21, 2010. [2] On November 3, 2010 RG was charged with offences occurring between January 30, 2005 and January 30, 2008 pursuant tosections 151, 153 (

a) and 271 (1) (

a) of the Criminal Code, based on allegations about alleged events made by J. [3] Her allegations are that RG had her perform oral sex on him during those years, and on a much less frequent basis as shegrew older, he simulated sexual intercourse with her ("dry humping") and rubbed her vagina over her clothing. [4] He appeared in Provincial Court in November 15, 2010, and after 20 court appearances his preliminary inquiry took place onFebruary 6-7 2013 at which time he was committed to stand trial in this Court on the charges alleged. [5] In this Court he stands charged specifically: 1. that he between the 30th day of January 2005 and the 30 day of January 2008, at or near Halifax, in the County of Halifax, in theProvince of Nova Scotia, did for a sexual purpose touch [J], a person under the age of 14 years, directly with a part of his body, contraryto

section 151 of the Criminal Code; 2. And further that he at the same time and place aforesaid, did being in a position of trust or authority towards [J], a young person,or being a person with whom [J], a young person, was in a relationship of dependency, did for sexual purpose, touch directly or indirectlythe body of [J], the young person, with a part of his body, to wit: his penis, contrary to

section 153 (

a) of the Criminal Code; 3. And further that he at the same time and place aforesaid, did unlawfully commit a sexual assault on [J], contrary to section 271(1) (

a) of the Criminal Code. [6] At the trial before me the following witnesses testified for the Crown: the initial investigating patrol officers, ConstableCorey Bergman and Constable Todd Streatch; Detective Constable Kimberly Robinson, Halifax Policing Services Major Crimeinvestigations officer; M, who is J's biological mother; D, who is J's boyfriend of similar age; and J. [7] RG was the only witness to testify for the Defence. There were exhibits filed as well. [8] In a nutshell, the Defence says J has fabricated these allegations.

The significant issues in this case are tethered to thecredibility of RG and J in particular. [9] RG is presumed innocent. That presumption of innocence can only be displaced if the Court is satisfied at the end of the casethat there is no reasonable doubt as to his guilt. If I believe RG’s evidence, I must acquit, as I must also do if I do not believe it, but amleft in a reasonable doubt thereby.

A conviction requires that his evidence, in combination with the remaining evidence or lack ofevidence, does not raise a reasonable doubt about the allegations; or, more correctly, that the Crown has proved beyond a reasonabledoubt based on all the evidence that I accept that RG is guilty of the offences charged . [10] I bear in mind Justice Saunders’ comments in R. v. J.M.M. 2012 NSCA 70 at paragraph 69 - 73 about the proper application ofthe D.W. (SCC), [1991] 1 SCR 742 analysis.

Although I note that that was a case where the accused did not testify, hiscomments at paragraph 74 also bear repeating in this case, where the accused did testify [see the dissenting comments of McQuaid JAregarding a proper D.W. analysis at paras. 129 - 144 in R. v. Hogg 2013 PECA 11 - appeal allowed and convictions restored February21, 2014 - 2014 SCC 18:

The question arises whether the approach urged in W.(D.) applies to cases where the accused does not take the stand in his own defence. In the present case the appellant did not testify. However, he did call evidence which was in direct opposition to the complainant's account. The Ontario Court of Appeal recently dealt with this issue directly. In R. v.

B.D. , 2011 ONCA 51 , Blair, J.A., writing for the Court, observed: [114] What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice . In that event, they must acquit. [My emphasis added.] [ 11 ] Much of the evidence given by the witnesses in the case at Bar was not materially in dispute.

Those factual matters more closely connected to proof, or not, of the core allegations by the Crown were materially in dispute. [ 12 ] First I will make comments upon the evidence and findings of fact regarding those matters not materially in dispute. Matters Not Materially in Dispute [ 13 ] M was born in September 1967. She has four children at present. It is a blended family. Her children are: ML - Born December 1988 J - Born December 1994 N - Born June 1999 - RG is the biological father I - Born February 2001 - RG is the biological father. [ 14 ] M and RG met online in the fall of 1997.

She was living in [...] and he was living in [...]. She moved to [...] to be with him in late fall 1997 and they married in March 1998.

Since her arrival in Canada she and RG have lived together with the children, up until September 21, 2010, when the police were called in relation to the charges before this Court. [ 15 ] In [...] they lived at three different residences: B.R.- for approximately one year between 1997 and 1998; E.F.S. - for approximately four years between 1998 and 2002/2003; W.S.J.S. - for approximately two years between 2002/2003 and July 2004. [ 16 ] M suggested that while she was a full-time student in [...] RG was not employed full-time between 2002 and 2004, and that he was a “ stay-at-home dad ” .

RG testified he was employed with only short breaks between employment in those years and earlier while residing with M and her children. He testified that he worked three months in 1998 (between January and March) with [...] as a salesperson; he worked with [...] from mid-1998 to approximately 2001; he worked with [...] between 2002 and 2003; and he worked at [...] between late 2003 and April 2004. [ 17 ] I note that RG was not precise as to when he started and stopped working at each of these locations. Specifically as to the

[ 17 ] I note that RG was not precise as to when he started and stopped working at each of these locations. Specifically as to the period 2002 - 2004, I found RG was vague on details about start and termination dates of his employment at [...] and [...].

It seems on balance that it is more likely than not that he was unemployed, and therefore likely a stay-at-home dad, for at least some significant periods of that time. [ 18 ] Notably, during the time they lived in [...] RG testified that I and N where "always" in day care even when he was between jobs "because otherwise you would lose your spot" in the day care location in question. [ 19 ] RG admitted in testimony that Children and Family Services (CFS) in [...] came to the home to see him while he was unemployed, and that therefore "must've been" in the two months before they left for Nova Scotia. [ 20 ] Children and Family Services in [...] were alerted by a complaint from J given to a counsellor at school of corporal punishment at her home.

CFS staff attended at the home and spoke to RG who was at that time a stay-at-home parent. M was not present. RG says he does not recall that he and M discussed this incident/visit with J. Both M and J testified, and I accept, that it was discussed with her and the take away message for J was, my paraphrasing: If you call Children and Family Services again you risk no longer being with your parents. [ 21 ] The family lived in [...] until July 2004, when they moved to Nova Scotia, driving two vehicles across Canada. They arrived here on July 12, 2004.

The purpose of the move was to allow M to continue her education at [...] in downtown Halifax. From September 2004 to the present M has either been a full-time student or an employee, or both, at [...] in downtown Halifax. From July to October 2004 RG was a stay-at-home parent; thereafter he generally had full-time employment in the Halifax Regional Municipality( HRM) area. [ 22 ] From their arrival in July 2004 until September 2010, the family lived in four different residences in different areas of HRM.

For convenience I will set out the residential area in which the families lived, the school and the grade that J attended: Grade 5 - September 2004 - June 2005 [...]; Grade 6 - September 2005 - June 2006 [...]; Grade 7 - September 2006 - June 2007 [...]; Grade 8 - September 2007 - June 2008 [...]; Grade 9 - September 2008 - June 2009 (... - they moved there by September 2008 and remained there at all relevant times thereafter); Grade 10 - September 2009 - June 2010 [...]; Grade 11 - September 2010 - June 2011 [...]; and, Grade 12 - September 2011 - June 2012 [...]. [ 23 ] J met and befriended D, who was born in 1994, in the summer of 2009, and they began dating in February, 2010.

D attended a high school in [...]. The first time that J stayed overnight at D's parents ’ house was unexpectedly on September 20, 2010.

[24] The first time anyone became aware of the allegations by J against her stepfather, RG, was in the fall (likely September) of2008 when M, "being a snoopy mom", discovered a three to five page sparsely written diary started by J. The discovery of the diaryentries was only shared with J and RG at that time. The police were not alerted to the allegations until September 21, 2010. [25] M, J and RG all expressly or implicitly agreed that M was the disciplinarian of J in the household and that RG would havealmost never disciplined J.

M, J and RG all agreed that there was a much closer or stronger bond between RG and J than between J andher mother, even up until September 21, 2010. [26] Next it may be helpful to summarize the specific allegations of J respecting events allegedly occurring in the time periodbetween January 30, 2005 and January 30, 2008: (

i) In the house at [...], when they were alone (possibly on several occasions), RG put his pants down and made J open her mouth withher eyes closed, and inserted something into her mouth (pinkish in skin colour), which she sensed was moving, the size of whichprecluded her from closing her mouth. After being there for minutes, RG would say words like "okay stop" and she would sense a"warm and soft taste" in her mouth. She would usually swallow the substance, but sometimes spat it out. She did not specify how oftenthis occurred.

It may have only happened once at the [...] house; (ii) In the [...] house, RG would take J into his bedroom under the covers, usually in the afternoon after school. According to J, similarincidents of "open mouth/closed eyes" took place, "more than 10 times". J said that on one occasion RG had her perform the same act oforal sex in the living room when her mother was upstairs showering. J said she was in a blue armchair at the time; (iii) In the house in [...] , the oral sex continued, but "anybody could be home".

J estimated that it happened there "frequently" whichshe described as more than 10 times, and as she was getting older, she also said that it happened "more than three times per week" and"almost every day". She said that it normally took place in his bedroom (being the master bedroom occupied by he and M); (iv) At [...], J alleged that there were other incidents as she got older, including a couple of times in his bedroom, having her in front ofhim on all fours he would "dry hump" her in

an act of simulated sexual intercourse, with his penis touching her vagina area over herclothes. He also rubbed her vagina over her clothes with his hand “a few times”; (

v) By the time of the “diary incident” in September 2008, when J was still 13 years old, she testified that the abuse had stopped. [27] Thus in

summary J alleged: at [...]: RG inserted his penis into her mouth and ejaculated therein, possibly only once; at [...]: RGinserted his penis into her mouth and ejaculated therein, while they were in his bedroom "more than 10 times" including one incidentwas while her mother was showering upstairs and she was in the living room’s "blue armchair"; at [...]: RG inserted his penis into hermouth and ejaculated therein - "it happened a lot" - "more than three times per week… and almost every day" as she got older, she noted"but anybody could be home"; also in the bedroom he dry humped her "a couple of times"; and he also rubbed her vagina with his handsover her clothes "a few times". [28] I note that J also alluded to these "blow jobs" or "open mouth/closed eyes" incidents as having started when she was younger in[...], though not formally the subject of criminal charges. [29] I conclude that those might be considered “similar act” allegations, which also lie outside the dates and locations of theallegations in the indictment, which can presumptively (as propensity evidence) only be used as a narrative to explain the contextualbackground leading ultimately to the charges herein.

In this case, the Crown has not requested that the Court treat such evidence assimilar fact evidence, nor was there an express concession by the Defence sufficient to meet the burden for the admission of such similarfact evidence. On these points see: R. v. Mahalingan 2008 SCC 63 at paras. 164 - 165 per Charron J; R. v. Queen v. L.E.D. (SCC), [1989] 2 SCR 111; R. v. D. B. 2012 ONCA 301 at paras 20 - 33 per Doherty JA; and s.478(3) Criminal Code regarding theextra-provincial consents required for prosecution of such cases, which were not requested in this case.

[ 30 ] Similarly during the trial M briefly alluded in her testimony to what could be characterized as "character evidence"; for example: that RG made calls to phone sex lines while she was absent; that he was cheating on her "from the beginning"; that he had a gambling problem; and that he was regularly lying.

The Crown is not relying on this “ bad character evidence ” , and argues that the Court should give it no weight. [ 31 ] Although there was no objection taken by Defence Counsel at trial, in my view these all are fairly characterized as "character evidence" and I will disregard this evidence entirely. (See R. v. C.J. 2011 NSCA 77 per Fichaud JA.) [ 32 ] Notably, however, the testimony regarding the visit by Children and Family Services to the home as a result of a complaint by J about corporal punishment, is relevant.

That evidence is relevant in assisting a trier of fact to understand why the complainant may not have disclosed the allegations earlier, and is relevant to assessing the credibility of J. The take away message from that incident was, according to J, my paraphrasing: if you call CFS again you risk no longer being with your parents. Matters Materially in Dispute [ 33 ] RG denies any sexual impropriety at any time between him and J.

In closing submissions RG's counsel stated that this is a "he said/she said" case, and that on balance when RG and J disagree on a material point, the other evidence available in the case tends to support RG's position. [ 34 ] I do not find that to be the case. I will elaborate in the following sections. (

i) The Diary Incident of September 2008 (After the Alleged Behaviour by RG had Ceased According to J) [ 35 ] In September 2008, M, being a "snoopy mom" found J's private diary. It contained only three to five sparse pages of comments which appeared to be written at different times. The diary was destroyed by J shortly after its discovery by her mother, and after a meeting between her and her parents. [ 36 ] M testified that she met with J alone after school, and confronted her about an entry in that diary which suggested: "a sex act performed on RG … something to do with his penis".

J characterized the diary entry as: "I wrote about him telling me what to do when he tells me to suck him off ". [ 37 ] RG testified that M told him that day that it was in relation to a "blow job", and that of the diary entry he could only remember the words "daddy...blow job". [ 38 ] After M met with J, and J confirmed to her that it was true, M told J that she would first “ talk to daddy ” and J should act as if nothing had happened.

M also told J, according to J's testimony, that she would put RG out of the house. [ 39 ] When RG came back from work, the parents had a heated discussion about the diary before J was asked to join them in their bedroom.

The accounts of what happened in that 20 to 30 minute period vary, but are generally consistent in so far as M asked J three times if the diary entry was true, and J twice said it was, and then on the third time said it was not true. [ 40 ] J testified that she changed her answer to "no" the third time because RG was "silently pleading for me to take it back" by making a "praying hands" gesture and slashing motion with his hand across his own throat.

J testified that she did so because "I felt guilty about saying something … I felt it was my fault"; and in cross-examination: "I felt bad for him and worried about the money situation".

[ 41 ] RG testified that he made no such gestures, and he went on to note that once J denied the diary entry "we went on like any other day … our [between J and RG] relationship was still the same"; yet he also testified that: "we told her that there are consequences for lying in our house … "; and "M and I never discussed it again until it came up on September 20, 2010". [ 42 ] Each of the three of them made a hand-drawn sketch at trial of where they say every one of them was located in the bedroom that day. (See exhibits 1 [J]; 2 [M] and 4 [RG].) [ 43 ] Notably RG's diagram has M seated on the bed with him directly across from J.

He also testified that, in the at least 20 minutes that the three of them were in the bedroom, "nobody budged" - "I know that nobody moved because I'd have to stand up to let somebody by me". [ 44 ] M testified that she shifted and paced around, but she did not recall J or RG moving.

J testified as her diagram shows, that M was not sitting on the bed, but rather standing by the window, and RG was seated near to J but on the bed, whereas she was on the floor. [ 45 ] In cross-examination the Defence put to J that in her police statement, J had said that her mother "denied" seeing RG making any gestures, whereas in her testimony M suggested that she did not remember looking away so as to not be able to see whether RG made any gestures towards J, as J claimed.

J testified in effect that her characterization of her mother's "denial" of seeing RG make any gestures, was consistent with the possibility that RG did make gestures, but that they were unseen by M. [ 46 ] RG testified that he was: "in total shock … I didn't know what to say … I was quiet, upset and crying a bit"; and that "M was upset with J and grounded her that day … We told her that there are consequences for lying in our house". [ 47 ] On cross-examination, RG said he was "certain" that the diary incident happened in the fall of 2008.

He agreed that "it was one of the most memorable days" in his family life and that the words "daddy blow job … stuck out like a sore thumb". [ 48 ] The Crown then put to him that the diary incident was basically swept under the rug. There was no real consequence for J's "lying" and no seeking out counselling services for J because it was suggested that RG needed the abuse to remain a secret.

To this he replied, although "we never talked about it again" they had “ discussed it with J … I discussed it with M-J never wanted to go to counselling … I talked with M about J seeing a counsellor and M talked to her mom". [ 49 ] Each of J, M and RG agreed that the diary incident was not discussed again until September 20, 2010 at the earliest. [ 50 ] On a review of all the relevant evidence, I conclude that it is more likely than not that RG did make the gestures as claimed by J, and that she changed her third answer to her mother's question as to whether it was true to "no" at least in part as a result of his gestures. [ 51 ] Even if as RG claimed "nobody budged", and that M was seated directly beside RG on the bed (which I consider not credible), that M did the talking, and that that talking three times involved asking J if it was true, J would have gotten the sense that her mother was ambivalent about the truth of her diary entry, which was to be contrasted with what I accept had been the tone of the meeting between M and J before RG returned home, namely:

(1) M testified that she was "very sad" for J and very upset with RG, and told J she would need to "talk to daddy" and advised J to act as if M was not aware of the diary entry until she had a chance to talk to "daddy"; and

(2) J testified that she discussed the diary incident with her mother and during that time her mother had asked J why J had not told her - to which J responded "because we don't talk and you don't trust me". J testified that she did not want to tell her mother because of the financial hardship it would cause if the family split up. Then her mother gave her a hug: "it was the first time she had hugged me in a really long time".

[ 52 ] The pressure on J to relent in spite of her mother's earlier indications was surely not lost on the then 13 year old J, who has testified that the abuse had already ended by the time she was in grade 9, and they lived at [...], which is where/when the diary incident happened. (ii) The events of September 20, 2010 [ 53 ] J testified that she did not tell anyone about the abuse for a long time because "I had nobody to tell - we were moving around so much that I was never close to my teachers".

She also expressed apprehension due to the [...] complaint about her mother's physical discipline to a school counsellor: "I was always told you can talk to the counsellors. My parents hit me with a spoon and my mom pulled my hair and threatened me with a slipper and a belt - all that happened was two people came to speak to my parents. My parents confronted me and told me not to say that sort of thing again or they would go to jail".

Why she told no one else in authority, she testified: “ I don ’ t know why, but I never trusted anybody. ” [ 54 ] J said that she told her friend T, then friends G and N and eventually " … my group of friends just knew" (after the abuse had ended when she was at [...]). She told D several months after they started dating in February 2010. [ 55 ] J testified that she only wanted to stay at D's house for a short period.

She confirmed that on September 20, 2010 RG wrote a note to allow her to stay at D's parents house that night. [ 56 ] RG agreed that that was the first time she had stayed there overnight and that he believed the note was permission only for that night. [ 57 ] RG testified that he understood that J wanted to spend the night at D's house "because of mom" and that D's parents required a note of permission. He was not going to write the note, but D said "I know what you did to J … ". RG testified: "I have no idea what he meant - I assumed it was because of what she put in her diary.

I was angry … 'How dare you say this in front of me' … I was in shock and distraught". [ 58 ] RG said that he did not want to interrupt M, who was entertaining her friend H. visiting from [...] that evening, and because M would not likely take too well to such a request especially after a fight she and J had had that morning in which M had thrown a shoe at J. [ 59 ] J testified she could not recall specifically what she told D was the reason for her requesting permission from RG to stay overnight at D's parents, however D testified that J told him it was because she did not feel comfortable in her parents home, and because she had a fight with her mother that morning. [ 60 ] The Defence suggested that J ’ s reason for wanting to be out of the home was not because of anything RG had done to her.

J ’ s own evidence was that the last incident occurred when she was approximately 12 years old in [...]. That is, the abuse had ended by September 2008, two years earlier. [ 61 ] The Defence suggested that J and D used the allegations of abuse, not discussed with her parents since the diary incident in September 2008, as “ leverage ” to get RG to allow J to “ live with ” D ’ s parents. [ 62 ] D testified that the allegations may have come up while he and J spoke to RG that September 20 th evening, but he was adamant that they were not used as "leverage" to get the note of permission for J to stay at his house.

[ 63 ] Neither J nor RG were of the view that the note was intended to give permission for J to stay away beyond the night of September 20. In my review of all the circumstances, including the fact that M, her mother, had not been consulted, it is more likely than not that the permission was only for the night of September 20.

Thus the “ leverage ” argument seems overblown. [ 64 ] Although M could not recall whether RG told her that J or D had mentioned the abuse allegations on the night of September 20, she did testify, and I accept, that she called J that night to ask why she wanted to stay at D's and that J told her she did not feel safe with RG in the house. [ 65 ] On a review of all the relevant evidence I conclude that the sexual abuse allegations were, more likely than not, mentioned to RG when J/D spoke to him on the evening of September 20. (iii) The events of September 21, 2010 [ 66 ] In the late afternoon of September 21, 2010, in response to a call from either RG or M, J and D returned to [...] for a discussion with her mother and stepfather.

RG testified that he called J, who had her own cell phone which she bought for herself when she was in grade 10, but he did not try to call her before he went home after leaving work early at the request of M. [ 67 ] J, RG and D all agreed that the discussion centered on J's desire to move to D's parents house to live, and that M was opposed to this in spite of the acrimony between J and herself, most recently manifested by the "shoe throwing" incident on the morning of the previous day.

According to RG and D, M insisted that she would have to agree, and would have to provide a "legal letter" to allow J to move to D's home, but that she was opposed to such a move. [ 68 ] Only after that point in the discussion were the sexual abuse allegations mentioned again. RG denied them and, according to M, "turned white as a ghost" when they were mentioned. [ 69 ] D then confronted M and asked her why she did not believe J, to which M likely responded that J had lied before (including over the diary incident) and she did not know who to believe.

In response, D or J suggested calling the police to find out who was telling the truth. The conversation had become very heated by this time. At that point, M testified that she agreed with the police being called: "I would love to know the truth". [ 70 ] Very shortly thereafter, J called the Halifax Regional Police and was on the phone for quite some time with them in private. [ 71 ] At 7:40 PM Constables Corey Bergman and Todd Streatch, HRP patrol officers attended at the home.

As patrol officers, according to police protocol, they made an initial and preliminary record of the complaint, which was handed on to Major Crime

Section investigator Detective Constable Kim Robinson. Also in attendance at the home was a representative of the Department of Community Services since the matter involved children. [ 72 ] Constable Bergman asked J about the allegations. J was not asked to, nor did, she review his notes. He testified that he tried to record her words in his notebook as best he could, but notably advised the Court that since the complainant was a youth: "we are not to interview children - just to ask open-ended questions … just get a basic synopsis … and do not ask leading questions".

He also testified that: “ I did not ask about all the places things happened ” ; he did not recall if J said where she lived before [...]; although J stated it ended before Christmas, she specified no year so he did not know when the abuse ended; and although he testified from his notes that J referred to a dry humping incident at [...] and a blow job in the woods at [...], she gave “ no specifics ” . [ 73 ] Although the officers were no doubt doing their best to be accurate in their general observations, I do note the following differences in the evidence available to me:

(

i) Constable Bergman testified that J's responses were elicited in the bedroom with Constable Streatch and D present; (ii) Constable Streatch testified that J's responses were elicited downstairs with Constable Bergman and D present, but elaborated that he did not recall if D was present the entire time and that Constable Bergman left and made some calls, leaving him alone with D and J; (iii) J testified that she met alone with Constables Bergman and Streatch in the basement, since D had gone upstairs; (iv) D testified that the entire time that the police spoke to J in the basement, he remained in the upstairs kitchen; (

v) RG testified that he was in the house, but could not be certain if both D and J were downstairs. [ 74 ] I bear in mind that: the initial officer ’ s report was an attempt to summarize historical sexual assault allegations dating back as far as 2000 in [...], and perhaps more specifically the years 2005 - 2008 (in various locations in Nova Scotia); that Constable Bergman and Streatch each have their own police notes and memories of what was said between their arrival at 7:40 pm and cautioning and chartering RG at 8:40 pm, and then clearing the scene at sometime before 11:14 pm when, at a location Constable Bergman could not recall, the initial officer ’ s report was typed up on the computer in their police car.

These facts are also relevant to the purported prior inconsistent statement of J put to her by the Defence in cross-examination - namely that she alleged to the officers that on one occasion RG made her give him a "blow job" in the woods when they lived in [...]; and that RG once “ dry humped ” her at [...]. [ 75 ] In her testimony, J denied that she made this allegation, and that she performed oral sex on RG in the woods at [...].

However she clearly had made allegations in her testimony and to the police that she performed oral sex on RG in their house at [...], and that she hid in the woods at [...] to avoid the abuse. [ 76 ] Given the nature of the oral utterances, in part paraphrased and summarized; that the officers were not seeking a precise accusation, but rather, given J's age, the subject matter, an "initial synopsis"; the noted demeanor of J at the time ("extreme sadness", "soft spoken" nature, "shameful and shy"); and the differences in the evidence between the witnesses listed above, it is more likely than not that J did not say that RG made her give him a blow job in the woods at [...], and that J did not say that RG “ dry humped ” her at [...], or that she was misunderstood in those respects. [ 77 ] It is notable that J was not given an opportunity to respond to this purported inconsistent prior statement: (

i) In her September 28, 2010 interview of J, Detective Constable Robinson testified that she did not ask about these allegations, as it would not be proper protocol in her opinion to ask leading questions as a follow-up to Constable Bergman's initial recording of the complaint; (ii) When, by agreement of counsel, J was spared from testifying at the preliminary inquiry in exchange for written answers to a series of questions submitted by the Defence, this was, the Defence conceded in submissions, because the Defence deliberately chose to "ambush" J about these issues at trial. [ 78 ] Moreover, Constable Bergman did record that J told them that she hid in the woods at [...] to avoid the abuse.

Position of the Defence

[ 79 ] RG denies any sexual impropriety between himself and J.

The Defence argues that RG should be believed, and that even if he is not believed, that his evidence, or the remaining evidence or lack of evidence raises a reasonable doubt about his guilt. [ 80 ] The Defence acknowledges that if the Court accepts J ’ s evidence beyond a reasonable doubt, after a proper D.W. analysis, then that testimony would constitute proof of the essential elements of the offences charged. [ 81 ] The Defence argues, however, that J made up the content of her diary which led to the 2008 diary incident as well as the other allegations generally, and that she has lied to D and M in order to form a closer bond with each of them, presumably based on the sympathy that would naturally occur for D and M as a result of the allegations.

Then, having the benefit of their sympathy, J was content to leave the allegations in the past, but when D pursued the allegation to its logical end on September 21, 2010, it almost became inevitable that the police would have to become involved.

At that point the Defence submits that J could not retract the allegations, and now has compounded those lies by testifying in court in support of her previous allegations. [ 82 ] The Defence argues that whenever the evidence of J is in conflict with that of RG or with the other evidence in the case, the conclusion arising from that other evidence supports the version put forward by RG.

As examples the Defence cites the "hand gestures" by RG that were not seen by M during the diary incident; the varied and inconsistent reasons why J could no longer live in the house with RG in September 2010 two years after the allegations surfaced during the diary incident in September 2008, when nothing had changed in the meantime, and asserts that the real reason for leveraging the sexual abuse allegations against RG was to get away from the acrimony that her mother was causing to her, not because of anything that RG had done to her. [ 83 ] Moreover, the Defence submits, the evidence of J itself is not consistent and reliable enough to ground a conviction against RG.

Crown Position [ 84 ] The Crown argues that the credibility of J and RG are key, and says the Court, in applying the D.W. analysis, should conclude that the allegations by J are proven beyond a reasonable doubt. [ 85 ] At this point I confirm that I have assessed the evidence of J keeping in mind her changing age, particularly between the offence dates of January 2005 and the point of her testimony when she was almost 19 years old ( R. v.

J.M.M. 2012 NSCA 70 ). [ 86 ] As to why she may have delayed in disclosing the abuse, the Crown notes that J had faced ongoing tension with her mother since she was a very young girl, and that M was the disciplinarian in the household throughout, which was in contrast to how well, to outward appearances, she was treated by RG with whom she felt she had a closer bond than with her mother.

When she complained about her parents ’ behaviour in [...], to J's mind the CFS authorities did nothing, and she was chastised that if she reported any abuse again she would be taken away from her parents and that they could go to jail. [ 87 ] In 2004 the family moved to Nova Scotia, splitting their time between the years 2004 and 2008 in four different residences and multiple schools. Thus J did not have a lot of stability.

She did not have a consistent group of friends nor did she have a teacher that she grew to trust. [ 88 ] Once J retracted her diary allegation in September 2008, it would be very difficult for her to again convince her mother that any allegation was true. J did not raise the allegations with the authorities until things came to a head in September 2010. [ 89 ] The Crown notes that another reason for delayed reporting by J is that J had a realistic concern that if she made the allegations the family would be split and the main breadwinner, RG, would be gone.

Moreover, J testified that her mother had told her she would

put RG out of the house. This was just before J was confronted by both parents in the bedroom about the diary, by which time it had became clear that her mother was ambivalent about the allegation, and J having recanted, M never followed it up; in fact, they never spoke of it again until September 2010.

When her mother believed RG had been unfaithful to her in September 2009, and she put RG out of the house, J appeared "happy", but more importantly, when RG returned approximately a week later, J was reminded that her mother apparently could not do without RG being in the household. [ 90 ] It also appears that J did have some concern for the safety of her siblings N and I continuing to live with RG, and this was in part the motivation for making the police complaint and allegations on September 21, 2010 and carrying through with the matter. [ 91 ] The Crown argues that although the Defence suggests J made these allegations as "leverage" in order to be able to live with D and his parents, that does not make sense given that when she made the original allegation in her diary in September 2008, she was not dating D. [ 92 ] The Crown says that J ’ s allegations, when viewed in light of all the evidence, are believable and reliable to a sufficient degree that RG should be convicted. [ 93 ] The Crown argues that RG's evidence is suspect.

He has a criminal record for crimes of dishonesty spanning 1995 - 2013; his evidence that "nobody budged" in the 20 to 30 minute meeting in September 2008 regarding the diary is not credible, and is suggestive of him tailoring his evidence to his own favour; his incredible suggestion during his testimony that J ’ s testimony that when something was put in her mouth during the "open mouth/closed eyes" incidents, she could see "pinkish coloured skin", that J must be confusing RG with M who was the disciplinarian in the household, and who may have put soap in her mouth, is another example of him tailoring his evidence to his own favour.

Surely J would not confuse the skin colour and gender of her [...] mother with that of RG who is a pale male Caucasian. Moreover if J had such a strong bond with RG, why would she sacrifice him by making such serious allegations just to get away from her mother M, with whom she has much less of a bond? [ 94 ] The Crown also points out that if J was serious in fabricating allegations, she could have been a lot more creative.

In the Crown ’ s submission, her allegations and testimony are understated, if anything. [ 95 ] The Crown urges the Court to consider the likelihood that these allegations are fabricated given the embarrassing and intimate nature of the testimony J had to give at trial. The Relevant Law [ 96 ] As noted earlier, the defence is one of denial.

In effect the Defence acknowledges that if the Court is satisfied beyond a reasonable doubt that the core allegations made by J have been proved, then the essential elements of these offences will have been made out. [ 97 ] There are a number of evidentiary issues that require clarification. (

i) The evidence of children/adults [ 98 ] When J and D testified they were approximately 19 years of age. However, their testimony was in relation to events that took place when they were younger, and in the case of J, much younger. [ 99 ] As I stated in R. v. C.R.H. 2012 NSCC 101 : [38] Before examining their evidence in more detail, it is important to recall that the courts have set out certain guidelines to assist

judges and juries in assessing the credibility of witnesses such as SG and A. in cases such as this. [39] In a number of decisions in the early 1990's, courts came to realize that they must approach the evidence of children not fromthe perspective of rigid stereotypes, but rather on a “common sense” basis, taking into account the strengths and weaknesses whichcharacterized the evidence offered in any particular case - see for example R v.

RW (SCC), [1992] 2 SCR 122 - paras.23 - 26 per McLachlin, J. (as she then was) for the court. [40] Previously the unsworn evidence of a child could not found a conviction unless it was confirmed or corroborated byindependent evidence. Once courts acknowledged that children experience the world differently from adults, it was hardly surprisingthat the details important to adults, like time and place, may be missing from the recollection of children. [41] Assessing the credibility of an adult witness describing offences alleged during their childhood was also contentious. In thatrespect, McLachlin, J. in R v.

R.W. noted at para. 26: It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or"child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments inthe law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference 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 whenshe was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to herevidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such astime and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [42] I also keep in mind the comments of the Ontario Court of Appeal, per Blair, JA (Cronk, JA concurring) in R v.

HPS 2012ONCA 117 that simply being satisfied about the sincerity, and believability of the witness, may not be sufficient to conclude that theyare credible, because one must be satisfied about their reliability as well. [43] In that respect, Blair, JA stated at paras. 35 and 37 - 38: Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurateor reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in theevidence: see R. v. McGrath, [2000] O.J.

No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), (ON CA), 18 O.R.(3d) 509, at pp. 515-18; R. v. Norman (1993), (ON CA), 16 O.R. (3d) 295, at pp. 311-15. As Finlayson J.A. noted inStewart, at pp. 516-17: It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the factthat she was not shaken in cross-examination.

I am not satisfied, however, that a positive finding of credibility on the part of thecomplainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts thecomplainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they areadults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. Theissue, however, is not the sincerity of the witness but the reliability of the witness's testimony.

Demeanour alone should not suffice tofound a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman for a discussionon this subject. [Citations omitted, emphasis added.] ... The allegations in this case relate to events that occurred many years before the trial, when the complainant was a little girl and ateenager. She was 36 when she testified.

In such cases - cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexualabuse - particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to becautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), (ON CA), 42 O.R. (3d)1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earliermay have disappeared. Or it may become contaminated.

Life experiences can colour and distort the memory of what occurred. [44] In R v. HPS, Justice Blair continued at paras. 39, 40, 41: 39 Minden J. discussed these cautionary considerations in McGrath, at paras. 11-14: Much of the author's focus is on the need for a particularly rigorous approach to issues of reliability given the frailties of memory ofdistant events: see: R. v. S.(W.) (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience andknowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v.

M.(B.) (1998), (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). Accordingly, careful scrutiny must be paid to the evidence: see R. v.Norman (1993), (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.). In that regard, a number of factors should be kept in mind. A witness' difficulty in recollection due to the passage of time must not lead toan "undiscriminating acceptance" of his or her evidence. A trier of fact must pay particular attention to serious inconsistencies in theaccount, as well as to significant inconsistencies between present testimony and prior accounts.

Such inconsistencies may discloseunreliability: see, for example, R. v. G.G. (1997), (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.). There must be a rigorousanalysis of whatever independent, extrinsic evidence still exists. A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: seeR. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, atrier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory.

The influences upon the life of a witness over the course of many years also make it difficult to fairly assess an apparent lack of motiveto fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. A trierof fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiplecomplainants.

This must be kept in mind when assessing the probative value of similar act evidence. 40 Following that review, Minden J. concluded, at para. 15: Finally, in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning eventsfrom the distant past. Trials concerning distant events may call for a direction to proceed cautiously before acting on unconfirmedevidence, even in a case in which the particular circumstances do not otherwise mandate a special warning.

In the application of thereasonable doubt standard, a trier of fact must be especially mindful of the absence of evidence that might have been available had thematter been prosecuted at an earlier date. 41 I agree. The idea that trial judges should consider the "need to self-instruct on the frailties of evidence concerning events from thedistant past" is a sensible one for all of the reasons summarized in McGrath. Each case will depend upon its own circumstances, and I donot mean to suggest that some type of formal instruction need necessarily be given.

Where, however - as here, and in this type of casegenerally - there are objective reasons to scrutinize carefully the reliability of a witness whose testimony is central to the proof of guilt,the trial judge's reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and tothe need to address it with that careful scrutiny. [45] Around that same time, the doctrine of recent complaint was also extinguished, [which only allowed evidence of a sexualcomplaint to be admissible if made: 1. at the first reasonable opportunity; 2. without questions of the leading, inducing or intimidatingcharacter or suggesting the guilt of the accused, and 3.

In relation only to the alleged offence and nothing else: R v. Creemer and Cormier (NS CA), [1968] 1 CCC 14 (NSCA)].

[46] In contrast, the modern principles regarding behaviour of sexual offence victims have rejected stereotypical presumptionsabout how victims will react to such offences - whether that be at the time of the offence itself [by for example resisting or screamingout, etc.] or thereafter, particularly as to when and under what circumstances they disclose the allegations. [47] In R v.

DD 2000 SCC 43, Justice Major for the Majority put the issue in that case as follows: This appeal raises the question of whether expert evidence may be admitted to inform the jury that children who have suffered sexualabuse respond in different ways with respect to disclosing the abuse.

The expert here did not interview the child, so his evidence was notspecific to this complainant, but was a general explanation applicable to all children. - Para. 44. [48] Justice Major continued on: In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling, but was rather the propersubject for a simple jury instruction. This being the case, its admission was not necessary. Distilling the probative elements of Dr.Marshall’s testimony from its superfluous and prejudicial elements, one bald statement of principle emerges.

In diagnosing cases ofchild sexual abuse, the timing of the disclosure, standing alone, signifies nothing. Not all victims of child sexual abuse will disclosethe abuse immediately. It depends upon the circumstances of the particular victim. I find surprising the suggestion that a Canadian juryor judge alone would be incapable of understanding this simple fact. - Paras. 58 - 59. [Emphasis added] [49] Furthermore, in relation to the discredited common law doctrine of recent complaint, he stated: Application of the mistake reflected in the early common law now constitutes reversible error. See R v.

RW (SCC),[1992] 2 SCR 122 per McLachlin, J. [as she then was] at page 136: Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurredwhich is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that thevictims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recentcomplaint.

In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do,it may not be until a substantial length of time has passed.

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverseinference based upon now rejected stereotypical assumptions of how persons [particularly children] react to acts of sexual abuse[citations omitted]. - Para. 63. [Emphasis added] [50] Notably he continued to expand on this theme and stated: A trial judge should recognize and so instructed jury that there is no inviolable rule on how people who are the victims of trauma likesexual assault will behave.

Some will make an immediate complaint, some will delay in disclosing the abuse, while some will neverdisclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding andknowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider inthe factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against

the credibility of the complainant. - Para. 65. [Emphasis added] [51] Nevertheless, in R v.

RGB 2012 MBCA 17 , that court reminded triers of fact that having rejected previous stereotypical presumptions about sexual offence victims, we must be careful not replace them with an unreasoned acceptance of a new form of stereotypical presumptions [for example that one should expect non-disclosure from a true victim and that that standing alone should therefore enhance their credibility - see paras. 51 - 59]. [52] Ultimately the non-disclosure of sexual abuse / offences should be a neutral factor standing on its own, unless in the circumstances of any particular case it is prompted to relevance by other evidence - e.g.

See also the comments of O’Connor, ACJO in R v. LCT 2012 ONCA 116 at para. 96 . ... [60] The sentiment in these cases serves as a sober reminder that each case is unique, and requires its own unique calibration of the concerns evoked above regarding a proper, reasoned and fair assessment of the evidence of children as well as adults describing events that allegedly occurred while they were children. [61] Along the spectrum of circumstances, regarding the age of the complainant at the time of the offence(

s) in relation to the time of disclosure and trial, the tension between providing an accused with a fair trial and the boundaries of the so-called “search for the truth” process can be taut. [62] In the case at Bar, there are elements of these concerns and I will take them into account and calibrate them to the circumstances of this case. [ 100 ] I have also previously alluded to the guidance provided by Justice Saunders to cases such as this one in R. v.

J.M.M. 2012 NSCA 70 . (ii) The “ daddy... blow job ” diary entry [ 101 ] In September 2008 M discovered J's private diary, consisting of a scant three to five pages of sparse writing, however her attention was drawn to, what RG testified he recalled was a reference to "daddy … blow job". [ 102 ] The question arises as to what use I may properly make of this evidence? [ 103 ] The Crown suggests: ... that two uses can be made of the diary incident. The first use pertains to the narrative exception.

Respectfully, where there is a delay in reporting the sexual assault the Crown is entitled to have the complainant explain why she did not report the abuse. This argument was advanced in R v. DGS 2012 MBQB 19 at paragraphs 12 - 14 ... The second use of the diary incident enables the statement to be admitted to rebut the allegation of recent complaint – it is respectfully submitted that J’s evidence on direct examination did not invoke the issue of recent complaint. The particulars of the index offenses involve that of oral sex. This issue first surfaced with the discovery of the diary in 2008...

J was not questioned about the particulars of the incidents until she gave a statement to the police. The fact the police statement established further details than the diary entry and M’s questioning of J does not equate to a contradiction. The Crown would rely on the reasoning in R v. Ellard 2009 SCC 27 at paragraph 33 , wherein the court suggested a contradiction in the evidence is not to engage the recent fabrication exception. However, during cross-examination, Mr. Embree suggested to J that the diary entry described a

one time event. She testified when she wrote in the diary, she described a general incident that happened most of her life. The defence approach coupled with the evidence of RG, wherein he suggested the charges arose due to J wanting to move [in] with D, enables the court to use the diary statement to rebut the allegation of recent fabrication. [ 104 ] The Defence suggests: The defence position is that the case R v RL 2013 ONSC 4003 addresses issues of confirmatory evidence and “prior consistent statements” in paragraphs 108-114...

Regarding the issue of “recent fabrication”, the defence is not suggesting that there was a whole new fabrication in the fall of 2010, rather the defence’s position is that it is probative as to how and why the allegation of sexual assault was “revived” in the fall of 2010, following [J’s] denial in the fall of 2008 in the “diary incident”. Furthermore there are three different accounts as to what the diary entry was. The “diary incident” is merely one of the factors to assess in determining whether the Crown has proved the case beyond a reasonable doubt.

It is respectfully submitted that this includes [but is not limited to]:

a) the nature of the diary entry. It is unclear if it describes a one-time occurrence or multiple.

b) the circumstances of the denial of the diary entry in the fall of 2008. In particular, is there a reasonable doubt that Mr. G. made the gestures that [J] says he did.

c) Constable Corey Bergman’s evidence of prior inconsistent statements by [J] which are incompatible with [J’s] evidence: i [J] is clear that: 1. the alleged assaults ended in [...] in grade 8 around Christmas [thus late 2007 - early 2008]; 2. in [...] there were no incidents in the woods. ii Constable Bergman’s clear evidence is that [J] told him on the night of September 21, 2010 that: 1. there was an incident at the house on [...] in Halifax. This would have been approximately one year after [J] said the incidents ended; 2. that there was an incident in the woods in [...].

d) the frequency of the incidents, especially in [...], have no air of reality to them, given the family’s logistics at the time. Much of this is supported by the testimony of [M].

e) the testimony of RG.

[ 105 ] If the diary entry is to have evidentiary value as a prior consistent statement, then helpful guidance can be gleaned from Justice Watt's (of the Ontario Court of Appeal) Manual of Criminal Evidence (online, Thomson Reuters Canada Limited): the prior consistent statements of a witness are generally excluded by a rule that is known by several names, including, the rule against: (

I) narrative; (ii) self corroboration; and (iii) self-serving statements. The rule is grounded in concerns that evidence may be manufactured by witnesses through mere repetition of a consistently false story and the trials will be prolonged unnecessarily by repetitious evidence of little probative value. What is excluded is not hearsay, because it is not tendered in proof of the truth of the matters asserted. The prohibition bars evidence of the statement from both the declarant and the recipient. The rule against narrative has several exceptions. Evidence of prior consistent statements of a witness may be admitted: (

i) in rebuttal of an allegation of recent fabrication; (ii) as evidence of prior identification; (iii) as evidence of recent complaint; (iv) as part of the res gestae; and (

v) as evidence of the physical, mental or emotional state of the declarant. The evidence is received as an exception to the exclusionary rule, not for other or different purposes. [ 106 ] In R. v. K.T. , 2013 ONCA 257 , Justice Watt for the court discussed "recent fabrication ” at paragraphs 34 - 39: 34 Evidence of the prior consistent statements of a witness who testifies in trial proceedings is generally held to be inadmissible. The rule rests on sound policy considerations.

Evidence of a witness' prior consistent statements lacks probative value, is self-serving, superfluous in light of the witness' testimony, and constitutes hearsay when adduced for the truth of their contents: R. v. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788, at para. 36 . Despite these concerns, however, evidence of spontaneous, exculpatory statements made by an accused upon or shortly after arrest may be admitted to show the accused's reaction when first confronted with the allegation, provided the accused testifies and thereby exposes himself or herself to cross-examination: R. v.

Edgar , 2010 ONCA 529 , 260 C.C.C. (3d) 1, at para. 24 . 35 The general rule that prohibits introduction of prior consistent statements of a witness is not absolute. The rule yields when a party alleges that a witness has recently fabricated his or her account of an event about which she or he testifies.

36 A recent fabrication is one made up after the event about which the witness testifies: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R.19, at para. 33. The fabrication need not be "recent", in the sense of proximity to the witness' testimony, but it must post-date the eventthat is the subject-matter of the witness' testimony: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. 37 An allegation of recent fabrication need not be made expressly.

It is enough that, in light of the circumstances of the case and theconduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance: Stirling, at para. 5; and Ellard,at para. 32.

That said, it is not sufficient that contradictions appear or are exposed in the testimony of the witness in order for the recentfabrication exception to be engaged: Ellard, at para. 33. 38 An allegation of recent fabrication allows the party who called the witness to introduce evidence that the witness made a statementor statements consistent with his or her testimony, prior to the existence of a motive or of circumstances that led to the fabrication:Ellard, at para. 33; R. v. Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 145, reversed on othergrounds, (SCC), [1990] 2 S.C.R. 1421; and R. v.

Campbell (1977), (ON CA), 17 O.R. (2d) 673(C.A.), at p. 687. In some instances, evidence of these prior statements may be admitted in reply. 39 As a general rule, limiting instructions are required where prior consistent statements have been admitted to rebut an allegation ofrecent fabrication. These instructions explain that consistency and accuracy are not the same thing, and that the prior statements can onlybe used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the impeached witness:Ellard, at paras. 31 and 42.

However, the requirement of limiting instructions about evidentiary use of prior consistent statements alsoyields on occasion, as for example, where I. the defence itself relies on the prior statements; ii. the prior statement is not offered to prove the underlying facts and; iii. the concerns over self-corroboration and bolstering the reliability of the witness are not present.

Ellard, at para. 43. [107] Thus, in the case at bar, if it is viewed as involving an allegation of recent fabrication, I can only use the existence of the diaryentry ("daddy blow job") discovered in September 2008, to rebut the Defence’s allegation of recent fabrication. That allegation wouldarise from the Defence position that J was attempting to leverage the sexual abuse allegations in September 2010 in order to be able tolive with D and his parents.

The Crown is entitled to rely on the evidence of a previous consistent statement, as recorded in the diary byJ, made at a time prior to the existence of a motive to fabricate. However, the evidence cannot be used to support a fact in issue or thegeneral reliability of the impeached witness.

It can merely level the evidentiary playing field used to assess the credibility of the witnessin question. [108] In another case of a young complainant and her stepfather, regarding the improper invitation to a witness to comment on theveracity of another witness (in that case the mother of the complainant) a majority of the Ontario Court of Appeal found that "the onlypurpose of the mother's evidence in chief was to show that the diary of the complainant contained no reference to her stepfather and hisalleged activities. The complainant said it did and the diary could not be produced.

Obviously the jury did not believe the mother. Thecross-examination of the mother was designed to show that the mother was unlikely to have received her daughter back into the house ifshe thought she had manufactured the evidence against the stepfather.

As I read that cross-examination, the mother was quite ambivalentas to whether or not she believed the allegations and as I read the comment of Crown counsel in his closing address, he not unfairly putthat ambivalence to the jury… There can be no question that it is improper to ask the accused to comment on the truthfulness ofwitnesses who have testified against him, but that is not what happened here. The allegation is that the ambiguous answers of the mothersomehow bolstered the complainant's evidence.… Indeed if it did anything, it bolstered that of the appellant on the issue of the contentsof the diary.

In my view, the admission of the evidence and the comment of Crown counsel could not have affected the verdict." - R. v.Moran (1992) (ON CA), 77 C.C.C. (3d) 300 (Ont CA) per Grange and Abella JJ.A. [as she then was] upholding aconviction for sexual assault – affirmed in an endorsement by the Supreme Court of Canada - R. v. Moran, (SCC),[1993] 4 S.C.R. 499.

[109] In R. v. S.R.C., 2004 PESCAD 13, the Prince Edward Island Supreme Court Appeal Division overturned a conviction andordered a new trial in part because the trial judge allowed the Crown to cross-examine the accused about the truthfulness of thecomplainant and the trial judge's use of the complainant's diary as a "bolstering document" which provided "minor corroboration" to thecomplainant’s sworn version of events.

The trial judge had done so in an effort to seek out the presence of confirmatory evidence as hethought appropriate in the case of the evidence of children and young persons. [110] As Chief Justice Mitchell noted at para. 40: "The presence of the confirmation he believed her diary constituted was one factorthe trial judge took into account in reaching his decision to accept the evidence of the complainant despite its frailties." The Courtaccepted that the complainant's diary could be admissible as part of the narrative to explain how the matter came to be investigated.

Atparagraph 38: 38 Regardless of the appellant's consent, the complainant's diary was admissible, if at all, only as part of the narrative to explain howthe matter came to be investigated. However, the trial judge characterized the diary as a "bolstering document" [transcript p. 76] andfound that it provided "minor corroboration" [transcript p. 276] of the complainant's sworn version of events. This constitutes a reversibleerror. See: R. v. Henderson, (1999) (ON CA), 134 C.C.C. (3d) 131, (O.C.A.).

The complainant's entry in her diary inno way made it more likely that the allegations of sexual assault she made in court were true. The credibility of a statement is notenhanced by the fact that it was made more than once. [111] Cases of earlier disclosure by alleged victims of sexual assault may allow the Crown “to lead evidence to establish only thatprior consistent complaints of the wrongdoings were made, not to establish the truth of their contents.

The Crown is thus entitled to havethe complainant explain why she did not tell anyone at the time, why she did complain when she did, and why it did not go any furtherand how it ultimately came to the attention of the police.” (See Chief Justice Chartier's reasons for the Court at paras. 16 and 32 in R. v.D.G.S., 2013 MBCA 69. To similar effect see Chief Justice MacDonald's reasons in R. v. D.C., 2008 NSCA 105, at para. 30; and JusticeWatt's reasons in R. v.

J.A.T. 2012 ONCA 177 at paras. 96 - 100.) iii To what extent motivation of a complainant to fabricate may be considered [112] Often in such cases there is evidence in relation to the potential motivation for complainant to fabricate such allegations. In thecase of a trial judge's consideration of motivation to fabricate when considering the credibility of an accused, Justice Oland's commentsfor the Court in R. v. J.A.H., 2012 NSCA 121, at paras. 11 - 12 are instructive: [11] A trial judge’s consideration of motivation to fabricate is permissible when considering the credibility of any witness.

However, in the case of an accused, exclusive or undue reliance on motivation may amount to an error of law that impairs thepresumption of innocence and shifts the burden of proof.

The Supreme Court of Canada has put it this way in Laboucan: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony. ... [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern.

Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v.

B.(L.), (1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherentdanger in considering the accused’s motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, shestated as follows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest inthe outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused.

The accused is obviously interested in being acquitted. In order to achieve that result he may have totestify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be

acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truthin his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for alie, however, cannot be turned into an assumption that one will occur. [Emphasis added by SCC.] [12] As Laboucan makes plain, there is no absolute rule that allows this court to conclude that a trial judge made an error of lawbecause he refers to the accused’s interest in a favourable outcome of his trial.

The trial judge’s reasons have to be read in the context ofthe evidence, the issues and arguments at trial. Context is crucial (Laboucan, para. 16; R. v. R.E.M., 2008 SCC 51 , 2008 SCC 51 at 16). In this case, the trial judge’s findings were preceded by a lengthy self instruction with respect to the burden of proof, the presumption ofinnocence and the principles of R. v. W.(D.) (1991) 93 (SCC), (SCC), [1991] 1 S.C.R. 742, steps cited with approval inLaboucan (paras. 18 and 19).

If a trial judge places too much emphasis on motivation to fabricate by an accused person or otherwiseassumes that an accused will lie to secure an acquittal, that is an error of law. But consideration of motivation to lie is not usuallyregarded as an error of law if it is only one of a number of factors cited in rejecting the evidence of an accused: R. v. Parnell (1995), 59BCAC 291, at paras. 42-43; and R. v.

Edgar, 2010 ONCA 529 , 2010 ONCA 529, paras. 96 and 97. [113] As to a trial judge's consideration of the motivation to fabricate when considering the credibility of the complainant, JusticeFichaud's comments in dissent in R. v. E.M.W. 2010 NSCA 73 at paras. 125 - 129 (appeal allowed) are instructive: 125 My colleague refers to the trial judge's statement (decision para. 115) that "the contents of [R.'s] disclosure" assisted the judge toaccept R.'s reliability, and says this was impermissible use of a prior consistent statement.

My colleague says that, "absent anyelaboration from the trial judge on the issue", the judge must be taken as using the prior statement impermissibly, and cites JusticeCharron in Dinardo. 126 Again, I respectfully disagree. Three paragraphs earlier, the judge explained what he meant by his use of R.'s prior statements: 112) The issue of motive remains. There may have been a motive for her to lie. Despite the evidence that nothing had been done toaddress R's desire not to visit her father, that desire could have been real.

Nothing in the evidence however permits a reasonable inferenceto be made that she was acting on such a motive. On the contrary, the circumstances surrounding her disclosure as well as its content,weigh very heavily against such an inference.

The nature of the relationship between the child and her father, the circumstances of thedisclosure, the unusual lack of discussion between the custodial parent and the child complainant, the initial unwillingness to speak, thegenerally hesitant manner of disclosure both to the police and to the court and the clear lack of scripted responses greatly diminish thereasonableness of any inference that this child has lied to achieve a purpose. 127 The judge did not use R.'s prior statement as corroboration, oath helping or proof of content.

Rather, he cited R.'s initial silence,hesitancy and unscripted response (the "content") to refute the defence's suggestion that R. had an agenda to terminate visits to her father.If R. had such an agenda then, in the judge's view, her statements would have been more forthcoming and fulsome in content. 128 The judge's approach is consistent with the limited usage of prior statements in sexual assault cases permitted by the OntarioCourt of Appeal in R. v. G.C., [2006] O.J. No. 2245 (QL), that Justice Charron for the Court adopted in Dinardo, para. 38-39: 38 In R. v. G.C., [2006] O.J.

No. 2245 (QL), the Ontario Court of Appeal noted that the prior consistent statements of a complainant mayassist the court in assessing the complainant's likely truthfulness, particularly in cases involving allegations of sexual assault againstchildren. As Rouleau J.A. explained, for a unanimous court: Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self-corroboration to prove that theincident in fact occurred. It cannot be used as evidence of the truth of its contents.

However, the evidence can "be supportive of thecentral allegation in the sense of creating a logical framework for its presentation”, as set out above, and can be used in assessing thetruthfulness of the complainant. As set out in R. v. F. (J.E.), (ON CA), [1993] O.J. No. 2589, at p. 476: The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the

prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed. The trial judge understood the limited use that could be made of this evidence as appears from his reasons: [I]t certainly struck me while the fact that you go and tell somebody that you were molested doesn't confirm the fact that you were molested.

I'm struck by the manner or the way it came out, tends to confirm [the complainant's] story -- how they were reading this book, and how the thing came up about child sexual abuse. In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness .

This was such a case. [Emphasis added by Charron J; paras. 20-22.] 39 The Ontario Court of Appeal's reasoning in G.C. applies equally to the facts of this case. The complainant's prior consistent statements were not admissible under any of the traditional hearsay exceptions. Thus, the statements could not be used to confirm her in-court testimony.

However, in light of the evidence that the complainant had difficulty situating events in time, was easily confused, and lied on occasion, the spontaneous nature of the initial complaint and the complainant's repetition of the essential elements of the allegations provide important context for assessing her credibility. 129 This trial displays a fizzled defence theory, not a miscarriage of justice. [ 114 ] Allowing the appeal, McLachlin CJC, said for the Marjority [2013 SCC 31]: 6 The complainant had made statements to a friend and to the police on the matter, before testifying at the trial.

The majority of the Court of Appeal was of the view that these statements had been improperly used or alluded to, in ways that bolstered the evidence of the complainant or otherwise assisted the Crown. 7 In our view, the majority of the Court of Appeal was wrong to seize on the trial judge's reference to the content of the complainant's disclosures to show that he had improperly used the evidence about these disclosures. The trial judge's careful and thorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court of Appeal.

Assessment of the Evidence [ 115 ] I had the opportunity to observe , J, D, M and RG testifying at length. I carefully followed the evidence of each witness and watched the manner in which they gave their evidence. I took note of whether they gave it after due consideration, or volunteered answers before questions were finished; their gestures; their seriousness/recognition of the serious nature of the proceedings; their composure and reaction, particularly under cross examination; and the tone and inflection of their answers. [ 116 ] I recognize that I may accept none, some or all of the evidence of any witness.

I have earlier referred to our Court of Appeal's comments in

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