R. v. Shaw, 2023 NSSC 152

SUPREME COURT OF Nova Scotia Citation: R. v. Shaw , 2023 NSSC 152 Date: 20230510 Docket: Halifax , CRH No. 509814 Registry: Halifax Between: His Majesty the King v. John Stanley Shaw Restriction on Publication: 486.4 and 486.5 Judge: The Honourable Justice John A. Keith Heard: March 23, 24, 27, 28, and 29, 2023, in Halifax, Nova Scotia Oral Decision: May 10, 2023, in Halifax, Nova Scotia Written Decision May 15, 2023 Counsel: Cory J.H. Roberts, for the Crown Matthew Ryder, for John Stanley Shaw A ban on publication of the contents of this file has been placed subject to the following conditions: 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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).

Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. Order restricting publication — victims and witnesses 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 on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. By the Court (Orally): Introduction [ 1 ] By Directed Indictment dated October 5, 2021, the Accused John Stanley Shaw stands charged with seven counts under the Criminal Code . All charges relate to the same daycare centre located in Fall River, Nova Scotia (the “Daycare”).

At all material times, the Accused worked at the Daycare. [ 2 ] The charges allege various forms of sexual abuse and involve three complainants, all of whom were young girls attending the Daycare at the time in question. To protect their identities, I refer to the complainants as RS, JB and MA in this decision. [ 3 ] The first four counts are alleged to have occurred between the 31 st day of December 2016 and the 1 st day of April 2020 and involve the complainants RS and MA. These four counts are summarized as follows: Count 1 : sexually assaulting RS contrary to

section 271 of the Criminal Code . Count 2 : touching RS with his hand and for a sexual purpose when RS was a person under the age of 16 years, contrary to

section 151 of the Criminal Code . This offence is sometimes referred to as the crime of Sexual Interference. Count 3 : sexually assaulting MA contrary to

section 271 of the Criminal Code . Count 4 : Sexual interference in the form of touching MA with his hands and for a sexual purpose when MA was a person under the age of 16 years, contrary to

section 151 of the Criminal Code . [ 4 ] The last three counts allegedly occurred between October 2017 and January 2018 and involve the third complainant JB. Those three counts are: Count 5 : sexually assaulting JB contrary to

section 271 of the Criminal Code .

Count 6: sexual interference in the form of touching JB with his hand and for a sexual purpose when JB was a person under the age of 16years, contrary to

section 151 of the Criminal Code. Count 7: for a sexual purpose inviting JB, a person under the age of 16 years, to touch his penis contrary to

section 152 of the CriminalCode. This offence is sometimes referred to as the crime of Invitation to Sexual Touching. [5] In terms of the evidence, each of the complainants testified at trial. The following parents of each complainant also testified attrial: 1. RS’s parents, CS and AB; 2. MA’s mother, LA; and 3.

JB’s father, DB. [6] The Crown’s final witness was the owner of the Daycare, Lori Belzan. [7] The Accused elected to testify in his own defence. [8] In these reasons, I begin with several general, introductory comments regarding the presumption of innocence, the task ofassessing credibility and reliability in the context of a criminal prosecution and, as well, certain unique considerations related to thetestimony of children. I then turn to the offences themselves, including my findings on credibility and reliability.

As will be seen, and asis so often the case in allegations of sexual abuse, the Court’s determinations regarding credibility and reliability are pivotal. Presumption of Innocence and Burden of Proof [9] In Canada, every person accused of a criminal offence is presumed innocent until proven guilty. This foundational principlehas been described as “the golden thread of criminal justice” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, (“Lifchus”) atparagraph 27).

Section 11(

d) of the Canadian Charter of Rights and Freedoms elevates the presumption of innocence to the realm ofconstitutional importance. It states: “Any person charged with an offence has the right … to be presumed innocent until proven guiltyaccording to law in a fair and public hearing by an independent and impartial tribunal.” [10] Thus, Mr. Shaw is presumed innocent. This presumption stayed by his side throughout this proceeding and can only bedisplaced if the evidence proves his guilt. [11] The presumption of innocence is supported by two important corollary propositions: - The Crown bears the burden of proof.

The Crown advances the allegation of sexual assault against Mr. Shaw and so the Crownbears the burden of proving it. This means that the Crown must prove each essential element of the alleged offences. The Accused, Mr.Shaw, elected to testify but was not obliged to do so. The Accused does not have to prove anything. - The evidentiary standard is proof beyond a reasonable doubt. The Crown must prove each essential element of sexual assaultbeyond a reasonable doubt.

At paragraph 36 of Lifchus, the Supreme Court of Canada defined “reasonable doubt” as follows: … • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guiltymust acquit. [12] And at paragraph 31: As well … the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom beachieved. [13] As mentioned, this case involves allegations of sexual abuse against children.

In these circumstances, an instinctive revulsionat the thought of our most innocent and vulnerable being sexually abused can sometimes trigger an emotional rush to judgment. However, the Court must be careful to not be swayed by emotional or vengeful impulses. The constitutional presumption of innocencecannot be brushed aside to accommodate societal outrage or satisfy an impulsive demand for retribution. The W.(D.) Framework [14] In this case, Mr.

Shaw chose to testify in his defence. [15] As in many cases involving allegations of sexual abuse, concerns around credibility and reliability[1] loom large - not only withrespect to Mr. Shaw’s testimony but the witnesses called by the Crown as well. [16] It is important to approach the assessment of credibility from the proper analytical perspective. As indicated above, the Crown

bears the burden of proving guilt beyond a reasonable doubt and the Accused does not have to prove anything. The mere fact that Mr.Shaw elected to testify does not change these fundamental principles. Put slightly differently, just because Mr. Shaw testified does notmean that: 1. This criminal trial is transformed into a credibility contest where the question of guilt or acquittal is reduced to the binarychoice where the Court selects either the evidence offered by the Crown (i.e. guilt), on the one hand, and the evidence offered by theaccused (i.e. acquittal), on the other; or 2.

An accused cannot be convicted simply because the Court deems his performance in the witness box deficient orinsufficiently compelling to prove his innocence. This would improperly reverse the burden of proof because, again, the accused is notrequired to prove anything – let alone his innocence. As important, it completely undermines the accused’s right to be presumedinnocent. [17] In R v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (“W.(D).”), the Supreme Court of Canada established an analyticalframework designed to reinforce the presumption of innocence and the Crown’s burden of proof when assessing credibility.

It stated, atparagraph 28: … A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [18] Although W.(D.) provided these instructions in numerical order, the analysis is not rigidly sequential. W.(D.) neither endorsed amathematical formula to be robotically repeated nor created “a magic incantation which trial judges acting as triers of fact must mouth toavoid appellate intervention” (R. v.

C., 2004 NSCA 135 at paragraph 21). “Lack of credibility on the part of the accused does notequate to proof of his or her guilt beyond a reasonable doubt” (R. v. S. (J.H.), 2008 SCC 30, at paragraph 13). Assessing Credibility Within the W.(D.) Framework [19] Bearing the W.(D.) principles in mind, the Court must still make findings regarding the credibility and reliability of thewitnesses who testify. The jurisprudence reveals a number of factors which help guide that determination. [20] As a preliminary point, the cases recognize that the task of assessing credibility is not easy.

Assessing credibility is more of an“art than a science” and is “particularly daunting where a judge must assess the credibility of two witnesses whose testimony isdiametrically opposed” (R. v. S. (R.D.), (SCC), [1997] 3 SCR 484 at paragraph 128). It is not always possible to"articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attemptingto reconcile the various versions of events" (R. v. Gagnon, 2006 SCC 17, at paragraph 20). Similarly, as the Nova Scotia Court ofAppeal more recently stated in R. v.

Stanton, 2021 NSCA 57 (“Stanton”), at paragraph 67: The exercise of articulating the reasons “for believing a witness and disbelieving another in general or on a particular point...may not bepurely intellectual and may involve factors that are difficult to verbalize...In short, assessing credibility is a difficult and delicate matterthat does not always lend itself to precise and complete verbalization” (R. v.

R.E.M., 2008 SCC 51, para. 49). [21] Ultimately, the process requires the Court to engage in thoughtful reasoning – not thoughtless instinct based, for example, on aknee-jerk “gut feeling” as to a witness’ credibility and reliability. In R. v. D.D.S., 2006 NSCA 34, Justice Saunders described thisrational process as “…the painstaking, careful and repeated testing of the evidence to see how it stacks up.

How does the witness’saccount stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminalcase?” (at paragraph 77). [22] In terms of more specific guidance, the key factors include[2]: 1. The presence and significance of inconsistencies or contradictions. This would include: (

a) prior inconsistent statements and other impeaching evidence; (

b) whether the witness’ own evidence is internally coherent. This includes an assessment of whether the witness’ own testimonyhangs together as a matter of logic, reason and experience; (

c) how the witness’ evidence measures against (or interrelates with) the evidence as a whole. When the dispute involvesallegations of sexual abuse, the Court must remain particularly vigilant to consider the evidence as a whole, including any ambiguous orcontradictory conduct by the complainant (Ewanchuk at paragraphs 29 – 30 and 61 and more recently cited in Stanton at paragraph 67). Moreover, discrete pieces of evidence should not be considered in isolation or “cherry-picked” and exploited to either selectively bolsteror, alternatively, selectively undermine a person’s credibility. 2.

The presence of specific interests, motivations, or bias which might distort the witness’ evidence or skew hisability/willingness to provide truthful evidence. This could also include feelings of hostility or animus towards either another witness orthe subject matter of the proceeding. 3. The physical context or surrounding circumstances which may have influenced the witness’ ability or opportunity toaccurately observe the events in question.

4. Qualities specific to the witnesses themselves include: (

a) the strength of their memory and whether it is accurate and complete; (

b) whether their testimony was presented in a candid and straight forward manner; or was their testimony presented in a mannerthat was evasive, non-responsive, unnecessarily combative or strategic; (

c) whether the witness, when appropriate, was prepared to make a candid admission against interest; (

d) the witness’ history and whether it reveals a relevant capacity for deception or being untrustworthy. These factors couldinclude “prior untruthful conduct or the witness’ associations”. I note that, within limits,

section 12 of the Canada Evidence Act, R.S.C.1985, C-5, as amended and

section 58 of the Nova Scotia Evidence Act, R.S.N.S. 1989, c. 154, as amended permit a person (includingthe accused) to be cross-examined on their criminal record. The policy reasons relate back to credibility. In R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 (“Corbett”), the Supreme Court of Canada stated that a person’s criminal record goes to his/her characterand trustworthiness – personal qualities that are obviously relevant to credibility and reliability.

In explaining its rationale, at paragraph25, the Supreme Court of Canada adopted the following quotation from an American Court: What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks thejury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take hisword. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense thatwhen a defendant goes onto a stand, "he takes his character with him." ...

Lack of trustworthiness may be evinced by his abiding andrepeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concernedsolely with crimes involving "dishonesty and false statement. (

e) demeanour, but approaching this topic with caution having regard to the risk or impermissible stereotypical thinking as tohow a person should (or should not) be acting in Court (see R. v. D.C., 2023 NSSC 20 at paragraphs 57 – 59); Testimony from a Child Witness [23] A certain leeway or flexibility is afforded children who testify in court. The following principles are distilled from the caselaw: 1. The Court adopts a “common sense approach” to testimony from children and does “not impose the same exacting standardon them as it does on adults" (R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30 at page 17). “Since children may experience theworld differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from theirrecollection.” (R. v. W.(R)., (SCC), [1992] 2 S.C.R. 122 (“W.(R.)”), at paragraph 25). The factors which bear upon thisassessment will include the witness' mental development, their ability to understand the questions being asked, the presence of anyanimus, and their capacity to accurately recollect and communicate their memories to the Court; 2.

Mistakes, inaccuracies or inconsistencies on “peripheral” matters will not necessarily raise a reasonable doubt or fatallywound a child's credibility. (R. v. Bishop, 2009 NSCA 32 at paragraph 5 and see also R. v. R.B., 2018 NSCA 78 at paragraph 80). TheCourt will attempt to separate those issues which are “peripheral” from those which are “core”. In doing so, the Court recognizes boththe strengths and frailties of childhood memories in a common sense and contextual way while, at the same time, vigorously protectingthe accused’s fundamental right to a fair trial particularly on essential or “core” matters; 3.

Separating evidence which is “core” from that which is “peripheral” is not always easy or straightforward. At times, thedistinction may be obvious. At other times, the distinction can become more nuanced and driven by the unique circumstances of thecase. That said, the following comments may help guide the analysis: (

a) Evidence which goes directly and inextricably to an essential element of the offence is obviously “core”. It must beapproached carefully and with a critical mind, taking into account the totality of the evidence.

This is because “core” evidence going toan essential element leading possibly to a guilty verdict must be scrutinized. “Core” evidence includes testimony regarding those specificacts which form an essential element including touching for a sexual purpose when, as here, an accused faces charges of sexualinterference; i. “Core” evidence may also include such additional details or events that may be necessarily and inextricably linked to anessential element.

Thus, certain acts may be considered “core” if they provide unique and essential context which is necessary to explainspecifically how any alleged sexual act occurred. See, for example, R. v. D.A.H., 2019 ABCA 26 at paragraphs 7 – 8; R. v. M.(J.M.),2012 NSCA 70 at paragraphs 52 – 53; and R. v. H.(D.), 2016 ONCA 569 at paragraphs 53 – 54. By contrast, evidence that otherwisegoes to the narrative leading up to the actual alleged assault or invitation to sexual touching, but not directly to an essential element, isoften considered peripheral.

Evidence that relates to small discrepancies around frequency, or the precise timing of an alleged assault, orsuperfluous details around clothing, location or how furniture was arranged is also often peripheral in nature. See, for example, R. v.G.S., 2021 NSSC 133; R. v. D.G., 2020 ONCA 671; and R. v. M.L.C., 2021 ABCA 224. Basic Context and Undisputed Facts [24] Before providing my assessment as to credibility and reviewing the specific charges against the Accused, it is helpful to firstprovide certain uncontroversial facts. [25] The Daycare building was owned by Lori Belzan, who testified at trial. Ms.

Belzan opened the Daycare in around 1998. [26] The Accused was 57 years old at the time of trial. In about 2010, he was employed as a painter and hired to paint Ms. Belzan’shouse. The relationship between Ms. Belzan and the Accused deepened. Ms. Belzan invited the Accused to live in her house and help

with the Daycare business. The Accused and Ms. Belzan eventually had a child together. [ 27 ] Between March 2010 and about January 2020, Ms. Belzan and the Accused worked together in the Daycare. [ 28 ] The Daycare operated on both levels of a two-storey bungalow. [ 29 ] A driveway encircled the bungalow. Parents would park at the back of the house and then walk their children through a fenced area to the back door.

The fenced area contained toys and play structures for the children. [ 30 ] Upon opening the back door, the parents and children would enter a small vestibule with hooks for coats and cubbyhole storage for the children. Leaving the vestibule, children and parents entered an open, finished basement. A staircase leading to the upper level was located across the room and a small kitchen was located to the right of the vestibule. [ 31 ] The kitchen was open in the sense that it was not enclosed by walls. Thus, upon entering the basement area, it was possible to see people standing in the kitchen area.

That said, the kitchen area was bounded by counters and access to the downstairs kitchen area was only possible through a swinging gate that was generally kept closed to keep the children out. [ 32 ] The main living area in the upper level of the Daycare was also open concept. It contained a living room and a larger “L” shaped kitchen with cupboards, countertop, sink and appliances. The television was located in the living room. [ 33 ] Ms. Belzan also lived in the Daycare building.

Her family’s private bedrooms were located on the second level, off the living room. [ 34 ] In terms of the Daycare’s normal routine, the following details are germane: 1. The Daycare accepted children who were pre-school and also children who attended the elementary school located just down the street. Generally speaking, the children arrived at about 7:30 a.m. and would be picked up between about 2:30 p.m. and 4:30 p.m. The younger, pre-school children would remain in the lower level. The older, school-aged children were allowed on the upper level to watch television, play games or complete art projects; 2.

The Accused was also normally responsible for taking the older children to and from elementary school; 3. After the older children were at school, Ms. Belzan stated that she and the Accused would work together in the lower level, taking care of the pre-school children. In the afternoon, once the school-aged children returned, they would divide their duties with one person staying in the lower level and the other being upstairs; 4. Weather permitting, the Accused and Ms. Belzan also encouraged the children to play outside. As indicated, there were toys and play structures available in the fenced area; 5.

Each week, the Daycare would organize “Treat Thursday” in which the children would be given special candy. The Accused agreed that he would sometimes give candy to children on other days but it was occasional only and he never preferred one child over another. I return to this issue below. [ 35 ] The Daycare’s normal routine was disrupted somewhat between 2016 – 2018 because Ms. Belzan suffered from kidney stones and was frequently hospitalized. Her ability to work in the Daycare was impaired. During this time, another worker named Joanne helped at the Daycare.

However, Joanne left the Daycare at around Christmas 2019. [ 36 ] In or around January 2020, Ms. Belzan and the Accused separated. In March 2020 as the COVID-19 pandemic was taking hold, Ms. Belzan closed the Daycare permanently and moved out of the area. There was no evidence regarding the reasons for the Accused’s and Ms. Belzan’s separation and there was no suggestion that the Daycare’s closure had anything to do with the charges against the Accused. Beyond serving as a bookend for the chronology, I make nothing more of these issues. [ 37 ] I turn now to the specific allegations against the Accused.

Counts 1 and 2 involving RS [ 38 ] As indicated, the Accused stands charged with: 1. Sexually assaulting RS contrary to

section 271 of the Criminal Code . 2. Touching RS with his hand and for a sexual purpose when RS was a person under the age of 16 years, contrary to

section 151 of the Criminal Code . This offence is sometimes referred to as the crime of Sexual Interference. [ 39 ] It is common ground that RS attended at the Daycare during the time period described in the Indictment. It is also common ground that RS was under the age of 16 at all material times. [ 40 ] With respect to sexual assault, the Crown must prove the following essential elements of the offence beyond a reasonable doubt: 1. That the Accused touched the complainant directly or indirectly; 2. That the touching by the Accused was intentional; 3. That the touching by the Accused took place in circumstances of a sexual nature;

4. That the Complainant (RS) did not consent to the sexual activity in question; and 5. That the Accused knew the Complainant (RS) did not consent to the sexual activity in question. [ 41 ] With respect to Sexual Interference, the Crown must prove beyond a reasonable doubt the following essential elements: 1. That the complainant (RS) was less than 16 years old at the time of the alleged offence; 2. That the Accused intentionally touched RS, either directly or indirectly; and 3.

That the touching was for a sexual purpose. [ 42 ] In the case of RS, the Crown alleges that, on multiple occasions, the Accused lured RS into the small kitchen area on the lower level. He then slipped his hand under RS’s pants and touched her (skin to skin) on her vagina and buttocks.

On some, not all, of these occasions, the Crown alleges that the Accused would give RS candy in an effort to disguise sexually deviate behaviour as being somehow fun or enjoyable. [ 43 ] If the Crown proves beyond a reasonable doubt that the Accused touched RS as alleged, then he would clearly be guilty of the alleged offences because all the remaining elements of the offences become a foregone conclusion. In other words, if the alleged sexual contact occurred as alleged, then: 1. With respect to the remaining elements of sexual assault under

section 271 of the Criminal Code , there would be no question that: (

a) RS did not consent to the alleged sexual contact. It is an uncontroverted fact that RS was 6 years old at the time of the alleged offences and could never have given valid consent to the sexual activity; (

b) The sexual contact was intentional. The accused clearly intended the alleged sexual contact; (

c) The Accused would have known (and could never have been mistaken) that RS did not consent to the sexual activity. 2. With respect to the elements of sexual interference under

section 151 of the Criminal Code , then there would be no question that: (

a) Again, RS was less than 16 years old at the time; (

b) The Accused would have intentionally touched RS; and (

c) The touching was for a sexual purpose. [ 44 ] In short, the charges involving RS narrow to a single factual question: has the Crown proved beyond a reasonable doubt that the Accused sexually touched RS as alleged? [ 45 ] Answering this question turns on the Court’s assessment of their credibility and reliability. Sexual abuse often involves the painful, private and acutely personal violation of a person’s sexual integrity. And it often occurs away from plain view so the intimate acts of sexual violence is hidden.

Thus, the evidence is often limited to the testimony of the complainant – and the accused, if the accused decides to testify. In short, the credibility and reliability of the key witnesses becomes pivotal. That is the case here. [ 46 ] I begin with my assessment of the Accused Mr. Shaw’s credibility and reliability. My conclusions regarding Mr. Shaw’s credibility and reliability are made in the context of the evidence as a whole and not simply the evidence regarding Counts 1 and 2 involving RS.

That said, I make more specific comments regarding credibility and reliability in respect of the remaining Counts 3 -7 when addressing those matters below. [ 47 ] As a preliminary comment, I recognize that where allegations of sexual abuse turn on conflicting verbal testimony, an accused person often broadly denies the allegations. The argument is sometimes advanced that this creates problems because an accused can do little more than deny a sexual encounter which is said to have never occurred.

While I am mindful of the argument, respectfully, it is an over-simplified reduction of the factors which bear upon the Court’s assessment of an accused credibility. There are other forms of exculpatory evidence and factors which help guide an accused’s credibility and reliability.

In this case, for example, I begin with those aspects of his evidence which I do accept. [ 48 ] I note that the Accused provide truthful evidence regarding a number of basic albeit uncontroversial facts described above at paragraphs 24 – 36. [ 49 ] I also acknowledge that the Accused’s willingness to make certain admissions against interest including the fact that he was playing something called a “spanking” or “tapping” game; and was directed to stop but did not. Briefly, the “game” involved chasing (or sneaking up on) another person and then using your hand to “spank” or “tap” on the buttocks.

The Accused acknowledged receiving instructions to stop playing this game but admitted he did not. The Accused explained that he forgot and was swept up in the harmless fun of playing with rambunctious children. I revisit this issue below. [ 50 ] The Accused also acknowledged that JB would play with the toddlers in the lower level of the Daycare, an inculpatory fact which is related to Counts 5, 6 and 7 of the Indictment. [ 51 ] I return to all of these issues below. For present purposes, I simply give the Accused credit for these admissions. [ 52 ] Finally, I accept Mr.

Shaw’s evidence regarding the allegations of a “kidnapping game” in which he is accused of tying

children’s hands with a rope and pretending that they were “hostages” as part of some kidnapping pantomime. I pause here to emphasize that I accept Mr. Shaw’s evidence on this point not simply because he said it but for reasons external to Mr. Shaw’s testimony. [ 53 ] In particular, the allegations regarding the “kidnapping game” originated with one witness: MA. However, I have concerns as to her evidence on this issue: 1. MA first disclosed the “kidnapping game” to her mother (LA) after already repeatedly complaining about the “spanking” or “tapping” game.

The notion that MA would express concern and discomfort about the “spanking” or “tapping” game but remain silent about being tied up with rope as part of a “kidnapping game” caused me pause; 2. MA’s description of the game from time to time was inconsistent on details which I would consider core and important. At trial, MA testified that the game centred around a tree in the backyard with a rope around it and that the Accused would tie the children’s hands to this rope. However, MA provided her mother, L.A. with a different version of the game.

LA testified that, according to the description she received from MA, the Accused would tie the children’s hands behind their backs and pretend that they were being kidnapped. There was no mention of being attached to a tree; and 3. MA was the only witness to have experienced this game, even though MA testified that the “kidnapping game” involved multiple children at the Daycare. On this, I note that RS attended the Daycare at the same time as MA and RS testified at trial. RS offered no evidence regarding this game. Similarly, Ms. Belzan agreed that MA’s mother (LA) complained about the game. However, Ms.

Belzan neither ever saw the game being played nor heard of it. Ms. Belzan testified that she asked other children and they had never heard of it. I accept Ms. Belzan’s evidence on this point and generally found her to be a credible and reliable witness. I note, for example, that Ms. Belzan was fully prepared to make admissions against her own interest regarding the “spanking” or “tapping” game, described above at paragraph 49, Ms. Belzan admitted that she initially joined in, believing the game to be harmless, silly roughhousing.

She immediately stopped (and instructed the Accused and the children to stop) after receiving complaints from LA. Had Ms. Belzan observed this kidnapping game or been given reliable evidence that it was being played at the Daycare or become aware of any other sexual misconduct, I am fully satisfied that she would have acknowledged it and intervened to stop it. [ 54 ] That said, I am compelled to say that I otherwise did not find the Accused to be a credible or reliable witness.

On the key aspects of the allegations against him, I did not believe his evidence. [ 55 ] The factors which weighed against the Accused and resulted in me not believing him about the remaining, central aspects of the allegations against him were, in my view, overwhelming. They include: 1. The Accused’s evidence was internally inconsistent on important factual issues. For example: (

a) The Accused adamantly and, in my view, unreasonably insisted that he would never have the opportunity to be alone with RS or any other child. He said that no child was ever isolated and that he was “never alone with any children, ever”. He describes his day as too busy to ever have the time to commit the alleged abuse. Respectfully, his stubborn refusal to accept this possibility was self- serving, largely strategic and unreasonable. In particular, the Accused agreed that he would privately give certain individual children candy on days other than “Treat Thursday”. And he would ask them to keep it secret.

He testified that he acted covertly because he wanted to avoid a bunch of children suddenly clamouring for candy. In any event, this evidence confirms that the Accused did have the opportunity to be alone with individual children from time to time; (

b) As indicated, the Accused made an admission against interest regarding the “tapping” or “spanking” game. In particular, he conceded that he continued to play this game despite receiving instructions to stop. At the same time, he insisted that he knew the difference between appropriate and inappropriate behaviours and acted accordingly. Yet, he explained that he continued playing because kids sometimes forget and he does to. He also indicated that that “they [i.e. the children] were the ones doing it” and that he would only sometimes play along.

In other words, he attributed the inability to distinguish right from wrong to the fact that he was inadvertently swept up in a silly child’s game. For reasons discussed below, I do not accept the suggestion that he became forgetful. Regardless, he was the adult and testified that he could distinguish between appropriate and inappropriate behaviours. Yet his own evidence suggests otherwise. My assessment of his credibility and reliability was diminished as a result. 2. The Accused’s evidence did not stand in harmony with a reasonable and logical view of the evidence as a whole. For example: (

a) With respect to the Accused repeated insistence that that he would not have had an opportunity to be alone with a child, the uncontroverted evidence was that Ms. Belzan and the Accused divided their duties between the upstairs and the downstairs when the older children were present. They would have been physically apart on different floors and unable to see one another. I recognize that another person (Joanne) was said to be working at the Daycare for some period of time.

I had very little evidence regarding this person but, in any event, I do not find that her presence would have appreciably diminished the Accused’s opportunity to be alone with a child. Related to this issue, Ms. Belzan was ill and unable to work at the Daycare for extended periods of time. This evidence aligned with the testimony of CS and AB (RS’s parents) who said that they normally interacted with the Accused and rarely saw Ms. Belzan. The evidence around Ms. Belzan’s absences from the Daycare undermined the Accused’s evidence regarding the time he spent alone with the children; and (

b) As indicted, RS testified that the sexual abuse occurred in the small kitchen on the lower level of the Daycare. The Accused suggested that he could not have committed this abuse because the small kitchen in the lower level of the Daycare was in open view. The corresponding inference was that the alleged abuse could not have occurred secretly and undetected because there were too many people constantly circulating around the Daycare. As indicated, I reject the suggestion that the Accused never had the opportunity to be alone with a child in the Daycare.

With respect to the physical layout of the lower level, it was “open concept”. However, the small kitchen area was bounded by counters. Moreover, access to the kitchen area was through a swinging gate that was generally kept closed to keep the children out. The Accused could easily position a child in the small kitchen space just inside the gate and then put himself in the gate opening so that nobody else in the basement area could see the child or at least the view would be obstructed.

Moreover, the nature of the alleged sexual abuse was neither so complex nor required extended period of time in a totally private environment.

Moreover, I note that older, school-aged children were often in the upper level of the Daycare while toddlers remained in the lower level. Overall, contrary to the Accused’s evidence regarding the physical layout of the lower level, the small kitchen area did not preclude the alleged abuse; 3. I find that the Accused did not always act in a truthful manner. Returning to the “tapping” or “spanking” game and the Accused’s participation in it, the evidence is clear that LA’s mother initially complained and was assured it would stop. Yet, the Accused continued to play this “game”.

The evidence is similarly clear that LA had to complain a second time. On this second occasion, she spoke directly to the Accused as she was dropping her children off. She was somewhat muted in the sense that she did not express her outrage. She said that she did not want to leave her children in a tense and confrontational environment. However, I accept that she clearly repeated her demand that the game immediately stop.

I also accept that LA testified that the Accused denied that the game was being played anymore and deflected the accusation by suggesting that the MA may be mistaken and that the “tapping” or “spanking” was occurring in their home, not the Daycare. The Accused did not directly address this evidence at trial. However, in my view, it is abundantly clear that he did not truthfully respond to LA’s concerns about him continuing to play the “spanking” or “tapping” game; 4.

As alluded to above, I do not accept the Accused’s explanation that he was simply forgetful in terms of resuming the “tapping” or “spanking” game with the children. He testified that he innocently forgot the warning in a moment of harmless fun with energetic children. At the same time, he also testified that he did not understand playfully “tapping” a child in this manner was “horribly wrong” and he had seen parents do the same. In my view, the Accused did not forget but, rather, felt that this act was a form of old- fashioned fun.

And he was either unwilling or unable to comply with the instruction that this sort of physical activity was unacceptable; 5. The Accused somewhat mechanically repeated that all of the complainants in this matter were “good kids” and that he could not fathom how or why they would individually manufacture these allegations. Yet, the evidence is clear that there was certainly an identified problem in terms of his interactions with MA and the “spanking” or “tapping” game.

And he certainly knew she was concerned by his behaviour. [ 56 ] I turn now to the complainant, RS, in respect of Counts 1 and 2. [ 57 ] RS was a remarkably genuine and authentic witness. There were no angles, evasion or prevarication present in her testimony. There was no hint of embellishment or deceit. Indeed, her evidence was notable for the direct, unvarnished honesty of a child lacking guile. [ 58 ] At times, RS’s evidence was so open and innocent as to be almost jarringly truthful.

For example, as mentioned, RS testified that the Accused rubbed her vagina and buttock on multiple occasions in the lower level of the kitchen. During this time, he would also give her candy. RS was incapable of identifying the terrible manipulation and contradiction associated with these two acts. Even at trial, RS said she “loved” the Accused and trusted him and that the experience felt, in her words, “normal”. At the same time, she revealed a level of embarrassment in that she was only prepared to articulate the body parts which the Accused touched in writing.

She was not prepared to say the words out loud as she considered the words to be “bad words”. [ 59 ] RS demonstrated no hostility or animus towards the Accused or the events which led to the charges being made against the Accused. On the contrary, she testified that she “loved” the Accused and considered him her best friend. Moreover, she consistently demonstrated an ongoing loyalty to the Accused. For example: 1. In both her testimony at trial and in statements given before trial, she expressed concern about whether the Accused was in trouble. 2.

In the time leading up to her disclosing the abuse, she tried to shield the Accused. RS initially told her parents that the Accused did nothing wrong. RS’s mother (AB) only realized something was wrong when she overheard RS tell her little sister that she suspected the co-complainant MA had told their “secret”. RS’s parents (AB and CS) subsequently learned that the “secret” the children tried to keep included the Accused putting his hands down RS’s pants while she was treated with candy. [ 60 ] RS also has very specific and clear memories of the core aspects of the abuse. Her evidence was consistent and logical.

She testified that the Accused would take her to the small kitchen in the downstairs level. He would then proceed to fondle her vagina or buttocks with his hands. RS demonstrated to the Court how she felt the Accused’s finger move. At times, the Accused’s abuse would be accompanied by giving RS a candy treat. I note that the evidence was clear (and the Accused agreed) that candy was kept in the downstairs kitchen. [ 61 ] I note that there were also aspects of RS’s testimony that aligned with the Accused. For example, the Accused agreed that he liked to have fun and play games with the children.

He also agreed that RS and other children gravitated towards him, were very fond of him and trusted him. He took pride in the fact that certain children hugged him more than Ms. Belzan or other workers at the Daycare. Unfortunately, in my view, it was this same trust and affection that enabled deception and revealed the Accused’s darker motivations. [ 62 ] Finally, I note that there were aspects of RS’s testimony that were not entirely precise. She stated that the abuse occurred on multiple occasions, somewhere between 1 and 10 times.

And that it normally lasted more than 1 minute and probably between 5 and 10 minutes. However, for reasons discussed above, this is the type of imprecision on peripheral matters that the Court understands and accommodates when assessing the testimony of a child. [ 63 ] At this point, I wish to underscore here that when I review RS’s testimony, I am not just preferring to accept the evidence of a Crown witness over that of the Accused. Nor am I rejecting the Accused’s testimony (and risking a conviction) because I prefer the evidence of another witness.

There is a significant difference between a simplistic (and impermissible) decision-making process where the evidence of one witness is simply preferred over another and the more painstaking process of testing and scrutinizing (including comparing) the evidence as a whole. [ 64 ] In the end, I do not accept the Accused’s testimony with regards to Counts 1 and 2 on the Indictment relating to RS. I accept

RS testimony on this issue and find that it removes any reasonable doubt regarding these offences. [65] The Crown has proven Counts 1 and 2 beyond a reasonable doubt and I find the Accused guilty of those offences. Counts 3 and 4 involving MA [66] As indicated, the Accused stands charged with: 1. Sexually assaulting MA contrary to

section 271 of the Criminal Code. 2. Touching MA with his hand and for a sexual purpose when MA was a person under the age of 16 years, contrary to section151 of the Criminal Code. This offence is sometimes referred to as the crime of Sexual Interference. I pause here to note that it iscommon ground MA was 8 years old at the time of the alleged offence (i.e. under 16 years of age). [67] The underlying facts are not particularly controversial. [68] These charges revolve around the “spanking” or “tapping” game.

As indicated, the “game” involved chasing (or sneaking upon) another person and then using your hand to “spank” or “tap” on the buttocks. MA testified that the Accused invented the gameincluding a variation of it where the Accused sat on a chair while the children tried to pull him off. Once forced to stand, the childrenwould then “tap” or “spank” the Accused and run away. [69] It is undisputed that the Accused participated in this game and that he continued to participate even after being instructed tostop by Ms.

Belzan. [70] The Accused’s involvement in spanking or tapping (including his participation in the game) was not intended as a form ofdiscipline or to cause physical pain. MA said that the Accused attempted to make the game seem funny and playful. However, it madeMA feel uncomfortable and she expressed her discomfort it to her mother, LA. [71] LA testified at trial that she disapproved of this game and made her feelings known to Ms. Belzan. LA asked that the gamestop immediately. Ms. Belzan agreed and she also directed the Accused to stop playing the game.

The Accused acknowledges that hewas told to stop. [72] Unfortunately, the Accused did not stop. He continued to play this game. Predictably and understandably, MA expressedconcern to her mother and actually reminded her mother to raise the issue with the Accused as they were arriving at the Daycare onemorning. LA spoke to the Accused about it and repeated that there was to be no more spanking.

She did so in a somewhat mutedmanner because she did not want to expose her children not unnecessary conflict. [73] As mentioned, I accept LA’s testimony that the Accused denied that the game was still being played at the Daycare. And thathe attempted to deflect the issue by implying that perhaps MA was mistaken and that there may have been some incidence of spanking athome. LA did not engage with the Accused on this issue although, as indicated above, I find that the Accused’s response was nottruthful. [74] Other parents at the Daycare appear to have been concerns with the issue of spanking.

Within 10 minutes of dropping herchildren off on the day in question, LA says that she received a text from another mother whose child was at the Daycare, complainingthat the spanking was continuing. LA proceeded to contact other parents and a decision was made to call child protection services. [75] By that time, LA was now determined to (and did) find alternative Daycare. [76] In so far as the charge of sexual assault is concerned, the only remaining factual and legal issue is whether the proven touchingconstitutes “sexual activity” or took place in circumstances of a sexual nature.

All other essential elements of the offence have beenproven beyond a reasonable doubt. More specifically, it has been proven beyond a reasonable doubt that: 1. The Accused touched MA directly; 2. The touching by the Accused was intentional; 3. That the Complainant (MA) did not consent to the activity in question. She was 8 years old at the time and could notprovide valid consent to any form of sexual activity; and 4.

That the Accused knew the Complainant (MA) did not (and could not) consent to the activity. [77] In so far as sexual interference is concerned, the only remaining factual and legal issue is whether the proven touching was fora sexual purpose. The uncontroversial facts satisfy the other remaining essential elements beyond a reasonable doubt. [78] Sexual assault is a crime of general intent; meaning that whether a proven act constituted a “sexual activity” or was sexual innature is determined based on an objective standard.

The question is: “Whether in light of all the circumstances, is the sexual or carnalcontext of the assault visible to a reasonable observer?” (R. v. Chase, (SCC), [1987] 2 SCR 293 (“Chase”) at paragraph11). In addressing that question, the intent or purpose of the accused is a relevant factor. Thus, the Supreme Court of Canada continuedin Chase, at paragraph 11: If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor indetermining whether the conduct is sexual.

It must be emphasized, however, that the existence of such a motive is simply one of manyfactors to be considered, the importance of which will vary depending on the circumstances. [79] Sexual interference is a crime of specific intent meaning that the Court considers the Accused’s purpose or motive. The issue

is not what a reasonable, objective observer might conclude. Rather, the Crown must prove beyond a reasonable doubt that the Accused touched MA on the buttocks for a sexual purpose. [ 80 ] In this case, originally and before LA and MA began to complain, even Ms. Belzan understood that the “tapping” or “spanking” game was silly fun. It appears that many children were playing the game.

At that point in time, either objectively for the purposes of sexual assault or subjectively for the purposes of sexual interference, I conclude that the act of playfully tapping children was a harmless if ill-advised activity without any sexual connotations. [ 81 ] In my view, the question becomes whether the Accused’s decision to continue playing the game (and swatting children on the buttocks) alters the analysis.

The Crown states that the Accused’s stubborn refusal to stop despite a clear warning confirms that the continuing act is, objectively and subjectively, more sinister in nature. [ 82 ] I struggled with these allegations, particularly given my findings with respect to RS and the Accused’s capacity for sexual abuse. However, ultimately and respectfully, I am left with a reasonable doubt with respect to whether this particular activity was objectively sexual in nature or subjectively done by the Accused with a sexual purpose in mind. My reasons include: 1.

Subjectively , I do not accept the Accused’s explanation that he “forgot” the warning in a moment of harmless fun with energetic children. That does not mean that the act was intended to be sexual or a means of grooming innocent children. However, in my view, it does mean the Accused lost track of appropriate boundaries in terms of physical contact; 2. Objectively, I note that this particular act was different from the other manner in which the Accused clearly did groom RS, for example. In particular, it did not involve using candy as a means of manipulating children.

On this issue, I note that RS (who was at the Daycare when this activity was ongoing) did not mention the game in her evidence as a factor which facilitated the abuse she suffered. Again, she was driven more by the Accused’s use of candy as a means of normalizing sexually inappropriate behaviours. I also note that this activity involved playing out in the open, among a group of people. The Accused did not attempt to isolate one child in a secluded area where sexual abuse might occur without any other witnesses being present.

In addition, I do not accept MA’s evidence that the game was in any way “invented” by the Accused; the implication being that he developed this game as a gateway to facilitate more serious abuse. For reasons discussed in paragraphs 52 - 53, I harbour concerns as to the accuracy and reliability of MA’s evidence. 3. I recognize that the “tapping” or “spanking” was occurring on the buttocks which is a private part of the anatomy and that touching the buttocks should not be the primary part of a game.

However, in the circumstances of this game, I do not conclude that a reasonable observer would conclude that this activity was sexual or done for sexual gratification. At a minimum, I am left with a reasonable doubt as to whether it is more appropriately a misguided attempt at a physical but non-sexual game with a group of children. [ 83 ] Having said that, under

section 662 of the Criminal Code , I am obliged to consider the lesser but included charge of assault. The essential elements of assault under

section 266 of the Criminal Code are: 1. The Accused applied force to MA; 2. The Accused intentionally applied force to MA; 3. MA did not consent to the force that the Accused applied; and 4. The Accused knew that MA did not consent to the force that the Accused applied. [ 84 ] The Accused continued to play this game and “spank” or “tap” MA after being warned by MA’s mother to stop. He knew MA did not consent to being touched in this manner yet he did it anyway. I conclude that the evidence proves beyond a reasonable doubt that by “spanking” or “tapping” MA after being told to stop, the Accused committed an assault on MA. [ 85 ] I find the Accused guilty of assault under

section 266 of the Criminal Code . Counts 5, 6 and 7 involving JB [ 86 ] As indicated, the Accused stands charged with: Count 5 : Sexually assaulting JB contrary to

section 271 of the Criminal Code . Count 6 : Touching JB with his hand and for a sexual purpose when RS was a person under the age of 16 years, contrary to

section 151 of the Criminal Code . This offence is sometimes referred to as the crime of Sexual Interference. Count 7 : for a sexual purpose inviting JB, a person under the age of 16 years, to touch his penis contrary to

section 152 of the Criminal Code . This offence is sometimes referred to as the crime of Invitation to Sexual Touching. [ 87 ] I begin with Counts 5 and 6. [ 88 ] The basic allegations are: 1. In about November 2017, JB was in the kitchen area of the home’s upper level and believed the Accused was opening candy. She walked towards him, as it was not uncommon for him to give candy to children. She testified that the accused gave candy to children every day. Once she was close to the Accused, JB says that he pinned her in the corner of the kitchen facing away from him.

She recalls seeing cupboards, walls and a counter. The Accused then wrapped his arm around her shoulder and started grinding his penis against her buttocks. They were both wearing clothing at the time. JB testified that he was whispering in her ear and saying he wanted to “put my dick in you”. She had never heard anyone say anything like that to her but she knew what it meant. JB eventually pushed off the counter and walked away. The entire episode lasted about 15 seconds.

2. About a month later, in December 2017, JB states that she was lying on her stomach playing with one of the toddlers in the lower level of the Daycare. She testified that the accused came from behind her and pulled her away from the baby by the ankles. He then lifted her up by the waist and started grinding his penis against her buttocks. Again, they were both fully clothed at the time. JB recalls the Accused again whispering that he wanted to put his “dick” in her. He said that about two or three times. After about 10 or 15 seconds she squirmed away.

After the incident and while she was getting ready to go to school, he gave her a chocolate in Santa Claus wrapping. JB says that she recalled this detail specifically because it was very close to Christmas. [ 89 ] As with RS and MA, it is common ground that the JB attended at the Daycare during the time period described in the Indictment.

It is also common ground that JB was 11 years old at the time of the alleged offence (i.e. under 16 years of age). [ 90 ] In the case of JB and for the same basic reasons summarized in paragraphs 43 – 44 above regarding RS, the issues again narrow because the alleged conduct is very clearly sexual in nature. Thus, if the Crown proves beyond a reasonable doubt that the Accused grinded his penis against JB as alleged, he would clearly be guilty of the alleged offences because all the remaining elements of the offences become a foregone conclusion.

As with RS, this issue turns on my determinations as to credibility and reliability. [ 91 ] For reasons discussed above at paragraphs 54 - 55, I did not find the Accused to be a credible witness on the critical issues in respect of JB. His evidence did not leave me with a reasonable doubt as to the Counts 5 and 6. [ 92 ] By contrast, I found JB to be credible and reliable. [ 93 ] JB provided compelling reasons for recalling the details of the sexual assault and sexual interference. The Accused’s words stayed in her memory for compelling reasons.

The events in question occurred about five years prior to the trial and were not so ancient as to have receded into the fog of the distant past. There were some minor discrepancies between her statement to the police and what was said at trial but, in my view, the tenor of the statement was still graphic and constitute the sort of peripheral inconsistencies that the Court accommodates with respect to childhood memories. [ 94 ] Moreover, JB did not attempt to hide behind a veil of naïve innocence. She candidly acknowledged that the words were not foreign to her even at the age of 11.

However, these types of words had never before been directed at her, let alone being said in the midst of a sexual act being imposed upon her. In my view, I accept that the Accused’s general statements in combination with the events were sufficiently shocking and memorable as to accurately fix them in her mind. [ 95 ] In addition, JB’s memory of these events is connected to important moments during the year. She recalled the first instance of abuse occurred around her birthday (November 6).

The second instance occurred at around Christmas time, and she clearly remembers not only the Accused giving her a chocolate candy but her decision to throw it away given what had just occurred. [ 96 ] It is true that JB first revealed these allegations to her father after other allegations against the Accused began to surface. However, she explained the embarrassment and fear she associated with these allegations particularly in terms of her father’s potential response.

To be clear, I do not accept that this delay would somehow diminish her credibility or that there is some stereotypical way for a person to report allegations of sexual assault. This is the type of impermissible logic that the Supreme Court of Canada has roundly and rightly rejected. See, for example, R. v. D.(D.) , 2002 SCC 43 at paragraph 63 . See also, R . v.

Lacombe , 2019 ONCA 938 at paragraphs 29 – 45 . [ 97 ] Perhaps more importantly, JB exhibited no overt hostility towards or bias against the Accused. [ 98 ] JB was also an accomplished, disciplined athlete (Tae Kwon Do) who has many other interests beyond this proceeding. Moreover, JB had an affection for the Daycare and Ms. Belzan in particular. JB’s mother died when she was about three years old, and Ms. Belzan came to become a bit of a mother figure for JB.

Indeed, JB attended the Daycare for many years, sometimes arriving as early as 4:00 a.m. and sleeping in a spare bedroom because JB’s father, DB, was a single father, working shift work. [ 99 ] In addition, the Accused did corroborate JB’s testimony to the extent that he acknowledged she would play with toddlers on the lower level. [ 100 ] Overall, in sum, I accept JB’s evidence as credible, reliable, and sufficient to satisfy the burden of proof beyond a reasonable doubt and I find the Accused guilty of Counts 5 and 6. [ 101 ] With respect to Count 7, the essential elements of Invitation to Sexual Touching under

section 152 of the Criminal Code are: 1. That JB was less than 16 years old at the time; 2. That the Accused invited, counselled, or incited JB to touch, either directly or indirectly, the Accused’s or JB’s body; 3.

That the invitation, counsel, or incitement to touch was for a sexual purpose. [ 102 ] This offence focusses on the words which the Accused is alleged to have said to JB which committing the crimes of sexual assault and sexual interference. [ 103 ] In this case, I accept JB’s evidence that on both occasions identified above, when the Accused was sexually abusing JB, he stated that he wanted to put his dick in JB or have sex with JB. He did not instruct, invite, counsel, or incite JB to do anything. [ 104 ] These statements were made when the Accused was grinding against JB.

Respectfully, in my view, they are less an invitation, incitement, or encouragement to sexual touching. Rather, they were a selfish, visceral, and offensive response verbalized while performing an otherwise deviant act. I have found the Accused guilty of sexual assault and sexual interference in respect of this act. However, I am left with a reasonable doubt as to the alleged crime of invitation to sexual touching.

[ 105 ] The Crown has not proven Count 7 beyond a reasonable doubt. The Accused is acquitted of Invitation to Sexual Touching. Conclusion [ 106 ] The Crown has proven Counts 1, 2, 5 and 6 beyond a reasonable doubt. I find Mr. Shaw guilty of those counts. [ 107 ] With respect to Count 3, the Crown has not proven sexual assault beyond a reasonable doubt but has proven beyond a reasonable doubt the lesser but included offence of assault. I find Mr. Shaw guilty of assault with respect to Count 3. [ 108 ] The Crown has not proven Counts 4 or 7 beyond a reasonable doubt. I acquit Mr. Shaw of those counts.

Keith, J. [2] These factors were developed having regard to the Ontario Court of Appeal’s decision R. v. Tash , 2013 ONCA 380 (at paragraphs 40 – 42 ); Justice Warner’s decision of R. v. Farrar , 2019 NSSC 46 at paragraph 15 ; and Justice Forgeron’s decision in Baker v. Aboud , 2017 NSSC 42 at paragraph 13 .