R v J.R., 2021 YKSC 27

SUPREME COURT OF YUKON Citation: R v J.R., 2021 YKSC 27 Date: 20210423 S.C. No. 19-01503 Registry: Whitehorse BETWEEN HER MAJESTY THE QUEEN AND J.R. AND F.N. Before Justice E.M. Campbell Appearances: Amy Porteous Counsel for the Public Prosecution Service of Canada André Roothman Counsel for the accused J.R. and F.N. REASONS FOR DECISION [1] THE COURT: This decision was delivered in the form of Oral Reasons. [2] The Reasons have since been edited for publication without changing the substance.

INTRODUCTION [ 1 ] CAMPBELL J. (Oral): J.R. and F.N. stand charged that: J.R. stands charged that he: Count #1: On or between January 1 st , 2005 and December 31 st , 2008 at or near [redacted], in the Yukon Territory, did in committing an assault on I.N. use a weapon to wit a knife contrary to

Section 267 (

a) of the Criminal Code . Count #2: On or between January 1 st , 2009 and December 31 st , 2011 at or near [redacted] in the Yukon Territory, did in committing an assault on I.N. use a weapon to wit a pitch fork contrary to

Section 267 (

a) of the Criminal Code . Count #3: On or between January 1 st , 2004 and December 31 st , 2008 at or near [redacted] in the Yukon Territory, did in committing an assault on I.N. use a weapon to wit an extension cord contrary to

Section 267 (

a) of the Criminal Code . Count #4: On or between January 1 st , 2004 and December 31 st , 2008 at or near [redacted] in the Yukon Territory, did commit an assault on I.N. contrary to

Section 266 of the Criminal Code . F.N. stands charged that she:

Count #1: On or between January 1st, 2006 and December 31st, 2009 at or near [redacted] in the Yukon Territory, did in committingan assault on I.N. use a weapon to wit a wooden stick contrary to

Section 267(

a) of the Criminal Code. Count #2: On or between January 1st, 2003 and December 31st, 2006 at or near [redacted] in the Yukon Territory, did in committingan assault on I.N. use a weapon to wit a wooden spoon contrary to

Section 267(

a) of the Criminal Code. [2] On December 10, 2020, at the end of the Crown’s case, I dismissed Count #5 against J.R. and acquitted him, as the Crown hadcalled no evidence on that count. [3] Identity and jurisdiction were admitted by both accused at the beginning of the trial on December 7, 2020. [4] The complainant, I.N., as well as his sisters O.N. and A.N. were called to testify by the Crown at trial. Both J.R. and F.N.testified in their defence. The defence also called D.R. [the complainant’s grandmother] and D.S. [the complainant’s uncle] to testify attrial.

LEGAL PRINCIPLES [5] A criminal trial is not a credibility contest between the Crown witnesses and the defence witnesses. The purpose of a criminaltrial is to determine whether the Crown has proven the guilt of the accused beyond a reasonable doubt on each of the specific chargesbefore the Court. As such, it would be wrong to decide a criminal case by choosing between conflicting versions presented at trial.

Inaddition, J.R. and F.N. are presumed to be innocent with respect to each of the charges against them, unless or until the Crown has proveneach of the essential elements of each offence appearing on the Indictment beyond a reasonable doubt. This burden does not shift to thedefence. [6] In addition, a decision must be based on all of the admissible evidence. [7] As stated, J.R. and F.N. testified at trial. The defence also presented other evidence, which they contend is exculpatory. Asconflicting evidence from the Crown and the defence was presented at trial, the framework set out in R. v.

W.(D.), [1991] 1 S.C.R. 742 (“W.(D.)”), applies. This framework may be summarized as follows: 1. If I believe the evidence of the accused or, in a broader sense — evidence that cannot coexist with a finding that the accused isguilty, I must acquit. 2. If I do not believe the testimony of the accused or evidence favourable to the accused, but I am left in a reasonable doubt by it,or if I am left unsure whether the evidence that cannot coexist with a finding of guilt is accurate, I must acquit. 3.

Even if I am not left in reasonable doubt by the accused's evidence or by the evidence inconsistent with the accused’s guilt, Imust consider, on the basis of the evidence I do accept, whether I am convinced beyond a reasonable doubt of their guilt (Doubt aboutDoubt: Coping with R. v. W.(D.) and Credibility Assessment, (2017) 22 Can. Crim. L.R. 31). [8] I note that the W.(D.) framework does not direct the trier of fact to analyze the evidence in a certain order. [9] In addition, I must consider both credibility and reliability when assessing the evidence of the witnesses. In R. v.

Nyznik, 2017ONSC 4392 at para. 15, the court explained the difference between the two concepts: … Reliability has to do with the accuracy of a witness' evidence -- whether she has a good memory; whether she is able to recount thedetails of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witnesswho is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case.

Sometimes an honestwitness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken inher recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong byincontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible cansupport a finding of guilt beyond a reasonable doubt. [my emphasis] [10] Also, the trier of fact is “entitled to believe all, some, or none of the witness's evidence” (R. v.

S.H., 2011 ONCA 215, at para. 8). [11] The three Crown witnesses are young adults who testified about events that occurred when they were children. In R v W.(R)., (SCC), [1992] 2 S.C.R. 122, the Supreme Court of Canada provided guidance in the way to approach the evidence ofchildren. The court stated, at pp. 133 and 134: The second change in attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adult, like time and place,may be missing from their recollection. … …

As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. [ 12 ] The court went on to state the following regarding the assessment of the credibility of adult witnesses testifying about events that occurred in their childhood, at p. 134: … In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters 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 is testifying. [ 13 ] Keeping these principles in mind, I now turn to the evidence adduced at trial. TESTIMONY OF THE WITNESSES I.N. [ 14 ] I.N. was born on [redacted]. He is 23 years old. He works [redacted]. [ 15 ] He is the eldest child of F.N. and T.N.

His maternal grandfather is J.R. [ 16 ] I.N. recalled moving to [redacted] with his parents and siblings when he was six or seven years old. [redacted]. [ 17 ] He stated that he was mostly homeschooled during his childhood, and that he left his parents’ home at 16 years old. He confirmed that he always lived in the same house when he resided at [redacted] with his family. [ 18 ] He stated that his grandparents lived in a motorhome in front of their [redacted] house for a period of eight months to a year. He believes he was approximately eight years old at the time.

His grandparents then moved into the [redacted]’s office close by for two to three years. After that, they moved to the cabin of one of his uncles, a few miles away from [redacted] for a winter before moving to the house they built up on the hill, a mile away from his parents’ house. [ 19 ] I.N. stated that his grandfather, J.R., was involved in their family’s life, and that he spent a lot of time with I.N. and his siblings.

While he acknowledged that his grandfather cared for him and his siblings, and that he did have some good times with his grandfather, I.N. stated that he did not have a good relationship with him while growing up. He also testified that his grandfather used derogative language about him and his father in front of his employees.

He gave, as an example, that his grandfather told him a number of times, from the age of 11 years old until he left home, that his father was a “piece of shit” and that he was just like him. [ 20 ] I.N. described his grandfather generally as being very abusive, both verbally and physically, and very controlling. He testified that his grandfather “beat him quite a few times”. However, I.N. stated that he only reported the incidents that he recalled clearly. Count #1 against J.R.: Assault with a knife ( s. 267 (

a) of the Criminal Code ) [ 21 ] I.N. testified that when he was approximately 9 to 11 years old, his grandmother, who was at their house, indicated that she wanted to pray for him because he had done something wrong. She put her hand on his shoulder. As he did not want to be prayed for, he pushed her hand off and told her not to pray for him. She then left. [ 22 ] His grandfather J.R. arrived shortly thereafter with his uncle, D.S. I.N. testified that his grandfather threw him onto his bed, and told him that when his grandmother wants to pray for him, he let her pray for him.

His grandfather then proceeded to slam him against the wall. He also slapped him. I.N. recalled screaming and crying to the point where his mother left to calm down his sisters who were crying in the living room and/or kitchen area, which were located near his bedroom. He did not see his sisters, who were never in the room during the incident, but he could hear them crying. His mother closed his bedroom door when she attended to his sisters. He described that, at some point during the incident, his grandfather had him down on the bed.

He recalled that his uncle D. was also in the room at the time, and that he was laughing. I.N. recalled getting so mad that he kicked his grandfather in the testicles. The complainant was laying on his back on the bed when he kicked his grandfather, who was bending over him. He stated that he was fighting to get up but was unable to as his grandfather was holding him down by the chest. [ 23 ] He stated that his grandfather reacted by throwing him up against the wall and the bed again. He heard his grandfather say: “if you ever”, but did not recall what he said after that.

He stated that his grandfather then pulled out an exacto knife, pulled down his shirt and slit him in the chest. He stated that his grandfather then put the shirt back up, smiled and patted him down. He recalled that the exacto knife was yellow. He knew what it was [redacted]. His uncle was still in the room when his grandfather cut him. I.N. recalled telling his grandfather, after he cut him, that his father was going to kill his grandfather if he found out about what he had done to him.

I.N. added that his grandfather started to laugh and replied that his father would not do anything. [ 24 ] I.N. described the cut as being approximately one-eigth of an inch deep. He stated that it bled somewhat down his chest, but not

heavily, as he only needed a few pieces of paper towel to soak up the blood. I.N. stated that he stayed in his room after the incident. I.N. also stated that he did not tell anybody about the cut, and simply let it heal. I.N. testified that the cut left a mark on his chest that is still visible. I.N. then proceeded to lift up his shirt during his testimony revealing a mark on his chest, which can be described as a faint vertical white line approximately two inches long in the middle of his chest, starting below the collarbone.

I.N. stated that he was certain the scar came from that incident, as he was not involved in any other incident this scar could come from. [ 25 ] He stated that his bedroom door was already closed when his grandfather cut him, but that his grandfather had thrown him on the bed and wall once before the door was closed. [ 26 ] He did not recall what time of the year this incident took place. [ 27 ] I.N. testified that his father was not home at the time of the incident, as he recalled that, while he was in his room that evening, his mother told him that his father recently had a motor vehicle accident with [redacted] on his way back from Haines, Alaska. [ 28 ] I.N. did not recall anybody asking him about his scar.

He stated that he did not tell anybody about it, as his mother and his uncle knew what had happened but would not help him. I.N. did not see or hear anyone tell his father about the incident. [ 29 ] The first time I.N. told someone about this incident was when he was 17 or 18 years old. He stated that he told a number of people close to him at the time. He also told a youth probation officer or youth worker who was supervising him, and writing a report regarding his criminal charges. He was 18 years old when he gave his first statement to the RCMP. Count #2 against J.R.: Assault with a pitchfork ( s. 267 (

a) of the Criminal Code ) [ 30 ] I.N. testified about another incident that took place around 2010, when he was approximately 13 to 14 years old. His grandfather had started to build his new house up on the hill at the time. I.N. went up on a four-wheeler to talk to his grandfather. I.N. stated that his grandfather was growing potatoes in stacks of tires at the time, and that when I.N. arrived, his grandfather was using a pitchfork to separate the potatoes from the soil.

I.N. did not recall what he wanted to discuss with his grandfather, but he stated that he was trying to explain something to his grandfather when his grandfather started talking back to him. I.N. stated that he became frustrated. He took a couple of steps back before turning around to walk back to the four-wheeler when he heard his grandfather yell “don’t you walk away from me”. I.N. stated that he had just started to run when his grandfather hit him on the back with the pitchfork end. He added that his grandfather hit him hard with the pitchfork to a point where he lost his breath.

However, his grandfather did not poke him with the fork. I.N. stated that his grandfather left him out on the ground. He added that his grandfather smirked, turned around, and went back to his potatoes. I.N. got up, went back to the four-wheeler, drove half way down to his house and stopped. He stated that he sat there crying for a little while, and then drove the rest of the way home. [ 31 ] I.N. stated that his grandfather started building his house in 2010, approximately.

He added that his grandfather built his greenhouse in, approximately, 2012-2013, after he had started to build his house. [ 32 ] I.N. stated that there was no greenhouse nor shop at his grandfather’s new house when this incident happened. He added that his grandfather had approximately four or five stacks of tires in which he grew potatoes at the time, and that the stacks of tires where located where his grandfather later built his shop.

He denied that his grandfather only started growing potatoes in tires in 2014, as he helped his grandfather built his shop during a period of approximately a month and a half in 2014. [ 33 ] I.N. acknowledged that he did not mention the following things when he described this incident in his first statement to the police: (1) that his grandfather was digging potatoes; (2) that he went up on a four-wheeler, and (3) that he started crying while sitting on the four-wheeler. I.N. also acknowledged that he did not mention this incident to his youth probation officer.

Count #3 against J.R.: Assault with an extension cord ( s. 267 (

a) of the Criminal Code ) [ 34 ] I.N. recalled being approximately eight or nine years old when his grandfather hit him over an extension cord. He stated that his grandfather was staying in his motorhome at the time, and that the incident took place in the summer. I.N. stated that there was an extension cord running to his grandfather’s recreational vehicle “RV”. He recalled picking up the extension cord, and was either moving it or playing with it when his grandfather told him to put it down. He did not recall whether he listened to his grandfather, but acknowledged that he probably did not.

He described that his grandfather came running over, slammed him over his legs and started hitting him “pretty hard” with his hand on his bottom. He stated that his grandfather hit him four or five times. His grandfather then went back to the motorhome. He stated that it appeared his grandfather enjoyed hitting him. I.N. stated that he was sore for approximately a day or two after the incident, but that it did not leave any marks on his body. I.N. testified that, after his grandfather let him go, he ran inside the house to tell his mother hoping that she would talk to his grandfather.

He found her in her bedroom having a nap. The only thing she told him after he described the incident to her was that he should have listened to his grandfather. I.N. added that two of his sisters were outside the motorhome visiting their grandparents at the time of the incident. [ 35 ] I.N. stated that there were a few chairs, a picnic table and a roll up roof outside the motorhome.

He stated that there was also a fire pit near the motorhome. [ 36 ] I.N. did not recall any other time when his grandfather would have done something to him in front of the motorhome. [ 37 ] I.N. acknowledged giving two statements to the RCMP: the first statement on November 13, 2015, and the second on March 27, 2018. He stated that he always remembered this incident, but acknowledged that he did not say anything about it in his first statement to the police.

I.N. pointed out that his first statement was short. [ 38 ] I.N. also agreed that he did not tell his youth probation officer about this incident. [ 39 ] I.N. acknowledged that his sister, O.N., told him that she had witnessed his grandfather hitting him with an extension cord. However, he does not have any memory of being hit with the extension cord. He only recalls his grandfather using his hand to “slap”

him. Count #4 against J.R.: Assault (s. 266 of the Criminal Code ) – The wooden blocks incident [ 40 ] I.N. testified that this incident took place when he was approximately eight or nine years old. He stated that his mother had sent him to his bedroom, and that he was in his bedroom when he heard the wooden spoon coming out of the tin can in which his mother kept all the cooking implements. He described feeling very angry upon hearing this. He stated that he grabbed all his wooden blocks, sat on his bed, and, as soon as his mother opened the door, he started throwing blocks at her.

He stated that he hit her two or three times with his blocks, before she slammed the door. Some time after she left, his grandfather entered his bedroom. His grandfather then proceeded to strike him hard on the bottom, approximately four or five times, before grabbing him, and throwing him hard on the floor. I.N. did not recall his grandfather saying anything as this was happening. He did not recall if anyone else was around when this incident happened.

He stated that F.N. was not in the bedroom when his grandfather hit him. [ 41 ] I.N. stated that what his grandfather did to him did not leave a mark on his body, but that he could feel it afterwards. He testified that this incident stood up in his mind because he had never thrown wooden blocks at his mother before. [ 42 ] I.N. testified that this particular incident took place before the incident with the exacto knife, as he recalled being in his first bedroom at the [redacted] house. He stated that, when he was younger, he was in a bedroom closer to his parents’ bedroom.

He added that he was approximately eight or nine years old when he was moved to a bedroom further away from his parents. Count #1 against F.N.: Assault with a wooden stick ( s. 267 (

a) of the Criminal Code ) [ 43 ] I.N. recalled an incident when he got in trouble for something he cannot remember. He stated that his mother phoned his grandfather to ask him to come over to help her discipline him. I.N. stated that his mother would call his grandfather during the day when she could not or did not want to handle something. He stated that, as he knew what happened when his grandfather came over, he positioned himself where he could get away. He stated that he was in between the island and the kitchen so he could leave both ways.

When his grandfather arrived, he told I.N. to come see him, but I.N. refused to comply. He repeated his demand, but I.N. again refused to comply. At that point, his grandfather tried to come around the island one way and his mother came the other way. I.N. ran has hard as he could towards his mother. He pushed her to the side with his body, and ran out the back door. I.N. stated that his grandfather was right behind him. I.N. stated that he slammed the back door, jumped off the back porch, ran down to the backyard and into the poplar trees.

He recalled his grandfather standing on the back porch saying that he would get him. His grandfather left approximately 20-30 minutes later. Approximately 40-45 minutes later, his mother came out of the house with a couple of his sisters. They went to work in one of their big greenhouses. I.N. stated that he went to talk to his mother. He tried to talk to her while she was working in the garden boxes, but she kept on telling him to go back to his room. I.N. stated that, at some point, she started chasing him.

I.N. ran out the front of the greenhouse, and then ran around the property for about 300 yards, before his mother hit him on the head with a stick or a root. [redacted]. [ 44 ] I.N. stated that his mother probably picked up the root or the stick from a pile of brush he passed while running. He added that she almost knocked him out when she hit him over the head. She then grabbed him and dragged him back to the house. I.N. stated that, as he started walking again, his mother grabbed the back of his neck as well as the side of his shoulder, and walked him back to his room.

He stated that he had a “goose egg” for a few days after the incident. [ 45 ] I.N. stated that there was nobody else around when his mother hit him, and that he did not tell anyone about the incident. He stated that he did not see his sisters after running out of the greenhouse. He added that he did not remember other times when his mother would have chased him through the house and the yard. [ 46 ] I.N. testified that he was approximately 10 or 11 years old when this incident happened, which would have been in 2007-2008.

He stated that he was certain there was a back deck when this incident happened, but acknowledged that at some point his parents took the back deck down, and replaced it with a new one. [ 47 ] I.N. was shown photographs that reveal that the back deck was taken down in 2005, and a new deck built in the summer of 2009 (See Exhibits 11 and 12). I.N. indicated that the new back deck would have been completed later in the summer of 2009.

However, after further considering the photograph, he indicated, without any prompting, that the incident could not have taken place in 2009 because there was no plastic on the greenhouse shown in the 2009 photograph. He added that the incident would have taken place a year later, in 2010. I.N. stated that there was plastic on the greenhouse, at the time of this incident, as they were growing vegetables in the greenhouse at the time.

He also stated that there were one or two summers when they did not have plastic on the greenhouses and did not grow a garden. [ 48 ] I.N. testified that he could not recall whether his grandfather was standing on the old deck or the new deck when this incident happened. [ 49 ] I.N. stated that he would have been 13 in 2010. He did not recall if he were bigger than his mother when he was 13 years old, as he stated that he did not have his growth spurt until he was 14. Count #2 against F.N.: Assault with a wooden spoon ( s. 267 (

a) of the Criminal Code ) [ 50 ] I.N. testified that both his parents disciplined him during his childhood, but he indicated that his mother was the disciplinarian. He stated that he sometimes saw his siblings being disciplined, but sometimes he did not.

[ 51 ] He testified that when he would hear the wooden spoon come out of the tin can, this usually meant that his mother was going to use it to hit him. He testified that his mother used to discipline him with the wooden spoon almost on a daily basis from the age of eight years old to the age of 12 to 13 years old. She would hit him from two-to- three times, to five-to-six times at once depending on the circumstances. His mother typically hit him on his hands or on his bottom.

He added that she also hit him on the head with the wooden spoon a few times. [ 52 ] I.N. testified about one particular incident when his mother hit him on the head with the wooden spoon. He stated that he was sitting in his bedroom, the room further away from his parents, when his mother came in the room with the wooden spoon. He stated that he was sitting on his hands because his mother would hit him on his hands all the time to discipline him. He testified that his mother told him to show her his hands. He said no. She repeated “I. show me your hands”. He again said no.

I.N. stated that his mother then slapped him over his head with the wooden spoon while yelling “show me your hands”. However, he just kept his hands under him. I.N. stated that his mother hit him again on the head two or three times. He said that the last hit almost sent him in a daze. He stated that he grabbed the skin around his mother’s stomach, and squeezed it as hard as he could. His mother screamed, and then hit him on the back with the wooden spoon. He recalled glancing through the window of his room looking out the front porch while the events were unfolding.

He saw that his father was walking up to the house, and he started screaming loudly. I.N. testified that as soon as his father came in the house his mother’s attitude changed completely. His father asked what was happening. His mother responded in a way that made it look like he was having a temper tantrum, and that she was just trying to calm him down. He did not recall what his father said after that. [ 53 ] I.N. stated that he was approximately 17 or 18 years old when he first started to talk about the physical abuse he endured during his childhood, as he was away from home and free by then.

He explained that he did not have to worry about “them” anymore. [ 54 ] I.N. explained that he did not report the assaults by his mother when he spoke to the RCMP in 2015 because he respects his father, and his parents were still married at the time. I.N. added that “he did not want to slander his father’s wife”. [ 55 ] I.N. stated that he mentioned the incidents with his mother to the RCMP in 2018, as his parents were separated at that point. He stated that the RCMP contacted him in 2018 to provide more details about the incidents he had disclosed in 2015.

He added that it was not his goal to tell the police about all the incidents of violence he suffered in his youth because there were too many. [ 56 ] I.N. did not recall whether he told his youth probation officer about the incidents involving his mother. He stated that it was not his goal to tell her about every single bad thing that had happened to him. He stated that he never told his youth probation officer that the incident he did report constituted a complete list of events that had happened to him. [ 57 ] I.N. stated that his parents’ separation was not a shock for him.

He stated that he does not blame anybody for the break up. [ 58 ] I.N. acknowledged that his mother had a hard time managing him when he was young. [ 59 ] He also acknowledged that there was one incident when his father had to sit on him for an hour to calm him down because he was out of control. He also acknowledged an incident of violence involving fighting with his father when he was 14 years old. He also acknowledged that he threatened to kill his mother during that incident.

He specified that the threat was against his mother not his father. [ 60 ] He agreed that he was big and strong at 14 years old, and that he would fight back at that age. [ 61 ] I.N. agreed that he has a good relationship with his father who lives in British Columbia. He travels to visit him three or four times a year, and they talk in between visits. He stated that he is not afraid of his father.

I.N. also sees his sister, O.N., once or twice a month. [ 62 ] I.N. explained that he did not mention to the RCMP that his father was abusive to him because his father did not hurt him, and he does not consider spanking to be abuse. I.N. stated that his father spanked him three or four times during his childhood, but was otherwise really good to him. He denied that his father ever used a belt to hit him. He stated that his father was a hard worker, and that he was hardly ever home, as he worked seven days a week.

He recalled that his father would leave at four or five in the morning, and would rarely come home before late at night. He acknowledged that his mother would send them to their room when they were naughty, and would tell them that their father would discipline them when he came back home. [ 63 ] I.N. agreed that he dislikes his mother, and that, as far as he can remember, he never liked her. He stated that she would show care and affection for him when people were around, but not as much when no one was around.

He stated that he went along with it, but that he became more distant from her as he got older. [ 64 ] I.N. indicated that hate is not the right word to describe the feelings he has towards his mother. However, when pressed by defence counsel, he agreed with him that he “pretty much hates” his mother. I.N. denied that he hates his mother because she alerted the police regarding the sexual assaults with which he was charged. I.N. added that he still cares about his mother. [ 65 ] I.N. acknowledged that he is aware that his parents are fighting for custody of his youngest siblings.

He is also aware that their family matter will only resume after this matter is completed. He acknowledged that he would like his father to have custody of all of his underage siblings, and that, if he could help him get custody, he would. However, I.N. denied being told by anybody that the outcome of this criminal matter would have an impact on the issue of custody of his younger siblings. [ 66 ] I.N. stated that he has not had any contact with his mother since he was charged with sexually assaulting two of his younger sisters.

He is also aware that his mother and grandfather are under a condition not to have contact with him. [ 67 ] I.N. agreed that when he testified at his criminal trial, and when he spoke to his youth probation officer for the preparation of his pre-sentence report, he denied committing the sexual assaults on his sisters.

He also acknowledged that he denied committing the sexual assaults on his sisters during his testimony at the preliminary inquiry in this matter that took place on [redacted]. [ 68 ] However, when asked if he still maintained his innocence, I.N. readily admitted to committing the sexual assaults on his sisters,

and admitted that for a long time he did not tell the truth. He then stated that he decided to tell the truth and own up to his actions. [ 69 ] I.N. acknowledged that he told his youth probation officer that his sisters were lying when they accused him of sexually assaulting them in order to protect their grandfather, J.R., and that he said that he thought his grandfather was responsible for the sexual assaults. I.N. agreed that by saying that his grandfather may have been the one sexually assaulting his sisters, he would have put him in serious jeopardy.

He also agreed that he did not care whether what he said could get his grandfather in trouble. He stated that he picked his grandfather because he did not like him as a result of the abuse he endured as a child. [ 70 ] I.N. further stated that he denied committing the sexual assaults because he was trying to get out of trouble, and that he continued to deny even after his trial. [ 71 ] I.N. acknowledged that he was convicted of theft in [redacted]. O.N. [ 72 ] O.N. is 22 years old. She was born on [redacted]. She lives in Whitehorse. She is the second eldest of six children born to F.N. and T.N.

I.N., the complainant, is her older brother. She is also the granddaughter of the accused, J.R. [ 73 ] O.N. grew up [redacted], which is located [redacted], where her family [redacted]. She lived in a house located right beside the [redacted] property, with her parents and her siblings, from the age of approximately three to four years old to the age to 16 years old. The family relocated to British Columbia when she was 15 or 16 and returned to the Yukon for the summer in July 2016. She moved out of the family home a month and a half after they came back to the Yukon.

I.N. did not move down to British Columbia with the rest of the family, as he was no longer residing with them at the time. [ 74 ] O.N. stated that she left home for the first time when she was approximately 15 or 16 years old because she wanted more freedom. She acknowledged that she started experimenting with alcohol and drugs at that time. [ 75 ] O.N. stated that her parents are separated, and her father lives in British Columbia. She believes her mother resides at the new [redacted] home.

However, she cannot be certain of that, as she has not had any contact with her mother for some time. [ 76 ] O.N. testified that it has been difficult for her to be involved in this case due to its impact on her relationship with her mother and her maternal grandparents. She stated that she was last in contact with them by text around July 2018. She has not had contact with them since then, due to the no contact order in place in this matter.

She stated that she loves her mother as well as her grandparents, and hopes that, at the end of this process, she can rebuild her relationship with them. [ 77 ] O.N. testified that religion played an important role in her upbringing. She stated that her parents and maternal grandparents are Christians, and that she and her siblings were raised Christians. She stated that they were raised to follow the Bible, read the Bible and believe what it says.

She also indicated that they would regularly go to their maternal grandparents’ house for Bible studies, which were led by her grandfather, J.R. [ 78 ] O.N. stated that she and her siblings were homeschooled by their mother. However, she attended school in [redacted] for grades six and seven. She also attended a private Christian school in grade 12 in British Columbia. [ 79 ] O.N. testified that she had a “pretty good childhood”, and that both her grandparents were very involved in their lives, as they lived very close to them for most of that time.

She added that her perception of her grandfather was that he was a very loving and caring person. [ 80 ] O.N. testified that her parents bought their old [redacted] house from her maternal grandparents. At some point after that, her grandparents lived in an RV at the edge of the property for approximately a year. Her grandparents then moved out of the RV and lived in the office building [redacted] for a number of years, while they were building a house a few kilometers [redacted].

Her grandparents then moved into that house. [ 81 ] O.N. testified that discipline was common in their household while she was growing up. She stated that often they were sent to their rooms or outside for time outs. However, she also stated that they were often disciplined physically as well, normally by their parents. She testified that their parents would usually discipline them in their rooms, and used their hands to discipline them. However, their mother also commonly used a wooden spoon. She added that, at times, her father used a belt.

She stated that they were usually spanked right across their bottom and, some times, on their hands. She stated that the wooden spoon was stored in a tin canister on the counter with other kitchen utensils. She added that they knew they were getting a spanking or a sibling was getting a spanking when they would hear the tin can starting to rattle when their mother would pull the wooden spoon from it. [ 82 ] O.N. testified that I.N. was disciplined frequently, as he got in trouble, and was sent to his room often when he was a child.

O.N. added that before her mother would go into I.N.’s room to discipline him, she would take the wooden spoon with her. She added that she would then hear the same thing she heard when her mother would discipline her. She described the noise as being a “sort of a clap of the wooden spoon on his body”. She presumed that the complainant was being spanked on his bottom or his hands, as it is how her mother would discipline her. O.N. stated that, as they were usually disciplined in their rooms, she only witnessed her mother discipline her siblings, including I.N., with the wooden spoon on a few occasions.

However, she testified that it seems like she heard one of her siblings, including I.N., being spanked with the wooden spoon on a weekly basis, at least. [ 83 ] She testified that I.N. was definitely in trouble more and disciplined more than the rest of them. [ 84 ] She also stated that being disciplined with the wooden spoon was something that was very common in their household; that she experienced it from a young age; and that she continued to experience it throughout her childhood. She testified that it was something

very normal to her, and she thought, at the time, that it was something that happens when you do something bad. She testified that she stopped receiving spankings at the age of 12 or 13 years old. She stated that the spankings were very common when she was younger, but decreased progressively as she became older. She testified that she does not remember a time when the use of the wooden spoon was not common in their household, except, maybe when she was quite young.

She stated that she is unsure when the spanking stopped for I.N., and she does not specifically remember how old he would have been the last time she remembers hearing him being spanked. She added that she associates the wooden spoon with the first [redacted] house. [ 85 ] O.N. testified that her father was at work all day, and would come home in the evening. She stated that, often, when one of them had misbehaved, their mother would ask them to wait in their room until their father came back to discipline them.

She acknowledged that her father disciplined I.N. with his belt sometimes. [ 86 ] O.N. described her brother, I.N., as being very energetic, very loud, maybe even uncontrollable when he was young. She testified that he could get carried away when playing with his siblings, and that sometimes he would be shoving others. She testified that it was the sort of behaviour for which he would be disciplined. She agreed that I.N. could be obstructive, rebellious and aggressive at times.

She remembered him being that way when he was approximately between the ages of four to seven years old. [ 87 ] O.N. described her mother as being upset, agitated or irritated with her brother when she would get the wooden spoon to spank him. [ 88 ] O.N. testified that the relationship between I.N. and their mother was tense, and that it seemed strained.

She stated that it seemed that I.N. was always in trouble, and as a result, their mother was always angry or frustrated with him. [ 89 ] O.N. testified that, when I.N. was younger, he was afraid of their mother and scared of the punishment he would usually receive from her. O.N. described a specific instance when she went into her brother’s bedroom, and observed him sitting against the wall with a little round bucket of wooden blocks [redacted].

She asked him what he was doing, to which he replied that he intended to throw the pieces of wood at the door when their mother came in, in the hope that she would not spank him or leave the room without spanking him. She testified that, at the time, her brother just seemed scared of their mother; scared that she was going to come and hurt him again. O.N. does not clearly remember how old she was when this event took place. She thought she was under 10 years old, maybe closer to eight years old, but was uncertain.

She stated that they were living in the old [redacted] home at the time. [ 90 ] O.N. also testified about an occasion when she saw I.N. running away from their mother. O.N. assumed it was to get away from being spanked. She stated that she was inside the house when she saw I.N. running out the back door, and towards the back of the property. She then saw her mother chasing after him. O.N. observed them until they were out of her sight. O.N. did not remember how old she was at the time.

She believed she may have between the ages of six and 10 years old, when she witnessed that incident. [ 91 ] O.N. testified that she saw less of the relationship between I.N. and her maternal grandfather, J.R. She added that it appeared as though her brother never really liked their grandfather, even though he did not say anything in particular to that effect.

She noticed that her grandfather became more distant from the complainant, as I.N. got older, and that their relationship was not very good when I.N. became a teenager. [ 92 ] O.N. testified to witnessing a couple of incidents of violence between her grandfather, J.R. and I.N. [ 93 ] She testified that one of the incidents occurred while they were living at the old [redacted] home, and their grandparents were living in their RV at the edge of the property. She stated that she, I.N., and some of their younger siblings were over visiting their grandparents, as they often did.

Their grandparents had a seating area out in front of their RV where they would go and eat quite often. She added that there was a blue tarp set up over the chairs. She recalled that I.N. was doing something that was bothering her grandfather. It seemed to her that her brother was jumping on the chairs causing a raucous. She testified that her grandfather told I.N. to stop a couple times, but I.N. did not listen. She added that their grandfather threatened that he would spank I.N. with an extension cord that was laid out in front of the RV if he did not stop.

She stated that her grandfather eventually grabbed I.N. and the extension cord, folded it and struck I.N. across the bottom with it. She stated that her grandfather hit I.N. once with the extension cord. She described what she saw as “a good spanking”, and that it appeared to be hard. She assumed I.N. was wearing pants at the time. She believed I.N. was standing while being spanked. She added that I.N. was “screaming around” when their grandfather grabbed him and spanked him. She stated that her grandfather appeared angry at her brother because he was not listening to or obeying him.

She believed the incident took place in the summer. She also believed that she was nine years old at the time of the incident because of the way her brother looked in her memory. However, she conceded that she could have been as young as five years old at the time. [ 94 ] O.N. stated that she did not recall discussing the electrical cord incident with I.N. She also indicated that she did not recall approaching I.N., and volunteering information or asking him about that incident.

She did not recall I.N. approaching her or questioning her about the incident. [ 95 ] O.N. also testified about another incident that occurred in their old home at [redacted]. She stated that I.N. had gotten into trouble, she did not recall why, and had been sent to his room. She thought her mother had called her grandfather, J.R., over to help discipline I.N. O.N. stated that, as she wanted to know what was happening, she walked by I.N.’s bedroom and saw, in passing by the doorway as she did not want to get in trouble, that her grandfather had I.N. pinned to his bed.

She described that her grandfather was sitting on I.N., “leaning his weight” on I.N., and holding him down. It appeared to her that her grandfather was using more of his side to hold I.N. down. O.N. did not remember how I.N. was positioned under their grandfather at the time. She added that she could hear I.N. struggling, hollering and screaming while this incident was happening. She did not remember exactly how old she was at the time but estimated that she was between the ages of seven years old and 10 years old when this occurred.

She did not see a weapon in I.N.’s room at the time. [ 96 ] O.N. testified that, a few weeks after the incident, she saw I.N. walking in the living room without a shirt on, and noticed that he had a large scar on his chest. She stated that the scar stood out to her because, when they were young, they were always running around outside playing in the woods, and getting scratches and scars. As such, her and her siblings had a competition as to who had the coolest looking scar. She added that when she asked I.N. about the scar, she expected that he would be excited to talk about it. Instead, I.N.

pushed her aside, and refused to talk about it. O.N. testified that she had not noticed that particular scar before that date. She stated that it was not uncommon for them to walk around without a shirt, especially when they were younger. [ 97 ] O.N. acknowledged that, in her statement to the police of March 2018, she had described the scar as a scab. She also acknowledged that she had not specified to the police that it was a large scab. O.N. confirmed, later in her testimony, that what she saw was a scab and not a scar.

However, she acknowledged that I.N. could have had a mark on his chest prior to the incident with their grandfather. O.N. stated that she did not recall whether her grandmother was or had been at the house around the time of the incident. She did recall that, at some point, her father had an accident with [redacted], but she did not recall when that accident occurred in relation to the incident between her grandfather and I.N. [ 98 ] O.N. testified that she did not recall any other incident or instance when her grandfather would have disciplined I.N. [ 99 ] O.N. stated that I.N. left home before she did.

She stated that he started working as a [redacted] around the age of 14 or 15 years old. She added that he was away from home often from then on. She stated that, while I.N. was away for work, the information came out that he had done inappropriate things to two of their younger sisters. Criminal charges were laid against him and he moved out of the house. [ 100 ] O.N. stated that she did not have any contact with I.N. from that point on until she came back from British Columbia in July or August 2016.

She stated that they have been seeing each other on average once a month or every two months since then. [ 101 ] However, she also recalled that I.N. phoned her approximately one month after the sexual allegations against him came out. O.N. had moved out of her parents’ house for a few months at that point. I.N. said to her that he hoped she did not believe what their sisters were saying about him. She replied that there was no way she could not believe her sisters, but that she loved him anyway.

She stated that she was aware that he was found guilty after trial of some of the sexual assault charges against him, and that, eventually, he was sentenced by the court. O.N. stated that I.N. never admitted to sexually assaulting their younger sisters. O.N. further stated that she likes her brother, and trust that he would never do something like that again. [ 102 ] O.N. acknowledged that she and I.N. have talked about the court process in this matter. However, she stated that they have not discussed the content of the allegations. [ 103 ] O.N. also acknowledged that she is in contact with her father.

She stated that they talk on the phone quite often. She added that she usually visits him in British Columbia once a year, and that her father comes up to the Yukon once in a while to visit. She stated that I.N. has visited their father in British Columbia a couple of times at least since their parents separated. [ 104 ] O.N. agreed that her parents’ separation came as a shock to her, and that it was heartbreaking. She believed her mother is the one who terminated the marriage. However, O.N. stated that she does not hold it against her mother, as it is simply what happened.

She agreed that her parents’ separation could be characterized as a high conflict family matter. She added that she would like her father to have contact with her younger siblings as much as her mother has contact with them. She acknowledged that her father is allowed to see them, but only on what appears to be an irregular monthly basis.

She stated that, currently, one of her younger sisters, who is one of I.N.’s victims and is 18 years old, lives with her father, and that the three youngest live with her mother. [ 105 ] O.N. acknowledged to swearing an affidavit in support of her father’s application for custody of her three youngest siblings. She also acknowledged that, at the time she sworn the affidavit she wanted her youngest siblings to live with her father. It was admitted that O.N.’s affidavit was filed on April 12, 2019, in the family matter. [ 106 ] O.N. recalled an incident when I.N. threatened to kill their father.

She thought that I.N. would have been approximately 13 to 14 years old at the time. O.N. did not know how that incident started. However, she recalled that her father had to go to I.N.’s bedroom, and hold him down because he was threatening to kill him. O.N. described the situation has very alarming. She further stated that she did not recall I.N. making threats against her mother during that incident. [ 107 ] Finally, O.N. acknowledged that she can remember some things clearly and some things not. She stated the things she remembers very vividly are usually connected to an emotion.

While O.N. recognized that her childhood was very busy with many siblings, she stated that she does recall certain things as far back as when she was approximately five years old. A.N. [ 108 ] A.N. is the third eldest child of F.N. and T.N. She is two years younger than O.N. She grew up at [redacted] with her parents and siblings in the house [redacted]. Her family moved to the new house located a few miles from their first house when she was 14 years old.

I.N. did not live with them when they moved to the new house. [ 109 ] She recalled that her family moved to British Columbia at some point and that she attended school when they were there. She stated that all the family, except for I.N., moved to British Columbia. [ 110 ] A.N. came back to the Yukon at the beginning of the summer 2020.

She now lives in Whitehorse. [ 111 ] A.N. believed her mother moved back to the Yukon two years ago. [ 112 ] She stated that, as a child, she and her siblings were taught not to disobey or question people in authority. [ 113 ] She testified that her mother and her father would discipline them. She added that her father would come home late from work, and her mother would often ask him to carry out the punishment. [ 114 ] A.N. stated that they would receive spankings, or would not get dinner when they disobeyed.

She added that they were also under biblical pressures, such as that they would go to hell if they disobeyed. She stated that they grew up in fear; fear of God, fear of dying.

[ 115 ] A.N. testified that their mother would spank them with a wooden spoon. She added that sometimes they would have to go outside to get a willow, but that was reserved for when they did something very bad. [ 116 ] A.N. described the spoon their mother used to spank them as a regular cooking wooden spoon. A.N. stated that their mother would hit them on their bottom, sometimes with their pants down. She would also hit them with the wooden spoon on their hands.

A.N. stated that she could not recall any specific time when she saw I.N. being spanked by their mother with the wooden spoon. [ 117 ] A.N. stated that she and I.N. were the ones who seemed to get in trouble the most when they were young. A.N. agreed that she and I.N. did not get along when they were younger. [ 118 ] A.N. stated that her mother homeschooled them. A.N. added that she struggles with reading, as she was never taught properly. [ 119 ] A.N. stated that she recalled an incident that took place in the old house at [redacted].

She stated that she witnessed her grandfather, J.R., sitting on top of I.N. and “praying the demons out of him”. She stated that the incident occurred in I.N.’s bedroom. A.N. stated that she heard what was happening. She also stated that her mother was in the doorway and that she made her watch what was happening. She added that she recalls her mother saying something to the effect that what was happening was okay, and that it is “what you get when you do something bad”. A.N. stated that her mother used what happened to her brother as a learning moment for her.

She stated that her grandfather was sitting on top of I.N.’s back, and that he had I.N., who was on his stomach, pinned down on the bed. She stated that I.N.’s head was facing her, and that he was screaming at their grandfather and their mother. However, she did not recall him saying anything in particular. She did not remember how long she watched what was happening. She stated that I.N. was probably around 11 or 12 years old when this incident occurred. [ 120 ] A.N. did not see any type of tool or weapon at the time.

She did not think her uncle, D.S., was there at the time nor did she recall whether her grandmother, D.R., was there. [ 121 ] A.N. described another incident, which occurred while she was on the back porch of their old house. She stated that she saw her mother yelling and chasing I.N. around the yard with a stick in her hand. A.N. stated that I.N. and her mother were coming from around the house, that they went around the small greenhouses, and then behind the big greenhouses. She stated that she did not see what happened after that. She did not recall whether there was anyone else with her at the time.

A.N. stated that she was young, but could not specifically recall how old she was at the time. [ 122 ] A.N. stated that it seems like her mother was always sick and napped a lot when A.N. was young. She added that her mother was pregnant often. A.N. also stated that her father worked long hours, seven days a week. [ 123 ] A.N. did not recall seeing a scar on I.N.’s chest. [ 124 ] A.N. recalled an incident when I.N. threatened to kill their father. She agreed that it was a traumatic event. [ 125 ] A.N. stated that her grandfather was very involved with their family while she was growing up.

She acknowledged that he was always there for them. [ 126 ] A.N. stated that she did not blame her mother when her parents separated. Instead, she stated that she feels responsible for her parents’ separation, as it appeared to her that their relationship fell apart after she stood up to her mother while they were living in British Columbia. A.N. stated that she did not want her mother to spank her little sister because she was not reading. As a result, A.N. went into the bedroom and put her sister behind her back. Her mother threatened to leave them at that time, and told her that she could be the mother.

A.N. stated that her mother sent her back to the Yukon after that incident. [ 127 ] A.N. stated that her mother’s love is conditional. A.N. also stated that her relationship with her mother changed after she started thinking for herself and having her own opinion of right and wrong, and, as a result standing up for herself and for her siblings. [ 128 ] A.N. stated that when she was 16 years old, her mother kicked her out of the house. A.N. had to live in the motorhome near the house.

Her mother did not speak to her during that time, she was not allowed to speak to her siblings, she had to cook for herself, and take her showers in the motorhome. A.N. stated that the only reason her mother broke her silence was because she was exhausted of living in the motorhome, and she told her father she was going to go to social services. [ 129 ] A.N. stated that she has a very good relationship with her father. Also, she is aware of the family case regarding access to the younger children.

She stated that this is an issue for her parents to work through and resolve. [ 130 ] A.N. also stated that she would like to see all her younger siblings, and this is something she has to work through with her mother. [ 131 ] Finally, A.N. confirmed that she was the one who found out about the sexual assaults that I.N. committed on their sisters and told her parents. J.R. [ 132 ] J.R. was 71 years old at the time he testified. F.N. is his daughter and, T.N., her husband. F.N. and T.N. separated, but are not yet divorced.

The complainant, I.N., is his grandson. [ 133 ] He lives at [redacted] and works part-time at [redacted]. [ 134 ] He was the original owner of the [redacted]. He had to declare bankruptcy [redacted]. He and his wife lost almost everything in the bankruptcy, including their house [redacted]. As a result, they packed everything they had in their vehicle and travel around for a few years.

[ 135 ] T.N., who he hired as an employee in 1995, and his son D.S. managed to purchase the [redacted]. Three and a half years later, they asked him to come back to help and take over the running of the [redacted], which he did. [ 136 ] At some point, an acquaintance gave them an RV, in which they lived and travelled for approximately a year and a half. They would come and visit F.N. and her family when they were passing through the Yukon. In 2004, they parked the RV in the shop for the winter and lived there for a few months.

In 2005, they made the decision to stay in the Yukon, and he and his wife moved into the office [redacted]. They then started to build a house nearby. They moved into their new house in the spring of 2011. They have been in that house since then. [ 137 ] The children were always back and forth between the office and F.N.’s and T.N.’s house. He and his wife attended birthday parties, and dinners at F.N.’s and T.N.’s house. They visited them often even if it was not as often as he would have liked, as they wanted to be involved in the children’s lives and their Christian upbringing.

He stated that his faith is important to him, and he wanted his grandchildren to grow up and live in that faith, if they so desire. He stated that he and his wife supported the whole family, and that their desire was to see a healthy family. J.R. stated that he and his wife were committed to being a positive influence in the lives of their children and grandchildren. [ 138 ] J.R. testified that he and his wife made two commitments that govern their relationship with their grandchildren.

First, when I.N., who is their first grandchild, was born, they decided that it was not their responsibility to discipline their grandchildren. J.R. added that he and his wife held to that commitment completely. Second, they decided that they would never degrade the parents in front of their children, and vice versa . [ 139 ] J.R. stated that he wanted his grandchildren to see him as their grandfather not as an authority figure. [ 140 ] J.R. stated that their house is located less than a mile away from the house F.N. and T.N. used to live in [redacted].

Five or six years ago, F.N. and T.N. moved into their new house, which is located about five miles from his house. However, four or five years ago, T.N. and F.N. moved to British Columbia in search of better education for their children, as it was getting difficult for F.N.. F.N.’s family resided in British Columbia during the school year, and came back to the Yukon during the summer and school breaks. F.N. came back to the Yukon two years ago, and has been living in the Yukon since then. T.N. lives in British Columbia. [ 141 ] J.R. is aware that there is a pending family matter between F.N. and T.N.

J.R. submitted an affidavit in support of F.N. in that matter. He agreed that he and his daughter are close. Count #1: The Knife Incident [ 142 ] J.R. testified that, in 2008, T.N. had a motor vehicle accident [redacted]. T.N. got a ride home with someone else, but the scene of the accident required an extensive clean up. J.R. stated that there was an incident involving I.N. the same day. However, he testified that the events did not unfold as I.N. described in his testimony. [ 143 ] J.R. stated that he was in the office [redacted] with his son D.S. when his wife came in crying. She was extremely distraught.

She told them that I.N. had attacked her, and punched her in the chest and breast. He was really concerned for his wife. He comforted her, and then, his son and he went over to F.N.’s house. He cannot remember saying anything to his wife before going over to see I.N. [ 144 ] J.R. stated that he did not go over to discipline I.N. J.R. wanted to speak to him to let him know that he was not allowed to hit his grandmother, and to find out why I.N. had acted that way. [ 145 ] J.R. stated that I.N. was the first person they saw when he and his son walked in the house.

I.N. was standing at the corner of his bedroom door and the kitchen counter. J.R. stated that the door was not locked, and they did not knock before coming in. He added that it was common for them to come in without knocking on the door if F.N. and the children were home. [ 146 ] J.R. testified that he said to I.N. quite forcefully that he must never hit his grandmother. His son reinforced his message by saying to I.N. that he could not hit his grandmother. However, I.N. started swinging and kicking at J.R. J.R. wrapped his arms around I.N., and restrained him.

He stated that they were approximately four or five steps away from his bed at that point, so he put I.N. on the bed. J.R. stated that he very simply picked I.N. up, and put him on the bed as I.N. swung his legs. He stated that it was not a struggle, and that it was not a difficult thing to do. J.R. added that I.N. had a low single bed at the time, which consisted of a home-made box with a mattress. J.R. held I.N.’s arms by his side. J.R. stated that his legs were on each side of I.N.’s upper hip/thigh area. He stated that his knees were resting on the edge of the bed and that his feet were on the floor.

J.R. recalled that he repeated to I.N. a number of times quite sternly and forcefully that he must never hit his grandmother again, and that he was not going to punish him, but that his father would when he came home. J.R. stated that he did most of the talking, and that there was no real shouting or screaming or anything of that sort. He acknowledged that they were speaking loudly to each other. I.N. wanted to be let go, but he was not really yelling. J.R. stated that he was speaking to I.N. very firmly and very clearly. J.R. stated that he was not angry.

However, he was determined to ensure that this would not happen again, and, if I.N. knew that, it would not happen again. J.R. stated that I.N. tried to kick him in between the legs at some point, but he was unsuccessful. He added that nothing connected so it was not an issue. J.R. stated that, at some point, I.N. stopped struggling and relaxed. When I.N. stopped struggling, he let him go. J.R. stated that I.N. then told him that his father was not going to do anything. He told I.N. to stay in his room, walked out of I.N.’s room and closed the door.

J.R. then left the house to go check on his wife. [ 147 ] J.R. denied putting I.N. on the floor or against the wall at any point during the incident. However, J.R. acknowledged that it would have looked like he was crouching over I.N. on the bed while he was restraining him. [ 148 ] J.R. acknowledged that he never had the conversation he stated he wanted to have with I.N. to find out why I.N. had hit his grandmother. [ 149 ] J.R. stated that his son, D.S., was present with him from the beginning of this incident until the end. F.N. was in the house.

However, J.R. is unsure as to her whereabouts while he was interacting with I.N. J.R. could not recall seeing the other children while he was there. [ 150 ] J.R. added that the whole incident lasted for about a minute and a half. He denied ever praying the demons out of I.N. J.R. added that he would say that he was not in a praying mood at that particular moment. [ 151 ] J.R. stated that he never pulled out a knife during the events. He added that an exacto knife was not and is not a tool he commonly uses, and that he never carried one in his pocket. [redacted].

Count #2: The Pitchfork Incident [ 152 ] J.R. denied that the incident with the pitchfork, that I.N. described, ever occurred. J.R. testified that he never hit I.N. with a fork of any kind. [ 153 ] J.R. testified that he completed the construction of his house up on the hill overseeing the [redacted] in 2011. He stated that they built garden boxes when they moved into the house in 2011. He added that 2011 was the first year they had a garden there. He stated that they grew vegetables in garden boxes in 2011, but no potatoes. J.R. stated that they built a greenhouse in 2012.

He did not recall whether they grew potatoes in 2012. He stated that it is possible, but he suspected they did not. He added that they planted potatoes in the ground in 2013. J.R. stated that he only planted potatoes in tires in 2014. He added that it was a failed experiment, and did not grow potatoes that way ever again. J.R. stated that he did not grow potatoes prior to moving to his house up on the hill, and would not have grown potatoes in 2010. [ 154 ] J.R. stated that I.N. would come to visit them at their house, and drive up on his four-wheeler or ride up his horse later on.

J.R. denied that anything of significance, an argument or an altercation, ever occurred between him and I.N. up the hill near the stacks of tires in which he grew potatoes. He added that nothing significant at all ever happened between him and I.N. during the period he described in close proximity to their house at the top of the hill. J.R. stated that there were discussions, but no arguments. Count #3: The Extension Cord Incident [ 155 ] J.R. stated that he has never beaten or hit I.N. with an extension cord.

In addition, he stated that he has never slapped or hit I.N. on his bottom because he was playing with an extension cord. [ 156 ] J.R. testified that he and his wife only lived in their parked RV outside of F.N.’s house in 2004. He added that he and his wife only had a blue tarp set up the way described by his grandchildren in 2004, and that the way the surroundings of their RV was described only fit the early spring/summer of 2004. J.R. stated that he and his wife moved into the office at the beginning of 2005, and that the description provided does not fit 2005.

Count #4: The Wooden Blocks Incident [ 157 ] J.R. denied hitting I.N., as I.N. described in his testimony. J.R. testified that he did not recall any event that could remotely fit the description given by I.N., and that he never did that to I.N. [ 158 ] J.R. stated that he did not recall any discussions about I.N. throwing wooden blocks. Family interactions [ 159 ] J.R. testified that he was a little less involved in I.N.’s life than he was with his granddaughter’s lives. However, he stated that there were lots of interactions between them.

They went on family camping trips and spent time around the campfire at the house. J.R. stated that the children were constantly coming and going at and from his and his wife’s residence. [ 160 ] J.R. stated that I.N. came to their house for many of the Bible studies he taught, but stop coming later on. [ 161 ] J.R. stated that he thought I.N. was a challenge, and could be boisterous, and naughty some times. [ 162 ] J.R. also stated that by the age of 13 or 14 years old, I.N. would have been as tall as F.N.

He described I.N. as very wiry and strong. [ 163 ] J.R. stated that he had a good relationship with I.N. during much of I.N.’s childhood and early teen years. However, J.R. stated that the relationship changed when I.N. was charged with committing sexual offences on his younger sisters. J.R. stated that there was a separation when I.N. was charged and arrested for those offences. [ 164 ] J.R. testified that I.N. called him when he was first arrested asking him not to believe what his sisters were saying against him. However, he told I.N. that he believed his granddaughters.

J.R. nonetheless tried to visit I.N. while he was in custody, but stated that it did not work out. [ 165 ] J.R. testified that his relationship with T.N. was never easy, but that their relationship was better before he married F.N. J.R. stated that the relationship became more difficult after the marriage, as T.N. seemed to resent their contacts with F.N. J.R. added that, after the grandchildren were born, he and his wife no longer felt welcome in T.N.’s and F.N.’s home. They felt that T.N. was putting walls between them and their daughter as well as the grandchildren as they came along.

He stated that T.N. was difficult to deal with at times, and that there was a continual degradation of their relationship with him over time. J.R. added that the separation between F.N. and T.N.

was acrimonious. [ 166 ] J.R. recalled only one occasion when he would have made what could be qualified as a somewhat derogative comment about T.N.’s actions in front of I.N. He stated that I.N. must have been 17 years old at the time. [ 167 ] J.R. testified that he did not witness F.N. and T.N. discipline the children in the way that his grandchildren described when they testified. The only thing he can recall is that F.N. would count a lot. She would rattle the tin can on the counter, start to count and then “everything was taken care of”.

J.R. stated that the children never complained to them about the discipline they received at home. However, he later stated that he has no specific memory of F.N. rattling the jar in the kitchen. He only recalled her doing so once at a party when she was trying to get the children’s attention, and it worked. [ 168 ] J.R. testified that F.N. never called him to come to her house to discipline the children, including I.N. He stated that she would have never been able to do that. [ 169 ] J.R. stated that he saw a lot of love between the children and F.N.

J.R. added that he did not see as much interaction between T.N. and the children, as T.N. was working. However, it appeared to him that T.N. and the children got along well. [ 170 ] J.R. stated that F.N. suffers from a condition called non-anemic iron depletion. He stated that symptoms of that condition include extreme fatigue. He added that his daughter’s condition manifested itself through severe exhaustion she sometimes experienced months after months.

He stated that he does not know when F.N. started receiving treatment for her condition. [ 171 ] J.R. stated that he has never seen F.N. run the way it was described in court during I.N.’s testimony. He stated that F.N. would not be able to run for 300 yards, catch up to I.N., and then drag him back home. He added that F.N. had several children, and was pregnant during most of I.N.’s childhood. Therefore, she would not have been able to do what I.N. described. [ 172 ] J.R. stated that F.N. was sick often, and that his wife would go check on her several times a day when she was sick whenever she had access to F.N.

He stated that his wife told him that sometimes she could not see F.N. because T.N. would not let her come in the house. J.R. stated that T.N. saw his home as his castle over which he had total control and access. J.R. added that F.N. and T.N. did not have a lot of visitors over at their house because T.N. preferred it that way. F.N. [ 173 ] F.N. is 44 years old. She currently lives near [redacted] in what has been referred to by the other witnesses as the new house. She grew up [redacted]. [ 174 ] She married T.N. in 1996. They had seven children together.

She left the relationship for the first time in 2016, but they fully separated in February 2017. She commenced divorce proceedings the same year. [ 175 ] F.N. stated that she and T.N. lived [redacted] for most of their married life. However, in 2015, they moved to British Columbia so their children could attend private school. I.N. is the only child who did not move down with them, as he had already been charged with sexual assault at the time.

F.N. stated that they lived in British Columbia during the school year, but came back to the Yukon every summer. [ 176 ] F.N. has been back living full time in the Yukon since 2018. The three youngest children live with her. She stated that she currently has interim custody of the three youngest children. She believes that the three oldest children, who testified in this matter, live on their own. T.N. lives in British Columbia, and their middle child lives with him. [ 177 ] F.N. stated that there is an ongoing custody battle between her and T.N. regarding the three youngest children.

T.N. filed an application for custody of the three youngest. The court ordered, in the family matter, that a custody and access report be completed at the end of this criminal matter. [ 178 ] F.N. described herself as a stay at home mother, and as the main caregiver for the children. She homeschooled the children.

She stated that it was T.N.’s decision that the children be homeschooled. [ 179 ] F.N. acknowledged that she was the one disciplining the children when they did something wrong, as she was the one at home with them. [ 180 ] F.N. testified that the type of discipline she used depended on how old the children were. She stated that she gave time outs or sent them to do chores, but, sometimes, they just needed a distraction.

She stated that she used distraction more than anything else. [ 181 ] F.N. acknowledged that she used spanking to discipline her children as a last resort, when there was a persisting problem, and other methods of discipline had not worked. She used spanking when her children were between the ages of three years old and seven or, maybe, eight years old. She used her hand to spank them, and spanked them on their bottom. [ 182 ] She admitted to also using a wooden spoon to discipline her children. She would spank them on their bottom with the wooden spoon.

F.N. testified that she used the wooden spoon only when the children were around the ages of seven or eight years old. She stated that her children did not need to be spanked as they got older. She testified that she probably spanked I.N., three or four times in total. [ 183 ] F.N. acknowledged that the wooden spoon was stored in a canister on the kitchen counter. She also agreed that the children knew they could be spanked with the wooden spoon if they misbehaved. [ 184 ] F.N. stated the she only remembered rattling the canister once or twice to remind the children to behave.

She believed it had to do with the children’s bedtime. She recalled rattling the canister to get them to go to bed. She then went around to each of the bedrooms. She saw that they were all happily in their beds, and tucked them in.

[ 185 ] F.N. denied ever using willow branches to spank her children. [ 186 ] F.N. stated that discipline should not be done in anger, and that it has to be done correctively. F.N. stated that her parents are probably the ones who taught her that principle. She denied reading anything on the issue of corporal punishment in preparation for this trial. F.N. stated that she did not enjoy giving corporal punishment. [ 187 ] F.N. acknowledged that she told I.N. on a couple of occasions to wait until his father came home to be disciplined.

She also acknowledged that the children were usually disciplined in their respective bedrooms, and, sometimes, their door was closed. [ 188 ] F.N. denied ever passing off corporal punishment to her father, J.R. [ 189 ] F.N. stated that she did not recall talking to her father about I.N. throwing wooden blocks at her. In addition, she stated that she did not recall I.N. throwing wooden blocks at her.

However, she added that I.N. threw many things when he was young, and that it was not unusual for I.N. to throw things at her and his sisters when he was angry or having a tamper tantrum, particularly when his behaviour escalated around his eighth birthday.

She agreed that it is possible that I.N. threw wooden blocks at her at some point during his childhood. [ 190 ] F.N. stated that she did not recall telling T.N. about the incident that took place between her father, J.R., and I.N. in I.N.’s bedroom, even though she conceded that this seems like the sort of things she would have reported to T.N. when he got home. She stated that the incident between I.N. and her father occurred on the same day T.N. had an accident with [redacted].

She also stated that she never heard anyone else discussing the incident between her father and I.N. with T.N. [ 191 ] F.N. testified that T.N. was physically abusive towards the children. She stated that he would hit the children and call it discipline. She stated that T.N. did this mostly to I.N. She added that T.N. would grab I.N., throw him against the wall, grab him by the ears, or take him outside and drag him off the deck. F.N. stated that she witnessed T.N. beat I.N. with a log.

She also saw T.N. chase I.N. around the yard. [ 192 ] F.N. testified that she was terrified of her husband, and there is no way she could have stopped him. She stated that he was a very intimidating man, and that she could only make suggestions. She stated that she explained to him that what he was doing was wrong, that a parent should never spank a child when they are angry, that they have to give warnings in order to give the child an opportunity to correct their behaviour, and that a child should know why they ar

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