R. v. M.S.C., 2022 NLSC 87

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. M.S.C. , 2022 NLSC 87 Date : May 20, 2022 Docket : 202005G0137 Her Majesty The Queen v. M. S. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Philip Osborne Place of Hearing: Gander, Newfoundland and Labrador Dates of Hearing: April 11-12, 2022

Summary: The Accused was charged with four breaches of the Criminal Code , R.S.C. 1985, c. C-46 , including: sexual interference against a young person contrary to

section 151 , exposure contrary to section 173(2) , making sexually explicit material available to a child contrary to

section 171.1(1) and sexual assault contrary to

section 271 . During the trial the Crown acknowledged that there was insufficient evidence to support the charges under sections 173(2) and 171.1(1). The Accused was acquitted of all the charges brought against him. Appearances:

Kristen T. Cleghorn Appearing on behalf of the Crown Derek P.L. Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), [1991]1.S.C.R. 742; R. v. Best, 2016 NLCA 10; R. v. G.F., 2021 SCC 20; R. v. K.P., 2019 NLCA 37; R. v. W. (R.), (SCC),[1992] 2 S.C.R. 122 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Osborne, J.: INTRODUCTION [1] The Accused was involved in a common-law relationship with the Complainant’s mother.

The relationship began when theComplainant was very young and lasted until approximately 2018. The Accused was charged with four breaches of the Criminal Code,R.S.C. 1985, c. C-46, including: sexual interference against a young person contrary to

section 151, exposure contrary to section 173(2),making sexually explicit material available to a child contrary to

section 171.1(1) and sexual assault contrary to

section 271. [2] The Complainant was between 7 and 10 years old at the time of the incidents and almost 14 years old when she testified attrial. The trial proceeded by judge alone. There were three witnesses at trial, the Complainant, the Complainant’s Mother and theAccused. There were also two Agreed Statements of Facts filed. The first Agreed Statement of Facts outlined the particulars of the policereceiving the complaint, the investigation and the arrest of the Accused.

The second Agreed Statement of Facts related to theComplainant’s birthdate, and to a series of medical visits for the Complainant for assessments and investigations into the cause ofreported vaginal bleeding. [3] For the reasons noted below, I have concluded that the Crown has not proved its case beyond a reasonable doubt, and I find theAccused not guilty of the charges against him.

THE EVIDENCE Background [4] The following facts are not controversial and are derived from the Agreed Statements of Facts and the combined testimony ofthe Complainant, the Complainant’s Mother, and the Accused. [5] The Complainant’s Mother has four children. Her oldest is a boy who is 16 years old, the Complainant who is almost 14 yearsold, another girl who is a couple of years younger, and the youngest child who is the Accused’s biological son.

At the times relevant tothe charges, they lived in a small community in central Newfoundland with the Accused, although, the two male children spent most oftheir time at their grandparents. For most of the relevant time the Complainant shared a bedroom with her sister. [6] When the Complainant was 8 years old, her mother took her to the local health centre as the Complainant experienced a secondoccurrence of vaginal bleeding, which presented as brownish discharge in her underwear.

The local doctor did not observe any vaginalbleeding but referred her to a pediatric endocrinologist at the Janeway Hospital to investigate possible premature puberty. BetweenJanuary and April of 2017, various tests were conducted on the Complainant to assess premature puberty.

The Complainant continued tohave follow up visits with other doctors until October 2018 at which time her mother was advised that no further follow up was required.A medical reason for the vaginal bleeding was not confirmed by any medical professional. [7] The Complainant’s Mother and the Accused had financial problems that led to them changing residences four times within arelatively short number of years.

While the relationship between the Complainant’s Mother and the Accused was described as“phenomenal” during its first year, financial problems, along with the Accused’s gambling and marijuana habits soon caused turbulence.As the relationship deteriorated it was marred by arguments and at least one episode of physical violence that resulted in a peace bondbeing ordered. [8] In late 2018 or early 2019, the Complainant’s Mother and the Accused separated and started living apart. The acrimonycontinued as they disputed issues of parenting and access for their son.

On April 21, 2019, the police received a complaint from theComplainant’s Mother that the Accused sexually assaulted the Complainant and on April 23, 2019, the Accused was arrested.

The Charges and Elements of the Offences [ 9 ] The four charges on the indictment against the Accused are: Count # 1 On or between the 1st day of January, 2016 A.D., and the 30th day of November, 2018 A.D., at or near [place name], in the Province of Newfoundland and Labrador, did for a sexual purpose touch [the Complainant], a person under the age of sixteen years directly with a part of his body, to wit his penis, contrary to

section 151 of the Criminal Code ; Count # 2 On or between the 1st day of January, 2016 A.D., and the 30th day of November, 2018 A.D., at or near [place name], in the Province of Newfoundland and Labrador, did for a sexual purpose expose his genital organs to [the Complainant], a person under the age of sixteen years, contrary to section 173(2) of the Criminal Code ; Count # 3 On or between the 1st day of January, 2016 A.D., and the 30th day of November, 2018 A.D., at or near [place name], in the Province of Newfoundland and Labrador, did transmit or make available, sexually explicit material to [the Complainant], a person under the age of sixteen years old, for the purpose of facilitating the commission of an offence under

section 151 and/or

section 271 with respect to [the Complainant], contrary to

section 171.1(1) of the Criminal Code ; Count # 4. [Count No. 1-2019-543899] On or between the 1st day of January, 2016 A.D., and the 30th day of November, 2018 A.D., at or near [place name], in the Province of Newfoundland and Labrador, did commit a sexual assault on [the Complainant] contrary to

section 271 of the Criminal Code . [ 10 ] At the conclusion of the Crown’s case, the Crown indicated to the Court that there was no evidence to support the essential elements of Count # 3. The Defence asked for a directed verdict and I found the Accused not guilty of that charge. [ 11 ] During closing arguments the Crown acknowledged that there was insufficient evidence to support Count # 2. I find the Accused not guilty of the charges in Count # 2. [ 12 ] This leaves Count #1 involving sexual interference and Count #4 involving sexual assault to be considered. [ 13 ] With respect to Count # 1 and the charge under

section 151 the Crown must prove beyond a reasonable doubt that the Complainant was under 16, and that the Accused, for a sexual purpose, directly or indirectly touched the Complainant. It is a specific intent offence, meaning that the offender must specifically intend that the touching be for a sexual purpose. [ 14 ] For Count # 4 and the charge under

section 271, the Crown must prove beyond a reasonable doubt that the Accused touched the Complainant directly or indirectly, that the touching was intentional, and that the touching was of an objectively sexual nature. At the mens rea stage, the Crown must show that the Accused intentionally touched the Complainant. Consent is not an issue as the Complainant was under 16 years of age and statutorily incapable of providing lawful consent. The Complainant’s Evidence [ 15 ] The Complainant alleges that the Accused frequently sexually assaulted her.

The incidents are alleged to have initially taken place in their apartment and then in their house. She said the incidents occurred in her bedroom, her mother’s bedroom, her brothers’ bedroom and in the basement of the house. [ 16 ] The Complainant was confused about the number of bedrooms in each of the places she lived and she was confused about the timing of when she lived in each place. As will be discussed later, understanding that she is a child, this confusion does not concern me. [ 17 ] The Complainant described living in an apartment first and then a house.

She described sharing a room with bunk beds with her sister who is a couple of years younger than her. She said that her brothers had a room, although they usually stayed at their grandparents’ house.

She said that she and her sister would play in her brothers’ room when the brothers were not there. [ 18 ] During direct examination, after much prompting and a recess, the Complainant stated that “mostly everyday [the Accused] would come in my bedroom and put his hand in my pants and he would try to put his penis in me.” She said that he would try to put his penis in her vagina. [ 19 ] When asked if the Accused ever put his penis in her, she replied that he would usually just rub it against her. She did recall seeing his penis and she described it as looking like “a long mushroom”.

However, she could not recall how or when she came to see his penis. [ 20 ] When asked by the Crown if she remembered the first time it happened, the Complainant said “not really”. She recalled that the first time was in her room when they lived in the apartment, though she could not recall if she was sharing a room with her sister at that time or not. She could not recall if the Accused brought her in the room or if she was in the room when the Accused came in. She could not remember what the Accused was doing when it happened, but she did state that the Accused just touched her and did not take his penis out.

She could not recall if she was sitting on the bed or if she was lying down or if she was on her back or her side. She could not recall if the lights were on or off. While she indicated that she did not know what position the Accused was in when he touched her

vagina, on cross-examination she acknowledged telling the police that the Accused was asleep at the time of the incident and that she remembers the Accused being asleep at the time of the incident. [ 21 ] The Complainant could not remember if her mother or anyone else was home or around when the incident happened. Nor could she recall how long the incident lasted. She could not remember if her sister was in the room when it happened.

In fact, she could not recall if anyone was ever in the same room when any incident happened or whether or not anyone was ever home during any incident. [ 22 ] She could not recall if there was ever any talking with the Accused during any incident, nor could she recall how any incident would stop.

She could not recall what she was doing during any incident. [ 23 ] When asked what she was wearing during the incidents, she could recall that she would be wearing either a night dress or two piece pajamas but she could not recall what happened to her clothes during any incidents. [ 24 ] While she said she could recall incidents happening at different times during the day, she could not recall if anything happened anywhere besides her home. Nor could she recall any particular incident. [ 25 ] She could not remember how many incidents of touching there were before incidents began when he would take his penis out.

She did remember that he never wore a condom. [ 26 ] The Complainant could not recall how she would come to be in her mother’s bedroom before an incident occurred. [ 27 ] She said she was sure there was an incident in her brothers’ room, but she could not remember what happened. She said that the Accused would come in her brothers’ room while she was in there playing with her sister.

But she could not recall anything else about the bedroom incident. [ 28 ] She could not remember what happened in the basement. [ 29 ] The Complainant said that she did not tell anyone about what was happening because she did not want the Accused to go to jail. She could not remember why she thought he would go to jail.

On direct examination she said that she did not remember if she ever talked about the incidents with the Accused, but on cross-examination she said that the Accused told her he would go to jail if she told anybody. [ 30 ] On cross-examination, the Complainant said she remembers telling her mother about what happened and then telling the police. She could not remember talking to doctors or anyone else about the incidents. Nor could she recall going to visit a doctor or talking to a doctor about the vaginal bleeding.

The Complainant’s Mother’s Evidence Living arrangements [ 31 ] The Complainant’s Mother testified that she lived with the Accused between June 2013 and November 2018. When she first started to live with him she had three children from a previous relationship. She and the Accused subsequently had a son together. [ 32 ] The Complainant’s Mother described the four different places she lived with the Accused. The first place was a bungalow with three bedrooms. The second place was a two bedroom apartment. In that apartment one of the bedrooms had bunkbeds for the two girls and a trundle bed for the two boys.

The other bedroom she shared with the Accused. The third place was a four bedroom apartment. In that apartment, the girls had their own bedrooms for a while and the boys shared a room, and she and the Accused shared a bedroom. The fourth place was a three bedroom house. [ 33 ] She said that the two girls shared a bedroom in all places except for a short period of time in the four bedroom apartment. Working and childcare arrangements [ 34 ] The Complainant’s Mother described how she started working after her youngest child was born. She worked in fish plants usually between April and August.

Her hours were typically Monday to Friday between 7:00 AM and 6:00 PM or 7:00 PM. She drove to and from work, which took either an hour and a half or 45 minutes depending on which plant she was working in. She said that she did not work between September and May. [ 35 ] She said that for childcare, the younger children would be with the Accused’s mother until the older children got off school at 3:00 PM. The Accused worked for his father and would get off each day at 3:00 PM. He would then pick up the kids from his mother’s house and would parent until she got home.

She said that the Accused would make sure the kids got off to school each morning. [ 36 ] She testified that she played darts on either Monday or Wednesday nights between 7:00 PM and 10:00 PM sometimes as late as 11:00 PM. When she was at darts, the Accused would parent the children. Relationship with the Accused [ 37 ] The Complainant’s Mother said that in the beginning the relationship with the Accused was phenomenal and that he was great with the children. She said that after about the first year things changed. She and the Accused argued a lot and the relationship got worse.

They fought about money and they fought about his excessive gambling and his excessive use of marijuana. They also fought about sexual problems in their relationship. She said that the relationship devolved to the point that they were not sharing a bedroom anymore and that they were living like roommates. At one point, there was a physical altercation that lead to a peace bond between her and the Accused. [ 38 ] The Complainant’s Mother acknowledged on cross-examination that there was a custody dispute ongoing between her and the

Accused with respect to their son. She stated that prior to the charges, she had access 5 days over a 14 day period and that since thecharges she has primary access. She acknowledged that the outcome of this criminal trial would likely have an impact on accessarrangements. Medical visits for the vaginal bleeding [39] After the Complainant’s second incident of vaginal bleeding the Complainant’s Mother took her to the local health centre.

Overthe next couple of years she and the Accused took the Complainant to the local health centre and also to the Janeway for diagnosis andtreatment. [40] On one occasion, the Complainant was staying overnight with another relative when the Complainant experienced vaginalbleeding. The relatives took the Complainant to the emergency room for examination. [41] The Complainant’s Mother testified that at least on one occasion a doctor spoke privately to the Complainant to question herabout sexual abuse and reported to the mother that the Complainant said there was no abuse.

She also testified that after theComplainant’s relatives took the Complainant to the emergency room, she spoke to her daughter when they were home alone to ask herif there was any abuse going on at school or elsewhere. She said that the Complainant denied anything was happening with anybody. [42] The Complainant acknowledged on cross-examination that the doctors could not determine a cause of the vaginal bleeding andthat the doctors spoke to her and the Complainant about vaginal hygiene and vaginal scratching as a possible cause. The Accused’s Evidence [43] The Accused testified.

He denied that he touched the Complainant with his penis and stated that it never happened accidentallyto his knowledge. He denied that he sexually assaulted the Complainant. He stated that it just didn’t happen. [44] The Accused’s description of the living accommodations was primarily the same as the Complainant’s Mother’s, althoughthere was some minor differences in his evidence about the amount of time they lived in each residence. [45] He testified that the relationship with the Complainant’s Mother was good in the beginning but after about two years it wentdownhill. He said they fought all of the time.

He acknowledged that he once hit her causing her to bleed from her mouth and that itresulted in a peace bond being put in place. He said that the Complainant and her sister saw their mom bleeding after he hit her. [46] He said that he and the Complainant’s Mother fought about money. He said that they argued a lot, sometimes loudly. Heacknowledged that he smoked a lot of marijuana.

He also said they fought about the Complainant’s Mother always wanting to go outwithout him. [47] On cross-examination he acknowledged that sometimes he was in bed with the kids when he was putting them to bed at night.He also agreed with the work

schedule that the Complainant’s Mother described in her testimony, although he said that they workedmostly the same times. He also said that even though he was in receipt of Employment Income during the winters, he worked doingrenovations during the winter months. analysis [48] It is important to remember that the Crown bears the onus of proving the Accused’s guilt beyond a reasonable doubt. Thispertains to each and every essential element of each of the offences with which the Accused is charged.

The onus never shifts to theAccused. [49] Proof beyond a reasonable doubt “does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it animaginary or frivolous doubt” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The burden of proof lies “much closer toabsolute certainty than to proof on a balance of probabilities” (R. v.

Starr, 2000 SCC 40). [50] The presumption of innocence along with the high standard of proof required by the Crown are important and necessary safeguards to ensure that an innocent person is not wrongly convicted. [51] The evidence of the Complainant and the Accused cannot be reconciled.

Therefore, I must assess the testimony of each, alwaysbearing in mind that the question is not which of the two versions is to be preferred, but whether on the evidence I do accept, the Crownhas proven the elements of the offences beyond a reasonable doubt. [52] An accused person is never obligated to take the stand, and has the right to call no evidence. As noted, in this case, while notobliged to do so, the Accused testified in his own defence. Therefore, in deciding whether the Crown has proven the elements of theoffences, I must be mindful of the W. (D.) framework (R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742) that helps avoid thetrap of simply choosing between two competing versions of events and keeps the focus on an assessment of all of the evidence.

The W.(D.) framework provides that: 1) If the evidence of the Accused is believed and would support a finding of not guilty, I must acquit. 2) If I do not believe the evidence of the Accused, but am left in reasonable doubt by it, I must acquit. 3) If I do not believe the Accused, and I am not left in reasonable doubt by his evidence, then I must still determine, based onall of the evidence that I accept, whether the evidence supports beyond a reasonable doubt that the offences occurred.

[ 53 ] Our Court of Appeal re-stated the framework indicating that it is necessary for the judge to consider whether or not the judge believes the accused and, even if the judge does not believe the accused, then whether any of the accused’s evidence leaves her or him with any reasonable doubt about the accused’s guilt. If, after these considerations, there is no reasonable doubt then the judge must still ask whether she or he is convinced of the accused’s guilt on the basis of the evidence that is accepted ( R. v.

Best , 2016 NLCA 10 at para. 7 ). [ 54 ] I am mindful that my assessment of the credibility and reliability of the evidence of the witnesses will be determinative of the outcome of this case. The issue of consent does not arise in this case given the Complainant’s age. The touching, if it occurred as described by the Complainant, would have violated her sexual integrity. There was no suggestion to the contrary at trial.

However, if I believe the evidence of the Accused, or if not believed, if I still have reasonable doubt, I would conclude that the Crown has not proven the case beyond a reasonable doubt and I would acquit. [ 55 ] The Supreme Court has stated that credibility findings must “be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility.

The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. . .” ( R. v. G.F. , 2021 SCC 20 , para. 82 ). I can only consider evidence that is both credible and reliable when deciding whether the Crown has proven its case beyond a reasonable doubt. [ 56 ] Our Court of Appeal has noted that a trier of fact may accept all, some or none of the evidence of a witness ( R. v.

K.P . , 2019 NLCA 37 , at paras. 42 and 47 ). assessment of evidence The Accused [ 57 ] The Accused’s testimony was relatively brief. While I have some issue with the Accused’s evidence, generally I found him credible. He denied the allegations against him. He did not hesitate or dither in his responses. He was candid, even acknowledging behavior such as frequent gambling, excessive marijuana use, and being physically violent, which would reflect poorly on his character. [ 58 ] Part of the Accused’s testimony was prone to exaggeration.

For example, he testified that he and the Complainant’s Mother worked mostly the same times with the implication being that he didn’t often take care of the children when she was working. However, I accept the evidence of the Complainant’s Mother regarding her work

schedule and that the Accused was responsible for parenting when she left for work in the early morning hours and after 3:00 PM until she arrived home. [ 59 ] Adopting the framework in W. (D.) , while there is some issue with the Accused’s evidence, I am left in reasonable doubt by it and therefore I acquit him of the charges. However, if I am in error in my reliance on his evidence, I am still left with reasonable doubt based on my assessment of the evidence as a whole that I do accept.

The Complainant’s Mother [ 60 ] The Complainant’s testimony does not need to be corroborated before I can accept and rely on it ( Criminal Code , s. 274 ). Sexual offences often occur in private. There is often no evidence to corroborate what a complainant says happened. It is possible for the Crown to prove a sexual assault or sexual interference charge beyond a reasonable doubt based solely on the uncorroborated testimony of a complainant.

But if there is evidence that corroborates a complainant’s testimony that will tend to enhance her credibility and the reliability of her evidence. [ 61 ] In this case, the Crown called the Complainant’s Mother to testify. I found her to be a credible witness. She was clear and direct in presenting her evidence. She was not argumentative on cross-examination. Her evidence provided context around the living arrangements with the Accused.

I accept her evidence about the hours that she worked in the summer months and the nights she would be out of the house playing darts and her evidence about when the Accused would be home with the children while she was working or at darts. [ 62 ] Her evidence also provided context around the circumstances of the medical visits related to the Complainant’s vaginal bleeding. As noted in the Agreed Statement of Facts and in her cross-examination, there was no reason confirmed by any medical professional for the cause of the vaginal bleeding.

The evidence of the vaginal bleeding does not assist in determining if the elements of the offences are made out. [ 63 ] Defence counsel raised the issue of the custody dispute between the Complainant’s Mother and the Accused in relation to their son. She seemed candid about the probability that the outcome of this trial may impact the custody arrangements regarding their son. While this may establish a motive to lie, I found the Complainant’s Mother to be credible.

Notwithstanding that I found her credible, her evidence does not corroborate any evidence with respect to any of the essential elements of the offences that the Accused is charged with. The Complainant [ 64 ] Before I discuss the issues I have with the Complainant’s testimony, I want to address two matters that do not, in my view, impact her credibility or reliability: the Complainant’s timing in making a complaint and certain gaps and inconsistencies about peripheral matters. Timing of the complaint [ 65 ] On cross examination the Complainant was asked why she did not report the incidents when they had occurred.

The Complainant’s Mother was also asked about the different times (at the doctor’s office and at home) that the Complainant was asked about, and denied, sexual abuse occurring. While the Agreed Statement of Facts states that the doctors could not determine a cause of the

vaginal bleeding, there was no statement from a doctor or the Complainant entered to suggest that the Complainant was now makinginconsistent statements. [66] I am being asked to draw an inference based on the Complainant not reporting the incidents earlier. Not only would this belogically irrelevant to the matter at hand, it would be impermissible stereotypical reasoning to make any such inference or to assess theComplainant’s credibility on the basis of when she reported the incidents to her mother, the police or anyone else. Making generalizedassumptions about how people will behave is fraught with danger.

I am not judging the Complainant’s actions or inactions on anypreconceived notion of when she should have reported the incidents or why she did not disclose any incident to a doctor or her mother.Rather, this case can be decided by applying the relevant law to the actual evidence admitted at trial. Gaps and Inconsistencies (Child Witnesses) [67] The Complainant was not a strong witness. There were often long pauses in her testimony.

It was clear she was a reluctantwitness who responded to most questions on direct and cross-examination by stating that she either did not know, that she was not sure,or that she could not recall. [68] Defence counsel argued that the Complainant’s evidence about where she lived and the number of bedrooms in each place shelived was wrong or materially incomplete. Defence counsel also pointed out that the Complainant could not recall such things as visitingdifferent doctors.

Based on inaccuracies and lack of recall on these type issues, Defence counsel suggested that the Complainant’sevidence is unreliable. [69] I must consider the Complainant’s age when considering the significance of any gaps or inconsistencies in her evidence.Children’s evidence must be assessed on a common sense basis recognizing that while children may not be able to recount precise details“and communicate the when and where of an event with exactitude, this does not mean they have misconceived what happened to themand who did it” (R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at para. 25).

Children experience the world differently thanadults. Children may not remember things like locations, dates or times the way an adult would. The particular perspectives of childrenmay affect their recollection of events and any inconsistencies should be assessed in context. [70] The Complainant’s vagueness and lack of recall does not raise concerns when it is with respect to the number of rooms in thehouse, or where she lived or what grade she was in. Nor does her lack of memory of particulars around doctors’ visits concern me.Children’s memories of events are different than adults.

That said, I do find that the vagueness and lack of general memory regarding thealleged offences themselves problematic. [71] While the Complainant stated that the assaults occurred “mostly everyday”, she could not remember any details or particularsof even one incident except in the vaguest of terms about the first alleged incident.

Further, there was no distinct memory or particularsthat she could recall about any of the frequent times it is alleged that the Accused tried to rub his penis on her vagina. [72] Except to state that the alleged offences occurred mostly every day, her evidence was almost devoid of detail. Notwithstandingthe frequency of the touching and the Accused’s attempts to put his penis in her vagina, the Complainant could not recall many otherdetails. She never knew if anyone was ever home when these events happened. She could not recall any details of how long any of theseevents may have taken.

While she said events took place in her mother’s room, her brother’s room, and the basement, she could notrecall any details about those events. [73] Further, there were internal inconsistencies in her evidence. On direct examination she said that she could not recall everspeaking to the Accused about the incidents.

She also indicated that she did not know why she thought the Accused would go to jail ifshe told anyone about the incidents; however, on cross-examination she indicated that the reason she thought the Accused would go tojail if she told anybody is because that is what the Accused told her. [74] She also stated on direct examination that she could not recall what the Accused was doing during the first incident.

However,on cross-examination she acknowledged that she told the police that the Accused was sleeping during the first incident and that hermemory was that he was asleep during the first incident. [75] The Crown suggested that the lack of detail from the Complainant was because the complainant was not articulate. The Crownargues that the vagueness relates to matters peripheral to the allegations. However, the concerns that I have about the lack of detail,vagueness and lack of recall are not peripheral to the incidents, rather they are part of them.

They are key to the essential elements of theoffences the Accused is charged with. The Complainant’s evidence has very limited description of the events beyond stating that therewas touching and that the Accused tried to put his penis in her most every day. I am unable to reconcile the Complainant’s uncertaintyand vagueness given the frequency with which the offences are alleged to have occurred. The Crown has failed to prove the essentialelements of the offences. DISPOSITION [76] For the foregoing reasons I am left with reasonable doubt by the evidence adduced by the Accused.

Even if I were not, I am notconvinced beyond a reasonable doubt by the totality of the evidence. I find the Accused, M.S.C., not guilty of all of the charges on theindictment. _____________________________ PHILIP OSBORNE Justice