R. v. D.C., 2019 NLSC 227

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.C. , 2019 NLSC 227 Date : December 17, 2019 Docket : 201808G0109 Her Majesty The Queen v. D.C. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the Preliminary Inquiry shall not be published in any document or broadcast or transmitted in any way until the Accused is discharged after the preliminary hearing, or, if the Accused is committed to stand trial, until the end of the trial. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: October 21, 22, 23 and 25, 2019

Summary: The Accused was charged with having committed sexual offences against his step-daughter when she was between the ages of five to six

years old, up until she was eleven years old. The sexual contact started with fondling and proceeded to full intercourse. The Accused wasconvicted of the offences. Appearances: Stephen A. Anstey Appearing on behalf of the Crown Jessica D. Tellez Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Ferris, 1994 ABCA 20; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000SCC 40; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019 NLCA 37; R. v. Best,2016 NLCA 10; R. v. S.O., 2019 NLCA 42; R. v. M. (R.E.), 2008 SCC 51; R. v.

W.R., (SCC), [1992] 2 S.C.R. 122; R. v.M.L., 2019 NLCA 33; R. v. Dobberthien, (SCC), [1975] 2 S.C.R. 560. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] The Accused is alleged to have committed several sexual offences against his stepdaughter, R.W., when she was between theages of five or six and eleven years old. The alleged conduct ranged from fondling when R.W. was five or six to full intercourse whenshe was eleven. The trial proceeded over the course of four days.

For the Crown, the Court heard from R.W., her mother O.W., andConstable Pelchat, one of the officers involved in the arrest of the Accused. The Accused and his father, T.C., testified for the defence. This is the decision on verdict. THE EVIDENCE The testimony of the complainant, R.W. [2] R.W. was the first witness. She testified she was 15 years old and was born February 4th, 2004. She has always lived in thecommunity in which the offences were alleged to have occurred. She testified she has always thought of the Accused as her “father”. She has no relationship with her biological father.

When asked about the status of her relationship with the Accused, R.W. testified thatthe relationship was going “not well”; and that they did not “go around each other” due to the “reason why I am here”. [3] When asked what the reason was why she was “here”, R.W. testified she was sexually assaulted by the Accused for years. R.W. testified the sexual contact started when she was about five or six years old. It started with rubbing her vagina, then progressed tothe Accused putting his fingers in her vagina and licking her vagina, to full intercourse when she was eleven or twelve years old. The first incident – W.

Street [4] R.W. testified that the first incident occurred when the family was living on W. Street. R.W. explained this address was whereher grandparents on her mother’s side lived. She was in her mother’s bedroom, playing with two pet male rats. She described that therats were kept in cages in the room on top of a large dog kennel. The rats were white and blind. It was really late at night. The Accusedcame in the room, put the rats away (back in their cages) and asked R.W. if she wanted her back rubbed. R.W. testified she was lyingdown. The Accused told her to get on her stomach, which she did.

He lifted her shirt, started rubbing her back starting at her shoulders,gradually moving his hand down until he was rubbing her vagina. The Accused did not say anything. R.W. testified the Accused waspulling her pants down. She told the Accused to stop. She was not comfortable and wanted him to stop. The Accused did stop and shewent to her own room to go to sleep. R.W. testified that as she left the room the Accused stated he was “sorry”. He rubbed her vaginaover her underwear “mostly” but for a brief moment inside her underwear as well. She did not think anyone else was home at the time.

Her grandmother worked and she thought her grandfather may have been dropping her grandmother off to work. R.W. remembered that

she was wearing “Justin Bieber” pajamas. The pajamas were purple and black but she did not recall if she was wearing anything else; although later in the questioning she agreed she may have been wearing underwear. She did not recall what the Accused was wearing. [ 5 ] She believed the incident occurred when she was in kindergarten or grade one because she remembered that her legs were sore because she had been doing laps at gym. R.W. then drew a picture of the room showing the layout of the bedroom, and how she and the Accused were positioned on the bed (R.W. # 1).

According to R.W., the Accused was over her with his knees on either side of her. The incident on P. Street [ 6 ] R.W. testified about an incident when she and her family were living on P. Street. She was probably six or seven years old. R.W. testified this was the next place she lived after living on W. Street. At that time she lived there with her mother, her sister S., the Accused, three dogs and a cat. R.W. recalled being in her mom’s room waiting for her to come home. She thought her mom and had gone to either the corner store, or her grandmother’s house to get snacks for school the next day.

It was late, maybe 12 a.m. She testified she had asked for some food, and the Accused had given her a snack and then she went to the bedroom. [ 7 ] The Accused came to the room and the “same incident” as before occurred. The Accused asked her if she wanted a back rub. He started rubbing her at her shoulders and worked his way down her back until he reached her vagina. R.W. testified that when he reached her vagina, he then licked his fingers, and placed his fingers inside her vagina. She thought it lasted about 5 minutes. The Accused did not say anything, except to say he was “sorry” and “would not do it again”.

R.W. did not recall what she was wearing in this incident. She testified this was the second or third incident. R.W. testified that the Accused always said he was sorry, each time an incident occurred. R.W. believed she was in grade 1. The incident occurred about a month before a car accident in which her sister S. was killed. S. was two and one half years old at the time. The incident at S. Street [ 8 ] R.W. then testified about an incident when she and her family were living on S. Street with the parents of the Accused. R.W. testified she lived at S.

Street from about the age of 7 until two years ago, when she “came out” to her mother about what was happening with the Accused. R.W. testified her bedroom was in the basement near where her parents slept. She explained that her room had “actual walls” but her parent’s room was separated from the rest of the basement by sheets. [ 9 ] R.W. testified that she was about eight or nine. She remembered there was a dog that belonged to a friend of her mother. They were looking after the dog as it was pregnant. It was a school night and the lights in her room were off.

R.W. was “pretty sure” she was lying next to a stuffed toy, a brown teddy bear, and facing toward the wall. R.W. believed her mother was pregnant with her sister B. at this time. The Accused came in her room and asked her if she wanted her back rubbed. R.W. testified she did not reply, because she knew what he was going to do. She described the same conduct as with the previous incidents. The Accused twisted her around and started rubbing her back and moved his hand to her vagina, and then started licking her vagina. R.W. testified that the Accused was between her legs on his knees.

R.W. testified that the Accused went down on his stomach so he could reach her vagina. After it stopped, the Accused apologized to R.W. that he would not do it again and to not tell anyone because he knew she would not want to lose him. The incident lasted for about a half hour. [ 10 ] R.W. testified she believed it was when she was in grade four, because she remembered her teacher, Ms. M., was her homeroom teacher. R.W. believed she was wearing pajamas. She did not recall what the Accused was wearing. R.W. testified that she did not trust the Accused by this time.

She testified she was scared to be around him due to all the incidents. R.W. testified that by this time there had been maybe seven incidents. [ 11 ] R.W drew three more pictures depicting the layout of the basement (R.W. #2), her bedroom in the basement (R.W. #3), and then the layout of her room on P. Street. (R.W. #4). The first incident of intercourse [ 12 ] R.W. testified that the first incident of intercourse started when she was turning about 11 years old. R.W. testified she was in her own room sleeping when it happened. She testified she heard the door open. That was what woke her up.

The Accused started rubbing her vagina as before, then putting his fingers in, and then licking her. She testified this time he was not slow when doing these things but moved faster. She then felt his penis going up and down on her and then slip into her vagina. She was on her stomach, until he started to lick her vagina and then he “flipped” her over to her back. She testified that the Accused took her hand and placed it on his penis just before he put it in her vagina. R.W. did not recall what she was wearing, except that she recalled the Accused pulled her pants down and her underwear.

The Accused took his pants off just below his knees and was positioned between her legs. She testified his penis was squishy and dry. She testified she knew what an erection was. She did not think he used a condom. She knew she was touching his penis because she could feel his pubic hair. She could feel his penis on her skin. [ 13 ] The Accused did not say anything except to apologize and told R.W. to not tell anyone because he would go to jail and she and her mom would lose him. The Accused left and she went to sleep. When she woke up it felt really wet.

She went to the bathroom and saw that her underwear was soaked with blood, and she threw it away. She had not had her period yet when the incident of intercourse occurred. [ 14 ] She believed her grandmother and grandfather were upstairs, and B., her sister, was upstairs as well. She thought her mom was outside in the car. R.W. explained that her mother would sometimes go out to the car when she was stressed out to calm down. The last incidence of intercourse [ 15 ] R.W. testified that the last incidence of intercourse occurred about a month before her period started.

On this occasion, R.W. testified she was awake in her bedroom, even though it was late. She testified it started “like all the other incidents”. The lights were off in her room. The Accused came in and asked her if she was “feeling ok”. She was lying on her back when he came in. The Accused sat down by her legs. She testified the Accused put his penis in her vagina. The incident lasted for two or three minutes. She found it “very

painful”, and it felt dry. She thought her grandmother and grandfather and her sister B. were upstairs. She did not recall what she was wearing. R.W. testified that it happened maybe a day before she got her period. The disclosure of the alleged abuse and confrontation with the Accused [ 16 ] R.W. testified that she did not tell anyone about what happened at the time, but she did eventually disclose it to her close friend, K.G., a year or two after the incidents has stopped. She testified that she and K.G. planned it out how they were going to tell R.W.’s mom for months, but did not know how to do it.

She said she was at her grandmother’s house on W. Street with K.G., one afternoon. They were both confessing about things and getting things off their chest. That afternoon, K.G. suggested they text her mom, so they did. [ 17 ] R.W. testified she told her mother because she was scared for her sister B. B. was two to three at the time and R.W. was afraid that what had happened to her would happen to B. R.W. testified that she and K.G. told her mom to “call the cops”. Her mom texted back that she would “pick up” she and K.G. [ 18 ] R.W. testified her mom was already crying and “freaking out”.

She was asking R.W. if this was a joke, and R.W. responded to calm down and everything would be all right. They took K.G. home and then went to their home on S. Street. R.W. testified that her mom stated we have to find him. The Accused was in the kitchen. R.W. testified her mom was yelling at the Accused “why did you have to do this?” and the Accused was trying to comfort her. The three went down to the basement to her mom’s bedroom. Her mom was on the corner of the bed. The Accused was next to a chair, and R.W. was on the floor.

R.W. testified that the Accused eventually stated that he was “sorry” and that he “fucked” R.W. and he would do anything for them “to not call the cops”. He was begging them not to call the police, was crying and was saying he was “better off dead”. R.W. testified that the Accused stated this “a lot”. [ 19 ] R.W. testified that when they went back upstairs, her grandmother started yelling at her mom. Her mom replied “your son has been raping my daughter”. Her mom told her sister B. to say goodbye to the Accused. Her grandfather was also present and took R.W. outside to “say a prayer” with her.

Her mother telephoned the police, and R.W. asked to get a few things. The police arrived and took the Accused out of the house. She went to her Aunt’s and then to the police station. R.W. described both her mother and the Accused as being very upset. At one point it sounded to R.W. like her mother could not breathe as if she was having an “asthma attack”. R.W. testified she was also crying and could hardly get words out she was so scared.

She was worried the Accused was going to kill himself. [ 20 ] R.W. testified she gave a statement to the police at the police station, and that she has not talked to anyone else about this since then. R.W. testified that the Accused sexually assaulted her between 10 to15 times and had intercourse with her maybe three to four times. The cross-examination of R.W. [ 21 ] Under cross-examination, R.W. was questioned about what happened with her sister S. and the car accident.

R.W. confirmed that she was very upset S. had passed away, and confirmed it was her grandmother, the Accused’s mother, who was driving at the time. R.W. also agreed she felt S.’s death was her fault because S. had wanted to go with them in the car that day, and R.W. convinced her grandmother to let S. come in the vehicle. R.W. agreed she started cutting herself, and that both her mother and the Accused spoke to her about the cutting.

R.W. agreed it was after her grandfather died (on her mother’s side), when she was 11, that she started cutting herself. [ 22 ] R.W. was asked if she knew that the Accused was under “house arrest”. R.W. stated yes, but she did not know why until after she moved out with her mother and sister B. She knew that she was not to be left alone with the Accused and that this meant there were many activities they could not do together. R.W. also agreed she was protective of B. and made sure B. was not alone with the Accused because she did not want the things happening to B. that happened to her.

R.W. also agreed that she met with social workers about six times a year. [ 23 ] When asked about her relationship with the Accused, R.W. agreed that after the confrontation, she hugged the Accused when she left. She also agreed that the Accused would give her a hug or a kiss goodnight. It was suggested to R.W. that she had a good relationship with the Accused contrary to her evidence in direct examination. R.W. responded “Of course I did as a child. I didn’t know my biological father.

It was uncomfortable learning these things were not normal for a child”. [ 24 ] R.W. agreed she did not have a good relationship with the Accused’s mother, (her grandmother) and it was not good living at S. Street with her grandparents because she felt her grandmother favoured S. and B. over her. R.W. agreed when the Accused lost his job life was different because of little things they could no longer afford. She agreed she started to hang around different kids. She agreed she was in pain. She agreed there was an occasion when she took some pills and wrote on the bathroom mirror.

She agreed the Accused yelled at her on that occasion. She agreed she hated the Accused for being mean to her on this occasion and she wanted to stop living at the house. R.W. also agreed that shortly before she left “things changed” in the household as a result of the restrictions on the Accused having been removed. This meant that there was no restriction on the Accused spending time alone with either she or her sister B. R.W. agreed she was going to protect B., no matter what.

She agreed it was then that she told her mother about the alleged sexual abuse by the Accused. [ 25 ] Counsel referred R.W. to her preliminary inquiry evidence on pages 15 and 16, in describing the first incident. There, R.W. testified that she fell asleep while the Accused was rubbing her back and then woke up and his hands were down her pants and he was touching her thigh. Counsel suggested R.W. had not testified that she had fallen asleep in her direct evidence at trial. Counsel then took her through her police statement suggesting that in that statement, R.W. had testified differently.

There were several places in the interview with the police that R.W. discussed the first incident. [ 26 ] Counsel then suggested to R.W. that in her police statement she stated that the abuse happened only in her room or her parents’ room but never anywhere else, however at the preliminary inquiry R.W. testified of an incident that started on the living room couch. According to the preliminary inquiry testimony, R.W. wanted to go to her bedroom so the Accused took her to the bedroom and put her on the bottom bunk.

R.W. agreed she testified to this at the preliminary inquiry, and after reviewing the testimony stated “I had completely forgotten about this”. R.W. confirmed that the incident that started on the couch as described in the preliminary inquiry did

happen. [ 27 ] Counsel also suggested to R.W. that at one point in her statement to the police she told the police officer that she did not touch the Accused’s penis on the last occasion, but later on in the statement she did describe that on the last occasion she did touch the Accused’s penis. R.W. responded that it was stressful talking to the police, and she simply most likely just did not remember that.

R.W. confirmed that although she touched the Accused’s penis, she never saw the Accused’s penis. [ 28 ] It was suggested to her that in her preliminary inquiry testimony she testified that she did see the Accused’s penis when they were living on S. Street, and testified to an occasion when the Accused put her hand on his penis and then put his penis up over her neck area.

R.W. agreed that was her testimony and stated that “Honestly, I could have seen the Accused’s penis”, but that now at trial, she “did not remember seeing it”. [ 29 ] It was suggested to R.W. that in her statement she testified that she was always on her back, but at trial testified that she was on her stomach. R.W. testified she remembered she was on her back, but after reviewing the testimony stated “Now I do remember there may have been times when I was also on my stomach”. [ 30 ] R.W. confirmed that the Accused did not touch her breasts.

It was then suggested to her that in preliminary inquiry she testified that the Accused had touched her breasts by squeezing or grabbing. R.W. agreed that she stated this. She responded “I can’t remember, but reading this here it does remind me”. It was also suggested to R.W. that in her preliminary inquiry testimony R.W. stated the Accused grabbed her breast and choked her. R.W. did not dispute she stated this, and responded that it was hard to remember things from seven years ago.

On re-direct, R.W. confirmed there was an incident of intercourse when the Accused grabbed her breast and choked her. [ 31 ] At the preliminary inquiry, R.W. testified that the Accused put his penis in her vagina about two times. Defence counsel suggested to her that also in her preliminary inquiry testimony R.W. stated that the message that had been texted to her mother was that the Accused had been “raping her for years”. R.W. testified she did not tell her mother how many times sexual contact occurred. This text was not written by R.W., so it is difficult to accept that this is an inconsistency on her part.

R.W. was clear that K.G. was the person who texted R.W.’s mother. [ 32 ] Defence counsel suggested to R.W. that at the preliminary inquiry she testified she was afraid that the Accused would kill her, yet she did not mention this to the police. R.W. agreed she did not mention this to the police. R.W. responded that the Accused reacted more calmly than she had expected when the police became involved. [ 33 ] It was suggested to R.W. that when she and her mother confronted the Accused, he did not respond that he “fucked” R.W., but that he “fucked up”.

R.W. maintained that the Accused stated “I fucked her” when R.W.’s mother demanded from the Accused to explain what he had done. R.W. testified that at many points her mother stated she was going to call the police. [ 34 ] R.W. was then cross-examined on her previous statements as to how many sexual incidents occurred. At one point during her testimony at the preliminary inquiry, R.W. testified that there were at least 20 incidents. According to the transcript, R.W. stated that “I can remember, there was about at least 20, I believe, in the so many years” (preliminary inquiry at page 16).

Later, during the same line of questioning, when asked how often the Accused had touched R.W. in a sexual manner, R.W. testified “about two times a month”. Defence counsel suggested to R.W. that one to two times per month would mean there were a hundred and twenty incidents in the five or six year period.

R.W. responded that she could not say exactly how many times the sexual contact occurred, but fifteen to twenty times was what she now remembered. [ 35 ] It was suggested to R.W. that her testimony in direct-examination that she bled after the first incident of intercourse was something different than what she told the police. What she told the police was that after putting his fingers in her vagina she bled; not after intercourse.

On re-direct examination, R.W. stated that the Accused did put his fingers in her vagina but there was also intercourse. [ 36 ] R.W. was also questioned about who she told about the abuse. At the preliminary inquiry (at page 17) she was asked: Q. And how old were you when you -- when basically when this came out, when you told somebody about what had happened? A. I was -- I believe I was nine. Q. And who did you tell? A. I didn’t tell -- I didn’t really tell anyone about it.

I’d tell them that every few nights my father would come in and I’d wake up to him having his hands down his pants, but I don’t think anyone really – I didn’t really tell my mom or any of my family… [ 37 ] R.W. testified that the “them” she was talking about were her friends. R.W. testified that she did not tell them “exactly” what happened. She also agreed that she told at least one teacher, but like her friends, she did not explain to the teacher exactly what was happening. R.W. testified that the teacher she told was Mr. B., and this “was after everything came out”. She told Mr.

B. because he had seen her wrists. Counsel suggested that at the preliminary inquiry R.W. had mentioned a different teacher, but did not mention the name. This was when R.W. was in Grade 3. R.W. responded “Honestly, I had forgotten - but reading this, I remember”. R.W. testified that the teacher in grade three was Ms. R. R.W. explained she did remember telling Ms. R. that the Accused came in her room and rubbed her back. She testified that Ms. R. told her to talk to her mom. R.W. did talk to her mom, but R.W. did not tell her mom what was

going on. The testimony of O.W., R.W.’s mother [ 38 ] O.W. testified that she had three daughters; R.W. being the oldest at 15 years old. She confirmed R.W.’s birthday was February 4, 2005. The youngest was B., who is now six years old, and the middle child, S., was deceased. O.W. and the Accused have been together for 14 years and married for eight years; approximately between 2004 and 2018. The Accused was not R.W.’s biological father but was the biological father of both S. and B.

O.W. testified the relationship ended when R.W. disclosed that the Accused had been sexually abusing her. [ 39 ] O.W then explained where the family has lived over the years, working backwards from her current address on C. Street. She has been living there for two years. Prior to that address, she, R.W. and B. were living for three and one half months with O.W.’s sister. This was where she and her daughters moved after they moved out of S. Street when the Accused was arrested on the current allegations. [ 40 ] O.W. explained the family lived at S. Street for 4 years, prior to moving out. Prior to S.

Street they lived at W. Street with O.W.’s parents for about one and one half years. Prior to W. Street they lived on P. Street for 4 years. [ 41 ] O.W. was asked how she found out about the allegations. O.W. testified that R.W.’s best friend K.G. texted her. O.W. testified she and the Accused were tending to their dogs when K.G. texted her that she was worried about R.W. K.G. texted that R.W. was trying to tell O.W., but could not find a way to tell O.W. K.G. stated in the text that R.W. had been raped by the Accused, and that R.W. needed O.W.

K.G. also stated in the text not to say anything to the Accused. [ 42 ] O.W. drove the Accused home, went to R.W.’s grandmother’s house on W. street, where both K.G. and R.W. were located, and took K.G. back to her own home. She and R.W. then drove back to S. Street with R.W. O.W. stated that she asked R.W. what happened, and R.W. responded that the Accused used to touch her. O.W. asked if this was for real, and R.W. replied that it was real, that near the end he raped her, and it had been happening for years. O.W. testified that R.W. was crying and was upset. R.W. was 13 at the time.

O.W. asked R.W. if it was still happening, and R.W. replied “No”. O.W. testified she told R.W. it was “her choice” what she wanted to do, and O.W. would be behind her “100%”. O.W. testified that R.W. wanted to call the police. [ 43 ] O.W. testified while in the driveway at S. Street, the Accused came out and wanted to know what they were doing. O.W. told R.W. to go get her things, and R.W. wanted to say goodbye to the Accused. [ 44 ] O.W. testified that she then asked the Accused “What he done to my daughter”. The Accused responded “I fucked up. I fucked up bad” and “I’m sorry, I fucked up. I fucked up”.

It was not clear at first where or when this exchange occurred, but on further questioning, O.W. clarified this exchange happened while she, R.W. and the Accused were in the basement of S. Street. [ 45 ] O.W. testified that she said “you hurt my daughter” and that the Accused kept saying “I fucked up, I fucked up”, and he would do anything if they did not tell anyone, to not tell anyone, to be quiet, and he would do anything they wanted. O.W. testified that the Accused cried and she could tell he was upset. She was also crying and was angry.

She told him to leave them alone or she would “hurt him bad”. [ 46 ] O.W. testified she went upstairs to the kitchen to telephone the police. O.W. testified that she told the police her husband was sexually assaulting her daughter and the police had to come and get him or she would hurt him. The Accused’s mother was in the living room yelling to him “you didn’t do this”. The Accused did not respond. T.C., the Accused’s father, was outside on the step praying with R.W. [ 47 ] O.W. then called her sister to pick up her and her daughters. She was not sure how much time passed before the police arrived at the house.

She testified there were two police officers. She did not know where the Accused was as she was focusing on R.W. O.W. testified that when the police went into the house she was “out on the step”. One officer stayed with her, and the other officer went into the house. O.W. testified that while the other officer walked the Accused to the police vehicle she “bawled” out to the Accused that he was “dead to her” and her daughters. He yelled something back but she could not recall what he said as she was too upset.

O.W. testified that they went to her sister’s house and then to the police station. [ 48 ] O.W. testified that prior to the disclosure by R.W., R.W. and the Accused had a great relationship. R.W. “thought the world” of the Accused, and O.W. believed R.W. loved him dearly.

O.W. believed her own relationship with the Accused had been wonderful. [ 49 ] O.W. confirmed the sleeping arrangements as described by R.W. [ 50 ] Under cross-examination, O.W. was questioned at length about the living arrangements while the Accused was bound by a court order from Provincial Court, and another order by child welfare authorities, which limited his contact with children, including R.W. O.W. explained that during this period, the Accused was not allowed to be alone with R.W., and another adult had to be present. O.W. testified that at S.

Street, the Accused’s mother was almost always home, and until she passed away, the Accused’s grandmother was also always home. O.W. testified that her understanding was that as long as there was another adult present in the home, that that was sufficient to meet the requirements of the child welfare authorities’ terms. This did not mean that the adult was necessarily in the same room.

O.W. testified she was “very vigilant” about the restrictions and was not outside the home “a whole lot during this period”. [ 51 ] O.W. agreed that about a week before R.W. testified there was an incident where R.W. wrote on a mirror. R.W. had been cutting herself, and O.W. was worried about her. O.W. testified that after R.W. disclosed the abuse she was cutting herself more. O.W. testified that R.W. had always blamed herself for S.’s death. R.W. was also upset because her maternal grandfather had recently passed away to whom she had been very close.

O.W. described the mirror as a “big meltdown” and that R.W. could not “take it” anymore. O.W. testified that the Accused “got very mad” over the writing by R.W., as well as the fact that R.W. had taken pills. [ 52 ] O.W. disagreed that when she confronted the Accused, the Accused had told her and R.W. to go to the basement, and was adamant that the Accused stated “I fucked up” when she confronted him about what he had done. O.W. was certain that the Accused

said to not tell anyone and that he would “do anything” if they would not call the police. She agreed that when she came upstairs from the basement she told his parents that the Accused had “raped” R.W. The evidence of Constable Pelchat [ 53 ] Before Constable Pelchat took the stand, Counsel for the Accused objected to the admissibility of what Constable Pelchat heard the Accused state while escorting him to the car. This had not been raised as an issue prior to trial.

Counsel objected on the basis that there was insufficient context for the Court to determine the meaning of the words communicated to O.W. by the Accused (see R. v. Ferris , 1994 ABCA 20 ). Counsel submitted that O.W. did not recall the Accused’s responses to her. Counsel submitted that what the officer overheard did not accord with what O.W. stated was said by her.

Upon hearing from Constable Pelchat, and considering all the evidence called about the events on the day the Accused was arrested, I am satisfied that there was sufficient context surrounding the statements to make a meaningful assessment of the statement. The evidence of the exchange as overheard by Constable Pelchat was admitted. [ 54 ] Constable Pelchat testified that he was a peace officer with the Royal Canadian Mounted Police and stationed in the community where the offences were alleged to have occurred.

He testified that on May 9, 2017 at about 9 p.m. he received a call from “dispatch” advising that they had received a call from O.W. alleging that the Accused was sexually assaulting her daughter. The officer immediately drove with another officer to S. Street where he understood the Accused was located. He met O.W. outside the residence, and she advised that R.W. and the Accused were still inside the residence. O.W. advised her daughter was assaulted. The officers entered the residence and located the Accused in the basement.

The Accused was “upset” and “sad”. [ 55 ] Constable Pelchat testified they arrested the Accused for sexual interference and started to bring him upstairs to take him to the police vehicle. On the way to the vehicle, there was an exchange of words between O.W. and the Accused. O.W said to the Accused that she loved him and “Why did you do this to us?” Constable Pelchat testified that the Accused responded “I am so sorry”. Constable Pelchat testified that O.W. made another statement to the Accused that seemed to cause the Accused’s knees to give out from under himself, and he suddenly became weak.

The testimony of the Accused [ 56 ] The Accused then took the stand. He testified that he was born in 1984 and was thirty-five years old. He met O.W. through a friend. They moved in together, and lived at several locations. When he met R.W., she was about one and one half years old. [ 57 ] He testified that it was while living at P. Street that there was a car accident and they “lost” S. His mother had been driving at the time. S. was about 3 years old. The Accused testified that before S. was born, R.W. had a good relationship with his mother, but after S. was born, it “was all about S.”.

The Accused stated that he told his mother S. is not her only granddaughter. He testified that his mother favoured S. After S. passed the Accused testified that “we all kinda fell apart”. Every one took it hard. R.W. and his mother did not really have a relationship. [ 58 ] They moved to W. Street for a year, and then moved out because he was charged with offences. The Accused testified because of the charges he was on conditions including to not be alone with children. He testified that child welfare authorities also became involved in their life and would see them on a regular basis.

They too required that he not be alone with his own children. Initially it was just R.W., but that condition was extended to B. once she was born. [ 59 ] The Accused testified that he was grateful that O.W. continued to stay with him during this period and that “she had my back”. The Accused testified his relationship with O.W. was “great” and that they had “hard” times like anyone. [ 60 ] The Accused provided a floor plan that he drew of the layout of the basement at S. Street where he and O.W. and R.W. slept (D.C. #1).

The Accused testified “you could hear everything”, as there were no walls separating his and O.W.’s room, just sheets. However, R.W.’s room had actual walls. [ 61 ] The Accused testified it was “very hard” being on conditions. He could not be a “dad” anymore. He could see his kids day to day but could not do simple things with them and could not go anywhere with them without another adult. The Accused testified that this affected “him in his head”. It was hard to be emotionally affectionate with his daughters and he felt like he was always trying to “cover himself”, and he felt like he was always being watched.

He testified that R.W. was his daughter, and she wanted to do everything with her dad, and he felt like he couldn’t do this and would make excuses. He testified that O.W. would “back him up” when he would make excuses for not going somewhere with R.W. [ 62 ] The Accused testified that because of the conditions he was under, he was never alone with R.W. He testified that O.W. was “hard core” protective. If O.W. went to use the washroom, he would go upstairs.

If O.W. was not present, he testified that his parents were well aware and signed papers with the child welfare authorities agreeing to supervise the Accused as well when he was with children. The Accused testified that his mom was “a warrior”. [ 63 ] The Accused explained he had several occupations that were “pretty good” and they could afford things for the kids. But once he was charged, he had to take lower paying work. He and O.W. then started their own business, which he described as “amazing” but there was not as much money.

They were finally doing what they wanted and were making a go of it, and spending more time together. He said it was a “bit of a struggle” financially. When asked about the impact of this financial struggle on R.W., the Accused testified that R.W. loved the new business. The Accused testified that R.W. was used to getting what she wanted. [ 64 ] The Accused testified that the “last year” R.W. became a different person every day and he was worried about her mental health. One day she was happy, the next day she was cutting herself. She did not want to live at S.

Street anymore and asked why they could not get their own place. The Accused stated “we” would talk to her about “cutting” herself, and that they did not want to lose another daughter. The Accused testified that R.W. did not want to see a counsellor. The Accused testified that her sister’s death affected them all, but then R.W. also watched her grandfather die. The Accused testified that at times he just wanted to “squeeze her so tight” but because of the restrictions he never comforted R.W., and that O.W. did comfort R.W.

[ 65 ] The Accused testified that the restrictions placed on him regarding contact with children were removed about a month before the police were called. The Accused testified that the social workers came to the house and told him their “file was closed” and they had no concerns with his being a father and him being around his children. He testified it was the best news they could have heard. He said there was no real change but “a lot of stress came off”. The conditions from child welfare had been in place since 2010 or 2011 and were removed in 2017.

The conditions from court had been removed about a year before. [ 66 ] The Accused testified that he did not ever get mad at R.W., but would direct her if she was doing something wrong. The Accused testified the only time he got mad at R.W. was the incident when she wrote on the mirror that she had taken pills and was expressing that she was suicidal. This occurred about a week before she moved out with O.W. The Accused testified that he woke up and went to the washroom. The Accused described that he went to the washroom alone “freely, he could be a man”.

He saw writing on the bathroom mirror that read “I just want to die, kill me”. The Accused testified he jumped and ran to R.W.’s room across the hallway, not knowing what he was going to find. The walls of her room were also scratched up with words. The Accused testified that he was scared so he just started “flipping out”. He testified he started cursing and bawling at R.W. who responded “I’m taking the pills why won’t I die?” [ 67 ] The Accused testified that O.W. then woke up and saw the mirror. O.W. comforted R.W. He did not know if they needed to go to the hospital. He did not remember everything he said.

R.W.’s arms were cut but she was not bleeding. R.W. wanted to go to the hospital, but the Accused responded “No, no fucking way. CYFS just walked out of my life; we are going to deal with this at home, and we don’t need CYFS”. The Accused testified that because “CYFS” had just left them alone and had walked out of their lives, that was why he was mad. He did not want them back in their lives. [ 68 ] The Accused testified he knew R.W. was hurting and was depressed but testified that at the same time it was like she was in a competition with her friends for who had the worst life.

The Accused testified that R.W. told him that she would go live at a group home. The Accused stated it was like R.W. wanted a bad life. [ 69 ] On the day the police were called, the Accused testified that he had been tending to their dogs with O.W. He said O.W. suddenly came to him and told him they had to go home right away. They had to go pick up R.W., but O.W. would not give him any details except that there was an issue with R.W. O.W. dropped him at the residence and left again. When O.W. returned with R.W., she said to the Accused “What the fuck did you do to my little girl?” and was swearing at the Accused.

The Accused testified he responded by telling them to go downstairs. [ 70 ] Once downstairs in the basement O.W. repeated “What the hell did you do to my little girl” and the Accused asked what are you talking about, and also asked R.W., but R.W. did not say anything. O.W. was crying. The Accused testified that O.W. eventually pulled herself together and just said to him “You know what you’ve done”, and then to R.W. “Come on R. We are going.” [ 71 ] Once upstairs, O.W. said to his parents “your son raped my daughter, and your son has been raping my daughter for years”.

The Accused testified this was when he became aware that R.W. was accusing him of sexually abusing her. He testified that he did not know what happened after that and could not believe what he was hearing. There was a lot of noise, and O.W. stated she was going to call the police. Then O.W. and R.W. left the house. He chased after them. The Accused testified that his mind was blown at this point and he was cursing and said to them “what is going on? What the fuck is going on? How could you say that?” O.W. and R.W. were in the car when he went out.

The Accused testified that at first he was yelling at them outside the car but they ignored him. He testified that he got in the car and asked R.W. why would you tell your mother I raped you? O.W. then told him she was calling the “cops”. [ 72 ] The Accused testified that he stated to both R.W. and O.W. to not call the police, and “you do not know how serious this is”. The Accused testified that he said “sorry” to R.W. and that “I guess I’m a shitty dad” and “I guess I’m a fuck-up” to O.W. and R.W.

He testified he said he was sorry “for being a bad father” and “for ever” hurting R.W. [ 73 ] The Accused testified he “flipped out” because he did not think R.W. understood how serious it was for her to make an allegation like this. He testified that she might later say it was not true. He testified she was obviously not in her right mind. He left the car and slammed the door. He testified he did not remember much after that. He testified he went back to the house and was with B. A minute or two later the police arrived and he left with the police.

The Accused testified that that night while in custody, he thought that R.W. may say that none of the allegations were true, and that it would all be over. [ 74 ] When asked about what R.W. said about what happened at the other residences, the Accused replied “She is going all out”. The Accused denied engaging in any of the conduct of sexual contact described by R.W., and the Accused did not recall saying anything to O.W., including any kind of apology while walking to the police car.

The cross-examination of the Accused [ 75 ] Under cross-examination, when asked what he meant by the statement that R.W. was “going all out”, the Accused responded that when he learned of the scope of the allegations it was “much bigger” than he had originally thought. [ 76 ] The Accused was then asked about his testimony that while under the restrictions he “couldn’t be a dad”. The Accused explained that he felt like there were always eyes on him and he “couldn’t move”. He could not just walk into his daughter’s room without there having to be someone there.

When asked what he would do differently if there were not “eyes on him, the Accused testified that he would have behaved as he had when they lived on P. street. He testified that when his daughters were younger at P. Street he could play games with them, take them for a ride to the store, read to them, hug them or play games, kiss them or carry them on his back. Once they were living at S. Street and R.W. became a teenager the Accused testified she was not a little girl anymore.

The Accused testified that as a teenager “they are not cuddling like they are when they are little”. [ 77 ] The Accused was cross-examined as to how S.’s death impacted him. He responded that he was depressed and sad, and that he did not go back to work for a few months. He testified it was a comfort knowing that R.W. was still with them. R.W. had also been hurt in the accident. The Accused testified if he had lost her it would have been the end of he and O.W. While it was difficult dealing with the loss, the Accused agreed that the tragedy made him want to be closer to R.W.

When asked if he wanted to make it up to her in some

way, including making up for the restrictions imposed on him, the Accused testified that he could not, and all he could do was make the best of it given the conditions he was under, and was just thankful he still had her. The Accused confirmed that the conditions were in place from about 2011 onwards to 2017. [ 78 ] When asked if there was any occasion when he and R.W. were alone in the basement at S. Street, the Accused testified that there was never a time that he was alone with R.W. during this period. The Accused was one hundred per cent certain of this. The Accused testified that before S.

Street, and before he was on conditions, on W. and P. Streets, he could have been alone with R. W. [ 79 ] The Accused denied any sexual contact when specific incidents were put to him, stating they “never happened” after each of the specific acts to which R.W. had testified were put to him. [ 80 ] The Accused confirmed that the family had owned rats while on W. Street, and that R.W. used to play with the rats. The Accused could not recall any specific time that R.W. was in his and O.W.’s bedroom, but he was sure there was an occasion.

He confirmed that R.W. would have been in Grade 1 at that time. [ 81 ] The Accused testified that either he or O.W. would have put R.W. to bed at that time, and he denied that he had ever rubbed R.W’s. legs, but that O.W had so done. This would happen because R.W. would complain that her legs hurt.

The Accused also testified that he could not recall if he ever rubbed R.W’s back, stated that he never so did to put her to sleep. [ 82 ] The Accused agreed that initially O.W. was the only adult that was permitted to be supervising his access to children, but that later on, after O.W. explained it to them, his parents also agreed to “sign papers”. The Accused testified he did not know “the technicalities of it”. When asked if O.W. spent long periods of time away from home when her father was ill before he passed away, the Accused could not say.

It was suggested to him that one of the reasons his parents were named as someone who could be present with the Accused was because O.W. was spending so much time with her ill father at W. Street. The Accused testified that he could not recall when it was that his parents were approved as adults to be present with him, but he agreed that when O.W’s father was ill she spent longer periods away from home. [ 83 ] The Accused testified that his father worked, and was usually in bed by 10 or 11. The Accused agreed his father might be one to fall asleep in front of the TV.

His grandmother, who also lived there, was in bed by 9 p.m. He agreed his grandmother was hearing impaired and might have the TV up loud. His grandmother passed away about a year before R.W. moved out of S. Street. [ 84 ] The Accused was asked whether he ever took R.W. to see a counsellor about her cutting. The Accused testified that R.W. refused to go. The Accused was then asked why he would not take R.W. to the hospital when she wanted to go to the hospital the day of the mirror incident. The Accused responded “I knew that was what she wanted.

She wanted to be on suicide watch and I was afraid CYFS would be back in our lives”. The Accused disagreed that the reason he did not take R.W. to the hospital was because she might see a counsellor and disclose the alleged abuse. The Accused testified that both he and O.W. did not want to take R.W. to the hospital. The Accused testified that “CFYS was out of their lives”, and they could be a normal family. If they took R.W. to the hospital this would bring them back into their lives. The Accused testified R.W. had told them she had taken 15 “Tylenol”.

He testified because of this, he “knew she was not in danger”. The Accused agreed R.W. could have taken more pills than what she had told them. The Accused stated in hindsight maybe he should have taken her to the hospital. The Accused agreed the year R.W. was cutting herself was the year the family was in a “worse” financial situation. [ 85 ] The Accused was asked what he meant by his testimony that he could wake up and use the washroom and “be a man”.

The Accused explained that it meant he could use the washroom and not have to wake O.W. up. [ 86 ] When asked what was going through his head when O.W. confronted him about the allegations, the Accused stated that he had no idea what it was about and assumed it was about when he had become angry with R.W. on the day of the mirror incident. The Accused testified that he had never done anything bad to R.W. [ 87 ] When asked why he stated that R.W. was not in her right state of mind, the Accused responded “Because of the accusations.

Why would someone say that if they were in their right state of mind?” The only thing he could think of as to why R.W. did not want to live with him anymore was because of what happened with the mirror incident. [ 88 ] When asked about the apology to R.W. and O.W., the Accused stated he was not apologizing for sexually abusing R.W., but was apologizing for any time he may have hurt R.W. The Accused agreed he may have said at one point that he was “better off dead”. The testimony of T.C. [ 89 ] T.C. is the father of the Accused.

He testified that he was a spectator at the preliminary inquiry conducted in relation to the allegations, and heard all of the testimony. [ 90 ] He confirmed the sleeping arrangements as described by the other witnesses. T.C. testified that “CYFS” had placed restrictions on the Accused and he was not to be alone with children. He could not recall what year this happened. He testified that the family worked together, and “knew the implications”. T.C. testified that he understood that the Accused had to be upstairs if the children were downstairs, and vice versa.

If the Accused went somewhere where the children were, an adult had to be present. T.C. was not aware the restrictions were ever removed, and believed they were always in place. [ 91 ] On the day of the confrontation, T.C. testified that he and his wife were with B. at home and were advised to get B. ready. He did not say by whom he was advised to do this. He understood that O.W. was upset, but he did not know why. O.W. came home, and was furious. Not much was said, and then the Accused and O.W. went downstairs. T.C. described everyone as being distraught. O.W then came back upstairs and said “call the police”.

Everyone was crying. O.W. then said “Your son has been raping my daughter for years”. R.W. was in the porch, and T.C. went to console her. T.C. testified that he was concerned for R.W. that she would hurt herself. He was concerned that he may not get another opportunity to speak to her. T.C. testified that the police came and the Accused went with them. There was commotion on both sides.

[92] T.C. testified that he worked 8 to 4:30 and went to bed 11 or 11:30. He agreed he might fall asleep watching TV in theevenings. He testified that to his knowledge the Accused was never alone with the children but agreed it was possible he might notknow. He testified he could only speak to what he knew. He agreed it was a few months before he and his wife also became responsiblefor ensuring the Accused was not alone with the children. He testified that the fact that they agreed to this responsibility did not changethings in the home. [93] T.C. confirmed that his bedroom was above R.W.’s.

ISSUES [94] The issue in this case is whether or not the evidence has established beyond a reasonable doubt that the offences occurred. Toaddress this, it will be necessary to resolve the conflicts in the evidence. THE STANDARD OF PROOF IN A CRIMINAL TRIAL [95] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40).

It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences. On the criminal standard, a court must be satisfied well beyondthis level of certainty. [96] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also be cognizantof the instruction in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

This approach is to ensure that in a case where theremay be competing versions as to what occurred, the court does not fall into the trap of simply choosing between the two contestedversions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework of W. (D.). [97] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [98] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [99] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine whether the evidence supports beyond a reasonable doubt that the offences occurred. [100] In this case, there is conflicting evidence; not only between R.W. and the Accused as to what happened, but also between all thewitnesses with respect to their observations of the events.

It is helpful to review what the law says about the assessment of the credibilityof witnesses and their evidence before discussing the evidence that I accept. The assessment of credibility [101] The assessment of the credibility of a witness, as well as the veracity of a witness’ testimony, is not a formulaic process; but theculmination of a number of considerations such as, but not limited to, how the witness responded to questions. Were they argumentative,evasive or forthright? How was their recall?

What was their opportunity to observe the event, and were there inconsistencies in theirevidence standing alone, or in relation to the other evidence called? In assessing the witnesses, I also keep in mind the words of theSupreme Court of Canada in R. c. Gagnon, 2006 SCC 17, at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [102] I also keep in mind the further comments of our Court of Appeal in R. v. K.P., 2019, NLCA 37, at paragraphs 42 and 47. Referring to their previous decision of R. v. Best, 2016 NLCA 10, I am reminded that as the trial judge, I may accept all, some or none ofthe evidence of a witness. In R. v.

S.O., 2019 NLCA 42, at paragraph 16, Hoegg, J.A, speaking for a unanimous court, stated that theassessment of credibility of the witness is the “province” of trial judges, and “many factors inform the result”. At paragraph 17, Hoegg,J.A. stated further: This Court addressed the issue in Stassis v.

Amicus Bank, 2014 NLCA 38 , 356 Nfld. & P.E.I.R. 80, wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions … …The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial judge with a divining insight into the hearts and minds of the witnesses… [103] As stated by McLachlin, C.J. in R. v.

M. (R.E.), 2008 SCC 51, at paragraph 49, “assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization”. I also keep in mind that witnesses may have differing

perceptions of the same event. This seems to be particularly the case with respect to the differing accounts of R.W., O.W. and theAccused with respect to the confrontation with the Accused over the allegations. [104] I am also mindful that in assessing the evidence of R.W., she is still a child. She is testifying to memories of events when she waseven younger: between the ages of 5 and 11 years. The Supreme Court of Canada in R. v.

W.R., (SCC), [1992] 2 S.C.R.122 has cautioned trial judges to approach the evidence of children with “common sense”; taking into account that it may not beappropriate to assess the credibility of the testimony of a child on the same standards as an adult.

After noting that there has been achange in the criminal law respecting the evidence of children in that there is no longer a presumption that such testimony is “inherentlyunreliable”, and corroboration of such testimony is no longer required, at paragraph 25 of W.R., McLachlin, J., as she then was, stated: The second change in the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adulttests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children.

Sincechildren experience the world different than adults, it is hardly surprising that details important to adults like time and place may bemissing from their recollection. [105] This is not to say that the evidence of children is not subject to the same standard of proof. An Accused is presumed innocent,and that presumption is not set aside unless the evidence establishes beyond a reasonable doubt that the elements of the offence havebeen proven. Nor does it mean that the evidence of a child might not warrant “caution’, in the appropriate circumstances, in assessing itsreliability.

The direction is instead to approach the evidence of children without the perspective of rigid stereotypes (W.R., at paragraph26). At paragraph 27 of W.R., McLachlin, J. stated: It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed to “adult” or “child”standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those to which the recent developments in thelaw’s approach to children’s evidence have been designed to dispel.

Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate. [106] And while the credibility of an adult testifying as to childhood events must be assessed “according to criteria applicable to adults”,at paragraph 27 the court advised that with regards to adult evidence of events as a child: …the presence of inconsistencies particularly as they relate to peripheral matters such as time and location, should be considered in thecontext of the age of the witness at the time of the events to which she is testifying. [107] With the above guidance, I will review my findings with respect to the assessment of the witness evidence.

ANALYSIS The assessment of the credibility of R.W. [108] I found R.W. to be a forthcoming and honest witness. She listened carefully to the questions and was never argumentative. Forexample, on cross-examination she agreed with counsel that because of the Accused’s angry reaction to the incident of her writing on thebathroom mirror that she had taken many pills, she was upset with him and wanted to move out of S. Street. She also readily admittedthat she felt as if her grandmother (the Accused’s mother) treated her less favourably because she was a stepdaughter, not a biologicaldaughter of the Accused.

She also agreed that she blamed herself for her sister’s death in the car accident. [109] R.W. was also cross-examined at length about the disclosure of the alleged abuse. I found R.W.’s explanation credible andbelieve her testimony that she did not disclose because she was mad at the Accused. To the contrary, R.W. was clear that she wasconcerned about her younger sister and that what happened to her might happen to her sister. R.W.’s concern was that “something”could happen because the Accused was no longer bound by any kind of order limiting his contact with children.

Whether correct or notin her concern, I found this a plausible explanation for the timing of the disclosure. [110] I also found R.W. a compelling witness notwithstanding that there were inconsistencies in her evidence between her statement tothe police, her testimony at the preliminary inquiry, and at trial. In my view, many of these inconsistencies were minor, and with regardto peripheral matters. They were also not so much inconsistencies as events or details that R.W. had simply forgotten or was mistaken.

For example, it is clear that R.W.’s recollection of where the family lived, and when, conflicts with the testimony of both O.W. and theAccused. R.W. remembered the first incident being on W. street, but it was clear from O.W. and the Accused that the family lived onW. street after they lived on P. Street where R.W. testified to a subsequent incident occurring. I am satisfied that R.W. is incorrect in herevidence as to when the family lived on W. Street.

This is an honest mistake, and not the kind of error that undermines her credibility,(as per W.R.). [111] I have also considered that there were differences within her testimony on some of the details of the sexual contact as to whencertain events occurred. I accept that some of these differences are on matters that are not peripheral as they pertain to the detail of theallegations. R.W.’s responses and explanations for differences were reasonable.

When the purported inconsistencies are examinedclosely, the differences are minor, if at all. [112] For example, R.W.’s trial testimony that the incidents always occurred in the bedroom was alleged to be inconsistent with herprevious testimony that there was an incident that occurred in the living room. R.W. candidly admitted that she had “forgotten” aboutthere being an incident in the living room. She explained that the incident started in the living room, but that she wanted to go to thebedroom, so the Accused carried her there.

I accept her explanation and do not find this a troubling inconsistency. [113] It was also alleged that R.W. was inconsistent as to whether or not she saw the Accused’s penis. At trial she stated she did not seethe Accused’s penis, however it was suggested to her that on a previous occasion she testified that she had seen his penis during aparticular incident. When confronted with this discrepancy, R.W. was frank that she recognizes she stated this on a previous occasion,but does not remember now seeing his penis. I believe her when she states she no longer remembers.

[114] I also do not find R.W.’s statement at the preliminary inquiry that there were “about twenty incidents”, and that the touchinghappened “one to two times per months” troubling, or inconsistent with her trial evidence that there were about 15 to 20 incidents. Thereis no doubt there is a difference between 120 times (if the incidents happened twice a month between the ages of five and eleven), and 15to 20 times overall. Given that R.W. is still a child, only 15, and testifying about her recall of intermittent touching that occurred betweenthe ages of 5 and 11, I do not find this a troubling discrepancy.

Her reference to “about two times a month” in her preliminary inquirytestimony may simply be how she has recalled the frequency of the incidents without considering how often two times per month meansin terms of years, which may be difficult to do as a child. It is also just an estimate, on her part. R.W. was consistent that the contactwas not an isolated or occasional incident, but was ongoing and progressed to more intrusive contact as time went on. [115] R.W. was also supported by the other witnesses on many details.

While R.W. mixed up the timing of one address, her descriptionof the layout of the rooms at the various residences, what pets they had and when, and who was sleeping where, was consistent with boththe Accused’s and O.W.’s testimony. R.W. was supported by the other witnesses in her narrative generally about when events occurred,such as the car accident and when her grandfather passed away, and was supported by both the Accused and O.W. [116] R.W. was also supported that there was a confrontation between O.W. and the Accused in the basement of S. Street in thepresence of R.W.

While there were differences between R.W., O.W. and the Accused as to the exact sequence of events or what wassaid, this is not at all surprising. This was a highly charged situation and everyone testified that they were upset and emotional. I haveconsidered that R.W. was the only one who testified that the Accused explicitly stated that he had sex with her in front of O.W. Thisdiffers from O.W.’s testimony.

O.W. testified that the Accused responded to her demands, that he was sorry, and “he fucked up”; notthat “I fucked her” as per R.W.’s evidence. [117] I am of the view that R.W. may be mistaken as to what was said. This is an honest error and does not reflect poorly on R.W.’scredibility.

I accept that she was testifying honestly to what she believes was said by the Accused. [118] What was consistent between R.W. and O.W. was that there was a confrontation, in which O.W. demanded from the Accused toknow what had he done to R.W, and that the Accused responded by apologizing and pleading with O.W. and R.W. not to call the police. [119] When I look at the totality of R.W.’s evidence at trial, and consider the particulars of the purported inconsistencies that were putto her, I do not find these inconsistencies cause me concern about R.W.’s credibility, or the reliability of her overall account.

In myview none of the inconsistencies raised, whether from the portions of her preliminary inquiry testimony or her statement to police, wereof the kind that causes me concern as to whether or not her testimony as to the sexual contact that occurred between she and the Accusedwas credible and reliable. [120] R.W. was consistent that she experienced sexual contact by the Accused, starting when she was five or six years old, thatprogressed to full intercourse when she was eleven years old. R.W. described specific incidences of progressively more intrusive sexualcontact.

As per the approach taken by the Newfoundland and Labrador Court of Appeal in R. v. M.L., 2019 NLCA 33 at paragraph 42, Iam satisfied that despite the minor inconsistencies, “the allegations remained intact” (see also paragraphs 38-53). The assessment of O.W. [121] I found O.W. to be a credible witness. Although the reliability of her recall was affected by her emotional state while testifying,she was honest about her recollection; particularly as it related to the confrontation with the Accused when she learned of the allegationsfrom R.W.

I found that she favoured neither the Accused nor R.W. in her account of events, but instead, in my view, testified candidly asto what she recalled. I accept her as a credible witness. The assessment of the credibility of T.C. [122] I also found the evidence of T.C., the Accused’s father, relatively uncontentious. While I am circumspect as to the weight thatcan be accorded his testimony, if any, given he had sat through the testimony of the Preliminary Inquiry (R. v.

Dobberthien, (SCC), [1975] 2 S.C.R. 560), upon hearing and observing T.C. testify, I found him to be straight forward about what he did and didnot remember. However, he did not provide much detail, and his recollection did not seem as certain as that of other witnesses, such asO.W. [123] For example, T.C. could only state that there was a lengthy period in which the Accused was not supposed to be alone withchildren, as required by child welfare authorities and the court. He could not provide details about the requirements.

He did not knowwhen it was that he and his wife also became responsible for ensuring the Accused was not alone with children, and thought that theconditions remained in place. [124] T.C. was candid that while as far as he was concerned, the Accused was never alone with the children, he could not say with 100per cent certainty that this was in fact what occurred (unlike the Accused who was 100 per cent certain he was never alone with R.W.during this period). The assessment of the testimony of the Accused. [125] The Accused testified in detail about many of the events.

He had detailed recall about some events such as the impact of S.’sdeath on the family and how the family managed during that time. He also gave a detailed history of where the family lived thataccorded with O.W. The Accused was, for the most part, calm and paused at length before responding to questions both under directand cross-examination. [126] But he was also evasive in his answers at times. His evidence is also difficult to reconcile with, not only with his own testimony,but of other witnesses as well.

It lacked an internal logic in its own narrative – particularly his account of what happened on the day of

his arrest. I also found that his testimony was not credible in relation to the day of arrest, as well as the circumstances of the restrictions placed on him. [ 127 ] For example, while I accept that there were restrictions in place while he was living at S. Street, his assertion that over the course of six years, there was never a time that he was alone with R.W. is not credible.

I accept that the family wanted to be vigilant in adhering to the restrictions; but a common sense understanding of the realities of family life and the unexpected events that take place on a day to day basis do not support that there was never a time when the Accused was alone with R.W. in a room. I find the proposition neither probable, or even plausible. Nor does it accord with O.W.’s evidence. [ 128 ] I accept O.W.’s evidence that in terms of being at home, her understanding was that as long as an adult was present in the home this was appropriate.

This makes sense given months passed before the grandparents were added as appropriate adults to be present with the Accused. I accept that O.W. was spending large periods of time away from home with her father who was ill and so for the Accused to be able to be in the house with the children other adults would need to be added as supervisors. [ 129 ] There was no record of the actual conditions placed before the court.

I accept that O.W.’s understanding is more likely how the restrictions were treated by the family. [ 130 ] More significant, I found the Accused’s recounting of what happened on the day of his arrest confusing and difficult to reconcile both with the other witnesses and his own testimony. The Accused’s account of the exchange in the basement between he and O.W. is not credible.

I do not find it credible that when O.W. demanded “What did you do to my daughter?” that the Accused did not know what O.W. was referring to; but the Accused thought the only issue was the incident when he got angry at R.W. for writing on the mirror and taking pills. This explanation lacks internal logic. It makes no sense that this would be the issue, given that O.W. was present for that incident and so knew of those details.

There would be no need for her to be demanding of the Accused anything about that incident, or be upset and crying. [ 131 ] I accept O.W.’s testimony, with which R.W.’s account also generally agrees, that the confrontation that took place in the basement was that O.W. demanded of the Accused what he had done, and he knew exactly what she was talking about; and apologized and stated that he “fucked up”.

I accept that he apologized directly to O.W. for what had happened. [ 132 ] His account was also difficult to balance with the other evidence, as the Accused’s testimony was that the bulk of the exchange between he and O.W. took place in the car after O.W. and R.W. left the house. It is clear that at that point he knew exactly what the allegations were, as T.C. had confirmed that while in the kitchen, O.W. yelled that the Accused had been raping R.W. for years. This would be before the Accused got into the car with R.W. and O.W., according to the Accused.

According to O.W., there was an exchange in the car, but that was when she and R.W. first arrived home. I accept that it is possible the Accused was referring to that exchange, when O.W. and R.W. arrived home. At that point he may not have understood the specifics of R.W.’s complaint, but I do not accept his evidence that he did not understand what R.W. was alleging after the confrontation in the basement.

When I consider all the evidence, I do not find his assertion that he did not appreciate the tenor of R.W.’s complaint until O.W. yelled at his parents credible or plausible. [ 133 ] With regards to his utterance “I’m sorry”, as overhead by Constable Pelchat in response to O.W.’s yelling “Why did you do this to us?”, I am satisfied that at that point the Accused knew fully well the situation, and was responding to O.W.’s question. I do not believe the Accused that he has no memory of this.

However, I do have concern, given the broad tenor of O.W.’s question that this particular “I’m sorry” can be construed as an apology specifically for abusing R.W. In my view, this was unlike the earlier exchange privately between he, O.W. and R.W.

In the basement, when he was pointedly asked what he did, he admitted he had “fucked up” and said I’m sorry and pleaded with O.W. to not call the police. [ 134 ] For this reason I place little weight on that particular utterance on the way to the car as an admission by the Accused. [ 135 ] Given the circumstances as they unfolded at the house, for the Accused to suggest that if he apologized, it was in a “general sense”, or for getting mad at R.W. about the mirror incident, is not credible. This would not explain why he would say “I am better off dead” and to try and convince R.W. not to call the police.

Both R.W. and O.W. testified to this being said and I accept that the Accused did say these things. [ 136 ] Nor do I find credible his assertion that he believed R.W. was “out of her mind”, in the sense she did not realize the magnitude of what she was doing and this was why he was trying to persuade her to not call the police. To the contrary, and having heard all the evidence, I am satisfied that R.W. knew the magnitude of making the complaint. She was concerned about her sister and this was her motivation for disclosing to her mother.

This makes logical sense as the disclosure occurred soon after the Accused had his restrictions at home removed. I accept this change in the living arrangement was what caused R.W.’s concern that there was nothing to prevent him from being alone with B. [ 137 ] To be clear, there is absolutely no onus on the Accused to explain why R.W. would make a complaint, but the Accused testified that he was trying to dissuade R.W. from calling the police because he did not think she realized what she was doing.

I do not accept that as credible. [ 138 ] Having considered the Accused’s evidence with all the evidence, I do not find him credible. I do not believe him when he says he did not have sexual contact with R.W. I also do not find that his evidence raises a reasonable doubt as to whether the offences occurred. In considering all of the evidence that I do accept, I am satisfied all counts have been established beyond a reasonable doubt. Count 1 – touching for a sexual purpose between Jan, 1 2007 and December 31st, 2012

[ 139 ] Count 1 is the allegation that the Accused touched R.W. for a sexual purpose. I am satisfied that the Accused rubbed R.W.’s vagina while she was very young, between five and six years old. I accept it is more likely than not that this happened on several occasions while the family lived on P. and W. Streets. However, “more likely than not” is not enough to find guilt on the criminal standard.

However, I am satisfied beyond a reasonable doubt that the touching occurred on three occasions, the first incident as described by R.W. occurring when she was five or six years old, the second incident described when she was in grade four, and the third specific incident that R.W. confirmed in cross examination and re-direct examination that started in the living room and finished in the bedroom. I find the Accused guilty of Count 1.

Count 2, - touching for a sexual purpose; Count 3, invitation to sexual touching; and Count 4, sexual assault [ 140 ] With respects to Counts 2, 3 and 4, these counts refer to conduct that occurred while the family was living on S street. I accept R.W.’s testimony that there were at least two incidents of intercourse that occurred while living on S. Street. This establishes both Count 2 and Count 4. [ 141 ] With respect to Count 3, in the first incident of intercourse, R.W. testified that the Accused took her hand and placed it on his penis.

I am satisfied this constitutes an invitation to sexual touching and find him guilty of Count 3. However, I will hear from Counsel as to how this offence should be treated as it forms part of the conduct that constitutes Counts 2 and 4. CONCLUSION [ 142 ] I am satisfied beyond a reasonable

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