R. v ELB, 2019 NSSC 107

SUPREME COURT OF Nova Scotia Citation: R. v ELB, 2019 NSSC 107 Date: 20190327 Docket: CRK 475351 Registry: Kentville Between: Her Majesty the Queen v. ELB Restriction on Publication: Publication Ban Judge: The Honourable Justice Gregory M.

WarnerHeard: February 11 and 12, 2019, in Kentville, Nova ScotiaOral Decision: March 27, 2019Counsel: William Fergusson Q.C., crown attorney Patrick MacEwen, counsel for the accused Accused present By Order of Judge Ronda van der Hoek, granted on July 25, 2017, an order under Sections 486.4 and 486.5, directs that any informationthat will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. Noend date for the ban is stipulated in these sections.

By the Court: [1] The accused is charged that between January 2008 and December 2012, when SB, his adopted daughter, was between theages of 10 and 14, he did for a sexual purpose touch her with his hand and mouth contrary to s. 151 of the Criminal Code and did sexualassault her contrary to s. 271 of the Criminal Code. [2] The witnesses at trial were: i. SB for the crown, now 21; and for the accused: ii. JB, the accused’s wife; iii. NHB, the accused’s 26-year-old daughter from a prior marriage; iv. KD, JB’s 34-year-old daughter from a prior marriage; and, v. the accused, himself. A.

Governing Principles [3] In making my decision, I have considered and applied the following principles. [4] R v Lifchus, (SCC), [1997] 3 SCR 320 (“Lifchus”), relates to the standard of proof. It sets out the principlethat the accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until thecrown has, based on the evidence, satisfies me beyond a reasonable doubt that the accused is guilty. [5] A reasonable doubt is not an imaginary or frivolous doubt; it is not based upon sympathy or prejudice. It is based on reasonand common sense.

It is logically derived from the evidence or the absence of evidence.

[6] Even if I believe the accused is likely guilty, that is not sufficient. In those circumstances, I must give the benefit of the doubtto the accused and acquit because the crown has failed to satisfy me of the guilt of the accused beyond a reasonable doubt. [7] To make my decision, I have considered all the evidence presented during the trial. I have chosen how much or how little Ibelieved and relied upon each witness. [8] Fact finding requires the court to assess both reliability and credibility. Reliability involves the assessment of the witness’scapacity to observe, recall and communicate accurately.

Credibility involves the assessment of the witness’s believability andtruthfulness. [9] In assessing the reliability and credibility of each witness’s evidence, I have considered these factors:

a) honesty;

b) interest (but not status);

c) accuracy and completeness of observations;

d) circumstances of the observations;

e) memory;

f) availability of other sources of information;

g) inherent reasonableness of the testimony;

h) internal consistency, including consistency with other evidence; and,

i) demeanour but with caution. [10] I am not required to believe or rely upon a witness’ evidence in its entirety.

As the trier of fact, I may believe or rely upon none,part, or all a witness’s evidence and attach different weight to different parts of it. [11] There is no magic formula for deciding what and how much to believe or rely upon, except the standard instruction judges givejuries to use their common sense. [12] Because the accused presented evidence, I have considered R v W(D), [1992] 1 SCR 742 (“W(D)”), which sets out thefollowing principles: • If I believe the evidence of the accused, I must acquit. • If I do not believe the evidence of the accused, but I am left with a reasonable doubt by his evidence, I must acquit. • If I do not believe and am not left in a reasonable doubt by the evidence of the accused, I may convict only if the rest of theevidence that I do accept proves his guilt beyond a reasonable doubt. [13] In R v Dinardo, 2008 SCC 24 , [2008] 1 SCR 788 (“Dinardo”), the court stated that an assessment of credibility willnot always lend itself to the adoption of the three distinct steps suggested in W(D).

Assessments of credibility depend on context. Whatmatters is that the substance of the W(

D) instruction should be respected. I must turn my mind to the decisive question of whether theaccused’s evidence, considered in the context of the evidence as whole, raises a reasonable doubt about his guilt. [14] In R v Y(CL), 2008 SCC 2 , [2008] 1 SCR 5 (“Y(CL)”), the court stated that in the assessment of reasons for a verdict,the key is whether the correct burden and standard of proof are being applied, not what the words were used in applying them. W(D)offers a helpful map, not the only route. The purpose of W(

D) is to ensure that a trier of fact understands that a verdict must not be basedon a choice between the accused or other witness’ evidence, but on whether, based on all the evidence, I am left with a reasonable doubtabout the accused’s guilt. [15] In R v Menard, (SCC), [1998] 2 SCR 109 (“Menard”), the court determined that the standard of proof beyonda reasonable doubt applies only to the final evaluation of guilt or innocence.

It is not to be applied piecemeal to the individual items orcategories of evidence. [16] The crown provided the court with a decision released January 31, 2019, R v Ryon, 2019 ABCA 36, which reviews in detail theanalytical framework in the context of a sexual assault in which the complainant and accused were the only witnesses at trial. [17] That decision is helpful in applying the W(

D) analysis to the myriad of differing factual circumstances and issues in thecriminal context. Particularly helpful from that decision is: i. its identification of the problems with the W(

D) formula (paras 24 and 25); ii. the observations that the W(

D) applies to exculpatory evidence (paras 38 and 39), how evidence that is disbelievedcan give rise to a reasonable doubt, and in describing the options at para 38 as follows: when assessing exculpatory evidence jurors should understand that they have three choices, not two: they may accept the evidence, theymay reject it, or they may find themselves unsure whether the evidence is true or false.

iii. the observation that the accused need not be evaluated first and should not be considered in isolation from otherevidence (paras 46 and 47); iv. that the W(

D) analysis applies to exculpatory evidence, whether presented by the crown or accused (para 49); and, v. a general four-part instruction about the presumption of innocence and burden of proof at para 51, which reads asfollows: [51] Then the charge should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to thecaveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent ofthe defence.) (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such asan objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [18] Help in the application of these principles to the evidence in this case is found in these additional sources: 1. R v JC, 2018 NSCA 72. The live issue was opportunity – whether the alleged sexual conduct could have occurred. Itrequired determination of the accused’s mother’s credibility about her denial that she had ever babysat the complainant. The trial judgedid not make a determination of her credibility and misapprehended her evidence. 2.

R v AG, 2015 ONSC 2026, especially paras 89, and 101 to 103, regarding application of W(

D) when the case turns oncredibility. 3. R v. Percy, 2018 NSPC 57, in the fifth point of para 13, for the appropriate approach to circumstantial evidence. 4. When considering SB’s evidence, R v W(R), (SCC), [1992] SCJ No. 56 (SCC), and, in particular, para 26: … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. B.

Essential Elements [19] I incorporate in my analysis Final Instruction #151, sexual interference, and Final Instruction #271, sexual assault, from Justice David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd edition (Toronto: Carswell, 2015) (“Watt’s Manual”). [20] With respect to sexual interference, the crown must prove each of the following elements beyond a reasonable doubt: i. That the complainant was under 16 years of age at the time; ii. That the accused touched the complainant; and, iii.

That the touching was for a sexual purpose. [21] The court notes that, until May 1, 2008, when amendments to the Criminal Code came into force by reason of the “TacklingViolent Crime Act”, the first essential element (that the complainant was under 16 years at the time) read under the age of 14 years. [22] It is not contested that SB was born on November xx, 1997. She turned 14 in November 2011 and 16 in November 2013.

Thecourt is satisfied that the crown has proven beyond a reasonable doubt that the alleged offence, if it is proven, would have occurredwithin the timelines described in the indictment, and that SB was under 14 between January 1, 2008 and April 30, 2008 and under 16between May 1, 2008 and December 31, 2012. [23] The accused denies touching JB for a sexual purpose.

It was not argued that if the crown has proven beyond a reasonable doubtthat the accused touched JB in the manner she described, that such touching was for a sexual purpose. [24] The contested issue is whether the crown has established beyond a reasonable doubt that the accused touched JB in the mannershe described.

[ 25 ] With respect to sexual assault, the crown must prove beyond a reasonable doubt each of the following essential elements: i. that the accused intentionally applied force against the complainant; ii. that the complainant did not consent to the force that the accused intentionally applied; iii. that the accused knew that the complainant did not consent to the force that the accused intentionally applied; and, iv. that the force the accused intentionally applied took place in circumstances of a sexual nature.

The contested issue in this trial is not whether SB consented to the force that the accused intentionally applied or whether it was in circumstances of a sexual nature, but simply whether the crown has proven beyond a reasonable doubt that the accused did to SB what SB alleges. C. The Evidence SB’s Direct Evidence [ 26 ] SB was born in November 1997 and is now 21 years old. The accused is her adopted father.

She first met the accused and his spouse JB when she was about 7 or 8 and placed in their foster care with her younger brother AB and sister DB. [ 27 ] SB and her siblings had previously been adopted by other foster parents, but the adoption did not work out. After some time as a foster child, she was adopted by the accused and JB when she was 10 years old. She stopped living with the accused when she was 16 or 17 years old. The events or incidents, which are the subject matter of this proceeding, occurred from when she was adopted at age 10 until she was approximately 14 years of age.

She continued to live with the accused for about two years after the sexual conduct ceased. She recalls living with the accused in a very large residence at ##, Hants County, Nova Scotia. [ 28 ] SB was asked to describe the first of what the crown called “events” and defence counsel called “incidents” that she could remember. After a long silence, the crown asked how old she was when the first event happened, and she stated that she did not remember her age except that it was after she was adopted.

She was adopted at age 10. [ 29 ] The first event, the particulars of which she could recall (but not necessarily the first event) occurred when she was in her bedroom in the basement and she was wearing green pajamas with monkeys on them. The event occurred in the evening, at about bedtime, and she was alone in her bedroom. I refer to this as the pajamas event . [ 30 ] There were about nine bedrooms in the home.

Besides herself, the accused, JB, AB and DB (three and five years younger respectively), MB (an adopted but not a blood sister, who was three years younger than her), and younger foster children who came and left frequently, lived in the home. The evening routine was that she and the other children would go to the grown-ups and say good night. [ 31 ] She stayed in several bedrooms in the home. Her bedroom constantly changed.

When the pajamas event occurred, she believed other bedrooms in the basement were occupied by her brother AB, maybe MB, and maybe NHB but she was not sure of the time frame. [ 32 ] With respect to the pajamas event , the accused was in her bedroom to say, ‘good night’. What amounted to saying ‘good night’ depended on whether she was alone. If she was alone, the accused’s ‘good night’ would normally include a hug, a kiss and often the accused would take her pajama pants off while she in bed. He would place his fingers in her vagina and his mouth on parts of her body. This happened more than once.

At first, she said: “please don’t”, but after a while she felt helpless and eventually gave up. [ 33 ] SB recalled sharing a bedroom with her sister MB but did not recall when it was. She said nothing happened to her when MB shared a bedroom with her. She said the pajamas event probably occurred within the first two years of the four-year span of sexual abuse. (The complainant did not use the words “sexual abuse”; those words are used by the court to describe her evidence.) [ 34 ] Another event she recalled occurred in the evening when she had taken a shower. I refer to it as the shower event .

The residence was a three-storey house. The accused’s bedroom was upstairs (the third floor), her bedroom was in the basement (first floor) and the bathroom with the shower was on the main or middle level. [ 35 ] She had a towel around her when she came out of the bathroom. The accused was in the kitchen as she came down the hall and he told her to come up to his bedroom with him. When they got to his bedroom, the hockey game was on the TV. She said she got into bed and he “does the same kind of stuff”.

The accused took off the towel. [ 36 ] When asked what happened next, there was a long silence and the crown repeated the question. SB replied, “I’m just trying to think of the words”. Crown asked if anyone else was there. She replied that everybody else was in bed and JB was at work. When again asked what happened, she replied: “the same kind of stuff . . . puts his fingers in the vagina, plays with it, mouth on it, touches my body, that kind of thing”. The accused told her that she should not talk about what happened.

She did not recall if she said anything to him. [ 37 ] No one came into his bedroom while this was going on. She had no idea how long this event was after the pajamas event . [ 38 ] SB was asked to describe the residence by floors. She identified on the middle or main floor: the main foyer, the kitchen, the bathroom and the living room. She recalled that there were bedrooms on that floor, but they were renovated and different from time to time. On the third or upstairs floor was the accused’s bedroom, another bedroom and a nursery. [ 39 ] The accused worked at a business in the city from Monday to Friday.

JB worked at a government job in the city, and at retail outlets some evenings and weekends. “She always had things to do in the evening: darts, legion work, stuff like that”. The “events” happened in the evenings and weekends when JB was not home. [ 40 ] When asked if the accused drank at home and what he drank, SB answered that he drank beer – Olands, almost daily after work

and always on weekends. He drank enough that on occasion he could not drive. In contrast, JB did not drink very often. [ 41 ] SB was asked if there were other events. She replied that she did not remember the details – they all blended together. SB was asked if the family had a computer. She said a desk top computer. When asked where it was, she said it moved around. At first it was in a tiny foyer that connected the three bedrooms at the top floor. From there, it was moved to the living room on the main floor and then up into the loft that was built off the living room. She used it sometimes.

The accused used it a lot. [ 42 ] SB described an event - ‘one of the very first times’ - when she was sitting on the accused’s lap while he was playing computer video games, at a time when the computer was in the upstairs foyer. I refer to this as the computer event . It was in the afternoon or evening. She could not recall how old she was at the time. He reached around and grabbed her on her upper thigh next to her vagina. She was taken aback and got off his lap.

During her answers about this event, she stated a few times: “it was one of the very first times . . . he grabbed me for the first time . . .that’s when it started”, and “it was one of my first memories. [it was] before my bedroom [event]”. [ 43 ] She could not recall when the computer event occurred but said that all the events happened after she was adopted. She lived with the accused as a foster child for approximately two or three years before she was adopted.

She was adopted in the late spring when she was 10; the adoption was celebrated in the late spring. [ 44 ] She moved out of the home in October when she was 16 or 17. She left because of a dispute with the accused, who she described as controlling, “I couldn’t go anywhere, couldn’t wear outfits he didn’t approve of”.

The accused told her she was not allowed to have a boyfriend, and he did this without giving an explanation. [ 45 ] Because she was the oldest child, and because the parents were sometimes not home until late, she was sometimes required to do chores and watched her younger siblings. [ 46 ] The precipitating event occurred when she refused to do the accused’s dishes. SB told him that she “wasn’t doing nothing for him”. He pushed her into the fridge and hurt her arm. She moved out the next day to her boyfriend’s mother’s house. [ 47 ] SB estimated that the sexual events happened when she was between 10 and 14.

She stayed for another two years after the accused stopped touching her. She did not recall why he stopped touching her, but it “definitely stopped”. [ 48 ] She told no one about the accused’s assaults. When asked why she told nobody, she became very emotional and stated that she had been previously adopted and had been placed back into foster care with the accused and JB. Her little brother had made her promise that she would not let him go back to foster care.

Her thinking was that if she did not tell anyone, he would not have to go back into foster care. [ 49 ] Some time after she had moved out, JB called her and asked her questions; the inquiry appeared not to be about SB. [Defence counsel objected to SB testifying about what JB asked or said.] As a result of the call, JB called the police and SB gave the police a statement. [ 50 ] She repeated that the events like the pajamas event occurred when her bedroom was in the basement. She testified that she had stayed in four or five bedrooms on all the floors in the home.

She could not recall how old she was when she switched bedrooms. [ 51 ] She presently has some contact with JB but none with the accused. She presently lives in Dartmouth with a roommate and her four-year-old child. She has worked as a manager at a fast food restaurant for a couple years. Cross Examination of SB [ 52 ] SB was cross examined. [ 53 ] She did not remember the exact timeframe that her older siblings, KD and NHB, stayed in the home. [ 54 ] She acknowledged that NHB spent time at the home but did not live there full-time. NHB went to school in the city, and for some time lived with her mother.

She did not recall that NHB lived there at the times when the sexual events or incidents occurred. (The court uses the term “events” or “incident” interchangeably as the crown used one word and defence counsel used the other.) [ 55 ] NHB had a bedroom in the basement, next to SB’s. NHB had a later bedtime. She did not recall what times NHB lived at her home. [ 56 ] She acknowledged that KD, JB’s older daughter, had lived there for a while, but did not recall when.

It was put to her that, between the two adults, KD, NHB, herself, MB, her brother AB, her sister DB, and several small foster children, there were 10 to 14 people living at the home at any time.

She stated that they were not all there at the same time, but when they were present, they were mostly in the living room area or playing outside. [ 57 ] SB acknowledged that she only recalled that the computer incident was the first incident in time after she was asked by crown whether the family had a computer and for the particulars of the computer incident . [ 58 ] SB acknowledged that she had given a statement to the police; it was not recorded. She testified at a preliminary on April 13, 2018.

She acknowledged that before giving her evidence at this trial, she had received and read the transcript of her preliminary evidence, but she had not listened to the original tape. [ 59 ] She agreed that she only recalled the specific details of the three incidents that she testified to in direct examination. She acknowledged that in direct examination she had trouble recalling the computer incident because she was nervous. [ 60 ] When asked to explain her long silences after she was asked to give particulars of incidents, she said she was looking for the right words as she was dyslexic.

She said she was diagnosed at school and her mother should be aware of it.

[ 61 ] She repeated that her mother was busy on week nights at work and playing darts, leaving the accused alone with her at home. She denied saying in direct that she babysat the younger children from age 10. She did not remember exactly how old she was when she started watching the children when both parents were at work. She was babysitting by the age of 14. [ 62 ] She repeated that her mother worked evenings most of her life. She agreed that if her mother and siblings were awake and at home, he would not have the opportunity to do what she said he did.

She acknowledged that on the occasions that the accused sexually abused her in her bedroom, she did not know who was around. [ 63 ] SB was referred to her preliminary evidence. [ 64 ] At the preliminary, it appeared that SB stated that she believed her older sibling NHB lived there. At trial, SB pointed out that she said, “I believe”; that is, she was not sure when she stayed in the home. [ 65 ] At trial, SB said that these incidents occurred between the ages of 10 and 14. Counsel tried to ask her how sure she was of this time frame.

She stated that she was sure that it started after she was adopted, but she was not sure when she was adopted. Counsel showed her an Adoption Order, issued December 17, 2008. SB had never seen the Order before. [ 66 ] Counsel suggested that she was 11 years old when adopted. She repeated her evidence that she was adopted in the spring when she was 10 years old. She stuck to her direct evidence that she was told that she was adopted in the spring. The “piece of paper [Adoption Order] doesn’t make a difference”.

The family celebrated the adoption of herself and her brother - who was adopted the same day, in late spring. There was no snow on the ground and they were given a volleyball net at the celebration. [ 67 ] She repeated that the timeframe as to when the incidents occurred was vague, but she believed they occurred between the ages of 10 and 14. [ 68 ] SB was asked if the computer incident was the first incident she could recall. She stated it was one of the first incidents with details she recalled.

She did not remember if it is was the exact first incident – a lot of incidents blended together when she was 10, in late 2007 or 2008. [ 69 ] Counsel suggested to her that the computer was situated in the living room at the time that she alleges the computer incident occurred. SB responded that the computer was moved around a lot. She did not agree that it was always in the living room (2008-2009) or loft (2009-2014).

She repeated that it was upstairs in the nook area she described earlier when the computer incident occurred. [ 70 ] When she was directed to her evidence in the preliminary, she stated that one time when her bedroom was in the basement, and the accused was straddling over her, her younger sister MB walked in. The accused told MB to leave and said he was just tickling SB. After MB left, he eventually got up and left. She was unable to say when this incident occurred.

SB stated that this was not one of the three incidents that she testified to in her direct evidence. [ 71 ] When the MB incident occurred, she did recall that her siblings MB, AB, and DB were living in the home, but did not recall if anyone else was living there. [ 72 ] With respect to the shower incident , she confirmed that no one else was in the kitchen at that time. When asked if KD was often in charge when she and the other children were put to bed, she replied, “at certain times”. She did not recall if KD was there at the time of the shower incident.

She added that the incidents typically happened on weekends, when KD went home to her husband, who at the time was her fiancé. [ 73 ] When asked when NHB was there, she did not recall that NHB and KD were there at the same time. She specifically did not recall anybody being there on the date of the shower incident , except for the very young foster children. [ 74 ] She was asked if, as she became a teenager, she became more outspoken and rebellious. Her reply was that if rebellious meant defending herself she agreed.

When asked if she refused to do chores, she replied that she did chores given to her by her mother, but she refused to help the accused. [ 75 ] She agreed that she felt that she was treated unfairly by the accused and differently from KD and NHB. She at first replied that they were already adults when she was adopted, and they were not there that often. When asked again, she said she was treated unfairly by the accused and more so as she got older.

She agreed that when the accused told her that she would not be able to date, it led to friction. [ 76 ] She confirmed that she packed and left the day after she had refused to do dishes for the accused. She was asked if she was concerned that, when she left, she left her younger sisters MB and DB with the accused. In a reaction to that question she became very emotional, began crying, and replied: “Of course I was, I am not a monster”. [ 77 ] She agreed that for a long time after these incidents, she did not go to the police, tell her mother or anyone else.

She did not reply when asked whether she had been asked many times by her mother whether anything noteworthy had happened. She stated that her mother never asked her directly. Defence counsel suggested to her that she changed her story when she did tell her mother what the accused did to her and then recanted. She replied that she never said that she made it up . . . ‘when my mother asked, I said that it did happen’. [ 78 ] She acknowledged that she had a daughter.

When counsel suggested that the daughter’s father does not live with her, she replied that he still lives with her. [ 79 ] She agreed that for a period of time she needed child care and left her child at their home with her mother and sister KD – who was living at the accused’s home full time, from Monday to Friday. When challenged on why she would do that, despite what happened to her three years earlier, she started to cry and said that her child was with an older sister and she had no other choice.

[ 80 ] She agreed that it was normal practice for the accused to come in and give her a goodnight hug and kiss. She was directed to an answer at the preliminary where she answered a question whether her parents would come and say goodnight, where she answered: no, not usually. She replied that the question at the preliminary was respecting her parents, and her mother never did. [ 81 ] She was asked again about the order in which the three incidents that she specifically described occurred. She was directed to her preliminary evidence where she appeared to describe the computer incident as the first of the three.

At trial, she stated that she thought it was at that time. She was not sure if there were any incidents before that. [ 82 ] Respecting the incidents in the basement bedroom, she was asked if the MB incident was a separate fourth incident. She agreed. Counsel suggested that in her preliminary evidence the MB incident appeared to be the same as the pajamas incident . After further questions on that point, counsel suggested that she had described the incident when MB walked into her bedroom differently from the way she described it at the preliminary.

In reply, SB said that she was doing her best to remember and that there were a lot of incidents blended together, and that she may have blended these two incidents together at the preliminary. [ 83 ] When asked if, on numerous occasions before the phone call that led to the police statement, she had been asked by her mother if anything happened between the accused and her, she had answered in the negative, she replied that she did not at this time recall. She was directed to her preliminary evidence, where she was asked if she lied to her mother when asked the same question.

She acknowledged that she apparently nodded her head in the affirmative. [ 84 ] She was asked about how it came to be that she told her mother about the accused’s actions towards her and what she had said in the portions of the preliminary transcript that counsel put to her. [ 85 ] This exchange was problematic because, as she was answering a question from the crown on this point in direct examination, defence counsel objected to her giving an answer, and to any further questions on the point.

She had been prevented from stating how this phone call from her mother to her started and evolved, and what they talked about before SB disclosed her allegations against the accused.

What the court took out of the exchange between defence counsel and SB, respecting the disclosure by SB to her mother, which lead to her disclosure of these allegations, was that, while she was extremely reluctant to disclose what the accused did to her, she did eventually disclose her allegations to her mother and later to the police. [ 86 ] SB was challenged as to why she did not disclose what the accused did to her after she moved out, at a time when there was no risk of her going back into foster care, and why she left her younger siblings at home with the accused.

SB replied, while crying, as she had replied in the excerpt from the preliminary read to her by counsel, that she did not want to go through this, “it’s not fun, and just trying to move on”. She agreed it was roughly two years after she left the home before she disclosed her allegations against the accused. She did not want to do it because it was “embarrassing and hard”. SB’s Redirect Evidence [ 87 ] On redirect, she said the problem she described as dyslexia, was that the order of words, when she was handed the preliminary transcript during cross-examination, did not make sense because she was under stress.

She gets numbers, dates and times mixed up when stressed. JB’s Direct Evidence [ 88 ] JB married the accused in 2000. They have several children. She has two biological children, a son, aged 35, and KD, aged 34. She has four adopted children: SB, aged 21; her brother AB, aged 18; her sister DB, aged 15 and another adopted daughter MB, aged 18. In addition, she has a stepdaughter NHB. She did not know the stepdaughter’s age, but she was older than SB and younger than KD. [ 89 ] Between 2008 and 2012 she had at least 25 foster children come and go.

She originally lived in Cole Harbour and moved to Hants County approximately 11 years ago. When asked who lived in her home, she said: “KD part-time” and did not mention NHB. [ 90 ] Because she worked in the city full-time, leaving home at 6:30 a.m., she had several babysitters. It was convenient for the babysitters to stay in the residence from Monday to Friday. [ 91 ] SB and AB came into her home on a Saturday, the day after AB’s 5 th birthday. SB would have been 8 that November. They were living in Cole Harbour at the time. SB stayed until she was almost 17.

The family moved to Hants County to protect SB and AB from people who were trying to track them down. SB and AB came into their care as foster children from a failed adoption. [ 92 ] SB had an “awesome” relationship with the accused until she was going on 16, when she wanted more independence. [ 93 ] JB worked at a government job in HRM from 8:30 a.m. to 4:30 p.m.

The accused worked the same hours, plus a lot of overtime, from the time they lived in Cole Harbour until four or five years ago. [ 94 ] JB also worked at a retail store in a Dartmouth mall one evening per week or on weekends until 6:00 or 9:00 p.m. [ 95 ] JB’s social life consisted of playing darts in HRM, which she did from a time before the children came into her care. She played on Tuesday nights and Wednesday nights. [ 96 ] She and the accused only had one vehicle from 2000 to 2011. After that, they still often drove to and from work together. Sometimes the accused would take a work truck and drive home.

When her daughter KD was babysitting the children on week days, she would often use a second vehicle. [ 97 ] The Hants County home had eight or nine bedrooms, depending on the year. There were frequent renovations. For one autistic foster child, they built a bedroom within a bedroom as a safety feature. The house had three levels. SB “spent most of the time” in the big bedroom in the basement that she shared with MB. JB could not initially recall what other bedrooms SB occupied, but later recalled that

at one point SB had occupied a bedroom off the living room on the main floor. [ 98 ] The family purchased a computer in 2008. It was located in the living room off the kitchen, until they built the loft off the living room in 2009. The house was a “big, open concept house”. The loft was built off the living room as a reading and homework area; it was open to and visible from the living room. There was no privacy in the house. [ 99 ] SB was never taken to an appointment to be tested for dyslexia or diagnosed with a learning disability. [ 100 ] SB changed when she was 15 or 16.

They ran a very strict household and SB wanted more independence. She wanted to be with friends more and not do chores. She and the accused shared the discipline. The purpose of the discipline was to protect the children. [ 101 ] For that same reason, she had frequent talks with the children to ensure that they disclosed everything.

When asked what kind of questions she regularly asked, she said that because they ended up with older children who were sexual or because of rumours, and in particular for SB because there was evidence that she had been removed from her family home because of a sexual assault by her grandfather, she asked questions related to this. She asked those questions quite frequently. SB always answered no. This included between 2008 and 2012. [ 102 ] On the day SB, who had been living on her own for some time, said that the accused had sexually assaulted her, it was after she had asked her several times.

JB told SB how much she loved her and would support her. JB gave the accused five minutes to pack and leave. [ 103 ] Children of different ages had different bed times. NHB was much older and would be up a lot later. (This was the first time that JB indicated that NHB lived with her.) KD would be up later – sometimes all night, to deal with the autistic foster child, who was in her care off and on for “probably a six year span”. [ 104 ] JB never witnessed any inappropriate conduct. She would have addressed it right away.

She said that because of her past, SB was seeing a psychologist in Dartmouth at that time. [ 105 ] Because of the open concept house, noise travelled throughout the home. She could hear noises and music on all levels of the house from the third floor. [ 106 ] SB has a 3½-year-old child, born after SB left their home. She and the accused supported SB going back to Grade 12 when the child was born.

SB would go to school and work at a fast-food restaurant; she left her daughter with them for weekdays and occasionally on weekends. [ 107 ] When SB left the home, she was really angry at the accused and would not speak to either of them. Over time, JB redeveloped a relationship with SB. [ 108 ] When SB would visit to pick up or drop off her child, SB would still not speak to the accused. When she came to visit, the accused would go up to his room until she left. [ 109 ] The accused was a social drinker.

She had no concerns about the frequency of his drinking. [ 110 ] There were strict rules of what their daughters could wear. They could not expose their bodies. The rule respecting dating was that JB had to meet the person first and they were not allowed in bedrooms alone. SB was not allowed at her boyfriend’s house unless his parents were present. SB thought she was being overprotective. [ 111 ] JB said there were other bedrooms near the bedroom in the basement occupied by SB.

In particular, NHB’s bedroom was next to the bedroom occupied by SB and MB. [ 112 ] She involved the Department of Community of Services on the date that SB told her the accused had assaulted her. To her knowledge, all of the children and persons in the household were interviewed by them. JB’s Cross-examination [ 113 ] JB was asked several questions about dates. She got somewhat confused when trying to relate dates to the ages of the children. In the first part of her cross-examination, she was firm that the family moved from Cole Harbour to Hants County in June 2009.

When asked when SB moved in as a foster child, she said when AB turned 5, 14 years ago (which the court notes would be in 2005). When asked when SB moved out, she replied in October, when she was 16 going on 17, or six years from this coming fall. Six years from this coming fall would have been October 2013, when SB was 15 years old.

In the end, JB said she could not answer what year SB moved out. [ 114 ] When SB and the accused stopped getting along was in the last 1½ years that SB lived in the home, before moving out: when she was 15 or 16. [ 115 ] When asked where SB’s bedroom was in the last two years, she said in the basement. SB moved into NHB’s room when NHB moved out. When asked when NHB moved out and SB moved into NHB’s room she initially said 15 and then said 16. When asked where NHB moved to, she replied that she decided to live with her mother in the City.

When asked whether SB ever slept in a bedroom without windows, she said she could have spent a few nights in a bedroom in the basement without windows. She stayed in NHB’s bedroom for about nine months. [ 116 ] In describing the bedtime routine, she said that the accused usually put the autistic foster child to bed in the bedroom on the main floor. JB routinely put the girls to bed. She went to each bedroom. If the accused said goodnight to the girls, it was only when she was present.

[ 117 ] When asked what she meant by her statement that the accused was only a social drinker, she said he did not get intoxicated. He would drink regularly but was not intoxicated on a regular basis and did not have a dependency. He liked rum and beer. She did not like the taste of alcohol but occasionally they shared wine. [ 118 ] Respecting disciplining the children, she said that she was “the bad cop”. If the kids had an issue, they would more likely come to her than the accused. [ 119 ] She heard about the sexual assault allegation on Good Friday 2017.

When asked how she heard, she said she was ambushed in a meeting with her daughter MB, as a result of which MB told her she needed to talk to SB. She called SB. Initially SB did not confirm the issues expressed by MB. Eventually she did. [ 120 ] After SB confirmed the allegations against the accused, she contacted the Department of Community Services. She was asked why she had asked SB if she had been abused so many times, even though SB was not living with her at the time.

She replied that it was part of fostering to ask questions and to make sure, even if they were no longer living with you. [ 121 ] Regarding her work hours, she confirmed that she worked at a government job from Monday to Friday. On Tuesday she played darts with the accused and, on Wednesday, with the girls. When asked if there were any other week evenings she was not home, she said it depended on her

schedule at the retail store at the mall. it might have been one evening per week, but it was mainly on weekends. Once in a while, she worked on Friday nights. When she worked on Saturday or Sunday, she would be gone any time until between 9:00 and 10:00. [ 122 ] After the first retail store closed in March 2011, she did not get a second retail job until about nine months later. She sometimes drove herself to work, and sometimes the family would go into the city together. [ 123 ] She was asked about the bedroom on the main or middle floor that the autistic foster child occupied.

JB replied that SB had occupied that bedroom before the autistic child. She then corrected her earlier evidence, and said the family moved to Hants County in 2008, not 2009. [ 124 ] She described the layout in the house and the fact that there were several renovations. There were two or three bedrooms upstairs, one of which became a nursery.

The shower was on the main level, in the bathroom with one door to the hallway opposite the dining room and open to the kitchen, with two stairways to get upstairs. [ 125 ] She said that the computer had always been in the living room or loft. [ 126 ] She stated that the interviews of all of the children regarding the sexual assault allegations involved the Department of Community Services and, for the most part, the police. JB’s Redirect [ 127 ] On redirect, JB stated that they adopted SB in 2011.

Regarding the second retail job that she started in late 2011, she sometimes worked on Thursday evenings and either Saturday (store hours were 9 to 6) or Sunday (store hours were 12 to 5). NHB’s Direct [ 128 ] NHB was born in December 1992. Her father is the accused. Her parents split when she was one or two years old. She met JB when she was very young. She does not recall when JB and the accused married. She was living with her mother at the time and visiting her father when the accused and JB lived in HRM on Wednesday afternoons and one-half of every weekend.

When the accused moved to “the Valley”, her visits changed to alternating weekends because it was easier. She does not recall when it changed, but believes she was 12 at the time. The court notes that she would have been 12 in the year 2005. [ 129 ] She continued living with her mother until 2010, when, because of a conflict with her mother, she moved in with her father. The court notes that if she moved with her father in 2010, she would have been 17 years old at that time. [ 130 ] When she moved into her father’s home, she occupied a bedroom in the basement.

One door lead to the hallway to the laundry room; the other door lead to what she described as SB’s bedroom. She believed the bedroom she occupied had previously been occupied by KD. [ 131 ] She testified that she moved out in 2012. She could not recall exactly when. [ 132 ] While living at her father’s house, she said that she was staying up very late, into the wee-hours of the morning, after everybody else had gone to bed. In one semester, she did not go to school. [ 133 ] She could hear everything in the house. She was frequently asked to and had to turn down her music.

If she was in her room, she could hear SB go to bed. [ 134 ] She never saw anything inappropriate or suspicious between SB and her father. [ 135 ] In the semester that she was not in school, she was responsible for taking care of the children during the day. She says she graduated in June 2012. She says at the time she was between 17 and 18 years of age. The court notes that if she graduated in June 2012, she would have been 19½ years old. [ 136 ] She felt that her parents were “a bit too strict” and that she had “a bit of a conflict because of that with JB”. NHB’s Cross-examination

[ 137 ] On cross-examination, she stated that while living with her father, she reconnected with her mother and would have spent alternate weekends with her or sometimes with a friend. [ 138 ] She acknowledged that she was not always in her bedroom, but rather in the living room or on the computer in the loft when her parents said goodnight to the other younger children. [ 139 ] NHB had trouble reconciling dates with her age. It caused some concerns about the reliability of her evidence as to when she was present in her father’s residence.

She believed he moved to the Valley when she was 12, three years earlier than JB’s final evidence. She said she graduated from Grade 12 when she was 17 or 18, but when she says that she moved in with her father in 2010, she would already have been 17½ years old. If she moved out sometime in 2012, she would have been 19½ years old. KD’s direct [ 140 ] KD was born in July 1983. She was 14 when she was introduced to the accused. She said she had two older siblings and five younger siblings (NHB, SB, AB, MB and DB). [ 141 ] In the school year 2004 – 2005, she attended Kingstec in Kentville and did not live at home.

In 2005 she became pregnant and did not return for the 2005 – 2006 school term. [ 142 ] The family moved from HRM to Hants County in June 2006, when she was 22. She did not live with the family full time. She stayed in the family residence and babysat the children and foster children during the week. On weekends, she lived with her common- law partner, whom she married in 2010 and has since divorced. [ 143 ] She and her parents divided up the responsibility for putting the children to bed in the evening. Usually the babies (foster children) had bottles and went to bed between 7:00 and 8:00.

The older children stayed up until 10:00 or 11:00. [ 144 ] Her bedroom was in a small bedroom off the laundry room in the basement, opposite a bedroom occupied by AB and later a foster child. In the early years, SB and the accused got along great, but this changed when SB became 14 or 15. Her parents were strict about clothes and going out. SB was fine until Grade 10, when she wanted to wear other clothes and hang out with her boyfriend. [ 145 ] When asked where SB’s bedroom was between 2008 and 2012, her answer differed from the other witnesses.

She said that at first SB and MB shared a bedroom on the top or upper level; however, in their preteen years, SB and MB did not get along, so SB moved to a bedroom on the middle level in 2010. [ 146 ] The year 2010 stood out, because her son was potty training at the time and he would go into SB’s bedroom when using the bathroom. SB and her child became close. [ 147 ] When asked if there was a computer in the house and where it was, she replied that she had her own laptop and there was a desktop computer in the living room, that was moved to the loft when it was built.

There was no privacy with respect to the use of the computer or in the house of any kind. Even with her being older, the children would just walk into her room. [ 148 ] She was close to SB and never saw anything inappropriate between SB and the accused, nor heard anything from SB that caused her concern. SB went to bed before she did. [ 149 ] She believed that JB and the accused played darts together on Tuesday evenings, JB played again on Wednesday evenings, and the accused played again on Thursday evenings.

They had one vehicle in 2008, a red van, and usually travelled together. [ 150 ] From 2006 to 2010, KD babysat and lived in the family residence during weekdays. In October 2010, KD got divorced from her husband and moved into the residence full-time. [ 151 ] At the same time, she had major surgery. For the first three weeks she slept in the living room, on the main or middle level. At the beginning of 2011, she moved into a bedroom in the basement, next to NHB’s bedroom, at the back of the house.

When asked where that was in relation to SB’s bedroom, she said that SB’s bedroom was on the middle floor. [ 152 ] Because she had a young child, and she had no reason to, she did not go out on the evenings. She only left the home (while she was living there full-time between October 2010 and February 2012) on some weekends, when her child was with his father. [ 153 ] KD was again asked when SB and MB shared a bedroom. She replied that from the time they moved to Hants County until 2009, SB shared a bedroom with MB on the top floor.

When SB moved to the middle floor and shared a room with her sister DB, until a foster child (

J) moved in. J was in Grade 7 at the time. SB only got her own bedroom in 2013, when NHB moved out and SB moved into NHB’s bedroom in the basement. [ 154 ] She did not know that SB was at any time diagnosed with dyslexia. KD’s cross-examination [ 155 ] KD was cross-examined. She again stated that the family moved to Hants County in June 2006. (The court notes that this is two years before JB’s last recollection of when they had moved.) [ 156 ] KD moved out of the residence permanently in February 2012.

After that, she went to the family home during the week to babysit and that summer she babysat the children at her home. She only lived in the house full-time (except for some weekends away) from October 2010 to February 2012. Until February 2012, SB’s bedroom was on the middle or top level. [ 157 ] She was asked who occupied what bedrooms when the autistic foster child arrived. Her recall on this point was uncertain and her answer incomplete and somewhat confusing. At one point she stated that AB moved to the bedroom in the basement opposite her

bedroom. She was uncertain where DB and SB went. At one point she said DB took over AB’s bedroom on the middle floor and she was unclear where SB went. [ 158 ] She agreed that in addition to JB’s 9:00 to 5:00 weekday job, JB worked at two retail stores at the same location in HRM on weekends. She agreed that if she was away for the weekend, and after she moved out in February 2012, the accused would babysit the children on weekends. The accused’s direct evidence [ 159 ] The accused started by stating that he was not good with dates.

He met JB about 20 to 22 year ago and married her about 19 years ago. [ 160 ] He has one child, NHB. He believed JB had two children. He did not recall when they first became foster parents. He acknowledged adopting AB, SB, MB and DB with JB. He was not 100% sure, but believed they moved from HRM “probably around 2006”. [ 161 ] The Burnside business, of which he was a part owner, folded in June 2013. He now works as an employee for a similar business.

In the former business, he worked from 8:30 a.m. to 4:30 p.m., plus lots of overtime when required by customers. [ 162 ] After the family moved to Hants County, he and JB travelled together, leaving by 6:30 a.m. He continued to play darts two nights a week (Tuesday and Thursday) during the dart season from September to late May. He spent Wednesday evening in the city exercising access with his daughter NHB, usually going for supper and/or to the movies. [ 163 ] Between 2008 and 2012, a typical night consisted of going home, getting supper, watching television, playing with the kids and putting them to bed.

When required he “tried to stick mainly with the babies”. [ 164 ] He acknowledged that the family had a computer, but he did not use it “overly often”. His normal routine was to be up by 5:00 a.m., so in the evening he tried to get to bed by 8:30 or 9:00 p.m. [ 165 ] He denied SB’s evidence that he touched her when she was sitting on his lap at the computer when he was playing video games. [ 166 ] He recalled SB had a bedroom in the basement.

He did not specifically recall when, but believed it was around the time NHB lived there. [ 167 ] Regarding SB’s evidence that he came into her bedroom, removed her pants and touched her sexually, he replied that it never happened. [ 168 ] The house had two bathrooms. Only the one on the main floor had a shower. There was a firm

schedule that he and JB showered in the morning, and the kids showered in the evening. [ 169 ] He was asked to reply to SB’s evidence about him asking her to his bedroom on leaving the shower and touching her sexually, and he replied that it did not happen. [ 170 ] He had a good relationship with SB until she was older and tested the boundaries. In the two years before the allegations of sexual misconduct, he had a good relationship with SB’s daughter. [ 171 ] Since these allegations, he no longer lives in the home. He has not spoken to MB at all. He ran into AB once at a fast food restaurant.

He does not speak to any of the children any more. [ 172 ] He speaks occasionally with JB. He lives in an apartment and misses home. He denied touching any of the children inappropriately. Cross-examination of the accused [ 173 ] The accused was cross-examined. [ 174 ] Bedtime when the kids got older did not involve going to their bedrooms to check on them. If they were noisy or lights were on, they yelled at them. [ 175 ] The computer was in the living room and moved to the loft when it was built. [ 176 ] He was referred to SB’s evidence that she sat on his lap when he played video games.

He replied that you cannot play video games with someone on your lap. He said that she tried to sit on his lap on the couch, but there was a policy against encroaching on personal space. [ 177 ] When asked to confirm his direct evidence that he no longer speaks to MB, he replied: “No, she just ran away from home and just caused a whole lot of problems in the house”. [ 178 ] He was asked to reply to SB and JB’s evidence about drinking alcohol. He stated that he drank socially when playing darts on Tuesday and Thursday nights. His beverage of choice was beer - Olands.

He usually bought a case on payday that lasted two weeks. He did not drink much during the week, but he drank at home mostly on the weekends. He drank rum once in a while. [ 179 ] He confirmed that in 2008, they only had one vehicle, a red Dodge minivan, and later got a Ford cargo van. If he was working late, he would sometimes take a work vehicle home.

[ 180 ] He acknowledged that neither KD nor NHB were at home on weekends and if JB was working at either of the two retail outlets in the city he, by default, was responsible for the children alone. [ 181 ] He agreed that he first heard about the allegations on Good Friday from JB. [ 182 ] He was asked what age range the foster children were who came into his home. He replied that they normally took in babies. When asked why, he replied: “That’s just JB’s thing. Babies. She just loves babies.” If the need arose however, they would not refuse older children. Analysis [ 183 ] SB gave truthful and reliable evidence.

On the essential events and facts of this case, the court believes and accepts her evidence. [ 184 ] In giving both her direct evidence and on cross examination, the court noted that there were several long periods of silence when SB was asked to give evidence about the particulars of the allegations before the court. On these and other occasions she was clearly nervous, distraught and stressed. [ 185 ] One of the factors in assessing reliability and credibility is the demeanour of a witness. Demeanour was the central issue in R v NS , 2012 SCC 72 .

Demeanour is but one of the many factors for determining credibility and reliability.

The actual words used, together with demeanour; that is, “the visible or audible form of self expression manifested by a witness”, together constitute the communication in court. [ 186 ] The long silences and obvious reluctance to describe to the court the particulars of the events or incidents of a sexual nature did not detract from the court’s assessment of SB’s credibility. [ 187 ] SB seemed genuine when she had difficulty remembering unpleasant events. [ 188 ] In direct evidence, she described the pajama event (and stated there were other like it that blended together) and the shower event , but she only recalled the computer event when asked whether there was a computer in the home.

She then indicated that it was one of the earlier events. Defence counsel suggested that there is a doubt caused by the fact that in her testimony at the preliminary she had referred to the computer event as the first, followed by the pajamas event , followed by the shower event . [ 189 ] From the totality of the direct and cross-examination of SB, the court is satisfied that the only reason she referred to the computer event late in her direct evidence is because she did not recall it until the word “computer” was put to her. As indicated above, she was clearly nervous and stressed.

The order in which she gave evidence about the three described events, and on cross-examination when she was referred to it the MB event , adding that as a separate event, did not detract from her credibility or the reliability of what she did describe. [ 190 ] SB’s evidence on the central issues was consistent.

When she was cross-examined with regards to the evidence she had given in the preliminary, and pointed to apparent differences, the court has decided that either: 1. they were not inconsistencies, but rather the use of different words in an imprecise manner that did not conflict; or, 2. the inconsistencies were explained, such as, forgetting at trial about the computer incident until effectively prompted by a question of whether there was a computer in the house.

That forgetfulness until prompted was, to my mind, observing SB on the stand, a sign of her nervousness not of her truthfulness. [ 191 ] The defence took issue with SB’s non-disclosure of the allegations against the accused when she was 16 going on 17.

It was put to her that her mother, on many occasions over time, and on the phone call of Good Friday 2017, asked her whether anything had happened between her and the accused and that she had denied that anything had happened. [ 192 ] SB implied in her answers on cross-examination that she had not lied but she had not been directly asked about any particular events occurring. [ 193 ] It is not unusual for victims of sexual abuse to avoid disclosure for reasons articulated in several Supreme Court and Appellate Court decisions. [ 194 ] SB answered that she wanted to move on: it was not fun, it was hard.

It was clear that she was reluctant to be involved in the process. Her delays in answers, crying and obvious signs of stress, when asked to identify the particulars of events, added to her credibility when she did speak. [ 195 ] I commented earlier in this decision and at the trial that, when SB referred to something involving one of the other children in answer to the first question put to her about JB’s Good Friday call to her, defence counsel, properly, objected to receipt of the evidence.

That ruling prevented SB from giving a full answer respecting her reluctance to make disclosure to JB during the Good Friday 2017 phone call. [ 196 ] My conclusion respecting the failure of SB to disclose to JB the accused’s actions at any time before Good Friday 2017, and apparently early in the phone call on Good Friday 2017, is that her reluctance was not an indication of untruthfulness, but rather a reluctance to become involved in something that would be hard and stressful.

The crown submitted that the court should consider why JB made repeated inquiries of SB as to whether there was anything going on between SB and the accused. That would require me to speculate; I decline to do so. [ 197 ] The events described by SB began when she was approximately 10 years old, more than 11 years before trial. She was a child

during the time that the events before the court occurred. [ 198 ] I attribute SB’s inability to place dates or firm timelines on some of the events to her age at the time and the fact that there were several renovations and changes in the bedrooms and her bedrooms. I noted that the defence witnesses, all of whom were much older, were unable to give timelines or gave timelines and evidence respecting their own and SB’s bedrooms, that were inconsistent with each other and at times made no sense. [ 199 ] SB was firm with regards to one time.

She was consistent when testifying that the sexual assaults only started after she was adopted, and not in the years she lived with the accused as a foster child, and that the adoption occurred in the late spring of 2008. When confronted with the Adoption Order, dated in mid-December 2008, which meant she had just turned 11 (which she turned in late November), she disagreed firmly and said that the adoption of herself and her brother was celebrated in the late spring. There was no snow on the ground at the time, and they received a volleyball net as a gift.

This evidence was particular, in the same way that her reluctant evidence about the three events that she could recall were particular. [ 200 ] Defence counsel suggests that SB’s evidence about the adoption was indicative of a poor unreliable memory and an error on her part with regards to timelines. [ 201 ] I conclude that there is no inconsistency between SB’s evidence and the adoption Order of mid-December 2008. [ 202 ]

Section 76 of the Children and Family Services Act requires that once a party decides to adopt a child, the notice of proposed adoption must be signed and given to the Minister not later than six months before an application is filed with the court, and the Minister must be given notice of the adoption hearing not later than one month before the date of the court hearing.

In other words, as a matter of public record, the accused and JB would have been required to give notice of the adoption of SB and her brother AB about seven months before mid-December 2008, that is, in the spring of 2008. [ 203 ] SB’s evidence was that the adoption was celebrated in late spring with no snow on the ground. Despite being challenged, SB did not waver in her recall of when the adoptions were celebrated. Her evidence is consistent with the requirements of the legislation respecting adoptions.

I infer as circumstantial evidence that the celebration was likely at the time that the accused and JB signed the Notice of Proposed Adoption to the Minister. [ 204 ] SB celebrated the adoption in the spring of 2008, when she was 10, and she alleged that the events happened between the age of 10 and 14; that is, that they would have ended in 2012. The timeline for when the events occurred is consistent with the one firm date that SB could recall and testify to.

This is a circumstance that corroborates SB’s evidence. [ 205 ] SB’s evidence that her mother JB was always at work, at darts or at the Legion is corroborated in many respects by the defence witnesses. [ 206 ] JB played darts with the accused on Tuesday nights and with “the girls” on Wednesday. While she had a nine-month gap between retail jobs (March 11, 2011 to late 2011), her retail jobs in HRM lead her to work some weeknights, but mostly weekends, either Saturday or Sunday. SB testified that the sexual assaults happened when her mother was not around.

It was clear from the evidence of all the witnesses that JB was not around on many weeknights and on many weekends. [ 207 ] NHB was born December 1992. She exercised access with her father in the City until she was about 12 (2005) when she says the accused moved to the Valley and she spent alternate weekends with him. This continued until some time in 2010 (when she would have been 17). She occupied a bedroom in the basement, that she believed had been occupied by KD (this evidence is different from KD’s). She testified that she moved out after she graduated from Grade 12 in 2012.

At that time, she would have been 19½, but says she was 17 or 18. During the time that she lived with the accused, she started spending alternate weekends in the City with her mother (after reconciling with her) and/or a friend. [ 208 ] Assuming NHB’s timelines were as she testified, she only stayed in the accused’s home for two years at a time (when SB was between 12 and 14), when she – NHB, was 17½ to 19½. She, by her own evidence, was away from the house on many weekends.

Her evidence did not lead the court to conclude that she was necessarily at home in her room so often as to negate the opportunity for the accused to sexually assault SB as SB alleged. [ 209 ] KD’s evidence conflicted with both JB’s and NHB’s in many respects. [ 210 ] She says the family moved to Hants County in June 2006. NHB said about 2005.

JB, after first saying June 2009, corrected herself to say June 2008. [ 211 ] KD had one child of her own and lived, during the week, at the accused’s house babysitting and spent weekends with her fiancée (later husband) until October 2010, when she separated from her husband. Until October 2010, she did not spend weekends at the accused’s home. After she separated from her husband in October 2010, she says that she lived full time in the accused’s home, except for some weekends when her child’s father had the care of their child.

She moved out in February 2012. [ 212 ] Assuming KD’s timelines are correct, she was in the accused’s home for much but not all of the time that SB says she was subject to sexual assaults. From 2008 to October 2010, she was not present on weekends. From October 2010 to February 2012, she says she was there full time, except some weekends when her child was with his father. From February 2012, she had moved out and if she babysat, she babysat at her own residence. [ 213 ] KD’s evidence contradicted the evidence of JB and NHB in respect of where and with whom she, NHB and SB slept.

She appeared to be more certain about her evidence than NHB. [ 214 ] JB was firm in her evidence that SB and MB shared the big bedroom in the basement, thereby eliminating the opportunity for the accused to commit the sexual assaults described as the pajama event and other similar events. KD was equally insistent that SB and

MB shared a bedroom until 2009 on the upper level, but in their pre-teen years, they did not get along, and SB moved to the middle leveland was sleeping in the middle level bedroom in 2010 (at the time that NHB said that she moved into the basement bedroom next to SB).KD stated that SB moved to the basement bedroom when NHB left. There are various dates given for when NHB moved in and movedout and how long she stayed. [215] KD remembers specifically that SB was living in the bedroom on the middle level, because of her son’s potty training in thebathroom situate at the middle level, next to SB’s bedroom.

In October 2010, KD was sleeping in the living room and beginning in 2011,in one of the basement bedrooms next to what she said was NHB. She repeated that SB at this time was still in the bedroom on themiddle floor when KD moved out in February 2012. [216] This evidence is inconsistent with JB’s and NHB’s evidence as to the location of SB’s bedroom and the timeline in which shemoved to the basement. KD said that SB moved to the basement when NHB moved out.

The court is somewhat confused by thisevidence, on the basis that if the court accepts the timelines of each NHB and KD, KD moved out in February 2012 and NHB moved outafter she graduated in June 2012. [217] I conclude that nothing that JB, KD or NHB testified to raises any doubt that the accused had many opportunities to sexuallyassault SB in the evenings, mostly on weekends, when JB was not at home. [218] I reject the evidence that SB shared a bedroom in the basement with MB. [219] I conclude that during the times that SB testified that the accused sexually assaulted her, she was not sharing a bedroom withanyone, her bedroom in this large house changed frequently as the house was renovated, and her much older sisters KD and NHB werenot in the home so frequently that there were not multiple opportunities for the accused to be alone with SB and her younger siblings. [220] SB’s conduct towards the accused after he stopped sexually assaulting her, which included her evidence that she would dochores that JB asked of her but nothing to help the accused, was consistent with what was perceived by others as “rebelliousness” and isconsistent with her claims of what the accused did to her.

If her attitude and conduct to the accused was only because her parents werestrict with respect to what she could wear and with whom she could associate, and if JB was, as she described herself “the bad cop” asbetween her and the accused, then SB’s conduct would logically have been rebellious to both parents, and it clearly was not. [221] SB’s refusal to have anything to do with the accused after she left, even when her mother and sister KD were babysitting herchild, is consistent with what she claims he did to her. 5.

Conclusion [222] The accused’s evidence was a simple denial that he sexually assaulted or sexually interfered with SB and a denial of the threedescribed incidents. His evidence was without elaboration. His evidence does not cause me any doubt with respect to other evidence thatI accept. Nothing he said caused me any doubt about the evidence that I accept. I reject his evidence based on the totality of the evidenceheard and believed. [223] The evidence of JB was problematic. Her timelines as to when the family moved, as well as where and with whom SB slept, isnot credible or reliable. I reject her evidence.

It appeared, and at one point early in her evidence, she expressly stated that she was tryingto calculate timelines based on ages.

Her calculations were not accurate. [224] I do accept from her evidence that she not only went to work at her Government job early in the morning, but that she spentmany evenings and weekends away from the home at her other activities and supplementary employment. [225] On many occasions when JB was not home, KD and NHB were likely at home, except on weekends; however, I conclude thatthere were many occasions when the accused would have been alone in the home without JB, KD or NHB being present. Much evidenceof the defence witnesses was not exculpatory.

Some evidence of the defence witnesses that could be exculpatory is either not believed or,as noted in the many contradictions amongst them, is not found to be reliable. [226] I do not believe, and not left in a reasonable doubt by the evidence of the accused or the other defence witnesses. [227] SB described with particularity the pajamas events and the shower event. This evidence, considered in the context of all theevidence, proved both sexual interference and sexual assault.

There were no unexplained or significant inconsistencies in her evidence.Her evidence, I find, was truthful and reliable. [228] While courts view demeanour with caution, SB’s demeanour reinforced the court’s view of her truthfulness and the reliability ofher evidence. [229] SB’s evidence satisfies me beyond a reasonable doubt that the accused committed sexual assault in respect of the pajamas eventand the shower event. In the context of the evidence heard in this case, that conduct also constituted sexual interference.

The events alloccurred between the spring of 2008 and 2012. [230] SB’s evidence respecting the computer event was that the accused put his hand on her upper thigh next to her vagina. She didnot testify that the accused touched her on the vagina. For that reason, I am not satisfied that the computer event has been proven beyonda reasonable doubt as a sexual assault or sexual interference. [231] I convict the accused on both charges based on the pajamas event and the shower event. [232] I presume R v Kienapple, (SCC), [1975] 1 SCR 729, applies and one of the charges will be stayed. Warner J.