R. v. B.J.L., 2023 NSSC 123

SUPREME COURT OF Nova Scotia Citation: R. v. B.J.L. , 2023 NSSC 123 Date: 20230406 Docket: CRH 505907 Registry: Halifax Between: His Majesty the King v. B.J.L. Restriction on Publication of any information that could identify the victim or witnesses: s. 486.4 and s. 486.5 C.C. Decision Judge: The Honourable Justice Darlene Jamieson Heard: February 21, 22, 23, 2023, in Halifax, Nova Scotia Counsel: Peter Dostal, for the Crown Eugene Tan, for the Defence

Section 486.4 and 486.5 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or onapplication of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim orwitness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that theorder is in the interest of the proper administration of justice. By the Court: Introduction [1] B.J.L. is charged on a direct indictment dated April 21, 2021, with three counts of sexual assault contrary to

Section 271 andthree counts of sexual interference contrary to

Section 151 of the Criminal Code. [2] The trial proceeded as a judge alone trial on February 21, 22 and 23, 2023. The Crown presented evidence from fourwitnesses: the complainant, A.N.; M.N., the mother of A.N., T.D., the godmother of A.N. and Constable Patrick O’Neill, theinvestigating police officer from the HRM Criminal Investigations Division. The Defence called the accused person, B.J.L. [3] The evidence of each witness will be described and assessed in detail below, but the evidence of the complainant may besuccinctly summarized as follows.

The evidence of A.N. is that B.J.L. touched /digitally penetrated her vagina on 3 occasions; once ather Auntie T.’s home, once in her mom’s bed, and once in her brother’s bedroom. [4] B.J.L. denies that he touched A.N. in the manner alleged. [5] At the time of the trial, A.N. had just turned 11 years old. At the time of the allegations in 2019 she was 7 years old. B.J.L. iscurrently 30 years old. [6] A.N. testified from behind a screen and in the presence of a support person.

The Crown brought an application pursuant toSection 715.1 of the Criminal Code for the video recording of the statement A.N., made to police on December 31, 2019, to be admittedas part of her testimony at trial. The video statement was played during A.N.’s testimony. After being satisfied that the requirements setout in

Section 715.1 had been met, including that A.N. adopted the contents of her statement, it was admitted as evidence, with theconsent of B.J.L. The Law Presumption of Innocence and Burden of Proof [7] A fundamental hallmark of our criminal justice system, is the principle of the presumption of innocence. Every individualwho is charged with a criminal offence is presumed to be innocent, unless and until that person is proven guilty beyond a reasonabledoubt. The burden of proof rests with the Crown throughout the case.

The question before me is not whether I believe that the eventsalleged by the complainant occurred; rather, the question before me is whether the Crown has succeeded in establishing each and everyone of the elements of each charge beyond a reasonable doubt. The benefit of any doubt must be extended to the accused: R. v.

Lifchus,[1997] 2 SCR 320, at para 36. [8] The meaning of “proof beyond a reasonable doubt” is set out in Lifchus, supra, where Justice Cory discussed the history,essential components, and meaning of proof beyond a reasonable doubt at paras. 27-35, and provided a model jury instruction at para. 39: …A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on 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. [9] In R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144 (S.C.C.), the Court pointed out that the burden of proof placedupon the Crown falls "much closer to absolute certainty than to a balance of probabilities." (para. 242). Proof beyond a reasonable doubtis not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyond proof of probable or likely guilt. (Starr atpara. 242 and Lifchus at para. 32) The standard of proof beyond a reasonable doubt applies to the final evaluation of guilt or innocence. I must not apply it piecemeal to individual items or categories of evidence. (R. v.

Ménard, (SCC), [1998] 2 S.C.R. 109,at para. 23). [10] Reasonable doubt can arise from the evidence or from the absence of evidence. It is grounded in reason and common sense,and determined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic, flights of imagination, or frivolousconsiderations: Lifchus at para. 36. [11] It is important to highlight the presumption of innocence, especially in the context of alleged sexual assaults against children.As the Ontario Court of Appeal said in R. v. J. (F.E.), (1990), (ON CA), 53 C.C.C. (3d) 64 (Ont.

C.A.), courts mustbe vigilant to ensure the principle of the presumption of innocence is not eroded by a zeal to punish child sexual predators. Guardingagainst the injustice of the conviction of an innocent person requires strict compliance with the principle that an accused is presumed to

be innocent until proven guilty beyond a reasonable doubt (See also R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, at para.26). When an Accused Person Testifies [12] When an accused testified at trial, as B.J.L. did, a trial judge must assess his evidence applying the reasonable doubt standard. To assist in the application of the burden of proof in cases such as this, when there are competing versions of what happened, theSupreme Court of Canada provided the analysis to be followed in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. (See also R.v. Ryon, 2019 ABCA 36 and R. v.

Achuil, 2019 ABCA 299, leave to appeal dismissed (SCC)). [13] In. W.(D.), Justice Cory of the Supreme Court of Canada set out the instructions that a trial judge should give herself where theaccused has placed his credibility in issue. The three instructions are: 1. If I believe the accused, I must acquit; 2. If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit; 3.

If I do not believe the evidence of the accused and I am not left [with] a reasonable doubt by the evidence of the accused,am I, on the basis of the evidence I do accept, convinced beyond a reasonable doubt of the guilt of the accused. (para. 11) [14] In R. v. S. (J.H.), 2008 SCC 30, the Supreme Court of Canada emphasized the W.(D.) questions were not to be rigidly repeatedin a manner that suggested an unintended "level of sanctity or immutable perfection".

Rather the main point is that lack of credibility onthe part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. 13 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 toprove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in atriumph of form 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, 2000SCC 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. [15] In the recent decision of R. v. Gauthier, 2022 ABCA 121, the Alberta Court of Appeal helpfully summarized the principlesapplicable to the W.(D.) analysis (as refined in Achuil, supra) at para. 30: i.

The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt and that burden remains onthe Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown (subjectto the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with theproponent of the defence); ii.

In that context, if the accused's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) isbelieved, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (againsubject to defences with additional elements such as an objective component); iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and iv. Even if the jury completely rejects the accused's evidence (or where applicable, other exculpatory evidence), they may notsimply assume the Crown's version of events must be true. Rather, they must carefully assess the evidence they do believe and decidewhether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused's evidence (orwhere applicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt.

Assessing Credibility and Reliability [16] Fact finding requires that I assess both reliability and credibility. They are different. Reliability has to do with the accuracy ofa witness’s evidence. It involves an assessment of the witness’s capacity to observe, recall and recount the events in issue. Credibilityinvolves an assessment of the witness’s believability and truthfulness, in other words, his or her veracity. [17] Our Court of Appeal said the following about assessing credibility and reliability in R. v.

D.D.S., 2006 NSCA 34 ,[2006] NSJ No 103 (NSCA): 77 … Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeatedtesting of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it,while applying the appropriate standard of proof in a civil or criminal trial? [Emphasis added] [18] In Baker v.

Aboud, 2017 NSSC 42, Forgeron J. provided guidance with respect to the principles governing assessingcredibility: 13 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009

NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 100, which guidelines include the following: • Credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressionsthat emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. c. Gagnon, 2006SCC 17 (S.C.C.), para.20.... "[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise andcomplete verbalization:" R. v.

M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. • There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate, Re,2008 NSSC 283 (N.S.S.C.). On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weightto different parts of a witness's evidence, Novak Estate, Re, supra. • Questions which should be addressed when assessing credibility include:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, supra;

b) Did the witness have an interest in the outcome or were they personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which they testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.);

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [19] The statements in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at paras. 9 and 10, serve asa useful reminder of some of the factors a judge should keep in mind when making findings as to credibility. While this statement ismade in the civil context, I am fully mindful of the different standard of proof that exists in a criminal matter as opposed to a civil matter: 9.

If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection, it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, see Raymond v. Bosanquet (1919) (SCC), 59 S.C.R. 452, at 460. A witness by his manner may create a very unfavourable impression of his truthfulness uponthe trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling thetruth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. 10.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed

person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. ... [20] Finally, in R. v. M.G., (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont.

C.A.), the Court commented on themeans of assessing credibility as follows: [28] The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for theBritish Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260: Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility andreliability of the complainant's evidence be tested in the light of all of the other evidence presented.

Assessing Evidence of Children [21] A.N. was 11 years old at the time of the trial and was 7 when the incidents are alleged to have occurred. Neither the testimonialcapacity of A.N. nor the admissibility of her evidence are in issue. However, the weight to be given her evidence which, in turn, raisesissues of credibility and reliability is certainly in issue. [22] The caselaw is clear that when a trial judge assesses evidence given by children it should not be in the same manner as anadult.

The Supreme Court of Canada in W.(R.), supra noted that since "children may experience the world differently from adults, it ishardly surprising that details important to adults, like time and place may be missing from their recollection" (at page 133). Further,Derrick, J. (as she then was) in R. v.

A.W.H., 2017 NSPC 19, spoke of the fact that in cases involving child complainants the standard ofproof beyond a reasonable doubt, does not get lowered but given children may experience the world differently than adults, conceptssuch as time and place may be missing. [23] I must keep in mind the caution set out by McLachlin, J. (as she then was) in W.(R.) where she stated: 26 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that theevidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protectingthe liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for averdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of childrennot from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths andweaknesses which characterize the evidence offered in the particular case. 27 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to"adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. [24] Further, in R. v.

B.E.M., 2010 BCCA 602 (C.A.), it was pointed out that "the evidence of a child is evaluated in the context ofthe age of the child, and lack of precision regarding details and timing of events is not necessarily fatal to a finding that a child is acredible witness" (at para. 35). [25] The Supreme Court of Canada further expanded its comments on assessing the evidence of children in R. v. F. (C.C.), (SCC), [1997] 3 SCR 1183, where the Court spoke about subsequent inconsistent evidence of a complainant after adoptionof her video interview.

For example, the complainant testified differently about the clothing of the accused and whether he was awake atthe time of the alleged touching. 19. It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more thanadults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The youngerthe child, the more pronounced will this be...

It is a common experience that anyone, and particularly children, will have a betterrecollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, "Do Children ForgetFaster?", [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offenceand which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. …

49 In the case at bar, Lane J. properly viewed the inconsistencies as a matter going to weight. She applied the principles from B. (G. ), supra , and W. (R.) , supra , in holding that the minor inconsistencies regarding peripheral details were not of "great significance" and that they should not preclude her from relying on the videotaped statement as true. Furthermore, she found that the complainant's evidence-in-chief and cross-examination was consistent with the evidence she gave in her videotaped statement with respect to the essential elements of the assault.

As Lane J. noted: ...I am satisfied beyond a reasonable doubt as to the essence of her complaint. As I have said before, she was totally consistent with respect to the essential details and that consistency remained notwithstanding a very skilled cross examination. [ 26 ] Keith, J. in R. v.

Michaud , 2022 NSSC 160 , provided a helpful overview of the challenge trial judges face when assessing inconsistencies in the evidence of children in relation to those issues that are peripheral as distinguished from those that are core: 34 In addition, mistakes, inaccuracies or inconsistencies on peripheral matters will not necessarily raise a reasonable doubt or fatally wound a complainant's credibility. ( R. v Bishop , 2009 NSCA 32 at paragraph 5 and see also R v R.B., 2018 NSCA 78 at paragraph 80 ).

By separating those issues which are "peripheral" from those which are "core", the Court recognizes both the strengths and frailties of childhood memories in a common sense and contextual way while vigorously protecting the accused's fundamental right to a fair trial. 35 A difficult but practical question arises as to how "peripheral" issues are distinguished from those that are "core". Evidence that clearly goes to the elements of the offence must be considered "core" and approached with increasing scrutiny. However, separating "core" from "peripheral" evidence is not always so obvious.

There is no fixed list of issues deemed to be "peripheral". Equally, there is no clear formula by which "peripheral" and "core" issues can be easily tagged or categorized. The analysis is more nuanced. As Derrick, J (as she then was) observed in R. v A.W.H . , 2017 NSPC 19 , "The assessment of a child's evidence should not fall prey to rigidity and should draw on common sense" (at paragraph 75). 36 The case law reveals the underlying complexity. In W.R. , the Supreme Court of Canada confirmed that that the scope of "peripheral matters" includes the exact time and location of the alleged offence (at paragraph 26).

In R. v Hughes, 2020 NSSC 143 , D.B. was the victim of multiple sexual assaults. However, he could not remember the precise date or time of day each attack occurred. He did recall significant details as to who sexually assaulted him; where the various assaults occurred and how he was violated. At paragraphs 5 - 31, Arnold, J. concluded: "D.B. was unsure about the dates and times of the events he described.

Considering his age at the time of those events, and the frequency with which they occurred, his inability to testify accurately about the chronological issues is peripheral to the more pertinent aspects of the alleged sexual assaults" (paragraph 66). 37 Examples of other details considered "peripheral" in the jurisprudence include the complainant's inability to recall whose shirt she was asked to wear, or the title of a book described during the complainant's testimony, or whether the complainant was on the accused's left or right when alleged assaults occurred. ( R. v. G.S., 2021 NSSC 133 ).

Similarly, in R. v D.G., 2020 ONCA 671 , the Ontario Court of Appeal addressed certain inconsistencies in the complainant's evidence around whether the bedroom door was locked during the first alleged assault and whether the back seat of a car was folded down during the second assault. The Court noted that the trial judge described these details as "peripheral". The accused disputed that characterization.

The Court of Appeal disagreed with the accused and determined that the trial judge "accepted the complainant's evidence as to what the appellant did and concluded that this satisfied her beyond a reasonable doubt. That conclusion was available to her on the evidence" (at paragraph 11). 38 Notably, accommodating mistakes or inconsistencies involving time and location does not mean that these issues are totally irrelevant or should simply be ignored whenever assessing the reliability or credibility of a child or vulnerable witness.

To make such a categorical pronouncement would offend the presumption of innocence… … 45 Ultimately, before finding an accused guilty of sexually assaulting a child, the Court must approach the important issue of credibility and reliability in a careful and critical manner. The closer these matters come to the essence of the allegations against the accused and the essential elements of the offence, the presumption of innocence and concern over reasonable doubt compel greater scrutiny.

Sexual Assault and Sexual Interference (Elements of the Offences) [ 27 ] B.J.L. is charged under Sections 271 and 151 of the Criminal Code .

Section 271 of the Criminal Code states:

Sexual assault 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; … [28] In R. v. Barton, 2019 SCC 33, Moldaver J., writing for the majority, set out the essential elements of sexual assault: A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accusedcommitted the actus reus and had the necessary mens rea.

A person commits the actus reus of sexual assault "if he touches anotherperson in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the"intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched" (R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42). (See also R. v. Ewanchuk (1999), (SCC), 131 C.C.C. (3d) 481 (S.C.C.) and R. v. D. (M.) (2010), 2010 BCCA 162, 253 C.C.C. (3d) 493 (B.C. C.A.)). [29] For the accused to be found guilty of the offence pursuant to

Section 271 of the Criminal Code the Crown must prove all theessential elements: • The accused intentionally applied force to the complainant; • Because the complainant was under the age of 16 years at the time of the alleged incidents, consent is not an issue:

Section 150.1of the Criminal Code. • The force applied took place in circumstances of a sexual nature. [30]

Section 151 of the Criminal Code reads: Sexual interference 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; … [31] The Nova Scotia Court of Appeal in R. v J.D.C., 2018 NSCA 5, set out the elements of a charge of sexual interference underSection 151: "that the complainant was less than 16 years old at the time; that the appellant intentionally touched the complainant eitherdirectly or indirectly...; and that the touching was for a sexual purpose" (para. 32). Further, the Ontario Court of Appeal defined thisoffence in R. v.

B.J.T., 2019 ONCA 694, at para. 37: The offence of sexual interference under s. 151 of the Criminal Code is made out when the accused, for a sexual purpose, directly orindirectly touches the body of a person who is under 16 years old. It is a specific intent offence, meaning that the offender mustspecifically intend that the touching is for a sexual purpose.

The offender may also have another purpose or reason for the touching, butif he or she also has a sexual purpose, the offence is made out. [32] The interaction of charges of sexual interference, invitation to sexual touching and sexual assault was considered by theSupreme Court of Canada in R. v. R.V., 2021 SCC 10. The Court said: [51] Sections 151, 152 and 271 of the Criminal Code use different terms to describe similar acts.

Sexual interference under s. 151requires proof of touching, and invitation to sexual touching under s. 152 requires proof that the accused counselled, invited or incitedthe complainant to touch. Sexual assault, for its part, is not defined under s. 271. Instead, sexual assault is a s. 265(1) assault madeapplicable to sexual circumstances by s. 265(2). A person commits a sexual assault by applying force intentionally to another person,directly or indirectly, in circumstances of a sexual nature (Criminal Code, s. 265(1) (a); R. v. Chase, (SCC), [1987] 2S.C.R. 293, at p. 302; R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 24).

[ 33 ] If the Crown proves beyond a reasonable doubt that B.J.L. touched A.N. as she has alleged, then B.J.L. would be guilty of the charges against him because the alleged contact is clearly and objectively sexual in nature and certainly would have violated A.N.'s sexual integrity. There is no question such alleged touching would have been intentional. There is no question that A.N. was less than 16 years old at the time of the alleged offences. Consent is not in issue. In this case the question is: has the Crown proven beyond a reasonable doubt that B.J.L. sexually touched A.N. as she has alleged.

Evidence [ 34 ] I will now review the evidence of the witnesses who testified at trial. Although I may not mention all of the evidence, I have carefully considered all of the evidence. Both the complainant and accused testified. The complainant's mother and godmother also testified as did the investigating police officer. The complainant's evidence was heard first and, therefore, I will review it first.

While there may be comments respecting the credibility, reliability, or consistency of aspects of the evidence, I will draw no conclusions on credibility and reliability until all of the evidence has been considered. [ 35 ] First of all, I note there are many facts that are not in dispute in this matter. They include the following: B.J.L. had known A.N. her entire life. His nickname is (nickname). The two families were like family, although not related. A.N.’s mother, M.N., and B.J.L.’s partner, T.D., were best friends and had known each other for many years. Their children were like brothers and sisters.

They regularly spent time at each other’s homes. A.N. had sleepovers at T.D.’s apartment and B.J.L. was present. T.D., B.J.L. and the three boys lived with A.N.’s family for a period of time in the spring of 2019. They left sometime prior to July of 2019. When they lived with M.N. it was a busy household with 6 children. T.D., B.J.L. and their children were in attendance at a Canada Day party at A.N.’s home in 2019 and B.J.L. slept most of that time in A.N.’s brother’s bedroom, which is across the hall from the only bathroom in the home. He was asleep in a child’s car bed.

The only time that N.K., who was 4 or 5 at the time, visited A.N.’s home in 2019 was the day of the Canada Day party. There was an occasion when A.N. was sleeping over, late at night that B.J.L. and A.N. were alone downstairs in the home he shared with T.D. and their children. The tattoos on B.J.L.’s face and neck were present in 2019. A.N. [ 36 ] A.N. was 11 years old at the time of trial. She is bright and articulate. She gave evidence over two days, although not full days. [ 37 ] She referred to B.J.L. as (nickname), who she said was the father of her godbrothers.

She identified (nickname) as the person who touched her private parts. She and her godbrothers grew up together and their mother was her aunt. She said she called her ‘auntie’ because she grew up with her. She testified that she recalled (nickname) living with them and that it was for more than a day or 2. She said her aunt and godbrothers stayed also. She said (nickname) never played with her or her brother or sister. She said he was just someone who was there. [ 38 ] When asked to describe (nickname) she said - he is black, like he is very black.

She was then asked what she meant by very black and she said like a Jamaican person but he is not Jamaican. She then said he has a black eye. She didn’t know how tall he was but that he was big, but he was not fat - skinny. [ 39 ] A.N. described 3 separate incidents of vaginal touching/digital penetration. She said in her video statement that it hurt very bad and added in her trial evidence that it hurt each time. She said she was scared each time and was shivering.

Alleged Incident - Aunt’s home [ 40 ] A.N., responded to the question tell me about the first time it happened by initially saying she didn’t remember the first time but then said she thinks she remembered it. She then described that she was watching a dog movie, a cartoon, and then he did it to her again. She said she was shaking again. She said after the doggy movie he went downstairs with her and they watched a good movie. She said this was at her aunt’s house. She said it was at night, probably a very late time.

She then said that he was going to show her a trick but then her aunt came in and told her to go to bed. She later noted that he was standing by the TV and then he said he was going to show her the trick and not to tell anyone. She said she didn’t want to learn the trick. But then her auntie came in and he had no time to show her the trick because he told her not to tell anyone. She relayed that she was trying to go to bed but she couldn’t, she was thinking about all the bad stuff that was happening to her but then she did fall asleep and doesn’t know what else happened.

When asked what hand he used she indicated she thought it was his right hand. [ 41 ] In her evidence at trial, she provided additional details indicating that she was on the mattress and her three godbrothers were in the room but were sleeping. She said he came in and laid on the bed beside her. She said there were blankets on her and she thinks he was wearing regular clothes. She was pretty sure she was wearing pyjamas. She said he laid on the bed beside her and she was facing the iPad and he was facing her hair. She said he touched her private parts. She said she watched the iPad, was lying there and shivering.

When asked if she remembers what happened after that she responded she was pretty sure she fell asleep. [ 42 ] She was asked whether she remembered talking about (nickname) showing her some tricks in her video statement. She responded “Um, that was at that time when I am, I was at my Auntie T.’s house. He said that he was going to show me a trick but then my Auntie T. ended up coming in.” She said she didn’t know what type of trick he was trying to show her.

She did not recall what room they were in when he referenced the trick but that there was nobody else in the room with them. [ 43 ] She was asked on cross-examination if at any time she might have gone downstairs with (nickname) and she responded she didn’t remember. It was then put to her that in her video statement she said she went downstairs to watch another movie with him. She was asked if this jogged her memory and she said that it did happen. In response to further questions, she said that they did not have a snack but that she went on the couch and was just sitting there.

The video reference to (nickname) going to show her a trick was then put to her and she responded that he was going to show her a trick and then her Auntie T. came in. She said he didn’t tell her what the trick was going to be and that she thought they watched a movie. [ 44 ] Her evidence was clear that there was only one incident at her Auntie T.’s home. There was some confusion in her video statement with the Constable’s questioning when he asked her to tell him about the second time it happened and she responded there was

no second time. She clarified for him that there was no second time because the other incidents happened at her house. In other words, she confirmed there was one incident at her auntie’s home and the other incidents were at her own home. Alleged Incident - Mother’s bedroom [ 45 ] A.N. said one of the incidents happened in her mom’s bedroom when she was sleeping. She described what she meant by being touched in her private part. She said he went up her hole in her private part, not the hole in her bum, the hole in her vagina. She said he used his finger.

When asked how she knows that, she said because she was shivering there and then she looked down and he was doing it and that it hurt very bad. She then said he was squeezing his finger up there and she tried to leave, but she never wanted to make him mad. She said she doesn’t remember a lot of things she doesn’t remember what he was wearing. [ 46 ] She said he did it when she was sleeping and she couldn’t open her eyes because she was very sleepy but she opened them for one minute and saw his face and then she closed her eyes and went back to sleep and then when she woke up in the morning he was gone.

She also said that one of the times at her mom’s house her godbrothers and Auntie T. were asleep as they were having a sleepover. [ 47 ] She said she thinks it was in the summer when she was sleeping in her mom’s bed and is pretty sure her brother and sister were in the bed with her and that her mom and Auntie T. were downstairs. She said she thinks he was standing off the bed. She said he was inside of her pants and that she fell back asleep right after. She said she didn’t know how long this incident happened after the first time.

On cross-examination she said she didn’t know if her brother and sister were there but agreed they probably were since she was sleeping in her mother’s bed and they would usually be there with her. She said she was near the edge of the bed. She said she didn’t remember who was in the house or where they were. Alleged Incident - Brother’s Bedroom [ 48 ] A.N. said there was an incident during the daytime when her friend, N.K. was present.

She said her friend got hugged by him but N.K. didn’t know what he was doing to her because she was lying on her side, over the other way and was looking the other way. [ 49 ] She said school was out at the time. She said he had told her to come in and she didn’t know what for. She said (nickname) wanted her in the room. She described him using his finger to motion for her to go into the bedroom. She said everyone was on the first floor except for her and (nickname). Then she immediately said this was the time that N.K. was there. [ 50 ] She gave evidence that he was lying on the car bed.

Her brother had a car bed. She said she was wearing outdoor clothes but she doesn’t recall what he was wearing. She said he didn’t say anything to her during the incident. She said N.K. was visiting her during the car bed incident. She said that their moms were friends. She said that N.K. didn’t visit a lot but was a pretty good friend. [ 51 ] On cross-examination she was asked whether she remembered if N.K. was actually in the room at the time and she responded yeah. Initially she said she didn’t know if N.K. was asleep then later said she wasn’t asleep. She said she did not remember where N.K. was in the room.

She confirmed the incident happened when both of them were in the room and it was still daylight. She said (nickname) never made any threats to her and she didn’t recall him speaking to her during the incident. She said her godbrothers, her brother and sister and her mom and auntie were downstairs. During cross-examination she was also referred to her video statement where she said (nickname) had hugged N.K. and confirmed that was true. She said this occurred after he did the things to her. [ 52 ] She said she told her mom because she had seen a video on YouTube where a similar thing happened to a girl.

She said it was animated people in the video and that a girl was being touched on her back by her grandpa and the girl didn’t like it. She said that a similar thing happened to her and when she saw the video she knew that it wasn’t ok so she decided to tell her mom. She said she told her mom right after she saw the video. M.N.’s Evidence [ 53 ] M.N. is A.N.’s mother. She has three children, twins (a boy and a girl) who are seven years old and A.N. who is 11. In 2019 they were living in a home with two levels. She gave evidence of how close she and T.D.’s family were in 2019.

She said that in 2019, around April and May, B.J.L. and T.D. and their children lived with her. She said it was for about two months straight. T.D. and B.J.L. slept in her sons bedroom on the car bed and their children slept in the bedroom across from her bedroom. When B.J.L. and T.D. and their children were living with her it would have been a very busy household. [ 54 ] She said she was in a relationship with S.B. who resided with her and her children until February of 2019.

When B.J.L. and T.D. were living with her, S.B. was no longer there. [ 55 ] She gave evidence that while B.J.L. was staying at her home for the two months he may have looked after A.N., if she had to run to the store and, if T.D. wasn’t there. She said during this time, her boyfriend S.B. was living just down the street from her and she would spend nights with him and then come up in the morning and get the kids ready for daycare. She indicated she was with him a lot. She said she didn’t know if her kids slept in her bed when she wasn’t there.

She said she was with S.B. a lot as T.D. might say to her - well if you put them to sleep you can go. At that time S.B. wasn’t allowed to be around her children until they dealt with Children’s Aid, who then approved him to be back around her kids. She said S.B. was not around her children during this time. [ 56 ] She said that B.J.L. and T.D. and their children were no longer staying with her by mid July when she hosted a birthday party for T.D. [ 57 ] She gave evidence that her children often slept with her, all three of them. She said her son had his own bedroom which contained a racing car bed.

After she and S.B. broke up in February 2019, essentially her son slept with her all the time and rarely used his room. Typically if her son slept in her bed her other two children did as well. Sometimes A.N. slept on the outside of the bed. [ 58 ] She said she took her children to T.D.’s house perhaps three times out of the month and perhaps if there was a get together. Her children and T.D.s children were like brother and sisters. They are all in the same age category.

[ 59 ] She said that A.N. would sporadically go to T.D.s for sleepovers, for example, if they took the kids swimming and they all ended up at a sleepover and sometimes A.N. would go with T.D. Often the sleepovers weren’t really planned, they just happened. Given some medical issues with her son, T.D. and M.N.’s brother were the only people she allowed to babysit him. [ 60 ] She said that her children would stay at T.D.’s apartment sporadically and that A.N. would stay on her own. A.N. had a really close relationship with T.D.’s boys.

M.N. said that A.N. was not a child who had intense nightmares and when she was away she was not the type that would call saying that she wanted to come home. A.N. didn’t stay many places she was either with her family or with T.D. and she loved T.D., probably more than she loved her. [ 61 ] M.N. said she believed in 2019 A.N. had a phone and an older iPad. She said if in 2019 she had the iPad she would have it with her. [ 62 ] She said that N.K., who was four years old at the time, only visited her home on one occasion during a Canada Day party in 2019.

It was the summer that she became friends with N.K.’s mother. She was not sure whether N.K. went into the bedroom with the car bed that day but T.D. and N.K.’s mother were going upstairs to get the kids to come back downstairs. They went upstairs multiple times. She described a Canada Day barbecue with various adults and children present. She said that T.D. and B.J.L. were the last to arrive as they had been downtown at Canada Day events and showed up late afternoon. She said that B.J.L. was upstairs most of the time sleeping.

She recalled going up to use the bathroom that day and it looked to be that he was sleeping. [ 63 ] On Canada Day she estimated there were around 11 children at her home for the barbecue. Some people would have used the bathroom which was on the second floor. She said that there were no other adult males upstairs that day other than, perhaps S.B. [ 64 ] She said that when T.D. and B.J.L. were staying with her there were times when he could have been alone with A.N. For example, after school he might watch his and T.D.’s twins and A.N. while she went to pick up her twins.

She said after they moved out, T.D. and B.J.L. didn’t always visit together. Both would also visit on their own. She recalled him visiting in the evenings and possibly after the twins had gone to bed. [ 65 ] She was asked on cross examination whether she would describe B.J.L. as being of a particularly dark complexion and responded that it depends on the season as in the summertime they got darker. She described B.J.L.’s build in 2019 as being medium and as the year went on he lost weight. [ 66 ] She described the day A.N. made the disclosure to her.

She said A.N. followed her downstairs and started talking about a YouTube video about a grandfather and a granddaughter and he was touching her inappropriately. She asked A.N. if anyone ever touched her in that way and that’s when the disclosure happened. She said the night before the disclosure was her birthday party which was December x. She then called the police and a number of other people. T.D.’s Evidence [ 67 ] T.D. is A.N.’s godmother. She has two sons, twins, whose father is B.J.L. She was also raising her sister’s son.

At the time of the alleged incidents all three children were living with her and she was their primary caregiver. Currently the twins are almost 11 and the youngest is six. B.J.L. was living with her in 2019. Other than a period of time in 2019 when Children’s Aid would not allow B.J.L. to live in her apartment, he resided with her and their children in 2019. [ 68 ] She said they stayed with M.N. for two months in April and May and they moved out before the summer.

It was herself, B.J.L. and the three kids who stayed with M.N. and her children. [ 69 ] She described M.N.s boyfriend S.B. at the time as being light-skinned, not really dark, not really tall, medium-size with no distinguishing features. [ 70 ] When asked about whether B.J.L. had any involvement with the children she said he was there in their everyday life and when asked if he assisted in any aspects of childcare, she said that if she had to pick up the youngest from daycare, she would leave the kids with him.

She added that her sister, who was a quadriplegic, lived in the same building and if she needed help with anything she would go down to her apartment and B.J.L. would be upstairs with the children. She said B.J.L. would sometimes engage in games with the kids. [ 71 ] T.D. said that her and M.N.’s children were only two months apart and they did everything together. She confirmed M.N.’s children would visit her and A.N. would have sleepovers with her kids. A.N. was like a sister to her kids.

She said A.N. would sleep in the same room as her boys but they were in the bunkbed and she would mostly sleep by herself in the single bed. She described A.N. having sleepovers almost every weekend as either they were at A.N.’s house or A.N. was at her house.

She didn’t specifically recall but said that when A.N. stayed over she may have gone downstairs to see her sister and then A.N. would have stayed upstairs in the apartment. [ 72 ] She said that eventually their kids all had phones and iPads but she didn’t remember specifically if they did in 2019. [ 73 ] She said that N.K., who would have probably been four years old in 2019, lived in her building. The only time she recalled N.K. being at M.N.’s home was the Canada Day party in 2019.

She recalled staying for the day and then leaving after the fireworks. [ 74 ] She said when A.N. stayed over, the only other adult male who would have been in the house would have been T.K., who is Caucasian. [ 75 ] She said she recalled an occasion when it was late at night and she saw B.J.L. and A.N. watching television. She said A.N. was over for the night and that A.N. wanted to watch TV and the kids wanted to play their games so she told her to go downstairs and watch TV.

She was asked if recalled this happening on any other occasion, she said that she remembered coming down one night and A.N. was up watching TV and they were just sitting there watching TV on the couch. She could not remember if she told her to go to bed or not.

Constable Patrick O’Neill’s Evidence [ 76 ] Constable O’Neill gave evidence that in 2019 and 2020 he was a police officer with Halifax Regional Police in the Criminal Investigation Division and was assigned to the Sexual Assault Investigative Team. The matter involving A.N. was assigned to him after patrol did the initial investigation. He said he conducted a joint interview of A.N. on December 31, 2019 at the Sea Star special facility of the IWK for interviewing children. He interviewed a number of people including N.K. (on January 3, 2020).

He said there were no disclosures of investigative interest from N.K. who he believed had just turned five. She did not make any corroborative disclosures. Defence’s Evidence [ 77 ] B.J.L. testified in his own defence. He acknowledged that his nickname is (nickname). He grew up in the area where A.N. and her family lived in 2019. T.D. was his girlfriend and the mother of his two kids. He said they lived together in 2019 except for a period around July of 2019.

He said M.N. was T.D.’s best friend. [ 78 ] He explained that he has lost everything, that every single one of his friends has turned on him and that his whole life has been ruined. He explained that he hasn’t seen his kids in three years so hasn’t been able to watch them grow up. He said his children’s mothers don’t talk to him nor does anyone else. He said that his life was pretty much done and that he was just here. [ 79 ] He said he has known A.N. her whole life. B.J.L. said that as A.N.’s father was not around, he tried to play father figure for she and her siblings.

With reference to his relationship with A.N., he said that he played the adult and tried to take care of them and that he took her as a daughter. A.N. and his kids called each other brother and sister. He described himself as being a violent person and, therefore, when it came to the kids and them acting up he didn’t really deal with them because he didn’t know if he would be too harsh on them so the only time he ever said something was if their mother needed him to. [ 80 ] He said he thought it was only two or three weeks that he, T.D. and their 3 children stayed at M.N.’s home but it could have been longer.

He said it was maybe May or June when he and T.D. moved out and returned to T.D’s apartment. They moved out before M.N. threw T.D. a birthday party in mid July and before the Canada Day party. He acknowledged on cross examination that saying they stayed with A.N.’s family 2 to 3 weeks was only an estimate. He said that he, T.D. and their kids, M.N.’s kids and M.N. and her boyfriend were all at the house at that time.

He said he and T.D. slept in M.N.’s son, B.N.’s, bedroom and the children slept in the third bedroom except B.N. who slept with his mother every night. [ 81 ] B.J.L. was asked about M.N.’s evidence that it wasn’t uncommon for her to leave her children with T.D., and sometimes, him. He responded that ‘yeah, I’ve never, the only time I’ve ever watched the kids by myself was not, maybe five, ten minutes at the most but (T.D.’

s) always there so I’ve never really had to, like, she, I would just tell them, you know, (B.N.), get off the counter because he is always climbing up on the counters so besides that I didn’t really deal with the kids. I, I played poker on the phone all day so.’ [ 82 ] He gave evidence that he could not recall any time that the three children, including A.N., did not sleep with their mother. When asked about the evidence that M.N. might spend the night elsewhere with her boyfriend he said that he only remembered her ever doing so, maybe, two or three times.

He said he thinks it was two or three times because he and T.D. “like I said, I don’t like dealing with the kids because I’m like, I get angry so I yell. I don’t feel like I should be yelling all the time so I just, T.D. can deal with it.” [ 83 ] He said when they weren’t living with M.N. they were at her home frequently. He said during the summer of 2019 he would have stopped by M.N.’s home once every week or so, or two weeks or so, but not every day. [ 84 ] He gave evidence that M.N.’s kids slept over at his and T.D.’s home.

He said in relation to frequency, he agreed with T.D. that she had A.N. almost every weekend. He said A.N. stayed over without her brother and sister, but not as frequently. He said that M.N. was having a hard time with the twins who were just babies and her son, who is often hard to handle, so sometimes she asked them to take A.N. [ 85 ] B.J.L. was asked whether there were any times he would have been alone with A.N. in T.D.s apartment.

He responded that T.D. was always in the house and that he didn’t take care of the kids as he was always on his phone or smoking so the only time he would ever interrupt them was when they were fighting. He said besides that he didn’t really even interact with them. [ 86 ] In relation to the alleged incident where A.N. was up at night watching a movie at T.D.s apartment, he said he doesn’t ever remember her being up watching her tablet after T.D. had sent them to bed. He does recall an incident when he was awakened by her crying. He woke T.D. up and then went down to see what was going on.

A.N. was crying and said she wanted to go home. He told her the buses had stopped running. He called T.D. to come down. He was initially standing by the deep freezer. T.D. came down the steps so he walked over and was standing by the TV and told her that she needed to deal with this. He then went outside to smoke and T.D. and A.N. went upstairs.

He believes that was in the summer and thinks it was the day they went to the Commons swimming. [ 87 ] In relation to the allegation that he went into M.N.’s bedroom where A.N. and her siblings were sleeping, he said that if he walked into a room with A.N. her mother was most likely there. He said the children slept with their mother a lot and they wouldn’t go to bed until she went to bed with them. So she put the kids to bed before she would get back up. He said that on the occasions when M.N. was out for the night, T.D. would put them to bed or M.N. would put them to bed before she left.

He said on cross examination that he can’t disagree with the possibility that the three children were in their mother’s bed and their mother was downstairs. [ 88 ] B.J.L. said he did play with the children, for example, they would play Nerf guns and he would throw them in the pool. He said he never really did much with them but when he did he tried to do his best. He carried on with them whenever he could but most of the time he was on his phone. [ 89 ] When asked about N.K., he said she was his goddaughter and has known her, her whole life.

He recalled her being present at M.N.’s home on only one occasion in 2019 at the Canada Day party. [ 90 ] He said the day before the Canada Day event, he had been partying a little by himself and was really tired when he arrived. It

was around 20 minutes after he got there that he went to the bedroom to sleep. He had a beer with M.N.’s brother and boyfriend and smoked a cigarette and then went to bed. He thinks they arrived at M.N.’s home around 2:30 or 3 o’clock. He said they got him up around 8:30 pm when they went to set off the fireworks. He denied being alone with A.N. or N.K. or both of them that day. [ 91 ] He said there were approximately 20 people at the Canada Day party including children. The bathroom was directly across from the bedroom where he was sleeping. He said he was sleeping in the car bed.

He said that TD did come upstairs a few times to tell the kids to get downstairs but most of the time he could hear them banging in the other room. He said ‘I’m not sure if it was all the kids or little bit of them but I remember telling them to shut up once because they were being, they were screaming. And, I had the door open and then I slammed the door shut.’ [ 92 ] B.J.L. was asked to describe his skin tone and said he considered himself light-skinned but said he would agree with M.N. that he does get darker in the summer.

He was asked on cross examination to place his skin tone within the spectrum of the African Nova Scotian community between light and dark skin and he indicated he would put himself somewhere in the middle. [ 93 ] He said he was 5 foot 11 and currently 290 pounds. However, in the summer of 2019 he was between 80 and 100 pounds lighter. He has a birthmark on his right eyelid. He has a tattoo under his right eye and a tattoo on his left cheek. He also has a tattoo on his neck.

He said that he had all of these in 2019. [ 94 ] He said he is not of Jamaican dissent and the only person he knew who was a Jamaican, was a person M.N. was talking to and that there was another guy who was an African. He said the man, who was from Africa, was short, heavier, with really dark skin and black hair. [ 95 ] As Defence counsel pointed out during submissions, B.J.L. during his direct examination, put his character in issue by saying, for example, that he is not the type of person to do this, that he wouldn’t do that and that he is totally against it.

The Crown chose not to address this in cross examination. I wish to note that I have disregarded any evidence that could possibly reference bad character. For example, I have disregarded, the comments of witnesses indicating B.J.L. was previously in jail and B.J.L.’s own evidence in this regard, as well as his evidence concerning violence he perpetrated.

However, I have considered his evidence that he got angry and yelled, for the limited purpose for which it was offered, being his explanation as to why he didn’t deal with the children more. [ 96 ] On cross-examination B.J.L. said that one of the main disagreements he had with the evidence of the other witnesses was his access to A.N. He confirmed that his position is that with very, very limited exception he has never been alone with A.N., other than the time she was crying.

B.J.L. was asked “…except for the crying incident and you might have suggested a little bit of a possibility of other times where it would be for a very short period of time, you otherwise would never have been alone in the same room with A.N., correct?” He responded that was correct. He was then asked: “And the same would go, with being, the only adult in the house with A.N.?” B.J.L. responded: “I was never the only adult in the house with A.N.” Analysis of the Evidence [ 97 ] The primary witnesses are the complainant and the Accused.

It would be easy to turn this into a credibility contest in which I simply determine whether, or not I prefer the evidence of the complainant more so than the accused. Such an exercise would not be the proper legal approach. It is not appropriate to determine a verdict by saying ‘who do I believe?’. This erodes the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt.

It has been held that it "is an error of law to treat the standard of proof as a credibility contest or to reject an accused's evidence solely because it is inconsistent with the Crown's evidence...Neither is it appropriate for a trial judge to approach the assessment of testimonial evidence 'with the objective of determining which version he or she finds to be the most probable' " (see R. v. Hoskins , 2021 SKCA 23 , at para. 98 ). [ 98 ] I now turn to my assessment of the evidence. I will start with B.J.L.’s evidence.

B.J.L.’s Evidence [ 99 ] In weighing the evidence and applying W.(D.) , supra , and specifically, the question of whether I believe the accused, there are aspects of the accused's testimony which I do not believe. Some of his evidence gives me cause to question whether he was being completely honest and forthright. Some of his evidence was not internally consistent nor did it have a logical flow. Particular concerns that I have with respect to B.J.L.’s evidence include the following. [ 100 ] When asked if the children were left in his care, B.J.L. initially said on direct: Q. Okay.

Now, we’ve heard ah, some testimony from ah, M.N. saying that it wasn’t necessarily uncommon for her to leave the kids in the care of ah, T.D. and sometimes in your care. Um, do you have any comment on that? A. Yeah, I’ve never, the only time I’ve ever watched the kids by myself was not, maybe five, ten minutes at the most but T.’s always there so I’ve never really had to, like, she, I would just tell them, you know, B.N., get off the counter because he’s always climbing up on the counters so besides that I didn’t really deal with the kids.

I, I played poker on the phone all day so. [ 101 ] B.J.L. agreed that A.N. stayed with them almost every weekend - pretty frequently. Despite this he maintained that he was not alone with A.N.: Q. Okay. Alright. Um, Let’s ah, let’s talk a little bit about times that you would have been with A.N. in T.D.’s apartment. Ah, were there ever any times you would have been alone with her?

A. Um, no. Like T’s always in the house so. I, like I said, I don’t take care of the kids. I, I’m always on the phone or, or smoking so like when it comes to, the only time I would ever interrupt them is when they were fighting. Q. Okay. A. So besides that I didn’t really even interact with them really. [ 102 ] On cross examination B.J.L. maintained that with the exception of the A.N. crying and wanting to go home incident, he was not alone with A.N. He gave evidence that he has never been the only adult in the house with A.N. He said: Q. Okay.

And your position is that with very, very limited exception, you’ve never been alone with A.N.? A. No. Q. Ah, that includes being alone in a single room with her? A. Well at the time that she was crying, yeah. Q. Sure, okay, yeah, that will be an exception. Um, so except for the crying incident, um, and you might have suggested a little bit of possibility of other times where it would be for a very short period of time, ah, you otherwise would never ever be alone in the same room with A.N., correct? A. Correct. Q. And same would go ah, with being ah, the only adult in the house with A.N. A.

I was never the only adult in the house with A.N. [ 103 ] The evidence is clear that M.N. and T.D. were the primary caregivers and B.J.L. would only have been left alone watching the children for short periods of time, however, he was regularly in the same home with the children. On the one hand B.J.L.’s evidence paints a picture of the two families being inseparable but on the other hand he says he had virtually no access to A.N. Interacting with the children and having access to them, are two different things.

His evidence of never being the only adult in a home with A.N. doesn’t make sense, given that he said A.N. spent many weekends with he and T.D. and their children. Further, T.D. gave evidence that her sister lived in the same building and she would assist her and leave the children with B.J.L. Albeit for short periods of time, M.N. also said she might run to the store or pick up the younger children at daycare and leave A.N. and the other children with B.J.L.

This also doesn’t ring true given his own evidence that he may have been left with the children for 5 or 10 minutes. [ 104 ] In short, B.J.L. tried to highlight at every instance that he did not have access to A.N. I find that in his denial of any misconduct he tried to minimize any opportunity to be alone with the children, such that it undermined his credibility. He continually distanced himself from the children, however, there was ample opportunity for him to have been alone with A.N.

He lived in the same house with her for up to 2 months, visited regularly when he was not living there and by his own admission, A.N. spent many weekends with he, T.D. and their children. [ 105 ] I have difficulty with B.J.L.’s evidence that he tried to be a father figure to A.N. and he took her as his daughter while at the same time saying, due to his self described violent tendencies, he distanced himself and wasn’t really involved with the children. However, he also described himself as the disciplinarian.

He said he would get involved when B.N. (A.N.’s brother) was climbing on countertops and he would intervene when the children were fighting. T.D. said B.J.L. would tell the children to go to bed if they weren’t listening to her or giving her a hard time. If he avoided interacting with the children because he didn’t want to get angry and yell, why would he feel it was ok for his limited interaction to be mostly that of a disciplinarian. [ 106 ] Later when asked about the sleepovers he said: “I, I don’t plan them so I’ve never, like I’m not, I don’t want to take nobody else’s kids.

I, to tell you the truth, I don’t want to babysit but that’s why I don’t do it.

I don’t, like I’m not, the perfect fit parent as if to say so, no.” This doesn’t fit with him being a father figure for A.N. [ 107 ] When asked whether he had any comment about A.N. saying that one incident occurred when he went into her mothers bedroom where she was sleeping, his response was: “Well no because if I walked into a room with A.N. there, her mother was most likely there.” However, B.J.L. acknowledges that A.N.’s mom spent some nights away from the home and that he and T.D. would have been alone in the house with their and M.N.’s children.

Elsewhere in his evidence he said M.N. would put the children to bed in her bed and then get back up. Clearly M.N. was not always in the bedroom when her children were sleeping in her bed. These were young children who M.N. said were on a sleep schedule. B.J.L. did acknowledge on cross examination that he can’t disagree with the possibility that the children were in their mother’s bed and their mother was downstairs. [ 108 ] Considering all of B.J.L.’s evidence, I do not believe his evidence in its entirety.

I conclude that he was attempting to relay circumstances where what A.N. described could never have happened because he was rarely alone in the same room with A.N., never the only adult in a home with her and rarely interacted with the children. In short, he had virtually no access to A.N. I find that his evidence was conveniently contrived to underscore a lack of contact and involvement with the A.N. I see it as an attempt to exclude any opportunity for him to commit the alleged offences. In attempting to shield himself, he provided a setting which is improbable and unreasonable.

It is contrary to life experience and common sense. [ 109 ] I do not accept B.J.L.'s evidence on the issue of access as being honest or reliable. In addition, his evidence does not cause me to have a reasonable doubt. B.J.L.’s denial stands in stark contrast to the evidence of A.N. I have tested his evidence against that of the complainant and the other witnesses - against all of the other evidence. As a result of this analysis, combined with the issues with the accused’s evidence described above, I find that his evidence does not cause me to have a reasonable doubt.

However, as pointed out earlier, these conclusions do not inevitably lead to convictions being entered because I must assess the evidence I do find reliable to

determine if it is sufficient to establish guilt beyond a reasonable doubt. The question is whether I am left with a reasonable doubt by anyof the other evidence. [110] I refer again to the principles of W.(D). which were summarized in R. v N.B., 2021 ONSC 2298: 61 Because the Accused testified, the principles set out in R. v. W. (D.) apply. This means I must acquit the Accused if I believe hisevidence. Even if I do not believe his evidence, but I am left in a reasonable doubt by it, I must acquit him.

If I am not left in any doubtby his evidence, then I must ask myself whether, based on the evidence I do accept, I am convinced beyond a reasonable doubt of hisguilt. 62 In considering the evidence I may believe all, some or none of each witness' evidence. Just because I disbelieve some of a witnesses'evidence does not mean I must disbelieve it all. 63 Particularly with respect to steps 2 and 3 of the W.D. framework, I must consider the evidence of the Accused in the context of all theevidence in the case, including the evidence of each of the two complainants and the other witnesses who testified.

If, after consideringall the evidence I am left unsure as to who I am to believe, then the presumption of innocence and burden of proof on the Crown requiresme to acquit: R. v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R 152, at para. 11. [111] The evidence in its totality must be considered (R. v. EM.W., 2009 NSPC 33, affirmed at 2011 SCC 31). Campbell, J (as he thenwas) said at paragraph 47: ...It is not only appropriate, but necessary for judges to consider all the sources of reasonable doubt.

The sources may include the doubtleft by the complainant's evidence, the doubt created by the evidence of the accused, the doubt found in any other evidence or the doubtarising from the combination of those sources. [112] In relation to the evidence of M.N. and T.D., I found them both to be credible and reliable witnesses in relation to theirdescriptions of their day to day households in 2019, with three active children in each home, and also the significant interactions betweenthe two families. They largely corroborated each others evidence.

Their evidence was corroborative in relation to access and opportunity.Neither mother left the children alone with B.J.L. for long periods of time. They were each the primary caregivers for their children.However, contrary to B.J.L.’s evidence both indicated there were times when B.J.L. would have been in a home as the only adult withA.N. In addition, in relation to the closeness of the two families, the time they spent together, and the layout of the two homes, theirevidence was also consistent with B.J.L.’s evidence, which I accept in these areas.

As noted above there are many facts that are not indispute. [113] Our Court of Appeal has instructed that when I assess the complainant’s evidence, I must subject it to the appropriate amount ofscrutiny (R. v. S. (D.D.), 2006 NSCA 34). Here the Crown’s case rests on the evidence of the complainant with some evidence as toopportunity coming from the other Crown witnesses. In the recent case of D.C. v. K., 2023 NSCA 20, the Court of Appeal confirmed theprinciples of assessing credibility (previously set out in R. v. Stanton, 2021 NSCA 57), particularly in relation to allegations of sexualassault.

One of the principles is that (para. 32): …Where the Crown’s case is wholly dependent on the testimony of the complainant it is essential the credibility and reliability of thecomplainant’s evidence be tested in the context of all of the rest of the evidence (R. v. R.W.B. [1993] B.C.J. No. 758, para. 28(C.A.) … The Complainant’s Evidence [114] I found A.N. to be a reliable and credible witness. A.N.’s evidence on the whole was internally consistent. She testified in a clearand direct fashion. In short, for her age she was an impressive witness.

For the most part she testified with confidence, but her discomfortwas obvious during difficult portions of her testimony when the specifics of the alleged incidents were discussed. [115] She provided detail on each of the alleged incidents that clearly placed the incidents in specific locations with context - the edgeof her mother’s bed, the car bed in her brother’s room, the mattress on the floor in the bedroom of her godbrothers, when she waswatching a dog cartoon, (nickname) saying to her he was going to show her a trick when her Auntie T. walked in.

She provided detailthat the digital penetration hurt (that he was squeezing his finger up there) and that she was shivering when the assaults occurred. Thisevidence was internally consistent with a logical flow. [116] I have assessed A.N.’s evidence against the evidence of all other witnesses.

I have found that a lot of her evidence is corroborated.For example, she often slept over at T.D.’s, she would sleep in her godbrothers bedroom, she and B.J.L. were downstairs alone at T.D.’sapartment at night and T.D. entered the room, M.N. said she had a n older iPad (T.D. could not recall if it was in 2019 but confirmed shedid have a tablet or iPad), if she had an iPad it would have been with her, she and her siblings regularly slept in the same bed as theirmother, she slept on the outside of the bed, B.J.L., T.D. and their children lived with A.N.’s family in 2019 for a period of time up to twomonths, N.K. was at M.N.’s home on one occasion in 2019 - the Canada Day party, B.J.L. was sleeping in B.N.’s bedroom in the car bedon Canada day for a number of hours. [117] B.J.L. himself confirmed on two occasions he would have been in locations similar to the descriptions of A.N., concerning two ofthe alleged incidents.

B.J.L. said that for number of hours on Canada Day he was sleeping in the car bed in A.N.’s brothers’ room andcould hear children playing on the same floor. He said they were bothering him and he slammed the door closed. B.J.L. also described

an incident where he and A.N. were downstairs, in his and T.D’s home, when they were briefly alone one night when A.N. was crying and wanting to go home. [ 118 ] A.N.’s video statement is short and there were few follow up questions. While there were some leading questions in the video interview, A.N. had no difficulty correcting Constable O’Neill when he mixed up her evidence. For example, in relation to the incident at her aunt’s home, she is asked the following question: And he touched you and told you not to tell anybody. Is that what I heard you say? She responded as follows: No.

When he told me that he was going to… He was going to show me the trick that he was going to… He said, don’t tell anyone the trick. [ 119 ] While she said she did not recall or could not remember in relation to many of the questions posed, I take this as naturally inherent with childhood memories. As the Supreme Court of Canada said in F.(C.C.) , supra, children even more than adults will have a better recollection of events shortly after they occurred than they will years later. [ 120 ] A.N.’s evidence is not without issue. It does have some uncertain and inconsistent elements that must be considered carefully.

They are as follows. [ 121 ] While she recalled whether the incidents occurred during the day or at night, she did not recall when the events occurred, other than it was when she was 7 years old, that it was warm outside and may have been summer. She said the incidents happened when she was 7 although she described the time as being a long time ago. She was 7 when the video statement was taken. [ 122 ] She is possibly confused as to which incident was first.

For example, when describing the incident at Auntie T.’s house as the first incident she said: “Then he did it to me again” and said she was shivering ‘again’. [ 123 ] Initially there seemed to be some question in her mind as to whether her brother and sister were asleep in the bed with her at the time of the incident in her mom’s bedroom. There are also some inconsistencies about who else was in the house during the incidents and where they were located in the house. [ 124 ] She had to be prompted to recall that after the incident at T.D.’s home she and B.J.L. went downstairs.

However, once prompted her evidence was consistent about him wanting to show her a trick and then her Auntie T. coming in and telling her to go to bed. [ 125 ] There are some inconsistencies in her evidence as to where N.K. was located in A.N.’s brother’s bedroom and whether N.K. was asleep during the incident in the car bed. [ 126 ] I consider the above issues to be peripheral. Given her age at the time of the events, I consider these chronological, and other issues, to be peripheral and they do not render A.N.’s evidence as lacking in credibility.

Keeping in mind the direction in the jurisprudence regarding evidence of children and evidence of events that occurred when a witness was a younger child, it i

[…]