R. v. A.W., 2022 NLSC 146

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. A.W. , 2022 NLSC 146 Date : October 7, 2022 Docket : 202003G0175 HIS MAJESTY THE KING v. A.W. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Trudy L.

Button Reasons for Judgment Given Orally Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: September 20, 2021; August 8-10, 2022; October 6-7, 2022 Date of Oral Judgment: October 7, 2022 Appearances: Tina M. Walsh, K.C. Appearing on behalf of the Crown Stephanie Roberts Appearing on behalf of the Crown

Geraldine Castle-Trudel Appearing on behalf of the Accused CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. S. (J.H.), 2008 SCC 30; R. v. Mah, 2002 NSCA 99; R. v. Hemmers (1985), 10 O.A.C. 213,14 W.C.B. 270; R. v. Chase, (SCC), [1987] 2 S.C.R. 293. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Criminal Code, R.S.C. 1970, c. C-34.

REASONS FOR JUDGMENT Button, J.: INTRODUCTION [1] A.W. is charged with the following offences: Count #1 THAT on or between the 1st day of January, A.D. 1975, and the 3rd day of January, A.D. 1983, at or near the Town of B. in the Provinceof Newfoundland and Labrador, did indecently assault C.W., a female person, contrary to

Section 149 of the Criminal Code. Count #2 THAT on or between the 4th day of January, A.D. 1983, and the 11th day of December, A.D. 1988, at or near the Town of B. in theProvince of Newfoundland and Labrador, did commit a sexual assault on C.W., contrary to

Section 246.1 of the Criminal Code. Count #3 THAT on or between the 1st day of January, A.D. 1989, and the 14th day of February, A.D. 1989, at or near the Town of B. in theProvince of Newfoundland and Labrador, being in a position of trust or authority towards C.W., a young person, did for a sexualpurpose, touch directly the body of C.W., a young person, with a part of his body contrary to Section 153(1) of the Criminal Code. Count #4 THAT on or between the 12th day of December, A.D. 1988, and the 31st day of December, A.D. 1990, at or near the Town of B. in theProvince of Newfoundland and Labrador, did commit a sexual assault on C.W., contrary to

Section 271 of the Criminal Code. [2] A fifth charge against A.W., under section 244(1) of the Criminal Code, R.S.C. 1985, c. C-46 was dismissed at thecommencement of the trial after the Crown informed the Court that no evidence would be called in relation to this charge. [3] The trial commenced on September 20, 2021, but was postponed following direct examination of the first witness to provideDefence counsel the opportunity to file an application to address disclosure related issues. CRIMINAL CODE [4] The provisions of the Criminal Code in force at the relevant times, are as follows: Count #1 149.

(1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years. Count #2 246.1

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for ten years; or (

b) an offence punishable on

summary conviction. Count #3 153.

(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in arelationship of dependency and who

(

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person; is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on

summary conviction. Count #4 271.

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. 1980-81-82-83, c.125,s.19; 1987, c.24, s.10. THE EVIDENCE Background [ 5 ] This case concerns allegations by the Complainant of historical indecent assault, sexual assault and touching for a sexual purpose by her father. The Bill of Indictment alleges that the offences commenced in 1975 and continued until 1990 when the Complainant left home. A.W. denies the charges. [ 6 ] There were three witnesses at trial, the Complainant, C.W., Katherine Sweet, a retired probation officer and the Accused, A.W.

The Evidence of Katherine Sweet [ 7 ] Katherine Sweet worked with the Adult Probation Office in Grand Falls-Windsor in excess of 20 years. She retired from her position on December 31, 2020. Ms. Sweet gave evidence regarding an interview she had with A.W. in preparing a Pre-Sentence Report on A.W. in relation to another matter, and her referral to the Royal Canadian Mounted Police (“RCMP”) as a result of that interview. [ 8 ] Ms. Sweet explained that her role as probation officer included supervising individuals subject to Probation Orders and Conditional Sentence Orders.

As well, she was responsible for preparing Pre-Sentence Reports for the Court for individuals being sentenced. [ 9 ] Ms. Sweet’s evidence is that in preparing a Pre-Sentence Report, a “formal caution” is not provided to the subject individual during the interview process. However, the subject individual is informed that whatever information they provide will be included in the report. [ 10 ] Ms. Sweet testified that during an interview with A.W., she shared information with him that had been provided by two of his daughters regarding his past behavior. In sharing this information with A.W., Ms.

Sweet’s evidence is that A.W. was surprised by what his daughters said, but “admitted that he did touch them from time to time, here and there”. Ms. Sweet’s evidence is that she advised A.W. that he should refrain from speaking any further because she may have a duty to report what he said. When questioned as to why she stopped A.W. from speaking further regarding the allegations made by his daughters, Ms. Sweet testified that what a person says in an interview may result in charges or she may be under a duty to report, as in the case involving children. Ms.

Sweet believes she suggested that A.W. should talk to his legal counsel. [ 11 ] Subsequent to her interview with A.W., Ms. Sweet’s evidence is that on January 18th or 19th, 2018, she wrote a letter to Judge Linehan to provide the information A.W. disclosed to her. Ms. Sweet also wrote a letter to Sergeant Bryan with the RCMP on January 19th, 2018 informing the RCMP that A.W. admitted to having touched his daughters “here and there”. [ 12 ] On cross-examination, Ms. Sweet testified that her impression of A.W. was that he was not well educated and that she had to explain everything to him.

She could not recall if he had hearing difficulties, but at no time did he advise her that he couldn’t hear her. Ms. Sweet was unsure if A.W. could read or write. Ms. Sweet acknowledged that the information contained in the Pre-Sentence Report regarding A.W.’s grade three level of education, illiteracy, and mental health issues, raised “red flags”. [ 13 ] Ms. Sweet acknowledged that there was no definition as to what was meant by A.W.’s “admission to touching”. Ms. Sweet’s evidence is that at the point A.W. admitted to touching his daughters, she advised him to say nothing further. Ms.

Sweet explained that it is not her job to start asking questions. When challenged on cross-examination, Ms. Sweet denied that she formed an opinion as to the inappropriateness of the touching, her evidence is that was for others to determine. [ 14 ] On re-examination, when questioned as to why the “touching” was such that she had to report it, Ms. Sweet testified that it was difficult to explain, but it was the way A.W. presented and what he said. She sensed that the touching may have been inappropriate, but reiterated that was not for her to determine.

The Evidence of the Complainant, C.W. [ 15 ] The Complainant was born on […], 1971. A.W. is her father. The Complainant is the third oldest of eight children. She grew up in a small community in Newfoundland and Labrador and lived in the same house until 19 years of age when she started a summer job and moved to live with her paternal grandmother. At the end of the summer, she moved to live with her oldest sister. [ 16 ] The Complainant described her childhood home when she was quite young, as consisting of a kitchen, bedroom and bathroom.

Part of the house had been partitioned off and at some point the living room and another bedroom on the main level of the home was renovated as the family grew. A third bedroom was later developed on the second level of the home. The only other area on the second level was a crawl space. [ 17 ] The Complainant described sharing the bedroom off the kitchen with her two older sisters. The Complainant explained that at some point her parents stopped sleeping together.

Her mother moved into the bedroom off the kitchen with her and a number of her siblings and her father starting sleeping on a small bed in the living room. He later started sleeping on the couch. [ 18 ] At some point there were three beds in the bedroom off the kitchen. As the family grew, she shared this bedroom with her mother, older sister, two younger sisters and youngest brother. Her two other brothers shared a bedroom upstairs.

Her oldest sister had her own bedroom off the living room. [ 19 ] On cross-examination, the Complainant acknowledged that there was a doorway between the kitchen and the living room creating an open area with the ability to view both rooms. [ 20 ] The Complainant’s oldest sister was the first to leave home. Her second oldest sister moved to Ontario at the age of 17 at which time the Complainant got her own bedroom at the age of 16. This bedroom had a door. At some point the house was renovated and her bedroom was converted to a bathroom.

Her second bedroom had a curtain in place of a door. [ 21 ] The Complainant’s evidence is that at a fairly young age A.W. touched her sexually. She thinks she was four to five years of age when A.W. first touched her. The Complainant described A.W. sitting on the couch with his legs curled up on the couch to create a triangle with his legs. She was sitting in the area between his legs created by the triangle. While sitting on the couch in this manner the Complainant’s evidence is that A.W. touched her “private area”, between her legs in the front.

In describing her earliest memory the Complainant could not recall if A.W. touched her over or under her clothes. [ 22 ] The Complainant testified that A.W. touching her continued until she was 19 years of age. She was unable to estimate the number of times A.W. touched her from the time she was four or five years of age to 19 years of age. From the time she was four to five years of age until her pre-teens, A.W. touched her vaginal area over and under her clothes when she sat on the couch with him in the triangle area created by his curled up legs.

After her second oldest sister left home the Complainant testified that A.W. would come into her bedroom at night. He would massage her feet and legs and work his way up and touch her under her clothes between her legs. [ 23 ] The Complainant testified that when she was in the bedroom that had the door, she started using a piece of wood to put against the door to keep A.W. from coming into her bedroom at night. This stopped when her mother told her she couldn’t use the piece of wood because it created a fire hazard.

Subsequent to this, the Complainant testified that A.W. gave her a sliding steel lock which came from the shed. Her evidence is that he told her it was to keep him from coming into her bedroom. However, within a couple of weeks A.W. removed the lock. [ 24 ] The Complainant testified that she told her mother about A.W. touching her, but her mother did nothing. On cross-examination she testified that after supper her mother spent a lot of time outside the home, visiting a friend. [ 25 ] The Complainant described A.W. as the disciplinarian.

Her evidence is that he didn’t have to say anything, he gave a look and you knew you had to obey. If he was going to discipline her or her two older sisters they would have to get a stick or “switch”. He did not discipline her younger sisters in this manner. The Complainant could not recall if her brothers were disciplined in this manner. [ 26 ] On cross-examination, the Complainant was challenged regarding the positioning of A.W. on the couch and his ability to physically maintain his position and touch her in the manner she described. The Complainant explained that the couch was large enough to sit four people.

She thought it had three cushions, but could not recall the color of the couch. It was a plain couch with no decorative pillows. A.W. would sit with his legs curled up on the couch, facing forward. He would be seated on the right hand side of the couch if facing the couch. His left arm would be resting along the back of the couch by the arm of the couch to balance himself. His right arm would be positioned along the back of the couch.

His hand would slip in between her legs. [ 27 ] During cross-examination Defence counsel positioned herself on the Court counsel table, and proposed to the Complainant that her position on the table was comparable to a couch stating that her demonstration showed that it would not be physically possible for A.W. to maintain that position and touch her in the manner she described.

The Complainant was not swayed by Defence counsel’s demonstration, noting that unlike the table, the couch had a back and an arm on which A.W. could balance himself. [ 28 ] When questioned as to who she saw around the house while she was sitting on the couch with A.W., the Complainant’s evidence is that she wasn’t paying much attention, she wasn’t saying or doing anything, she was “just there”. [ 29 ] The Complainant described the last incident where A.W. touched her. At that time she was 19 years old and had her own bedroom off the living room.

There was no door to this bedroom but there was a sheet covering the doorway. The Complainant testified that A.W. entered the room, pulled down her pajamas and panties and touched her between her legs. She asked him why he was doing this, at which time he stopped and left the room.

This was the first time the Complainant ever said anything to A.W. about what he was doing. [ 30 ] When questioned as to whether there had been any penetration the Complainant testified that the only penetration she recalled was the last incident when she was 19 and A.W. used his fingers to penetrate. [ 31 ] The Complainant described one other specific incident. She could not recall how old she was, but felt it was before her teens. On cross-examination, she testified that she thought she may have been eight or nine years old. The Complainant testified that she had a friend sleeping over.

They were sleeping on the floor in the living room. A.W. was sleeping on a small makeshift bed in the living room. The Complainant recalled going to sleep on the floor with her friend and waking up in the small bed with A.W. in the living room. She had no clothes on and A.W. was touching her between her legs around her “privates”. Her friend was gone. The Complainant has no recollection of talking to her friend about why she left during the night.

[ 32 ] The Complainant described A.W. observing her using the bathroom in a number of ways, including, through a hole he had chiseled out at the top of the hinge in the bathroom door, a hole in the attic floor above the bathroom, and one time he looked through the bathroom window. [ 33 ] The Complainant testified that A.W. also touched her breasts. She described him as touching her breasts with his hand as he walked past her while blowing her a kiss and looking her up and down. This touching was over her clothes. The Evidence of A.W. [ 34 ] A.W. is 74 years old. He has some difficulty hearing.

At the commencement of the trial he was provided with a court assisted hearing device. The hearing device was also provided to him at the commencement of his evidence, but he chose not to avail of the device in giving his evidence. He was advised to make it known if he did not hear or understand a question. [ 35 ] A.W. is retired. He never had steady employment, but worked “off and on”, mostly as a carpenter. The family was often supported by social assistance. [ 36 ] A.W. described the house in which he and his wife moved into with their eldest child about 50 years ago.

The ground floor had two bedrooms, one off the kitchen and one off the living room. At that time there was nothing in the attic upstairs. However, later the second floor was used as a bedroom by two of his sons. [ 37 ] There were eight children in the family. A.W.’s wife did not work outside of the home. A.W. testified that his wife seldom went anywhere, they had no relatives living in the area and when the children were young his wife had no friends in the community.

However, later she became very involved with the church and now has friends through the church. [ 38 ] A.W. testified that his wife was mostly responsible for disciplining the children. On cross-examination, he testified that he never used a “switch” to discipline the children. However, he would sometimes joke around with his two oldest daughters and tell them to get a “switch”, but he definitely would never have used a “switch” on the children. [ 39 ] A.W. denied that the Complainant ever sat on the couch with him in the manner she described. A.W. denied touching the Complainant sexually in any way.

He testified that he never touched the Complainant’s vagina or any part of her body in a sexual way. He never hugged the Complainant and testified that he is not the “hugging” type. He never kissed any of the children. A.W. testified that he was not raised in a loving family. [ 40 ] A.W. testified that the only time he touched the Complainant was on the knee. When questioned on direct examination why he touched the Complainant on the knee, A.W. was initially vague and evasive. He then recalled an incident where the Complainant fell and hurt herself, but he didn’t know it.

He was asleep on the couch it was late at night and he heard her moaning and groaning so he went into her room and touched her on the knee. He testified that she was sexually abusing herself. [ 41 ] On cross-examination, A.W. reiterated that the only time that he ever touched the Complainant was on the knee. He thinks she was 16 or 17 at the time.

When pressed on cross-examination that the touching the Crown was referring to was not touching of a sexual nature, A.W. confirmed he understood the question and confirmed that he never touched any of the children. [ 42 ] On re-examination, when questioned as to what he understood “touch” to mean when not used sexually, A.W. confirmed that he never touched any of his children.

He never held their hand, kissed their cheek, picked them up if they fell down and never touched them physically from the time they were babies to the time they left home. [ 43 ] A.W. testified that his wife never questioned him about any improper behavior towards the Complainant. [ 44 ] On cross-examination, A.W. agreed that at the time the Complainant was four to five years old, the age she alleges the sexual touching started, there would have been four to five other children in the house.

He agreed that there would not have been 10 people in the house at that time. [ 45 ] When questioned on cross-examination regarding the touching he discussed with Ms. Sweet, A.W. stated that how he expressed it to the Crown was how he expressed it to Ms. Sweet. A.W. testified that Ms. Sweet never told him that his daughters had made allegations that he had touched them inappropriately. He testified that he could not recall how any kind of touching came up in his conversation with Ms. Sweet.

When pressed on cross-examination, A.W. stated that looking back he honestly could not recall the conversation. [ 46 ] On cross-examination, A.W. testified that the first time he became aware that the Complainant was alleging that he touched her sexually was “yesterday and today”.

On re-examination, when Defence counsel put it to him that he said that the first time he heard of the allegation of sexual touching was today, A.W. acknowledged that he had heard it in the past somewhere along the way and had been aware of the charges for two years. [ 47 ] On cross-examination, A.W. recalled the Complainant having a friend sleep over who left during the night.

His evidence is that he saw the friend a few days later and asked why she left, she told him that she wasn’t comfortable sleeping in someone else’s house. [ 48 ] On cross-examination, when questioned why he provided the Complainant with a lock to her bedroom door A.W. was evasive, requiring Crown counsel to pose the question four times. A.W. could not recall the Complainant using a piece of wood to keep the door closed or any discussion regarding it being a fire hazard. His evidence is that it’s “just ludicrous”. [ 49 ] A.W. denied that there were any holes in the bathroom door.

He testified that is was almost impossible to make a hole in the door, and again, stated it was “ludicrous”. THE LAW

[50] The onus is on the Crown to prove beyond a reasonable doubt that the Accused committed the offences for which he ischarged. That onus never shifts, but it does not require absolute proof. In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320the Supreme Court of Canada explained of the meaning of “reasonable doubt” in the following manner: Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along theselines: The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression "beyond a reasonable doubt" mean? The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice.

Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [51] In R. v. Starr, 2000 SCC 40, the Supreme Court of Canada elaborated on the definition of reasonable doubt. At paragraph 242,Iacobucci, J. said as follows: In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certaintythan to proof on a balance of probabilities.

As stated in Lifchus, a trial judge is required to explain that something less than absolutecertainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternativestandards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubtstandard appropriately between these two standards.

The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177: If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to"a balance of probabilities".

Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, inmy view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of nosignificance, but the idea itself must be conveyed. … [52] In this case A.W. testified in his own defence. Accordingly, in analyzing A.W.’s evidence to determine whether he is guiltybeyond a reasonable doubt, I am guided by the framework set out by the Supreme Court of Canada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, at paragraph 11: … 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [53] The Supreme Court of Canada in R. v. S. (J.H.), 2008 SCC 30, at paragraphs 12 and 13 added to the W. (D.) framework:

The third question, again, is taken by some critics as failing to contemplate a jury's acceptance of inculpatory bits of the evidence of anaccused but not the exculpatory elements.

In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additionalinstruction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful considerationof all the evidence, you are unable to decide whom to believe, you must acquit". [p. 155] In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author neverclaimed for them.

W. (D.) 's message that it must be made crystal clear to the jury that the burden never shifts from the Crown to proveevery element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph ofform over substance. In R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521 (S.C.C.), Cory J. reiterated that the W. (D.)instructions need not be given "word for word as some magic incantation" (p. 533). In R. v.

Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56(S.C.C.), Major J. for the majority pointed out that in any case where credibility is important "[t]he question is really whether, insubstance, the trial judge's instructions left the jury with the impression that it had to choose between the two versions of events" (para.19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonabledoubt. [54] In R. v.

Mah, 2002 NSCA 99, the Court explained the how the assessment of credibility relates to reasonable doubt under theW. (D.) principle as follows: The W. (D.) principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention. Rather, W. (D.)describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant's version is preferred.

W. (D.) reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57 (S.C.C.), at 756. As Binnie, J. put it in Sheppard, the ultimate issue is not whetherthe judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminaltrial is not credibility but reasonable doubt.

ANALYSIS [55] The evidence of A.W. and the Complainant cannot be reconciled. My task is not to choose between the two versions of events,but to determine whether, on all the evidence I do accept, the Crown has proved the elements of the offences beyond a reasonable doubt. [56] A.W. denies the charges. Applying the first prong of the W. (D.) analysis, this is not a case where I believed A.W.’s evidenceand can acquit. Further, with regard to the second prong of the W. (D.) analysis, A.W.’s evidence was not such as to raise a reasonabledoubt. There are a number of notable concerns with A.W.’s evidence.

For the reasons that follow, I find that A.W.’s testimony was notcredible or reliable. [57] I find that the fluidity of A.W.’s evidence on cross-examination regarding his discussion with Ms. Sweet about his “touching”his daughters to be problematic. In an exchange between A.W. and Crown counsel, A.W. initially acknowledged a discussion with Ms.Sweet regarding “touching” his daughters, he stated that he wanted to get his point across to Ms. Sweet that “it wasn’t sexual”, heacknowledged that he told Ms.

Sweet that the only touching he ever did with the Complainant was on her knee, but when pressed toconfirm what he told Ms. Sweet he stated that looking back “it’s oblivion” to him, and in “truth” he could not recall the conversation. [58] A.W.’s evidence on a number of substantive questions is also evasive and rambling. The following exchanges between A.W.and counsel are illustrative: • On direct examination in response to a question as to why he touched the Complainant on the knee, A.W. stated: A.

Well there was a bedroom off the kitch—off the living room where she spent a lot of time with me going from to to fro wherever thecase may be whether in Grand Falls or in the woods or going fishing whatever. And she done a lot of going in the woods with me gettingfirewood. You know. She didn’t care too much about schoolwork and at the time I recall we’re up in N. Road, that’s down below thereand um and she’s very private person and she fell and hurt herself, at the time I didn’t know.

I didn’t, until during that week I was in theliving room asleep on the chesterfield and she was—it was late in the night and I heard moaning and groaning and when I went into—entered her room, which I shouldn’t have, and I touched her on the knee and I said what was the problem. So I touched her on the kneeand said “what’s your problem”? • On cross-examination when questioned as to why he provided the Complainant with a lock, A.W. stated: A. I don’t know if she had a phobia of being closed in I don’t know, my wife haves the same thing today she don’t want the doorsclosed.

I don’t know if C. had that same problem or not but she’d always have her door ajar it wouldn’t be totally closed you know. So ifyou want me to continue on. Q. Sure no that’s fine. So I’m just asking you why you provided her with a lock? A. Because anybody could enter her room, like me, I could walk in. She wouldn’t have the above lights in the ceiling on, she wouldhave a candle burning.

Q. I guess that doesn’t explain why you’d give her a lock? A. Because—well you’re asking that question there but I got— Q. But you said—you were the one who provided her a lock? A. Oh yes yes— Q. I’m asking you why you gave her a lock? A. Not to give her a lock no no that’s wrong. I had to put I mean to go back what you’re asking there is before what happened you know which I was a time we were going to get wood you know at the time and I was on the chesterfield. I looked out across the kitchen and seen her door was open so I went out and do you want to go in the woods? When I walked in— Q.

When you walked in what? A. She was using some kind of foreign instrument on her whatever. [ 59 ] An aspect of A.W.’s evidence I also find problematic relates to his testimony regarding his interaction with his children. On direct examination when asked if he ever hugged his child, A.W. testified “not really” because he is not a “huggy” person. On re- examination, when asked again if he ever hugged one of his children, he stated “I would imagine looking back on it so many times, probably I did”. When asked a third time, if he hugged any of his children, he stated “No, I don’t think so”.

He then testified that he never held his children’s hand, kissed their cheek, picked them up if they fell down, and never touched them physically from the time they were babies to the time they left home. [ 60 ] I accept that the W. household followed traditional roles, with Mrs. W. being the primary care giver for the children. However, I find that A.W.’s evidence that he never touched his eight children, does not have an air of reality. [ 61 ] I also find that A.W.’s testimony regarding his touching his children further demonstrates the fluidity of his evidence.

His evidence on touching his children became a moving target, as if he was attempting to gage the “right” answer he should be giving. [ 62 ] Crown counsel submitted that while A.W.’s evidence regarding his “touching” is confusing, when A.W. uses the word touch, he is focused on touching being of a sexual nature. Hence, when he admitted to Ms. Sweet that he touched his daughters, he was admitting that the touching was sexual in nature. [ 63 ] I accept Ms. Sweet’s evidence that during an interview with A.W. he admitted to touching his daughters “here and there”. Ms. Sweet was forthright in her evidence.

At the time she interviewed A.W. she was a probation officer completing a Pre-Sentence Report at the request of the Court. Ms. Sweet had no reason to fabricate her discussions with A.W. Her letters to the RCMP and Judge Linehan identifying A.W.’s disclosure to her were written close in time to her interview with A.W. [ 64 ] However, notwithstanding my acceptance of Ms. Sweet’s evidence, the question remains as to how her evidence should be interpreted. It is my determination that there is insufficient evidence for me to find that A.W.’s admission to Ms.

Sweet was an admission by A.W. to touching the Complainant in a sexual manner. My finding is based on a number of considerations in assessing Ms.

Sweet’s evidence, including: • Her evidence did not identify the specific information she shared with A.W. regarding his behavior as disclosed to her by his two daughters; • She did not question A.W. as to what he meant by touching his daughters “here and there”; and • While she sensed that A.W.’s touching may have been inappropriate, her evidence is that was not for her to determine. [ 65 ] As a final point, I find that A.W.’s evidence as to when he first became aware that the Complainant was alleging he had touched her sexually is inconsistent.

On cross-examination, A.W. testified that the first he knew that the Complainant was alleging he had touched her sexually was when “she was in the witness stand here”. On re-examination, he stated he had been aware of the charges for two years. A.W. provided no explanation for this discrepancy in his evidence.

The inconsistency in A.W.’s evidence on an issue that should be relatively innocuous, further undermines the credibility and reliability of his evidence. [ 66 ] While I do not believe A.W.’s evidence and his evidence is such that it does not raise a reasonable doubt, I must still assess the whole of the evidence adduced by the Crown to determine whether the Crown has proved beyond a reasonable doubt that A.W. is guilty of the offences for which he is charged. [ 67 ] With regard to the Complainant, I find that the Complainant was forthright and consistent in her evidence.

She remained steadfast in her evidence on cross-examination. I further find that a number of details in her evidence, such as her description of the sliding steel lock, using the piece of wood against the door to keep A.W. out of her bedroom, and her description of the incident on the night her friend slept over, lend credibility and reliability to her evidence. [ 68 ] The Complainant presented as someone intent on being strong in giving her evidence.

However, there were times in her testimony when she struggled to maintain her composure, such as explaining on cross-examination why she couldn’t leave home before the age of 19 because she had two younger sisters still at home. [ 69 ] The Complainant’s evidence is that the sexual touching commenced when she was four to five years of age and continued until she was 19. Prior to her teenage years the sexual touching took place on the couch in the living room where she would sit in the triangle created by A.W.’s legs curled up on the couch.

The touching was between her legs, in her vaginal area, over and under her clothes. When she was 16 years old, the Complainant got her own room, at which time she testified, A.W. would come to her room on an almost

nightly basis and touch her sexually, starting by massaging her feet and working his way up her legs to between her legs. [ 70 ] The Complainant recalled three specific incidents of A.W. touching her. The first incident was when she was four to five years of age, the second incident which she estimates she was eight or nine years old, on a night that she had a friend sleep over, and the last incident when she was 19. [ 71 ] There were a number of challenges put to the Complainant on cross-examination.

One substantive challenge related to the position of the Complainant sitting on the couch in the space created by A.W. when he sat on the couch with his legs curled up. As previously mentioned, to illustrate what Defence counsel submitted to be the physical impracticality of A.W. being able to touch the Complainant in the manner she described, Defence counsel positioned herself on a Court counsel table and proposed that A.W. would not have been able to balance himself and touch the Complainant without falling over.

In response to this questioning, the Complainant was steadfast in her description, noting the flaws in the demonstration, because unlike a couch, the table did not have a back or arms. The Complainant explained that A.W. used the back and arms on the couch to position his arms to keep himself upright. [ 72 ] With all due respect, I did not find Defence counsel’s demonstration persuasive.

In the context of the Complainant’s description as to how she positioned herself on the couch with A.W., I do not accept that there is any comparison between sitting on a table and sitting on a couch to support the physical impracticality of A.W. being able to sexually touch the Complainant in the manner she described. A.W. is a tall slender man.

I accept the Complainant’s description as to how she positioned herself as a child in the crook of A.W.’s legs while sitting on the couch and his ability to slip his hand between her legs. [ 73 ] With regard to the incident the Complainant states occurred the night she had a friend sleep over, on cross-examination, Defence counsel challenged the friend “vanishing” in the middle of the night.

On this point, not only did the Complainant remain steadfast in her evidence, A.W. corroborated that the Complainant had a friend sleep over, who left in the middle of the night, and further recalled being told by the friend a few days later that she left because she didn’t feel comfortable sleeping in someone else’s house. [ 74 ] On cross-examination, Defence counsel also challenged the Complainant regarding the likelihood that A.W. was able to touch her sexually on the couch in a small, crowded house with 10 people.

The Complainant’s evidence that she has no recollection of where the other children would have been any time A.W. touched her. Her evidence that she wasn’t paying much attention, she wasn’t saying or doing anything, she was “just there”. [ 75 ] During submissions Defence counsel argued that the evidence of the Complainant, that the sexual touching occurred in a small house occupied by 10 people in an area where the living room and kitchen were fairly open, does not accord with what is known of sexual molesters. In particular, that sexual molesters try to avoid detection.

Notwithstanding that Defence counsel presented no evidence to support her argument as to the propensity of sexual molesters to avoid detection, there are a number of aspects to Defence counsel’s submissions that I find problematic: • The Complainant’s evidence is that the sexual touching on the couch in the living room occurred during her pre-teen years. She has five younger siblings. She is presently 51 years of age and her youngest sibling is about 37 or 38 years old, resulting in an age difference of approximately 13 to 14 years.

Hence, this would not be a circumstance where there would be 10 people occupying the space within the period of time as proposed by Defence counsel.

Furthermore, a number of the Complainant’s siblings during this time would have been quite young; • I find that the Complainant’s description of A.W. slipping his hand down and touching her outside her clothes and sometimes under her clothes while sitting on the couch would lend itself to easy access to touch her in the manner she described and would also facilitate easy removal of his hand; and • The evidence of both the Complainant and A.W. is that she was a quiet and obedient child, in essence a compliant child, which I find would reduce any concerns A.W. would have about being “detected”. [ 76 ] I also do not accept the submissions of Defence counsel that the evidence is totally contrary to “what we know and is well recognized about this kind of offence”, in particular, that there is no sexual arousal, no erection, no masturbation and no ejaculation.

The evidence of the Complainant on cross-examination is that she doesn’t recall seeing A.W. masturbate, seeing an erection or his penis, but she further testified that she “wasn’t looking”. [ 77 ] While Defence counsel acknowledges that proof of sexual gratification is not necessary, she submits that it is part of the consideration when assessing all of the evidence. I do not agree. Indecent assault and sexual assault are general intent offences that do not require proof of sexual gratification on the part of the Accused. [ 78 ] The Complainant recalled only three specific incidents of A.W. touching her sexually.

However, her evidence is that the touching occurred with such frequency that it was a normal part of her childhood. Hence, I accept that it is understandable as to why only three incidents in a 14 to 15 year period would stand out.

Each of those incidents give rise to circumstances which I find would assist with the Complainant’s recollection: the first time the touching occurred; the incident on the night her friend slept over; and the last incident when she was 19 which is her only recollection of A.W. penetrating with his fingers and the only time the Complainant ever questioned A.W. about his touching her. [ 79 ] Based on the foregoing reasons, I accept the evidence of the Complainant.

I will now address that evidence in the context of the specific charges against A.W. [ 80 ] I will first address the issue of consent, an element common to the indecent assault charge and the sexual assault charges. I find that the Complainant’s consent is not an issue. At the relevant time for a number of the charges, the Complainant was under the age of 14, and statutorily incapable of providing lawful consent.

For any period of time where the Complainant was statutorily capable of providing consent, the Complainant described being afraid, she would “freeze” and at times would be asleep when the touching started. While any consent by the Complainant would be vitiated considering the trust relationship with A.W., I find that the Complainant’s evidence is such that she did not consent to the sexual touching.

Count #1 – Indecent Assault – 1975 to 1983 [81] Under

section 149 of the Criminal Code, R.S.C. 1970, c. C-34 to find A.W. guilty, the Crown must prove beyond a reasonabledoubt that A.W. assaulted the Complainant “in circumstances of indecency”. Assault requires Crown counsel to prove that A.W.intentionally touched the Complainant and the Complainant did not consent to the touching. [82] Secondly, the assault must be indecent. The Crown relies on the Ontario Court of Appeal decision in R. v.

Hemmers (1985), 10O.A.C. 213, 14 W.C.B. 270 as support for its position that touching the breast and vaginal area over the clothing would constituteindecent assault. [83] The Complainant was born on […], 1971. Based on the time period set out in the Bill of Indictment, she would have beenbetween the ages of three and 11. What constitutes indecent assault depends on the circumstances. In this case, I accept the evidence ofthe Complainant that A.W intentionally touched her between her legs, in her vaginal area, over and under her clothes while sitting on thecouch.

I find that the Crown has proved beyond a reasonable doubt that A.W. indecently assaulted the Complainant between January 1,1975 and January 3, 1983, as specified in Count #1 in the Indictment. Count #2 – Sexual Assault – 1983-1988, and Count #4 – Sexual Assault – 1988-1990 [84]

Section 246.1 of the Criminal Code replaced the former indecent assault provisions under the Criminal Code. Crown counselsubmits that the Supreme Court of Canada decision in R. v. Chase, (SCC), [1987] 2 S.C.R. 293 addresses the test forsexual assault. At paragraph 11, the court defined sexual assault as an assault “which is committed in circumstances of a sexual nature,such that the sexual integrity of the victim is violated”. [85] The sexual assault provisions under the Criminal Code were further amended in 1988. The current

section 271 under theCriminal Code has the same definition as the former

section 246.1. To find A.W. guilty of sexual assault, the Crown must prove beyonda reasonable doubt that A.W. intentionally touched the Complainant without consent in circumstances of a sexual nature. [86] With regard to Count #2, the charge of sexual assault from 1983 to 1988, the Complainant would have been between the agesof 11 and 17. This period spans what the Complainant described as her pre-teens when she would sit on the couch between the legs ofA.W. where he would touch her between her legs in her vaginal area both over and under her clothes.

It also spans the period when atthe age of 16 she had her own bedroom when A.W. would come into her room almost nightly. Her evidence is that he would start bymassaging her feet and work his way up her legs, touching her between her legs. [87] The Complainant’s evidence is not clear as to the manner in which A.W. touched her and where in the house he touched fromher pre-teens to the age of 16 when A.W. starting coming into her bedroom.

Her evidence is also not clear as to how old she was whenA.W. touched her breasts outside her clothes when passing her in the house. [88] While not raised by either counsel, I will address an apparent gap in the Complainant’s evidence from her pre-teens to the ageof 16 years. In considering this gap, I am mindful of the Complainant’s present age, and the fact that she is recalling events that occurredin excess of 47 years ago when the alleged touching commenced, to 32 years ago, the last time she alleges A.W. touched her. TheComplainant was not questioned by either counsel with regard to this time period.

The touching as described by the Complainant was aroutine occurrence. It was the norm for her for a period spanning in excess of 14 years.

In this context, considering the amount of timethat has passed, the fact that the Complainant did not give evidence specific to her pre-teen years and the age of 16, does not raise areasonable doubt. [89] I find that the Crown has proved beyond a reasonable doubt that A.W. sexually assaulted the Complainant between January 4,1983 and December 11, 1988, as specified in Count #2 in the Indictment. [90] With regard to Count #4, the charge of sexual assault from 1988 to 1990, the Complainant would have been between the agesof 17 and 19.

During this time period A.W.’s touching the Complainant would have occurred in her bedroom as described above. TheComplainant’s evidence is also that at the age of 19, during the last incident, she recalled A.W. penetrating her with his fingers, I findthat the Crown has proved beyond a reasonable doubt that A.W. sexually assaulted the Complainant between December 12, 1988 andDecember 31, 1990, as specified in Count # 4 in the Indictment.

Count #3 – Touching for a Sexual Purpose – 1989 [91] Under section 153(1) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the Complainant was a“young person”, that A.W. intentionally touched the Complainant for a sexual purpose, and that A.W. was in a position of trust towardsthe Complainant. [92] Touching for a sexual purpose is a sexual assault that occurs after the age of consent, but under the age of 18. It is a specificintent offence requiring proof of a sexual purpose. [93] Between January 1, 1989 and February 14, 1989, the Complainant was 17 years of age.

As the Complainant’s father, A.W.was in a position of trust. As previously stated, the Complainant’s evidence is that A.W. would come into her room on an almost nightlybasis and start massaging her feet, working his way up her legs and touch her in between her legs in her vaginal area. I find that theCrown has proved beyond a reasonable doubt that A.W. touched the Complainant for a sexual purpose between January 1, 1989 andFebruary 14, 1989, as specified in Count # 3 in the Indictment.

Conclusion [94] In considering the evidence as a whole, I am satisfied that the Crown has proven the elements of each of the foregoing offencesbeyond a reasonable doubt. I therefore find A.W. guilty as charged on the counts 1, 2, 3 and 4 in the Bill of Indictment.

_____________________________ Trudy L. Button Justice