HIS MAJESTY THE KING - v. -, 2023 SKKB 89

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 89 Date: 2023 04 10 Docket: CRM-MF-00008-2022 Judicial Centre: Melfort BETWEEN: HIS MAJESTY THE KING - and - K.W.W. PUBLICATION RESTRICTION: By court order made under s. 486.4(1) of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Counsel: Mary Anne Larson for the Crown Zachary J.

Carter for the accused ___________________________________________________________________________ REASONS FOR ORAL JUDGMENT dated April 10, 2023 ELSON J. WRITTEN REASONS dated April 28, 2023 ___________________________________________________________________________

Preamble [ 1 ] On April 10, 2023, I delivered an oral judgment setting out the Court’s verdict in this case. At that time I advised counsel that a written judgment would later issue, which would include the necessary redactions. This is that judgment. Introduction [ 2 ] The accused, K.W.W., stands charged with three counts in the indictment before the Court.

The charges allege that, during the almost six-year period from January 1, 2010 and September 1, 2015, at or near [ redacted ], Saskatchewan, the accused committed the offences of sexual interference, invitation to sexual touching and sexual assault, contrary to ss. 151 , 152 and 271 of the Criminal Code , RSC 1985, c C-46 , respectively.

The complainant in respect of these offences is the accused’s biological daughter, T.M., formerly T.W. [ 3 ] Despite the broad time frame in the indictment, the allegations pertain to events said to have taken place in or around 2010 and later in 2013, when the complainant was 4 and 7 years old, respectively. She was 17 years old at the time of trial. Evidence at Trial [ 4 ] Three witnesses testified at trial. The complainant and her mother, F.M. [F.], testified for the Crown.

The only witness for the defence was the accused. [ 5 ] To give the allegations some context, it is helpful to review the background evidence about the family in this case. That background includes evidence about where the complainant lived with family members, particularly her mother and siblings. This evidence came from all three witnesses. Most of it is not disputed. As most of the family members referenced in this judgment have the same surname, I will refer to them by their given names. In doing so, it must be understood that I mean no disrespect.

[ 6 ] The background evidence discloses that the accused and F. grew up in [ redacted ], Saskatchewan. They became involved in an off-and-on relationship in the early to mid-2000s, but never lived together. During the relationship, the accused lived primarily at his aunt’s home in [ redacted ] while F. primarily lived with her mother, V.B. [V.], and her husband, M.B. [M.]. Despite not living together, three children were born from the accused and F.’s relationship. They were the complainant, her older brother [T.A.], and her younger brother [T.E.]. The complainant was born on [ redacted ], 2006.

In addition to her brothers, the complainant also has several half-siblings from both parents, including two younger sisters born to F. [ 7 ] F. raised the complainant, her older brother and her two younger sisters. T.E. was essentially adopted by V. and M., who already had a daughter [A.], who was younger than the complainant. The Court was also told that F.’s father, G.M. [G.], also resided in [ redacted ]. [ 8 ] The evidence about the family’s relocations, beginning in 2010, primarily came through F.’s testimony. Some of that evidence conflicted with the complainant’s testimony.

I resolve those conflicts by preferring F.’s evidence. [ 9 ] According to F., she remained in [ redacted ] until 2010, when she traveled to [ redacted ], Saskatchewan to upgrade her education. She was gone for roughly a year while the complainant and T.A. remained at V.’s home in [ redacted ]. There is no dispute that, during this time, the accused moved into V.’s home to help care for the complainant and her older brother. At that time, both children attended school, with the complainant attending preschool. While staying in V.’s home, the accused slept in a bedroom also occupied by the two children.

After F. completed her upgrading and returned to [ redacted ], the accused returned to his aunt’s home. The evidence also indicates that, if F. returned from [ redacted ] to visit during this time, the accused would vacate V.’s home and return to his aunt’s residence. [ 10 ] The evidence also discloses that F. took some additional upgrading in [ redacted ], Saskatchewan in 2012. At that time, she relocated there with both the complainant and her older brother, who attended school in [ redacted ]. There is some discrepancy as to which grades the children were in at that time.

The complainant testified that she completed kindergarten in [ redacted ], while F. testified that the complainant attended Grade 1 there, which she completed in 2013. It is not disputed that, while the family was in [ redacted ], the accused did not visit the children. Indeed, his evidence is that he did not know they were in [ redacted ] during this time. That said, he also testified that he was able to speak to the children by telephone. [ 11 ] After completing her upgrading program in [ redacted ], F. and the children returned to [ redacted ] in the summer of 2013.

They remained there until September 2015, when they moved to Saskatoon. Their next move was to Prince Albert, where they still reside, along with the complainant’s two younger sisters. [ 12 ] While F. and the children lived in [ redacted ], before moving to Saskatoon, the accused continued to live at his aunt’s home. That said, there is no dispute that, starting in 2012, he also spent time working at the [ redacted ] Station, a 15 minute drive from [ redacted ]. [ 13 ] The accused’s evidence about his work at [ redacted ] is also not contradicted.

He testified that, after taking a food preparation course, he was hired by the [ redacted ] to work as a cook at the facility’s staff house. The job began in September 2012 and he remained there until he was laid off in 2018. The accused testified that his work

schedule was on a week-on/week-off basis, beginning on the Monday and running for seven days, with daily shifts from 5:00 AM to 7:00 PM. He would travel to [ redacted ] on the Sunday and return to [ redacted ] the following Sunday. In answer to a specific question from the Court, the accused said these were full 14-hour shifts, with no splits in the day. [ 14 ] During his weeks at [ redacted ], the accused had a room on the upper floor of the staff house, which he described as a two-story structure above ground and a basement level.

The staff house had 16 accommodation rooms for staff, a common area as well as a common kitchen and dining area. The accused’s room, which he said he shared with the staff house janitor, was located adjacent to the large kitchen where he worked. Later in this judgment, I will describe more particulars of the accused’s accommodations. [ 15 ] The accused testified that, while living in [ redacted ] and [ redacted ], he did not have personal access to a vehicle. This aspect of his evidence was confirmed by F .

The accused also testified that the staff house manager drove him between [ redacted ] and [ redacted ] for his work weeks. [ 16 ] Turning to the allegations in the indictment, the Crown’s evidence described sexual incidents between the complainant and the accused at two different locations and within two distinct time periods. The first incident is said to have occurred in V.’s home while F. attended school in [ redacted ]. The complainant was 4 years old at that time. The other incidents are all said to have occurred in [ redacted ] while the accused was employed there.

At that time, the complainant was 7 years old. [ 17 ] The complainant’s testimony about the first incident is that it occurred one day while she took a shower before going off to pre-school. She testified that she typically showered every day. According to the complainant, there was one occasion, when the accused stepped into the shower with her. She said that both she and the accused were naked. At first, the complainant said she thought he was just planning to help wash her hair. Her thoughts changed when the accused took the complainant’s hand and placed it on his penis, telling her to touch it.

The complainant could not describe how long this incident lasted, but she did say that it stopped when she had to get ready for the bus to take her to pre-school, which she said was in the afternoon. [ 18 ] The complainant answered a series of specific questions posed by Crown counsel about the shower incident. In those answers, she told the Court that no one was home at the time. To the best of her recollection, both M. and V. were at their respective jobs. The complainant was unsure where T.A. was, but suspected he was at daycare. She did not say anything about the whereabouts of A. or T.E.

As to the time of year when this incident happened, she believed it was in the spring as she has a memory of it being “slushy” outside. She also told Crown counsel that she did not tell anyone at school about the incident, explaining that she was scared, and the accused told her not to tell anyone about what had happened. [ 19 ] At this point, some description of V.’s home is in order. According to the complainant, the home consisted of one floor with a basement. There were three bedrooms, one occupied by V., M. and A. Across the hall from that bedroom was the

bedroom occupied by the accused and the complainant. The complainant later acknowledged that T.A. slept in that bedroom, as well. T.E., slept in the third bedroom. Finally, the complainant testified that the bathroom was adjacent to the room she occupied with the accused and her brother. [ 20 ] In cross-examination, the complainant agreed with counsel that, when she was interviewed by police, she told the officer that she was 7 years old when the first sexual incident occurred.

She then explained that, after the interview, she remembered things differently and recalled that it happened when she was attending pre-school. This meant she would have been younger. The complainant gave no explanation of anything that prompted her new memory. [ 21 ] Associated with this questioning, the complainant initially disagreed with defence counsel’s suggestion that her memory of past events would be better closer to the event than it is presently. She said her memory at the time of the trial was better than at the time this event, or any of the relevant events.

She later acknowledged that this may not be so. [ 22 ] Further to the evidence about the shower incident, the complainant agreed with defence counsel that, when the accused stayed at V.’s home, it was not unusual for him to help wash her hair. Nothing sexual occurred on any of the other occasions. [ 23 ] Turning to the incidents said to have occurred at [ redacted ], the complainant told the Court that there were multiple weekends when she went to [ redacted ] with the accused, around the time she was 7 years old. She specifically said that the accused would pick her up and take her to [ redacted ] in a vehicle.

The complainant also testified that she sometimes liked going there because the accused would cook for her and play games with her. [ 24 ] According to the complainant, a typical visit to [ redacted ] would involve her staying there for two nights at a time. She said she slept in the accused’s room in a building she described as like a “hotel” or an “apartment”. When Crown counsel asked her to describe the accused’s room, the complainant told counsel that the room had its own small kitchen, a living room and a hallway leading to two bedrooms and a bathroom.

She said the accused’s bedroom was simply furnished with a bed and a dresser. When staying overnight, she slept with the accused in his bedroom, both in the same bed. As for the other bedroom, the complainant described it as a storage room in which snacks were kept and another bed. She told the Court that she did not see any other workers or children at the [ redacted ] facility. [ 25 ] In answer to questions about the accused’s work at [ redacted ], the complainant said she did not know about the accused’s shift work. That said, she testified that she stayed in the accused’s room when he was at work.

As she described this, she seemed to suggest that she was not too concerned about this as the kitchen where the accused worked was close by. [ 26 ] Turning to the allegations said to have occurred at [ redacted ], the complainant testified that the accused made her rub his penis. She testified that these incidents occurred when the accused was laying on the bed in his room and the complainant was sitting down next to him. He had pulled down his pants and underwear and just told her to rub his penis. The complainant told the Court that she did what she was told because she was scared not to do so.

She recalled that, as she rubbed the accused’s penis, a “white” substance came out of his penis and onto the accused’s hand. Although the complainant testified that she did not touch this substance, the accused told her to lick it, but she refused. [ 27 ] Again, the complainant answered specific questions from Crown counsel about these incidents. In doing so, she told the Court that she could not recall how many times these incidents had occurred. She also said there were occasions when she refused to rub the accused’s penis, but she was unsure how many times she refused.

As to whether any of her siblings came with her to [ redacted ], the complainant testified that T.A. came along a few times. On these occasions she said that he also stayed overnight but slept in the living room. She also said there were no sexual incidents when her brother was there. [ 28 ] In cross-examination, the complainant flatly disagreed with defence counsel’s suggestion that she never stayed overnight at [ redacted ]. That said, she did acknowledge that, sometimes, there were day visits when she did not stay overnight.

She also disagreed with the suggestion that the accused did not drive her to and from [ redacted ]. She also reaffirmed her evidence in direct examination that the accused’s room contained a kitchen. [ 29 ] Returning to the complainant’s direct examination, she testified that she did not tell anyone about any of the sexual incidents until she was 14 or 15 years old, when then living in Saskatoon. At that time, she first told one of her half-sisters. Soon after that, she also told one of her cousins and then later told T.A. through a text message. He later suggested she tell her mother, which she did a week later.

Soon after that disclosure, the complainant and her mother reported the incidents to the [ redacted ] RCMP and a video recorded statement was taken. [ 30 ] The complainant was also questioned about her knowledge relating to the accused’s girlfriends. She recalled three girlfriends, one of whom spent time with the accused at [ redacted ] and stayed overnight at the same time as the complainant. The complainant was specifically questioned about another girlfriend with whom the accused fathered another child.

She said she had met the child and did not describe any concern or animosity about the accused having another child. The complainant also testified that two of the accused’s girlfriends were nice to her and the other one, who had the accused’s child, was “sort of nice”. [ 31 ] Shortly before her direct examination concluded, the complainant was asked about her last contacts with the accused when both he and her family were living in separate homes in Saskatoon.

The complainant told the Court that she went to the accused’s home once just to say “Hi”, adding that her mother has not been made aware of that visit. [ 32 ] In defence counsel’s more generalized cross-examination, the complainant testified that her mother was present when she gave her statement to the RCMP in [ redacted ]. Although she says her mother’s presence was helpful, her mother did not help her to remember things. [ 33 ] Other matters addressed in cross-examination included: (

a) one minor conflict between the complainant’s trial evidence and her testimony at the preliminary inquiry; (

b) questioning about the complainant’s reaction to the accused having another child; and (

c) an initial comment at the preliminary inquiry where she said nothing happened.

[ 34 ] Further to the complainant’s communications with the accused after the family left [ redacted ], the complainant acknowledged that she had contact with the accused and had even attempted to contact him through Facebook Messenger. She was unsure whether she actually made contact. [ 35 ] As mentioned, F. also testified for the Crown. In terms of general matters, she said she was unsure where the accused was living in [ redacted ] after she had returned from [ redacted ] and [ redacted ]. That said, she did recall the accused getting a job at [ redacted ], where he stayed for a time.

As for her own living arrangements, F. remembered that she divided her living arrangements between V.’s home and G.’s home, while the complainant and T.A. primarily remained at V.’s home. [ 36 ] F. recalled that the complainant and T.A. would go to [ redacted ] to spend time with the accused. She said that, for the most part, the complainant went there alone, with T.A. having only occasional visits. She said that the accused would specifically ask for the complainant to visit. [ 37 ] F. recalled that she went with the complainant to [ redacted ] a couple of times, usually when M. drove out.

She testified that she saw a staff house there which she understood was for adults. She also said that she had an opportunity to view the inside of the staff house as well as the accused’s room. She recalled there was a large common kitchen and that the accused’s room was nearby. In answer to a specific question, she said she did not see a kitchen in the accused’s room. [ 38 ] F. also testified that the complainant was permitted to stay at [ redacted ] overnight. These occasions were usually on a weekend or around Christmas.

For these overnight visits, the complainant would take a change of clothes as well as her tablet. She could not recall how many overnight visits there were. F. recalled that the complainant never missed school because of any visit with the accused. [ 39 ] F. also testified about the time when the complainant told her about the incidents described in the indictment. She admitted that this information came as a shock to her.

Soon after, she took steps to move the family from Saskatoon to Prince Albert simply to get away from the accused, who lived nearby. [ 40 ] Also in direct examination, F. told the Court that she was present during the complainant’s interview with the RCMP officer. That said, she volunteered that she did not say anything during the interview because she was told not to. [ 41 ] In cross-examination, defence counsel pursued the issue of F.’s presence in the police interview with the complainant.

After confirming her earlier evidence, she was shown a video recording of that interview, which showed that she had spoken to the officer on one occasion during the interview. [ 42 ] F. also acknowledged that, when the transcript of the preliminary inquiry was sent to the complainant, she took the opportunity to read it, herself. She said she was unaware that this was inappropriate. [ 43 ] F. acknowledged that she was unaware of any of these allegations until the complainant disclosed them to her.

She also acknowledged that she did not see anything relative to the allegations. [ 44 ] With respect to the complainant travelling to [ redacted ], F. said that sometimes, G. or M. would take the complainant there or sometimes the accused did. That said, she acknowledged that the accused did not have a vehicle. Eventually, F. agreed with defence counsel’s suggestion that she was unaware of the accused’s travel arrangements between [ redacted ] and [ redacted ]. [ 45 ] As mentioned, the accused testified in his own defence.

Some of his testimony has already been referenced in the description of the relationship between the accused and F. as well as the living circumstances that existed in [ redacted ] and [ redacted ]. [ 46 ] Turning first to the allegations about the shower incident, the accused acknowledged that he helped care for the complainant and T.A. at V.’s home when F. was attending school in [ redacted ]. He testified that, during that time, a typical day would have him get the children up for breakfast and ensure they got ready for school.

On days when there was no school, he would typically spend the days with the children, including taking them to a nearby park. He also helped clean the house whenever he could. [ 47 ] In direct examination, he was specifically asked if he had helped the complainant wash her hair in the shower. He acknowledged that he had often helped both children wash their hair. In describing how he helped the complainant, he said that he would simply reach into the shower from outside the tub and help wash her hair. As with both children, his main concern was to make sure they did not get soap in their eyes.

He testified that he would be clothed on these occasions. In answer to specific questions, the accused said he never climbed into the shower with the complainant, whether naked or otherwise. In short, he flatly denied the complainant’s evidence about the shower incident. [ 48 ] Turning to the accused’s time at [ redacted ], the accused described his accommodations in the staff house. He said his room or unit consisted of two bedrooms a living room and a bathroom. More particularly, the accused testified that, as one came into the room, there would first be the living room with a couch, armchair and television.

There was then a bedroom to the left and another bedroom to the right, near the bathroom. The accused told the Court that he occupied the bedroom to the right while the staff house janitor slept in the bedroom to the left. He also said that there had been a series of three janitors living in these accommodations during his time there, one of whom was a woman. There was no kitchen in his room. The accused testified that the only kitchen accessible to any of the staff was the large common kitchen where he worked.

He told the Court that, aside from regular meals, the kitchen was also available for employees to get a snack or something similar to eat. [ 49 ] The accused also testified that, occasionally, he would bring a girlfriend to the staff house to stay with him. Other than these girlfriends, he testified that he had no other overnight visitors. [ 50 ] He specifically denied that the complainant or any of her siblings spent overnight time at [ redacted ]. He testified that there were two occasions when the complainant and T.A. came to see him after being driven there by either their grandfather or their

uncle. He remembered one occasion when he gave the two children a tour of the staff house, showing them the common area (wherethere was a pool table), the common kitchen and his room. He specifically remembered showing the children a closet near his bedroomin which snacks, such as candy and chips, were kept. He explained that these snacks were primarily for the staff but much of the supplywas kept in his room to make sure they weren’t pilfered.

Contrary to the complainant’s evidence, the accused said these snacks were notkept in the other bedroom. [51] The accused also recalled that, on one of the children’s visits, he cooked a large meal for the children. Hespecifically remembers that it was a steak dinner which he made from some leftover food in the common kitchen. In answering aquestion during cross-examination, the accused told the Court that, while the staff house had rules, it was not inappropriate for him tohave used food in this way. [52] The accused also testified that the children’s visits to [redacted] were short day visits.

He was still working fullshifts and did not have much time to spend with them outside the kitchen. He also testified that, without anything to do at the staff house,both children had become quite bored and were not interested in spending a lot of time there. [53] The accused flatly denied any sexual contact with the complainant, whether at [redacted], [redacted] orotherwise. He reaffirmed his evidence that the complainant never stayed overnight with him in [redacted]. Applicable Law 1.

Essential Elements of the Offences [54] In addressing the three counts in the indictment, I am satisfied that I need not recite the relevant provisions of theCriminal Code.

That said, I describe the essential elements for each of the charged offences, beginning with the charge of sexualinterference, contrary to s. 151 of the Criminal Code. [55] As articulated in such authorities as R v Bone (1993), (MB CA), 81 CCC (3d) 389 (ManCA), and R v Sears (1990), (MB CA), 58 CCC (3d) 62 (Man CA), an accused person cannot be convicted of sexualinterference unless the Crown proves, beyond a reasonable doubt, three essential elements.

These essential elements are: (1) that thecomplainant was under the age of 16 years at the time the offence is said to have occurred; (2) that the accused intentionally touched thecomplainant; and (3) that the touching of the complainant by the accused was for a sexual purpose. [56] Turning to the charge of invitation to sexual touching, contrary to s. 152 of the Criminal Code, the wording of s.152 and the judgment in R v Legare, 2008 ABCA 138, 236 CCC (3d) 380, aff’d in 2009 SCC 56, [2009] 3 SCR 551, persuades me thatthere are three essential elements to this offence.

For an accused person to be convicted of invitation to sexual touching, the Crown mustprove: (1) that the complainant was under the age of 16 years at the time the offence is said to have occurred; (2) that the accusedinvited, counselled or incited the complainant to touch the accused’s body; and (3) that the touching which the accused invited,counselled or incited was for a sexual purpose. [57] The remaining count in the indictment is a charge of sexual assault, contrary to s. 271 of the Criminal Code.

Inthe context of the circumstances of this case, the essential elements of the offence are the same as those for a charge of sexualinterference. 2. Proof Beyond a Reasonable Doubt [58] In describing the essential elements, I have alluded to the Crown’s obligation to prove each element beyond areasonable doubt. This is a high standard of proof, one that is tightly bound to the presumption of innocence – the cornerstone of ourcriminal justice system.

This cornerstone and the related standard of proof serve as safeguards designed to ensure, so far as is humanlypossible, that the state shall not deprive anyone of his or her liberty unless guilt is established to a moral certainty. [59] There are two central authorities from the Supreme Court of Canada that are frequently cited to describe thenature of proof beyond a reasonable doubt, namely, R v Lifchus, (SCC), [1997] 3 SCR 320 [Lifchus] and R v Starr,2000 SCC 40, [2000] 2 SCR 144 [Starr].

In Lifchus, Cory J. observed that proof beyond a reasonable doubt lies within a range ofabsolute certainty and proof on a balance of probabilities. Trial judges are expected to instruct juries or themselves, when sitting alone,that the presence or absence of reasonable doubt is based on reason and common sense. In this regard, Cory J., emphasized that it islogically derived from the evidence or from the absence of evidence. Moreover, he also discussed the concepts of “probable guilt” and“absolute certainty of guilt”.

In these regards, a finding of probable guilt can never be the equivalent of proof beyond a reasonable doubt.Conversely, to be convinced beyond a reasonable doubt does not require proof to an absolute certainty, which is impossible to establish. [60] In the context of these two concepts, it is noteworthy that, in Starr, the Court went a step further.

Speakingthrough the majority judgment of Iacobucci J., the Court, at para. 242, emphasized the importance of understanding that proof beyond areasonable doubt lies closer to absolute certainty than it does to the lesser civil standard of proof on a balance of probabilities. [61] Application of the reasonable doubt standard in the classic “he said/she said” scenario, which commonly arisesin sex offence trials, can be very difficult for triers of fact, whether jurors or judges sitting alone.

As I observed in R v Knox-Moffatt,2018 SKQB 142 [Knox-Moffatt], the application of the reasonable doubt standard in such cases has attracted criticism. Somecommentators have even suggested that the standard should have little or no application to sex offence trials. In Knox-Moffatt, I recitedtwo paragraphs from the judgment of Molloy J. in R v Nyznik, 2017 ONSC 4392, 350 CCC (3d) 335 [Nyznik]. There, Molloy J.addressed the practical difficulties of resolving conflicting evidence in such cases, followed by an emphatic reaffirmation of thereasonable doubt standard.

Her words, at paras. 12 and 16, deserve repeating here: [12] First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart fromthe complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against theother — the classic “he said/she said” scenario. In that situation, it would be wrong for the trial judge to decide the case based on which

is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond areasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen inthe context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe thedefendant’s version of the events, and might find the complainant’s version to be more credible, but still be uncertain as to what actuallyhappened.

In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant’sstory is more plausible or more believable than that of the defendant. ... [16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges areimproperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those criticsfail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed.

It isessential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideasabout how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. Thefocus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the onlyevidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence.

For that reason, a judge is frequently required to scrutinize thetestimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond areasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption ofinnocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongfulconvictions.

While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring thatinnocent people are never convicted. [Emphasis in original] 3. Assessment of Witness Testimony [62] The comments from Nyznik, provide an appropriate segue to a discussion about the assessment of contradictorytestimony, such as that presented in this trial. In that assessment, two concepts become critically important, namely, credibility andreliability.

Although often described in the same breath, it is important to understand that these concepts are substantively different.Credibility pertains to whether the witness is giving evidence honestly and is telling what he or she understands to be the truth.Reliability, on the other hand, has to do with the accuracy of witness testimony. This concept raises questions as to whether a witness hasa good memory and can recount important details of a given event. A witness who is not honestly telling the truth is, by definition, notgiving reliable testimony. But the reverse is not so.

Some witnesses may be convinced in the truth and accuracy of their recollections butbe honestly mistaken in that recollection. In such cases, their testimony is credible but not reliable. [63] These considerations become particularly acute when dealing with the testimony of minors, particularly thosewho are testifying to events said to have occurred when they were young children.

While it is undeniable that the credibility of a child’sevidence cannot be ignored, the reliability of such testimony can be especially troublesome. [64] There are three longstanding authorities from the Supreme Court of Canada that are frequently cited in casessuch as this. They are R v Marquard, (SCC), [1993] 4 SCR 223 [Marquard]; R v W.(R.), (SCC), [1992]2 SCR 122; and R v B.(G.), (SCC), [1990] 2 SCR 3. All three of these cases are regarded as central authorities on theapproach a trier of fact should follow when considering the reliability of a minor child’s testimony.

For the purposes of this judgment, Iwill reference the comments of McLachlin J. (as she then was) in Marquard. [65] In the present case, it is not necessary for me to refer to the facts in Marquard. Unlike the present case, that casedealt with the receipt of unsworn evidence given by a young child. Despite the differences between that case and the present case, theprinciples discussed in Marquard remain applicable.

These non-exhaustive principles, discussed at pages 238 to 240 of Marquard, can besummarized as follows: a. there can be no fixed and precise formula to be followed in warning a jury about potential problems with a given witness’sevidence; b. the trier of fact should not apply negative stereotypes to the evidence of minor children; c. the trier of fact should apply “common sense” in taking into account the strengths and weaknesses of any witness, includingchildren; d. no automatic assumptions of unreliability should arise because of the age of a witness; and e. particular care should be taken in the consideration of testimony given by very young children. 4.

Consideration of Testimony by an Accused [66] Application of the reasonable doubt standard engages an important consideration when accused persons giveexculpatory evidence in their defence. Such circumstances require the Court to address the so-called “W.(D.) instruction”. Thisinstruction directly engages the observation made by Molloy J. in para. 12 of her judgment in Nyznik. [67] The “W.(D.) instruction” comes from the Supreme Court of Canada’s judgment in R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)].

In W.(D.), the Court, through the judgment written by Cory J., articulated a direction that became anintegral part of jury instructions where exculpatory defence evidence is adduced, particularly through the testimony of an accused. In thatcase, the Court dealt with the situation in which a trial judge recharged the jury to the effect that the central question was whether theybelieved the complainant or believed the accused, an instruction that was not given in the original charge. Although the Court did not

allow the appeal, it was more than satisfied that the trial judge erred in the subsequent instruction. To afford guidance for trial judges, Cory J. articulated a three-part instruction that, in his view, would avoid the error of inviting the trier of fact simply to pick between two versions of evidence. This instruction, which applied only where an accused person gave exculpatory evidence appears at page 758 of the judgment, and reads as follows: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 68 ] In the last several years, the line of cases addressing the W.(D.) instruction has culminated in judgments of the Ontario, Saskatchewan and Alberta Courts of Appeal, to name but a few.

Some of these authorities have refined the instruction and even criticized its simplicity. There are several cases I could mention, including a judgment I wrote in R v Panasiuk , 2019 SKQB 258 . In the interest of brevity I will refer simply to R v Ryon , 2019 ABCA 36 , 371 CCC (3d) 225 [ Ryon ] and R v Van Deventer , 2021 SKCA 163 , 407 CCC (3d) 291 [ Van Deventer ] . [ 69 ] Consideration of the relevant authorities reveals that two central principles of the W.(D.) framework remain unchanged.

The first principle is that the trier of fact, whether a jury or a trial judge sitting without a jury, cannot engage in a simple credibility contest between the principal Crown witness and the accused. To resolve the outcome of a criminal trial simply by accepting one version of events over another is inconsistent with the presumption of innocence and the requisite standard of proof. [ 70 ] The second central principle is that the trier of fact must have regard to all the trial evidence in assessing the cogency of the evidence given by any witness.

Moreover, where an accused person testifies, that testimony must not be considered in isolation from all the other trial evidence received. A finding of guilt or innocence rests on the assessment of all the evidence to determine whether the Crown has met the burden upon it to prove the case beyond a reasonable doubt. [ 71 ] An illustration of this is reflected in the Alberta Court of Appeal judgment in Ryon . In that case, the trial judge found the accused guilty of sexual assault.

In doing so, he focused his attention on the testimony and conduct of the complainant, concluding that she would not have acted as she did unless the accused had exceeded the limits of her consent to the sexual activity in question. No consideration was given to the accused’s exculpatory evidence. On appeal, the conviction was set aside, and a new trial ordered. Writing for the majority, Martin J.A. observed that neither the complainant’s nor the accused’s testimonies were “obviously implausible”.

As such, the majority concluded that the trial judge erred when he disregarded the accused’s equally plausible explanation without articulating his reasons for rejecting it or finding that it failed to raise a reasonable doubt. See Ryon at paras. 64 and 65 . [ 72 ] Similar guidance is drawn from the Saskatchewan Court of Appeal judgment in Van Deventer . In that appeal, the Court set aside a sexual assault conviction where the trial judge described the finding of guilt as the “necessary corollary” of her conclusion that the complainant’s evidence was credible and reliable.

Speaking through Tholl J.A., the Court concluded that without any other analysis of the accused’s credibility, the rejection and disbelief of his testimony could not be based on the “necessary corollary” described by the trial judge (para. 15). [ 73 ] Tholl J.A. went on to expand on the approach a trial judge could follow where the accused’s exculpatory testimony consists of a bare denial of the allegations in support of the charge.

In doing so, he also addressed circumstances where, in the consideration of all the evidence at trial, a trial judge could reject an accused person’s evidence in favour of cogent evidence presented by the Crown. After referencing relevant authorities from various jurisdictions, Tholl J.A. summarized his conclusion at paras. 24-25: [24] When an accused’s evidence contains a bare denial of the allegations, a trial judge should consider this denial in the context of the evidence of the complainant and, indeed, the evidence as a whole.

As long as the assessment of the entirety of the evidence follows a discernible pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessment of the accused’s bare denial. An accused’s testimony should not be assessed in isolation at the first stage of the W.(D.) test. In order to properly assess the accused’s denial, a trial judge must be permitted to consider the credibility and reliability of the allegations against the accused.

In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of the evidence. The evidence of the complainant provides the basis for an accused’s denial, so considering one without the other could often be a pointless exercise. [25] A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence.

As long as a trial judge is mindful of the burden of proof and the principles from W.(D.) , they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt. However, this does not address the issue of whether a finding of credibility and reliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused.

Analysis [ 74 ] I now turn to the circumstances under which the law and the applicable principles apply to the evidence presented in this case. [ 75 ] The two central witnesses in this case are the complainant and the accused. The credibility and reliability of their respective testimonies must be considered in the context of all the evidence at trial, including the related narrative testimony given by F. [ 76 ] This case is not dissimilar from other sexual assault or sexual abuse cases where an accused gives exculpatory evidence.

Stated simply, these cases often involve bare denials that respond to equally bare allegations. In this context, it is important to emphasize the central premise of the W.(D.) analysis, which is that the Court is not faced simply with the task of choosing between two

diametrically opposed versions of events. Rather, the question for the Court is to determine whether, based on all the evidence received, it is satisfied that the Crown has proved all the essential elements beyond a reasonable doubt. In this regard, a finding of probable guilt, or less, cannot form the basis of a conviction. [ 77 ] I will begin my analysis by first addressing the complainant’s testimony. At the outset, I agree with Crown counsel’s observation that there is no evidence disclosing any motive for the complainant to lie or fabricate the allegations against the accused.

While it would not be unfair to note the appearance of some animus against the accused, that appearance would be entirely consistent with her evidence, if true. [ 78 ] There is some arguable merit to defence counsel’s criticism of the complainant’s evidence, particularly related to its reliability. In this regard, it is noted that the complainant became somewhat argumentative in cross-examination about having a better memory now than she had at the time of the alleged events, a proposition from which she later retreated. Considering the passage of time, her proposition is difficult to accept.

Counsel also noted the inconsistency in the testimony of the complainant and F. about the accused having a vehicle to travel between [ redacted ] and [ redacted ], and about whether there was a kitchen in the accused’s room at [ redacted ]. [ 79 ] Having said all this, none of the concerns about the complainant’s testimony are necessarily determinative of either her reliability or her credibility.

Moreover, it would be inappropriate for the Court to draw any automatic conclusions about the complainant’s testimony based on her age or the fact that it pertains to events said to have occurred more than 10 and 13 years ago. In short, and despite some minor concerns about reliability, I do not find any obvious basis to reject the believability of the complainant’s evidence, outright. [ 80 ] As for F.’s evidence, I found it largely unhelpful, particularly for the Crown’s case.

Her demeanour on the witness stand demonstrated an animus against the accused which was considerably more apparent than was the complainant’s. In this context, it was disappointing that F. read the transcript of her daughter’s preliminary inquiry evidence. In my view, this raises concern that F.’s awareness of the complainant’s earlier evidence may have influenced or coloured her testimony, particularly about overnight visits to [ redacted ].

In my view, this concern is similar to that which would arise if F. had not been excluded from the courtroom during the complainant’s evidence. [ 81 ] In other respects, it is arguable that F.’s evidence actually assisted the accused. I note her evidence about whether there was a kitchen in the accused’s [ redacted ] room or whether the accused had a vehicle to drive the complainant to and from [ redacted ]. That evidence was not consistent with the complainant’s testimony. [ 82 ] Turning to the accused’s testimony, there is no doubt that it is essentially a bare denial.

That, alone, does not make it implausible or unbelievable. Moreover, in giving his evidence, I found the accused testified without any evasion or hesitancy. He also testified with candour, acknowledging the problems in his life and in his family, including his fractious relationship with F. More importantly, his denial evidence about the allegations was explained with plausible context and not seriously challenged by Crown counsel in cross-examination. [ 83 ] In the end, I am presented with two versions of the relevant events that are utterly irreconcilable.

Measured with all the trial evidence, neither of the two witnesses who testified to these versions lacked credibility or reliability. Measured with all the trial evidence, neither version is obviously implausible or obviously unbelievable. In short, I find that the evidence, considered as a whole, does not allow me to resolve the differences between these two versions, even on the less exacting civil standard of proof on the preponderance of the evidence. It necessarily follows that the evidence leaves me with reasonable doubt as to the accused’s guilt of any of the charges against him.

Conclusion [ 84 ] In the result, I must find the accused not guilty of all three charges in the indictment. J. R.W. ELSON