R. v. W.F., 2023 NSSC 279

SUPREME COURT OF Nova Scotia Citation: R. v. W.F., 2023 NSSC 279 Date: 20220322 Docket: CRH- 490540 Registry: Halifax Between: His Majesty the King v. W.F.

TRIAL DECISION Restriction on Publication: s.486.4, s.486.5, s.517(1), and s.539(1) Judge: The Honourable Justice John BodurthaHeard: February 22, 23, 24, 26, March 12, July 5, December 10 and December 20, 2021 in Halifax, NovaScotiaOral Decision: March 22, 2022Written Decision: August 31, 2023 Counsel: William Mathers and Tiffany Thorne, Crown Counsel Jonathan Hughes, Defence Counsel By the Court (Orally): Introduction [1] During the proceedings in court, W.F. has expressed a preference of being addressed by first and last name.

For the purposesof this decision and, in keeping with the publication bans in place, I will use initials only and gender-neutral pronouns throughout. [2] W.F. has been charged with sexual interference and sexual assault under the Criminal Code. It is alleged that between January20, 2012, and January 19, 2018, at, or near Dartmouth, N.S., that W.F. committed a sexual assault on N.S. and that at the same time andplace, W.F. did touch N.S. with their penis for a sexual purpose. W.F. denies there was sexual contact between them and N.S.

W.F.argues that the Crown has failed to prove the essential elements of the offences beyond a reasonable doubt. Governing Principles Presumption of Innocence and Burden of Proof [3] W.F. is presumed innocent of all charges. The Crown bears the burden of proof regarding each specific element of eachcharge and must prove W.F.’s guilt beyond a reasonable doubt. The standard of proof was summarized in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 36: 36 Perhaps a brief

summary of what the definition should and should not contain may be helpful. It should be explained that:

the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; 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 guilty must acquit. [ 4 ] In R. v.

Starr , 2000 SCC 40 , Justice Iacobucci, for the majority, said that “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities” (para. 242). [ 5 ] W.F. does not have to prove anything. The Crown must prove each element of the offence beyond a reasonable doubt. Legislation [ 6 ] W.F. is charged under sections 151 and 271 of the Criminal Code , R.S.C. 1985, c. C-46 .

The sections read as follows: 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 body of 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 of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. 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 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 7 ] N.S. was under the age of 16 at the time of the alleged offences. Therefore,

section 150.1 of the Code is relevant. It reads: Consent no defence 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271 , 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. Exception — complainant aged 12 or 13

(2) When an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than two years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than five years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of

dependency and is not in a relationship with the complainant that is exploitative of the complainant. … Elements of the Offence [8] In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, the Supreme Court of Canada laid out the elements of theoffence of sexual assault.

The Crown must prove beyond a reasonable doubt “two basic elements” for an accused to be convicted ofsexual assault: that the accused committed the actus reus – unwanted sexual touching – and had the necessary mens rea – the intentionto touch, knowing there was no consent (para. 23). [9] Both of these factors are to be considered through an objective lens (see para. 25 of Ewanchuk).

Given the age of N.S. at thetime of the alleged offences, the absence of consent need not be considered, because consent is not a defence to the alleged offencesagainst a complainant under the age of 16 except in limited circumstances, none of which are applicable here. [10] In R. v. Sparavalo, 2017 NSPC 32, the Court stated: The Mens Rea of Sexual Assault [11] Sexual assault is an offence of general intent. (Ewanchuk, para. 41) As Ewanchuk states: “Therefore, the Crown need only provethat the accused intended to touch the complainant in order to satisfy the basic mens rea requirement.” [11] In R. v.

Al-Rawi, 2018 NSCA 10, Beveridge J.A. reviewed the essential elements of sexual assault: [20] The actus reus of the offence is simply the intentional sexual touching of the complainant and the absence of consent. JusticeMajor, for the majority [R. v. Ewanchuk], wrote: [23] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. . . . [25] The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actionswere voluntary.

The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour: ... [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: ... [12] As noted, N.S. is incapable of consenting because she was a minor at the alleged time of the offences.

Child Witnesses [13] Before reviewing the evidence it is important to lay out the principles to be considered when assessing the evidence of a youngchild. N.S. was 17 years old when she testified about events that allegedly happened when she was eight or nine years old and continuedas she aged. The standard of proof remains unchanged but inconsistencies and contradictions must be carefully assessed. In R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122, the court spoke about how courts should consider the evidence of young children asfollows: 24 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence ofyoung children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of thenotion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to betreated with special caution.

Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of theCriminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifyingunsworn, was repealed by

An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1,1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, havealso been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent thejudge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case.

But it doesrevoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than theevidence of adults. So, if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of theparticular case, it will have fallen into an error. 25 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like timeand place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), (SCC), [1990] 2 S.C.R.30, 77 C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask. R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissionsregarding the Court of Appeal judge's treatment of the evidence of the complainant, she said that: [I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony

of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courtsshould not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must belowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in achild's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well foundedand his comments entirely appropriate.

While children may not be able to recount precise details and communicate the when and whereof an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years wehave adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and Ibelieve that this is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefullyassessed but the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of young children. 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. [14] In R. v. Lindsay, 2012 SKCA 33, the court accepted the trial judge’s instruction on how to assess the evidence of children: 16 Allbright J. instructed himself in relation to how to assess the evidence of the children in this way: ...

We cannot, as jurists, expect their evidence to have the same cohesive quality that we might expect of an adult, giving evidence as anadult, and recalling events that occurred when that person was an adult.

Still, we must be careful in assessing the evidence of anywitness, including the evidence of a child witness, to ensure that credibility is properly assessed and properly tested, to look forcorroborative aspects of their testimony and other-in other pieces of testimony, and things of that nature ... . . . ... [A] judge in my position may accept all, part or none of the witness' evidence, and that decision is mine. People see and hear thingsdifferently. This means that we should not be surprised to find innocent discrepancies in the testimony of witnesses.

Such discrepanciesdo not mean that that witness' testimony should be rejected. Discrepancies in minor matters are often unimportant. Major matters,however, may be viewed somewhat differently. On the other hand, it is entirely different when a witness deliberately lies under oath. A deliberate lie under oath is always serious, andmay well taint the entire testimony of a witness. And as I've indicated, in this trial, the two witnesses testified about events that occurredwhen they were young children.

And, as I said, their evidence, for instance, and their credibility must be assessed by reference tostandards appropriate to their ages at the time of the occurrence of the matters before the court. Generally speaking, when adults testify about events that occurred when they were a child, their credibility should be assessed accordingto the standards that are applicable to them as adult witnesses, but that is not necessarily the case when a person testifies, still as a child,about incidents that occurred when they were younger children in that particular regard.

So I am mindful of all of the comments thatcourts have made about assessing that testimony and credibility, and I talk about it in that sense. (Trial Transcript, Vol. II, p. 273, line 3to p. 275, line 6) [Emphasis added in original.] [15] Even if a child is telling the truth, a skillful cross-examination may confuse a child and make the most simple answer difficultor create a hesitation in the answer. This confusion can lead to inconsistencies in their testimony.

Credibility and Reliability [16] There is a difference between credibility and reliability which has been succinctly explained by Doherty, JA and Watt, JA in R.v. Morrissey and R. v. C.(H.). In R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), Doherty J.A. wroteat para. 33: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony.

Theaccuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracyof a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. ... [17] In R. v. C. (H.), 2009 ONCA 56, 244 O.A.C. 288 (Ont.

C.A.), Watt J.A. described the difference between credibility andreliability:

41 Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R v.

Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161, 22 O.R. (3d) 514 (C.A.), at 526 [O.R.]. [18] In this case, I have to decide if I am satisfied beyond a reasonable doubt that the Crown has proven that W.F. sexuallyinterfered with and sexually assaulted N.S. This requires me to take into consideration the credibility of W.F. and N.S., who were theonly witnesses that testified. [19] In analyzing credibility I refer to R. v. W.(D)., (SCC), [1991] 1 S.C.R. 742, and consider credibility in thismanner: Firstly, if I believe the evidence of W.F., I must acquit.

Secondly, if I do not believe the testimony of W.F., but I am left inreasonable doubt by it, I must acquit. Thirdly, even if I am not left in doubt by the evidence of W.F., I must ask myself, whether on thebasis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of W.F. If I am notconvinced, I must acquit. [20] In R. v. J.M.M., 2012 NSCA 70, at para. 71, Justice Saunders considered the comments of Finlayson, J.A., in R. v. Gostick, (ON CA), 1999 CarswellOnt 1952, [1999] O.J. No. 2357, criticizing the trial judge’s approach to decidingcredibility.

He stated: … 15 The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence inisolation: see R. v. Morin (1988), (SCC), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's casedepends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility andreliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.), these issues are not to be determined inisolation.

She said at p. 9: 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. [Underlining for emphasis bySaunders, J.A., italicized for emphasis by Finlayson, J.A., in his reasons] [21] Justice Saunders addressed the W.(D.) factors as follows in J.M.M.: 72 I recognize that the W.(D.) "formula" need not be followed slavishly and that in this, a judge alone trial, a recitation of the three stepssuggested by Justice Cory is not required at all.

What is critical, however, is that the record demonstrate an appreciation for and a properapplication of the criminal standard of proof to the whole of the evidence. As Cromwell, J.A. (as he then was) observed in R. v. Mah,2002 NSCA 99 (N.S.C.A.): [42] The W.D. principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention. Rather, W.D.describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant's version is preferred. ...

The issue at the end of the day in acriminal trial is not credibility but reasonable doubt. . . . [44] In my respectful view, the judge's reasons, read as a whole, make it clear that he did not apply this approach to the evidence. Hisreasons as a whole are concerned with comparing the Crown and defence positions with a view to ascertaining which was the moreprobable. Nowhere is the additional required step taken of assessing the whole of the evidence by the reasonable doubt standard. ... [45] ...

The issue at the end of the day is whether guilt has been proved beyond reasonable doubt; the ultimate question is whether theevidence as a whole satisfies that standard. The judge's reasons show that this ultimate question was neither asked nor answered. . . . [47] The W.D. analysis requires consideration of whether all the evidence leaves the judge with a reasonable doubt. Looking at all ofthese passages in the context of the reasons as a whole, I am persuaded that the judge did not approach the evidence in this way.

Thedecision read as a whole reflects a chain of reasoning from credibility to guilt without recognition that the ultimate issue is not credibilitybut reasonable doubt. [22] In reaching my decision I have considered all of the evidence against the reasonable doubt standard. Regarding the testimonyof the witnesses, I can believe none, part, or all of any of the witnesses’ evidence: Novak Estate, Re, 2008 NSSC 283, at para. 37. Inreviewing their testimony and considering inconsistencies, it is important that I not shift the burden of proof from the Crown, asdiscussed in R. v.

J.P., 2014 NSCA 29: [71] With all due respect to the trial judge, the reasoning revealed in these passages is flawed. It is an error in law for the trialjudge to say that because he found the appellant’s evidence not convincing on one point, it casts doubt on the credibility of his other

evidence. This is not a situation where a trial judge could draw an adverse inference against an accused due to an attempt by an accusedto advance a demonstrably false alibi (or similar conduct) from which a consciousness of guilt might be inferred (see for example: R. v.Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445 at para. 62; R. v. O’Connor (2002), (ON CA), 170 C.C.C. (3d)365 (Ont. C.A.), [2002] O.J. No. 4410 at para. 23). [72] Mere disbelief of exculpatory evidence cannot be used to bolster the Crown’s case.

The rationale is clear: if this werepermitted it would diminish the fundamental principle that the burden of proof is on the Crown. O’Connor A.C.J.O., explains: [19] The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proofremains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in caseswhere statements of an accused are tendered or an accused testifies.

The distinction reduces the risk that a trier of fact may blur the needfor the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. Thedistinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and maymove too readily from mere disbelief to a finding of guilt. As was pointed out by Gibbs J. in Steinberg v. Com'r of Taxation (Cwth.)(1875), 134 C.L.R. 640 at p. 695, cited in R. v. Tessier (1997), (BC CA), 113 C.C.C. (3d) 538 at p. 553 (B.C.

C.A.):“The fact that a witness [even the accused] is disbelieved does not prove the opposite of what he asserted”. R. v. O’Connor, supra [73] I agree with the appellant that the announced analytical path by the trial judge reversed the onus of proof. There is norequirement on an accused to convince the judge by his evidence—all that is needed is for a reasonable doubt to be raised. It is for theCrown’s evidence to convince.

Furthermore, mere doubt or even non-acceptance of the appellant’s evidence on some point cannot beused to cast doubt on the credibility of his other evidence. [74] I recognize that in the next paragraph (112) the judge used language that attempted to track the first two steps recommendedin a W.D. instruction: that the judge did not believe the appellant and was not left with a reasonable doubt by his evidence “in terms ofhis credibility”.

The problem is his explanation for the finding that the appellant was not credible. [75] As highlighted in the excerpt above (112) the trial judge found no fault in how the appellant testified, describing him ashaving a smooth and even delivery, but reasoned his evidence was “not persuasive” and “therefore not credible”. No elaboration wasgiven by the trial judge. Again, with respect, this logic is legally flawed. [76] Simply because he did not view the appellant’s evidence as persuasive does not equate to a dismissal of it as not being“credible”.

This smacks of a credibility contest between the Crown’s witnesses and the appellant. This was not the only instance thetrial judge used language that reflected an incorrect application of the burden of proof. [23] I am also cognizant of the fact that there is no “normal” nor logical way children are expected to behave after an alleged sexualassault. Evidence of N.S. [24] N.S. was born in 2004 and was 17 years old when she testified.

She advised that she has known W.F. since she was seven oreight years old. [25] N.S. watched her video statement of Feb 13, 2018 (see Exhibit 1) and adopted it, with the exception of two changes:

(1) After saying in her statement that W.F. forced her to have sex with W.F. on July 17, 2017, she changed her video testimony andtestified that W.F. did not force her. She wanted to have sex.

(2) On July 17, 2017, W.F. did not physically take her clothes off. N.S. took them off herself. [26] In her video statement she stated that when she was eight or nine years old, W.F. touched her chest and vagina with their handsboth underneath and above her clothes numerous times and, from July 17, 2017 onwards, W.F. touched N.S. with W.F.’s penis. In court,N.S. made a new allegation that she touched W.F.’s penis with her palm and fingers while moving her hand in an up and down motion.

This happened when she was nine or ten years old. [27] She testified to seeing W.F.’s penis when it was erect and not erect on multiple occasions and that sexual intercourse happenedmore than once after July 17, 2017. She said it occurred more than 25 times, but couldn’t recall exactly how many times.

She testifiedthat any sexual contact after that date involved sexual intercourse. [28] In her video statement she said that when she was eight or nine years old, W.F. would touch her breasts and vagina onnumerous occasions and that they continued to do that when she was older. [29] The incidents of sexual assault mainly occurred when she was visiting with her biological grandmother, E.S., who was in arelationship with W.F. N.S. would spend a considerable amount of time with E.S. and W.F. because her relationship with her mother wasnot good at that time.

N.S. would spend most days with them and would stay overnight, often at their home in Dartmouth, N.S.. Sherecalled the incidents happening at her grandmother’s house, and one incident at the home in Eastern Passage. She added in hertestimony before the court that a sexual assault occurred once inside a tent in the garage at her grandmother’s house in Dartmouth. W.F.would sexually assault her when her grandmother would leave the house or when she was in another location within the house. [30] When asked on cross examination whether W.F. ejaculated during these encounters, N.S. answered “yes”.

She said that W.F.ejaculated once inside her and the other times on her stomach or on the floor. [31] She testified about being sore after having sex with W.F. and W.F. buying a cream to medically treat her. W.F. applied the

cream inside her vagina. [32] She testified that she had feelings for W.F., and described the feelings as love. When asked, “what kind of love?” she responded, “more than somebody should love their grandparent.” These feelings were different than what she had for her grandmother. [33] N.S. would frequently communicate with W.F. either by text, telephone, or Snapchat. She would tell things to W.F. that she wouldn’t tell to anyone else.

W.F. would buy her things such as boots, a phone, and takeout food (Tim Hortons or Wendy’s). [34] She recalls having another interview with the police and a social worker, but can’t recall the time or location. N.S. admitted to being upset with W.F. because W.F. couldn’t get N.S. to live at her grandmother’s home on a more permanent basis. She was currently residing at her cousin’s place when she gave her video statement. She did not know her cousin very well at the time and wanted to return to her grandmother’s.

She was upset with W.F. when she gave her video statement because she felt W.F. did not act fast enough to get her back to living with W.F. and her grandmother. N.S. denied that she was trying to punish W.F. for this. [35] N.S. did not have gross inaccuracies or inconsistencies in her testimony. Her testimony was compelling. She described the relationship with W.F. as someone that she loves. She described her feelings for W.F. as more than someone should love their grandparent. N.S. was in love with W.F.

This explained some of her conflicting testimony when compared to her video statement regarding the allegations which went from an initial denial that anything inappropriate took place, to saying W.F. forced her, and then to her correction of the video statement with her saying she wanted to have sex. I accept N.S.’s explanation that she thought she was going to get in trouble, that it was her fault, and that she would be judged as to why she said W.F. forced themself on her. [36] Her love for W.F. also explains the text messages in Exhibit 6.

It explains why she was so reluctant at first to get W.F. in trouble and it explains the inconsistencies. W.F. alluded to the difficulties in N.S.’s life with her mother in these text messages and said these text messages are a plea from N.S. to W.F. to provide a home for her with them. [37] N.S. was desperate to be with W.F.

This explains her asking for things in the text messages in a threatening manner which is consistent with W.F.’s statement to the police where W.F. said sexual interference happened and N.S. held it over W.F. and she got things out of W.F. [38] N.S. admitted to threatening W.F. if she did not get something by saying that she would tell people they were having sex. She knew what they were doing was wrong. [39] N.S.’s evidence regarding the vaginal cream is markedly similar to the story W.F. says they made up to be released from custody.

N.S. described being sore as a result of sex with W.F. and said W.F. bought something from the store to treat it. She thought what W.F. bought was a cream. Although she may have thought it was cream W.F. would have known what it was because W.F. was the one that inserted the cream or a suppository. Any inconsistency in the stories can easily be explained by the fact that N.S. did not purchase the cream nor was she the one who applied it. [40] Finally, her recollection of her grandmother’s home was detailed considering she had not been in the house since February 2018.

She was able to describe the home and the upstairs in great detail (see Exhibit 2) and effectively answer any questions about the bed where she slept. Evidence of W.F. [41] W.F. testified at trial and denied the allegations.

W.F. denied any sexual contact with N.S. and reiterated many times that there was nothing sexual about the contact between N.S. and W.F. [42] I found W.F.’s evidence to be inconsistent and at times not credible. [43] For instance, W.F. first denied the allegations of N.S. but then, as the cross-examination continued, W.F. was pointed to their statement where they admitted to sexual interference taking place (see Exhibit 3, p. 168) and admitted to grabbing N.S.’s behind, but denied that intercourse happened (see Exhibit 3, p. 170).

W.F. admitted to the police that sexual interference occurred and N.S. held it over W.F. to get monetary things from W.F. (see Exhibit 3, p. 170). W.F. continued in their statement to say, “…I think I put myself in a awkward situation and one thing led to another. …touched the bum thing. … I didn’t do intercourse.” (see Exhibit 3, p. 184). [44] W.F. further said in their statement about putting a suppository in N.S.’s vagina (see Exhibit 3, p. 191): A. All right. You know what I did do? She started her period and I’m going to pay for this one too.

And she had an extremely heavy period and then she got what she told me said really itchy and I said you probably have a yeast infection. So I went out and bought her some cream and I told her this is what you do with the cream. So she did that and she said that helped a little. Okay. A few days goes by and she’s still itchy. So I went out and I bought her one of the things you put inside you and she didn’t want to do it and she told me to do it and I did it. [45] W.F. continued (see Exhibit 3, p. 192): Q. So, again, I would ask you, being the adult that you are … A. Yeah.

Q. …why in God’s name would you not say, E. is doing this as opposed to just because she doesn’t want it to happen doesn’t mean E. can’t do it. A. Yeah, you know what, I don’t want to get into why or who or what. It happened and … Q. So, again …

A. … so I don’t know what that is. Assault. I didn’t do it out of a sexual nature. That was awkward. Her … she … I was mom, I was everything. [46] On the stand, W.F., sought to minimize the sexual experiences with N.S. and said that they were less than truthful when giving their statement because they wanted to be released from custody so that they could get back to school. In the statement, W.F. admits to touching bottoms and innocent child-play with N.S. [47] In court, under cross-examination, W.F. said that the insertion of an item into N.S.’s vagina, to deal with a yeast infection was made up.

W.F. said they provided a false story to the police in order to be released from custody. This fabricated story causes the Court to question W.F.’s credibility. [48] W.F. said the story was made up to be released from custody, then their testimony changed to it happened, but W.F. was not the one to insert the suppository. N.S. testified to a very similar situation, involving W.F. The only distinction is she recalled it being the application of cream to her vagina, not a suppository. W.F. bought the cream and applied it to her. I accept N.S.’s version of events.

W.F. is not credible regarding this incident. [49] Another part of W.F.’s evidence that raised concern with the Court was W.F.’s claim of impotence. W.F. testified that they have been impotent since 1981, and then said it has been for their entire life. They testified that they had no libido and has never been able to sustain an erection. This contradicts their statement where they say, “… For two years I’ve been impotent” (see Exhibit 3, p. 10), “…I never had an issue before, you know” (see Exhibit 3, p. 108), and “…the last time you guys [W.F. and E.S.] were able to have a normal sexual relationship?

Because you had health issues. A couple years ago.” (see Exhibit 3, p. 178). [50] These responses are contradictory with W.F.’s evidence in Court. In W.F.’s statement to police, W.F. said they had a normal sexual relationship a couple of years ago, yet W.F. testified that they are impotent, and have been for their entire life. When pressed on this contradiction W.F. became evasive. The Court is unable to reconcile these responses and I find W.F. not credible regarding their evidence of impotence. [51] It should be noted that W.F. led no medical or expert evidence to corroborate W.F.’s medical condition.

W.F.’s testimony contradicts N.S.’s testimony about their relationship which involved intercourse and ejaculation. [52] The final issue regarding W.F.’s credibility is W.F.’s prior criminal convictions. W.F. put their character in issue when they were asked, “Have you ever touched anybody for a sexual purpose?” and their response was, “No.” [53] This allowed Crown counsel to raise the prior criminal convictions to challenge W.F.’s credibility. [54] W.F. reluctantly accepted the convictions and their guilty plea after a playing of the recording of that appearance.

W.F. then testified that their convictions were a miscarriage of justice because W.F.’s counsel coerced W.F. into the guilty pleas. On this point W.F.’s testimony regarding the previous convictions is not credible. I am not persuaded by W.F. that there is an issue with the integrity of those convictions. [55] The Court has genuine concerns with W.F.’s credibility and reliability. [56] Although there were inconsistencies in N.S.’s evidence I find she was credible and believable in describing the alleged sexual assaults and sexual interference. Her evidence was not shaken on cross-examination.

For instance, her recollection of W.F. applying the vaginal cream or suppository to her vagina, the feelings she had for W.F., and her recollection of the sexual activity. Although she was unable to provide elaborate details, she remained adamant in her position as to the main facts regarding the offences which was best summed up with the following exchange near the end of her cross-examination: Q. …Fair to say you don’t really have much of a recollection of all of these events only a vague recollection? A. Yes.

Q. …Even when asking about the statement that we played yesterday you couldn’t recall some of the things that you had said in that? … A. Yes. Q. For most of the incidents…fair to say you don’t know how they started or ended? A. Yes. Q. Aside from watching the video and saying that you adopt what was in the video, do you have an independent memory… of what you were talking about in that video? … A. No, I don’t think so. Q. …if your evidence changes today you are not in trouble. …suggest to you that you and W.F. never had sex…? … A. No, I don’t agree. Q.

Suggest to you that W.F. never touched your private parts or your chest with his hand and you never touched his penis. …

A. I don’t agree. [57] These recollections did not change over the course of her direct or cross-examination. I find these to be core recollections, notperiphery. I find these crucial aspects of her testimony to be true. The inconsistencies of N.S. pointed out by counsel do not go to thecore allegations against W.F. Many of them fall under the stated weaknesses of child evidence referred to in the caselaw earlier in thisdecision. In particular, a failed or inconsistent recollection of when and where an event took place does not mean they havemisconceived what happened to them and who did it: R. v.

B. (G.), at para. 48. [58] It is natural that there would be gaps in N.S.’s recollection. It is not uncommon for a child not to speak to every count of sexualtouching that took place over a couple of years in a statement and then to speak to some in court. To expect a child to recount everyincident of sexual touching over a period of years is not a reasonable expectation. N.S. provided a full and candid account of whathappened with respect to things she could remember, as well as other incidents she described in the Court that she did not tell the policeabout in her statement.

In addition, she did not embellish or fill in gaps when she could not recall a memory. [59] N.S.’s core allegations have remained intact. It is the consistency of these allegations that displaces the presumption of W.F.’sinnocence. R. v. W.(D.) Analysis [60] In applying the W.(D.) analysis, I do not believe the testimony of W.F. W.F. did not testify in a forthright manner and wasevasive at times. W.F.’s discussion regarding their impotence, libido, and ability to maintain an erection was not credible. I found theirevidence on other points not credible.

In addressing the second part of W.(D.), if I do not believe W.F., am I left in reasonable doubt byW.F.’s evidence? I am not left in reasonable doubt by W.F.’s evidence. The third part of the test is, even if I am not left in doubt by theevidence of W.F., I must ask myself whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubtby that evidence of the guilt of W.F.

Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonabledoubt. [61] After reviewing all the evidence, including the inconsistencies, based on the evidence I do accept, the Crown has convincedme beyond a reasonable doubt that the accused, W.F., committed sexual assault and sexual interference against N.S. [62] The Crown asked for a conditional stay regarding the s. 271 sexual assault offence based on the principle in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, which I granted. [63] Accused Convicted. Bodurtha, J.