R. v. M.G.P., 2017 NSSC 168

SUPREME COURT OF Nova Scotia Citation: R. v. M.G.P. , 2017 NSSC 168 Date: 20170612 Docket: CRH No. 450532 Registry: Halifax Between: Her Majesty the Queen v. M.G.P. Restriction on Publication: s. 486.4 and s. 539 of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: April 3 and 4, 2017, in Halifax, Nova Scotia Written Decision: June 20, 2017 Counsel: Alonzo Wright, for the Crown Brian Church, Q.C., for the Defence By the Court (Orally): [ 1 ] Mr. M.G.P. has been charged with six offences that are alleged to have occurred between January 1, 1993 and June 30, 2004.

They all involve his daughter, J.E., who was then an adolescent and teenager. The charges are assault, assault with a weapon (a belt), sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation. [ 2 ] The trial of this matter took place over the course of two days, April 3 and 4, 2017. Counsel provided oral argument on the afternoon of the second day. At the conclusion of that argument counsel were asked whether they might be able to provide more complete arguments if given the opportunity to provide written briefs. They agreed.

The Defence filed a three page brief and the Crown a one page brief which are attached, without comment, as an Appendix to the written decision.

Summary [ 3 ] M.P. absolutely denies having had any sexual contact with his daughter. When that firm denial is tested against the evidence of J.E. and the other Crown witnesses, there is no reasonable doubt as to his guilt with respect to the sexual contact as alleged. It is not merely a matter of believing their evidence more than his. The conclusion is and must be based on the finding that his denial is not only not believed but does not raise a reasonable doubt as to his guilt. The Evidence [ 4 ] The accused, the complainant, her mother, and her grandmother testified.

It’s important to set out what is alleged to have happened to provide a proper context in which to assess M.P.’s evidence. That is not intended to suggest that there is any evidentiary burden on him. There is not. [ 5 ] J.E. was born in 1984. She said that she didn’t know her biological father. He married her mother in 1991, when she was about 7 years old and adopted her and her brother. They were told to refer to him their father but she appears to have chafed at that. [ 6 ] J.E. was a strong willed and at times difficult child. She did poorly at school. M.P. was the family disciplinarian.

She recalled that he would hit her on her buttocks with a belt a few times each week. It would be hard to recall an exact number but she remembered

that this was quite a frequent event. At some point, likely in Grade 3, she told some friends at school. The child welfare authorities were contacted. J.E.’s mother recalled their visiting the house with that concern. She recalled calling her then husband, M.P. and they agreed not to use the belt anymore. J.E. remembers the beatings with the belt stopping at some point, probably around then. [ 7 ] M.P. did continue to spank her with his hand though. He would hit her with his hand across the buttocks. She remembered that he would take her clothing down when he did that.

That would include not only her pants but her underwear as well. She said that it happened regularly and for just about any reason. Her mother confirmed M.P.’s role as the main disciplinarian. She said that she couldn’t bring herself to do it though it appears she may have done it a few times. She didn’t see the spankings but did know that they were happening. She said that she would never have accepted his hitting their daughter with her pants down had she known that was going on at the time. [ 8 ] J.E. said that these so-called spankings kept happening while she was a teenager.

She recalled a specific incident when she was 18 years old. She couldn’t remember what brought it on but she was in the bedroom downstairs. M.P. forced her to take down her underwear and he struck her on the buttocks. She said that he used all his force and she almost passed out. She remembered saying “stop please” and asking to at least be able to leave her pants on. She recalled her mother being home and protesting that she was “too old for this”. Her mother recalled an incident of spanking when their daughter was in high school. She spoke to a friend about it at the time.

She said that the friend had “freaked out” and she then told her husband that J.E. was too old for corporal punishment. [ 9 ] J.E. remembered another incident in which M.P. bent her over and started to spank her in her bedroom. At that time he put his fingers in her vagina and made a noise which she interpreted as “just to show me he could do it”. She believes that she was about 18 when that took place. [ 10 ] Spanking was not the only kind of contact of which she spoke. She said that early on, when she was 9 or so, M.P. would get her to lie on top of him.

She recalled that this was around the time when she understood that some things were and were not appropriate. She recalled that he had his arms around her and wanted it to stop. Later, when she was about 15 he put his arms around her chest and touched her breasts, saying that she had “nice boobs”. She said that he would often come around her when she was vulnerable. Her mother sometimes worked outside the home, sometimes in the evening. [ 11 ] She said that another time, when she was 15 or 16 years old, when her mother was not at home, M.P. invited her to perform fellatio. Those of course were not his words.

That was how she described it. He invited her to touch his penis to see how it felt. She said that he said if she wanted to touch it, he wouldn’t say anything. [ 12 ] On another occasion, they went to his work when she was 16. It was on a weekend. There was no one else there. He said, “J., I’m horny. I want you to suck my dick.” She said that she was shocked and terrified. She refused. She thought at the time that he was going to force himself on her but he didn’t. She commented on how uncomfortable the drive home was that day. [ 13 ] She spoke about sexualized language being used.

She said he’d invite her to sit on his lap. When she said no, he said, not to worry because his “dick won’t pop up”. [ 14 ] She said that he would frequently lay on top of her, while she was in bed. She said that on one occasion he touched her genitals with his hand while doing that. He would come into her room and lay down on her bed, between her legs. She said he would simulate sex and begin rocking back and forth until she could feel his penis throbbing. At that time she was between 15 and 16. [ 15 ] At 18 she went off to university and then rarely came home.

Her parents found out that she was having sex with another student and confronted her about it in a telephone call. She said that M.P. asked her if she liked it and how it felt. He went on to suggest that he buy her a sex toy so she wouldn’t have to have sex with men. Her mother recalled at least part of that conversation where she said M.P. asked their daughter if she had liked having sex. The mother was not on the phone for the entire conversation. [ 16 ] J.E. married the man whom she met at university. Her father was not at all supportive of the relationship.

The couple eventually separated after J.E. was assaulted by her then husband. The matter went to court twice. The evidence was not clear on the point but it appears as though J.E. was at least reluctant as a witness against her then husband. M.P. came to court with her the first time and was not at all happy with the outcome. After the second appearance, which may or may not have involved a second incident, J.E.’s husband was convicted and was eventually deported.

That relationship was the cause of significant acrimony within the family. [ 17 ] By 2006 J.E. had separated from her husband and was living in various shelters around Halifax. She told a friend about what had happened. Then she met in a park with her mother and her grandmother and told them about what had happened. Her mother said she knew she’d have to leave M.P. She didn’t. [ 18 ] J.E.’s mother confronted M.P. about it. She said that he admitted to asking their daughter to give him a “blowjob” but said that he was only joking to see what she would do. He denied everything else.

He said that he was going to get a lawyer and go to the police. [ 19 ] She said that she loved him then. She thought he was the perfect husband up to that point. It seemed she was willing to look past some things at the time. She said that she knew about the spanking of her 18 year old daughter, though not without her pants on. She was aware of some things that seemed unusual. She told of coming home from work one night while the lights were off in 2003 or 2004. She looked for her husband in their bedroom and he wasn’t there. She looked in the television room and he wasn’t there.

She looked in her daughter’s bedroom and saw his legs on the bed. She turned on the lights and asked what was going on. He said that he was giving her a hug. She didn’t confront him but she says now that it wasn’t how she would hug someone. There was some question about the timing of that around the storms know as White Juan and Hurricane Juan. [ 20 ] There were other things too. She said that M.P. had called their daughter a “tease”, a “slut” and a “whore”.

Those words were not said to J.E. but to her mother. [ 21 ] She stayed with him for about another year after her daughter told her about what had been going on. She said that she wanted to wait until her son had graduated from high school. She didn’t want to disrupt his life any more than it already had been. The couple remained as a married couple during that year. They travelled to Las Vegas together during that time. That was suggested as a strange

decision to have been made by a mother who had been told that her husband had sexually abused her daughter. There are many reasons why a person might remain with a physically or emotionally abusive partner. Remaining with a domestic partner cannot be used to make an inference that abuse or assault did not happen. Likewise, there are many reasons why a person might remain with a person about whom these kinds of allegations have been made. What she did or did not do would at the very most provide evidence on which an inference could be made as to whether she believed what her daughter had told her.

It would not be evidence that could support the inference as to whether the events themselves did or did not take place. No inference about the truth or falsehood of the allegations can properly be made from that decision she made. [ 22 ] She did eventually leave her husband. She took some things and went to her mother’s home in Newfoundland. She did not tell her son what she was planning. She came home then returned to Newfoundland again. While there she got numerous phone calls from him asking her to come back to him. He wanted to reconcile. In one phone call, her mother answered the phone.

M.P. wanted to speak to her. Her mother told her that he was crying and she placed the call on the speaker phone. She testified that he said during that call, that everything their daughter had said was true. Her mother recalled a different version. She reported him as saying that what J.E. had said was true but that he saying this was so that his wife would come back to him. They are different versions of the statement. [ 23 ] M.P. gave evidence. There aren’t many details to a denial. And he offered a fulsome and forceful denial of the allegations made against him.

His evidence was not a partial admission with some justification. It was a flat out full denial of the allegations with one exception. He said that he did spank his daughter when she was a small child and that he used a belt. That stopped when Children’s Services intervened. The spanking continued without the belt until she was about 12 years old or so. There was never any spanking without clothing on. He said that there was never any spanking of her as a teenager. [ 24 ] He said that none of the events of a sexual nature that were alleged ever happened.

He never touched her in a sexual way and never spoke to her using sexualized language. He would hug her as a father would hug a daughter. He would at times go to comfort her when she was having nightmares. He was asked what they talked about when he did that. He had some difficulty in relating exactly what they talked about at those times. That’s hardly surprising. People cannot be expected to remember what seemed at the time to be mundane conversations about school, friends, and family life. [ 25 ] He spoke about the sometimes difficult relationship that he had with his adopted daughter.

While the couple’s son generally behaved well, J.E., as a child and as a teenager could be difficult. She required more frequent discipline. The relationship that M.P. had with his son and his daughter seems to have been quite different. When she went to university and met a young man there was more tension. She admitted to her parents that she was having sex with him and it would seem that within the religious community of which the family was a part that was a significant problem. M.P. noted that they had sent her specifically to a Christian university and they had not planned on something like this happening.

He vehemently denied having had any telephone discussion with her in which he asked his daughter whether she enjoyed sex or in which he offered to buy her a sex toy. [ 26 ] J.E. quickly married the young man with whom she was romantically involved. M.P. didn’t approve. That man assaulted her and was later convicted and deported to it his home country. M.P. said that she blamed him for her husband’s deportation. She said that she blamed him only for what he did to her.

Her former husband was responsible for his own actions. [ 27 ] M.P. recounted the separation and acrimonious and costly divorce between him and his wife. He believed that she had met another man in Newfoundland and was already in a sexual relationship with him. He maintained that the allegations are wrapped up in the animosity about the deportation of J.E.’s estranged husband and his former wife’s bitterness about the divorce. He says quite plainly that they just made this up. They are lying.

The Offences and the Dates [ 28 ] The dates on which the various incidents are alleged to have happened are important given the nature of the charges. The age of the person involved is an essential element of some of those offences and would have to be proven beyond a reasonable doubt. Before considering whether the Crown has proven that the incidents took place, there are some that can be dealt with based solely on the dates on which they are alleged to have happened. [ 29 ] The assault charges both relate to allegations that J.E. was struck on the buttocks by M.P. using either his hand or a belt.

M.P. relies on the defence set out in s. 43 of the Criminal Code . That says that a parent is justified in using reasonable force by way of correction. It is a controversial provision. It requires that the person applying the force do so for educative or corrective purposes and that the child be capable of benefiting from that correction. That means that a parent can’t hit a child out of anger or frustration. The application of force must be purposeful and within the range of what is reasonable. [ 30 ] The Supreme Court of Canada in Canadian Foundation for Children, Youth, and the Law v.

Canada (Attorney General) [1] has specifically said that the use of force against children under two and teenagers is not reasonable. They are not capable of benefiting from that form of correction. Using an object or striking a child on the head or face is also not corrective. [ 31 ] The hitting with a belt stopped when the authorities spoke with the family about that practice. Striking a child with a belt is an unreasonable use of force. The Supreme Court made that clear in 2004.

When this was taking place, in the mid 1990’s there may have been some question about whether it was acceptable according to the community standards at the time. The intervention by child welfare authorities would suggest that it was not acceptable according to their standards at the time. Their views, however important and entirely sensible they may have been, do not define the standards of the community. There was no evidence about whether the belt was used in a way that inflicted any more pain than spanking with the hand.

The charge of assault with a weapon has not be proven. [ 32 ] The assault charge relates to the spanking of J.E. into her late teenage years. If it has been proven beyond a reasonable doubt that she was struck on the buttocks as a teenager, that would establish the charge of assault. While striking children with an object like a belt might at that time have been seen as being with the range of appropriate behavior, the striking of a teenager who was very close to adulthood, would offend the sense of a reasonable community standard as understood at that time. The manner of the striking would also be relevant.

J.E. said that it was done with her pants and underwear down and was extremely painful. It is difficult to even contemplate what an acceptable degree of physical force for “correction” would be to be applied by a male parent to the bare buttocks of a young

woman approaching adulthood. She did however say that she was in so much pain that she believed she was going to pass out. [ 33 ] Sexual interference (s. 151) involves touching a person under the age of 16 for a sexual purpose. Invitation to sexual touching (s. 152) involves inviting, counselling or directing a person under 16 to touch for a sexual purpose the body of the person accused. Sexual exploitation (s. 153.1(a)) is committed when a person in a position of trust or authority such as a parent, touches the body of a young person for a sexual purpose or invites sexual touching by a young person.

A young person is defined as a person who is 16 years old but under the age of 18. [ 34 ] For the offences under s. 151, sexual interference and s. 152, invitation to sexual touching, the victim must be under 16. For the offence of sexual exploitation under s. 153.1(a), the victim must be either 16 or 17 years old. The age of the victim is an essential element of all three offences. The Crown is required to prove that essential element. If it is not clear whether the alleged victim was under 16 or had reached 16 at the time of the incidents, that essential element has not be proven.

Touching of a sexual nature would still be sexual assault regardless of the age of the victim. [ 35 ] The incidents that are alleged to have happened when J.E. was under 16 would be those to which the charges under s. 151 and s. 152 relate. She said that when she was a child of about 9, M.P. laid on top of her and she knew then that it was inappropriate. She did not indicate whether there was any touching of a sexual nature that took place at that time. That would not be an offence under either section. J.E.’s evidence was that M.P. touched her breasts directly when she was 15 years old.

If proven beyond a reasonable doubt, that incident would constitute sexual interference. [ 36 ] The other incidents that may have taken place when she was under 16, are alleged to have taken place when she was either 15 or 16 years old. They would not be proven to be sexual interference or sexual touching (under 16) nor would they be proven to be sexual exploitation (16 or 17). J.E. said that M.P. touched her vagina once while laying on top of her. She also said that M.P. indirectly touched her vagina while laying on top of her and rocking back and forth, mimicking sexual intercourse.

She said she was between 15 and 16 when that happened. It is not clear that the touching of J.E.’s vagina, based on her own evidence happened when she was under 16. The only physical contact of a sexual nature that was alleged to have taken place when J.E. was clearly under 16 was the allegation of the touching of her breasts. The physical contact of a sexual nature would be sexual assault because the age of the victim could not be established. [ 37 ] According to the evidence of J.E. there were two incidents involving requests for sexual touching. One took place in the home when she was 15 or 16 years old.

At that time, she said that M.P. asked her to perform fellatio. Once again, if proven beyond a reasonable doubt that the incident happened, there was no proof that it took place when J.E. was under 16 as required for sexual touching. There was no proof that it happened when she was either 16 or 17 years old as required for the charge of sexual exploitation. It would not be sexual assault. [ 38 ] On J.E.’s evidence another request for fellatio happened at M.P.’s workplace. It is alleged to have happened when she was 16 years old.

If that incident has been proven beyond a reasonable doubt and it is proven beyond a reasonable doubt that her age at the time was 16, that would be sexual exploitation. [ 39 ] Sexual assault contrary to s. 271 of the Criminal Code is an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. The age of the complainant is not an element of the offence although the complainant’s age is relevant where consent is in issue. It is not here.

Sexual assault would also include touching of the genital area directly and through clothing or the sheets or blankets of a bed. If those incidents are proven beyond a reasonable doubt to have happened, that would establish the essential elements of sexual assault. It would not matter for that offence whether she was 15 or 16 years old. The touching of J.E.’s vagina is alleged to have directly happened during a spanking incident when she was 18 years old.

If proven, that would constitute sexual assault. [ 40 ] The period of time over which the offences are alleged to have taken place and the various offences with the age of the victim as essential elements of those offences make for a somewhat complicated list of issues. Counsel did not address these issues in oral or written argument. The charge of assault with a weapon has not been proven even if the facts giving rise to the charge are proven beyond a reasonable doubt.

The charge of invitation to sexual touching has not be proven because the only evidence is that J.E. was either 15 or 16 years old when the incident in the home is alleged to have happened. It has not been proven that she was under 16 at that time. [ 41 ] The issue that remains to be determined is whether all or some of the remaining incidents described by J.E. have been proven beyond a reasonable doubt to have happened.

Those incidents are; 1. assault by striking or spanking J.E. while she was a teenager, 2. sexual interference by touching the breasts of J.E. when she was 15 years old, 3. sexual exploitation by inviting J.E. to perform fellatio on M.P. at his workplace when she was 16 years old, 4. sexual assault by touching J.E.’s vagina directly and through the covers of the bed when she was either 15 or 16 years old, and touching her vagina during the course of a spanking after she had reached the age of 18.

Reasonable Doubt in Sexual Assault Cases [ 42 ] This is what is sometimes unfortunately referred to as a “he said, she said case”. That means that there was no one else present when these things were supposed to have taken place, and father and daughter are the only ones who know what took place. It’s an unfortunate turn of phrase because it can perpetuate a misconception about criminal trials that is not only inaccurate but unhelpful to the understanding of what they are about. It never does come down to a simplistic “he said, she said”.

Though it is widely used it also seems, unintentionally, to trivialize the subject matter of the complaints. [ 43 ] In deciding criminal cases, judges are required to use a kind of thought process that’s foreign to most people. That is nowhere

more clear or so controversial as in cases of sexual assault. Often what is alleged, by its very nature, happens in private. There are two inconsistent narratives. Only one can be true. The natural human tendency is to believe one, which necessarily means not believing the other. One is true and therefore the other is false. That’s the way the world works. The more convincing version is the true version and the less convincing version must then be rejected as false. [ 44 ] In a criminal trial that kind of natural thought process can’t be used. The purpose of the trial is not to determine what happened.

It’s not to select one of the two alternative versions as being most reliable, most credible or most likely to have happened. Judges must make the conscious effort to avoid that reasoning process that happens to work so well for most people, including judges, in their daily lives. They have a constitutional obligation to do that. The requirement for proof beyond a reasonable doubt in criminal cases is fundamental to the justice system of a liberal democracy.

It has been called the “golden thread” and judges who find themselves wandering through the labyrinth of assessing the relative credibility of witnesses have to grasp the thread to be brought back to the sometimes uncomfortable purpose of the trial itself. [2] [ 45 ] It is an uncomfortable purpose especially in cases of sexual assault. The emotional and other devastation suffered by a person who has been sexually assaulted, as an adult or as a child, is inconceivable to those who have not suffered through it.

In many cases, where a reasonable and thoughtful person would conclude, based on the evidence, that the person has been the victim of sexual assault the legal finding is not guilty. The victim has suffered the consequences of the sexual assault and then suffers the consequences of a legal process where there has been no legal finding of the harm that reasonable and thoughtful people would conclude had been suffered. Certainly, not every person who has committed sexual assault and faces a trial on that charge is found guilty.

There are many who fall between the standard of probability used in almost all other circumstances and the standard of reasonable doubt used in a criminal trial. That has become an issue of serious public controversy. Some people question whether too many fall between those standards and reasonable doubt has expanded too far beyond probability in cases involving sexual assault.

Other people cite the importance of preserving the basic protection of an accused facing the power of the state in any criminal trial. [ 46 ] The standard of reasonable doubt in criminal cases cannot be made less stringent out of concern for a person who was probably the victim of a sexual assault and who will probably be made to suffer more from the application of that standard.

Reasonable doubt cannot be transformed into a more exacting standard because of the odious nature of the crime and the prospect of the penal and social consequences of a potential wrongful conviction on an accused person. [ 47 ] Making the decision in a criminal case is what has been called a “morally fearsome” act. [3] [ 48 ] Reasonable doubt can arise from the absence of evidence. It can also arise from evidence. It can be found not only when enough evidence is believed to raise that doubt. It can be found when any of the evidence is believed enough to raise a reasonable doubt.

That may sound like an overly fine distinction or linguistic sleight of hand. But evidence is not assessed as a binary choice between “believed” and “not believed”. Most evidence falls short of meeting a standard of certainty at one end of a continuum or deserving of absolute rejection as false at the other. Evidence may not be accepted as substantially credible or reliable but may be just credible and reliable enough to rise to the level of reasonable doubt. That is significant in any criminal case. [ 49 ] The standard is not which of the two narratives is the more reliable.

It is whether after hearing and assessing all the evidence there remains a reasonable doubt as to the guilt of the accused person. That must be the case even in the face of an uneasy, unsettling and troubling sense that the accused person is probably guilty. At the same time, reasonable doubt is found in evidence or the lack of evidence. An inarticulable intuitive sense is not a substitute for reasonable doubt. Assessment of Credibility and Reliability [ 50 ] M.P.’s denial was clear and firm.

He was agitated while being cross examined but no more agitated than one might expect from a person facing serious charges of this kind. He was pointed and argumentative at times but was polite and remained composed. There were no inferences that could properly be drawn from his demeanor. He was not caught in contradictions either within his evidence or with anything he had said before. If one heard only his testimony, there would be no reason to disbelieve him. [ 51 ] M.P.’s testimony does however stand in stark contradiction to the evidence of J.E., her mother, and grandmother.

It is not weighed against the evidence of the others to determine which is the more reliable narrative. It must be tested by that evidence to determine whether it, or any of the evidence raises a reasonable doubt. [ 52 ] There are some factors that cannot be considered when assessing the evidence in this case. J.E. did not report the incidents to her mother as they happened. It was noted that she was close to her mother. That is proof of nothing.

People respond to incidents of physical and emotional abuse and sexual assault in different ways. [ 53 ] J.E. by the time she was a teenager was almost 6 feet tall and considerably larger than M.P. That size difference also proves nothing. People are able to exert power in ways beyond only physically overpowering a victim. Those are not matters that can or should be considered. [ 54 ] J.E. spoke in a matter of fact way about highly emotional issues. Her evidence was not given in a way that would suggest that it as rehearsed or memorized. She recalled things in a way that was natural and not entirely linear.

She became distraught at times but never in a way that seemed insincere or forced. She was not caught in contradictions. She too was firm but polite in her response to questions. She was careful and articulate in phrasing her answers. The version of events that she gave was internally consistent and also consistent with the other evidence except that of M.P. [ 55 ] Her statements were not such that they simply could not have happened. The credibility of her statements is supported by the lack of exaggeration. That is not based on an assumption of their truth.

It means only that J.E. did not testify to behaviours that in their nature and frequency were extreme. If one were going to fabricate allegations of sexual assault a person would be able to create a story that was more aggravated than this. She spoke of only two occasions when she said that he touched her genital area and one where he touched her breasts. She did not say that he regularly touched her when he came to her bedroom. She said that he invited her to touch him but did not say that he had physically forced himself on her or tried to extort her to engage in sexual activity with him.

[ 56 ] J.E.’s evidence was consistent with what her mother said. Her mother spoke about the spankings going on into her teenage years. She specifically recalled that because she said she had called a friend about it and that friend expressed shock that they were spanking a person of that age. The friend’s words are not significant for proof of their content. The conversation was simply her way of placing it in a temporal context. She spoke of the incident where she came into her daughter’s bedroom and found her husband lying on top of her daughter. He said that he was just hugging her.

While the dates around that incident were an issue because they were tied to a storm, it was not established that the timing was such that it just could not have happened as she recounted it. What was recounted was also not aggravated. She said that he had his arms around her and that it didn’t look to her like a hug at the time but she did not say that she saw anything that involved direct sexual contact. [ 57 ] She also spoke of how when she confronted him he did say that he had asked their daughter to give him a blow job but only to see how she would respond.

He denies ever saying anything even like that or making that admission to her. Her evidence in that regard was not shaken on cross examination. Once again, the nature of the statement is while bizarre, not as extreme as it might have been. It did not involve an admission of direct sexual contact but an admission of a statement with a very strange explanation. [ 58 ] She also spoke of how her husband had referred to their daughter as a “slut”, a “whore” and a “tease”.

Once again, he denies having said anything like that and notes that she wasn’t hanging out with boys in a way that could have even prompted that kind of language from him. [ 59 ] She confirmed her daughter’s recollection about the telephone call from university. She did not hear the entire conversation but did hear M.P. ask her if she enjoyed having sex. He adamantly denied that kind of sexualized talk. If she were concocting that version she could have easily said that she heard the references to the sex toys as well.

She did not. [ 60 ] J.E.’s version of events is confirmed as well by the evidence of her mother and grandmother about the telephone call they received in Newfoundland. She said that M.P. simply told them that everything their daughter had told them was true. Her mother recalled it somewhat differently. She said that M.P. told them that everything J.E. had said was true but that he said this only to get his wife to come back. That version admits of another

interpretation. It could mean either that he was making an admission and was admitting it truthfully to try to get her back or that he was mouthing the words only to get his wife to come back. In either event, M.P. denies making anything like that statement. But, if that were concocted by his wife and her mother it would be easy to get the same story. The difference makes the statement more credible rather than less credible. [ 61 ] The matters at issue here are not the kinds of things that can be accounted for by different perspectives or different abilities to observe and recollect.

In this case, the diametrically opposed versions of events cannot have both happened. If she and her mother have come up with a lie to which they have both sworn in court, to support J.E.’s lie, it is an elaborate and devious scheme. It does not involve one thing but several observations. To find that their version of events is credible and reliable does not mean that M.P.’s denial must necessarily be entirely rejected as both false and failing to raise a reasonable doubt. But, M.P.’s evidence must not be considered in a vacuum.

It must be tested against the other evidence but not merely weighed and entirely rejected if considered not as worthy of belief. Reasonable doubt is not displaced by a finding that the evidence of the Crown is just more worthy of belief. It must be of such a quality that when M.P.’s evidence is assessed against it, there is no reasonable doubt as to his guilt. [ 62 ] Reasonable doubt in this case is not found in the evidence put forward by the Crown. J.E. provided a clear and thoroughly convincing narrative. It is supported by the evidence of her mother and her grandmother.

I believe it and accept it as being true. M.P.’s denial does not raise a reasonable doubt when tested against the other evidence. The evidence put forward by the Crown was supported by some circumstantial indicators of reliability and was of such a quality that M.P.’s denial not only does not stand up to it, but does not, in the face of it, raise a reasonable doubt. [ 63 ] On that basis, I find Mr. M.G.P. guilty of the following, 1. Assault contrary (s. 266) with respect to the striking of J.E. when she was 18, 2. Sexual interference (s. 151) with respect to the touching of J.E.’s breasts when she was 15, 3.

Sexual exploitation contrary (s. 153.1(a)) with respect to the request that J.E. perform fellatio when she was 16, 4. Sexual assault contrary ( s. 271 ) with respect to touching J.E.’s vagina during a spanking when she was 18, touching her vagina while on her bed when she was 15 or 16 years old, and touching her vagina through sheets and blankets when she was 15 or 16 years old. [ 64 ] Mr. M.G.P. is found not guilty of the offences of assault with a weapon (s. 267(a)) and invitation to sexual touching (s. 152). Campbell, J.