R. v. JAG

R. v. JAG Court Supreme Court Date 2024-11-22 Citation 2024 NSSC 348 Docket SP No. 524772, SP No. 524772 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. JAG, 2024 NSSC 348 Date: 20241122 Docket: SP No. 524772 Registry: Pictou Between: His Majesty the King v. J.A.G. Restriction on Publication: s. 486.4 of the Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: September 3 and 4, 2024 in Pictou, Nova Scotia Counsel: T. William Gorman, for the Crown Hector J. MacIsaac, for the Accused 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (c) informed them of their right to apply to revoke or vary the order. (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. By the Court: Introduction [1] This decision explains my reasons for convicting JG of having committed the following offence: That between June 1, 1970 and September 30, 1973, at or near Braeshore, Nova Scotia, did commit an indecent assault on MC, a female person, contrary to Section 149(1) of the Criminal Code. (i) What is an “indecent assault” on a female? [2] “Indecent assault upon a female” has been repealed from the Criminal Code since January 4, 1983, when it was replaced by the offence of “sexual assault”, among others. [3] Nevertheless, it is the law at the time of an alleged offence that governs, even if, as in this case, a complaint to police was not made until August 2022, which is after the repeal in 1983 of the offence of indecent assault upon a female.[1] [4] What is an “indecent assault”[2] was addressed by the Supreme Court of Canada in Swietlinski v. R., [1980] 2 SCR 956 at para. 17: The law has been settled that an indecent assault is an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency. What acts are indecent and what circumstances will have that character are questions of fact that will have to be decided in each case, but the determination of those questions will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused. This view has been expressed in R. v. Resener [2], in the British Columbia Court of Appeal, a case which reviewed various authorities on the subject, and which was referred to with approval by Pigeon J. in this Court in Leary v. The Queen [3], at p. 57. This was, as well, the view expressed by Martin J.A. for the Ontario Court of Appeal. In dealing with this case, he said: The definition of “indecent assault”, which has long been accepted in England, is an assault accompanied by circumstances of indecency on the part of the accused towards the person assaulted: see R. v. Leeson (1968), 52 Cr. App. 185 at p. 187. In my view, the Canadian and the English law do not differ in this respect. In R. v. Louie Chong (1914), 1914 CanLII 656 (ON CA), 23 C.C.C. 250, the Appellant seized hold of the complainant and offered her money for “an immoral purpose”. It was contended on behalf of the Appellant in that case, that an indecent assault is not committed unless the act constituting the assault is itself indecent in its nature; that all that the Appellant did was to take hold of the complainant, and the words used by him did not import indecency into the act. This Court, in affirming the conviction, held that an act which is ambiguous may be interpreted by the surrounding circumstances and the words used by the accused. Middleton, J., speaking for the Court, said at p. 251:— It is in each case a question of fact whether the thing which was done, in the circumstances in which it was done, was done indecently… and later: In any event, the judgment of the Court of Appeal of British Columbia in R. v. Resener, supra, holding that a specific intent to assault indecently is not a necessary element of indecent assault was cited with approval by Pigeon J., delivering the majority judgment of the Supreme Court of Canada in Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29, at p. 57, and we must now take the law in this respect to be settled. The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes an indecent assault. I accept the submission of Mr. Ewart for the Crown, that if the Appellant removed the deceased’s dress against her will, that act was capable of being an indecent assault, irrespective of the Appellant’s purpose. [My bolding added] [5] Section 244 of the then Criminal Code read as follows: A person commits an assault when, without the consent of another person or with consent, where it is obtained by fraud, (a) he applies force intentionally to the person of the other, directly or indirectly, or (b) he attempts or threatens, by act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose. [6] The Crown is therefore also obliged to prove beyond a reasonable doubt that MC did not in fact consent to JG’s intentional touching (which MC claims was digital penetration of her vagina, when he was 30 years old and she was 15 years old in the summer of 1973, while babysitting JG’s son, who was likely 22 months old at the time, in JG’s travel trailer set up at a recreational campground not far from the Town of Pictou during the summer months) - see Justice Angus L. MacDonald’s reasons in R. v. Lawrence, (1974) 6 NSR (2d) 627 (NSSC AD); and s. 140 of the then Criminal Code: Where the accused is charged with an offence under section 146, 149,or 156 in respect of a person under the age of 14 years, the fact that the person consented to the commission of the offence is not a defence to the charge. (ii) The burden to prove guilt beyond a reasonable doubt is upon the Crown at all times. [7] MC testified that while in his travel trailer outside the Town of Pictou, without her consent, JG inserted his finger into her vagina and moved it around and asked her if it “felt good” - to which she replied- “it did not”. [8] JG is presumed innocent. [9] The Crown has the burden to prove all the essential elements of a criminal offence beyond a reasonable doubt, and the burden does not shift at any time during the trial. [10] JG has testified and denied committing the offence. [11] JG conceded that MC did babysit his son C during the time period in question and that it included where his family’s travel trailer was located as identified by MC in the summer of 1973. [12] I must keep the presumption of innocence foremost in my mind: 1. If I believe JG’s testimony – I must acquit him. I do not believe his evidence of what did not happen in August 1973 in the trailer – I believe MC’s evidence of what happened. See Derrick J.’s reasons in R. v. Patel, 2024 NSCA 40 at paras. 55-57. I am aware that if I cannot decide whom to believe, I must find JG not guilty. 2. Even if I do not believe JG’s testimony, does it raise a reasonable doubt about his guilt? It does not - and I consider any exculpatory evidence as contemplated by R. v. Hoffman, 2021 ONCA 781 at paras. 36-42 in particular; and R. v. DM, 2022 ONCA 429 at paras. 58-63; This rule is not confined to the exculpatory testimony of the accused. It applies to any exculpatory evidence on vital issues that arises in the case and that turns on the credibility or reliability of a witness, whether that witness is the accused, or another defence witness, or even a Crown witness: 3. On the whole of the evidence, and considering any absence of evidence, am I satisfied beyond a reasonable doubt that the Crown has proved all the essential elements of the offence charged? I am - I believe MC’s evidence of what happened beyond a reasonable doubt. (See R. v. DW, [1991] SCR 742 and its progeny) [13] In coming to these conclusions I have kept in mind manifold considerations, including: that MC gave her evidence as an adult, whereas she was 15 years of age at the time of the alleged offence (see e.g., R. v. R.R.D.G., 2014 NSSC 78 at paras. 96-100, and the more recent jurisprudence); Justice Beveridge’s reasons in R. v. W.J.M., 2018 NSCA 54 at para. 45, that reliance on demeanour must be approached with caution; that the alleged offence had happened 50 years ago which would affect the reliability of witness memories; and the considerations referred to in R. v. Kruk, 2024 SCC 7, inter alia, at paras. 60, 62, 71, 73, 81, and 83. The methodology of credibility and reliability findings [14] As Justice Derrick approvingly stated in R. v. LaPierre, 2022 NSCA 12, regarding the Trial Judge’s reasons there at issue: [27] … He articulated the legal principles to be applied to the assessment of credibility, instructing himself in accordance with this Court’s decision in R. v. D.D.S.2: [77] Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case? [15] In R. v. Patel, 2024 NSCA 40 Justice Derrick further commented: [55] The Supreme Court of Canada in its recent decision of R. v. Kruk reminds us that an accused person cannot be found guilty simply because they are disbelieved: [62] … Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much -- or all -- of the accused's evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused's testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13[24]; R. v. H. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19).[25] [56] The Supreme Court has emphasized credibility assessment is not a “purely intellectual” exercise.[26] Trial judges have “the benefit of the intangible impact of conducting the trial”.[27] Appellate review must appreciate that: [20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.[28] [57] This appreciation for the challenges that confront trial judges assessing credibility has been re-emphasized in Kruk: [81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621) With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony. [16] Moreover, Justice Beveridge stated in R. v. J.C., 2018 NSCA 72: [55] In R. v. J.J.R.D. and R. v. R.D. the accuseds’ evidence was rejected even in the absence of obvious flaws. In R. v. J.J.R.D., Doherty J.A., for the Court, explained why the trial judge’s reasons were sufficient: [53] The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [54] On the trial judge’s reasons, the appellant knew why he was convicted. His daughter’s evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant’s guilt beyond a reasonable doubt despite the appellant’s denial of the charges under oath. [55] The trial judge’s reasons allowed for effective appellate review. His reasons permitted this court to assure itself that the trial judge had properly apprehended the relevant evidence, applied the proper legal principles to that evidence, particularly the burden of proof, made findings of credibility that were available to him on the evidence, and ultimately returned a verdict based on the evidence and the application of the relevant legal principles to that evidence. [56] Laskin J.A., in R. v. R.D., writing for the Court, upheld a conviction where the trial judge found the complainant’s evidence to be credible and reliable, and flatly rejected the accused’s testimony despite the lack of obvious flaws. He emphasized that the bare rejection of an accused’s denial can meet the sufficiency of reasons provided it is based on a considered and reasoned acceptance of the complainant’s evidence: [18] The sufficiency point: the bare rejection of an accused’s evidence will meet the two important purposes for giving sufficient reasons – explaining why the accused was convicted and permitting effective appellate review – provided that the bare rejection is based on a “considered and reasoned acceptance” of a complainant’s evidence. Implicitly, the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence (“I accept the complainant’s evidence; therefore I reject the accused’s evidence”) are unlikely to amount to sufficient reasons. A trial judge who relies on the formulation in J.J.R.D. should at least give grounds for accepting a complainant’s evidence. … [21] In the case before us, the trial judge’s reasons were sufficient. He did summarily reject the appellant’s evidence though it had no obvious flaw in it. But he did so based on a “considered and reasoned acceptance” of K.Y.’s evidence. He discussed her evidence at length, including the discrepancies in it, and gave several grounds for why he found her evidence to be both credible and reliable. [My underlining added] [17] Justice Beaton’s reasons in R. v. Murray, 2023 NSCA 77 at para. 14 echo Justice Beveridge’s reasons: [14] Mr. Murray suggests the judge’s reasons do not sufficiently explain why his evidence was rejected. In response, the Crown relies on the decision in R. v. J.J.R.D., (2006), 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252 which recognizes the difficulty a trial judge might face in articulating with precision why evidence is not accepted, or is rejected. As in that case, here we can be satisfied that: [53] The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [My underlining added] The timing of the disclosures by MC related to her allegation against JG, and the absence of evidence of proof of motive to lie/fabricate, can both be considered in assessing MC’s credibility. [18] Both MC (born 1957) and JG (born 1943) testified, along with others. [19] No one else was present at the time of the alleged offence, which I conclude took place on one occasion in August 1973 at Braeshore, Pictou County, Nova Scotia. i - The disclosures by MC [20] MC was asked why she did not tell her parents right away. She said in part: “it never occurred to me… I was so young I didn’t know what to do with that information.” [21] She told a close friend, NM, between 1974-1979. [22] She told her husband between 1992-1993. [23] I find that she told her whole family in 1993 that JG had sexually abused her, without providing details. [24] She did not disclose the full extent of the facts she testified to until the police investigation in 2022. [25] The Crown and JG’s counsel took the position, and I agree generally, that the timing of MC’s complaint to the police “is simply one circumstance to consider in the factual mosaic" of this trial. [26] Authority for this proposition derives from the Supreme Court of Canada decisions, R. v. D.D., 2000 SCC 43 (citations omitted): B. The Law in Relation to Timing of Disclosure 60 In medieval times, the opinion expressed in Dr. Marshall’s evidence was contrary to our law. Authorities from as early as the 13th century reveal that the common law once contained an absolute requirement that victims of sexual abuse raise an immediate “hue and cry” in order for their appeal to be heard. … 63 Application of the mistake reflected in the early common law now constitutes reversible error. See R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136: Finally, the Court of Appeal relied on the fact that neither of the older children was “aware or concerned that anything untoward occurred which is really the best test of the quality of the acts.” This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed. The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse … ; … 65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”; [My bolding added] And R. v. Kruk, 2024 SCC 7: [31] The prohibition against myths and stereotypes that undermine the credibility of sexual assault complainants has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence. [32] In the past, multiple legal barriers operated to ensure that the testimony of sexual assault complainants — who, at the time, were almost exclusively women — was treated as inherently unreliable. The term “myths and stereotypes” was coined to describe how the exceptional procedural protections historically afforded to those accused of sexual assault discriminated against complainants and made sexual assault not only the most underreported crime, but one that was exceptionally difficult to prove in court. These myths and stereotypes, formerly embedded into the law, arose in relation to both credibility and consent, and made sexual assault inherently dissimilar to other crimes. [33] Before 1983, “rape” was a main type of sexual offence: it criminalized non-consensual penetration of a penis into a vagina and was thus understood as a gendered crime committed by men against women. Under the express terms of the prohibition, a married woman could not be raped by her husband as she was deemed, by her status as a wife, to have forfeited her legal capacity to refuse unwanted sexual activity. The law thereby enforced the notion that certain relationships provided men with a right to women’s sexual availability (see, e.g., J. Koshan, “Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA” (2016), 6 Oñati Socio-legal Series 1377, at p. 1387). [34] Special evidentiary rules also governed the testimony of sexual assault complainants. The statutory corroboration requirement obliged judges to instruct juries that it was dangerous to convict the accused of a sexual offence based only on the testimony of a complainant (Criminal Code, S.C. 1953-54, c. 51, s. 131(1); corroboration requirements were abolished by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, ss. 5 and 19; see also Criminal Code, R.S.C. 1985, c. C-46 (“Code”), s. 274; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 676). The doctrine of recent complaint required immediate disclosure of a sexual assault to avoid an adverse credibility inference, meaning a complainant’s initial silence could be taken as “a virtual self-contradiction of her story” (R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-61, quoting Kribs v. The Queen, 1960 CanLII 7 (SCC), [1960] S.C.R. 400, at p. 405; see also Timm v. The Queen, 1981 CanLII 207 (SCC), [1981] 2 S.C.R. 315). … [36] This Court has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants, some of which include the following: • Genuine sexual assaults are perpetrated by strangers to the victim … ; • False allegations of sexual assault based on ulterior motives are more common than false allegations of other offences … ; • Real victims of sexual assault should have visible physical injuries … ; • A complainant who said “no” did not necessarily mean “no”, and may have meant “yes”… ; • If a complainant remained passive or failed to resist the accused’s advances, either physically or verbally by saying “no”, she must have consented — a myth that has historically distorted the definition of consent and rendered rape “the only crime that has required the victim to resist physically in order to establish nonconsent”… ; • A sexually active woman (1) is more likely to have consented to the sexual activity that formed the subject matter of the charge, and (2) is less worthy of belief — otherwise known as the “twin myths”, which allowed for regular canvassing of the complainant’s prior sexual history at trial, regardless of relevance, thereby shifting the inquiry away from the alleged conduct of the accused and towards the perceived moral worth of the complainant ... . [37] Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true — such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in the eyes of some, constitutes “real” sexual violence and what does not. Some myths involve the wholesale discrediting of women’s truthfulness and reliability, while others conceptualize an idealized victim and her features and actions before, during, and after an assault. Historically, all such myths and stereotypes were reflected in evidentiary rules that only governed the testimony of sexual assault complainants and invariably worked to demean and diminish their status in court. [My bolding added] [27] However, although it is improper to rely upon stereotypes (e.g. “presumptive adverse inferences” as against a complainant or an accused) as an aid to understanding and interpreting the evidence presented, I bear in mind: “the admonition of this Court in R. v. W.J.M., 2018 NSCA 54 that the proscription against stereotypical thinking does not survive a compelling encounter with the evidence…” - in R. v. Horne, 2023 NSCA 64. [28] As Justice Bryson elaborated in Horne (the bolding is as contained in the original): [50] Courts are permitted—indeed encouraged—to use “common sense” when assessing evidence and, in particular, credibility. However, the application of common sense inferences usually must be grounded in the evidence of the particular case at hand. Common sense must not be burdened by stereotypical reasoning. As Justice McLachlin said in R. v. Find, 2001 SCC 32: [103] These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors. [51] More recently in R. v. J.C., 2021 ONCA 131, the court observed: (1) The Rule Against Ungrounded Common-Sense Assumptions [58] The first such rule is that judges must avoid speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth, 2020 BCCA 240, at para. 65; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 19-27; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 35-36. For clarity, I will call this ‘the rule against ungrounded common-sense assumptions’. [59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn. [60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking. [...] (2) The Rule Against Stereotypical Inferences [63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility: Roth, at para. 129; R v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at para. 14. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687; and see Cepic, at para. 24. [64] Two points are critical in understanding this rule and ensuring that it does not impede proper judicial reasoning. [65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or ‘prejudicial generalizations’: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. [...] [68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in ‘Myth, Inference and Evidence in Sexual Assault Trials’ (2019) 44:2 Queen’s L. J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D., at paras. 6-8, 62; and Roth, at para. 73. [69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth, at paras. 130-38. For example, in R. v. Kiss, 2018 ONCA 184, at paras. 101-2, evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention. [70] By the same token, it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence: Quartey, at para. 21. Similarly, in R. v. F.B.P., 2019 ONCA 157, the trial judge was found not to have erred in finding it implausible that the complainant would consent to spontaneous sex on a balcony, potentially in full view of others, because that inference did not rest in stereotypes about the sexual behaviour of women. The inference was based on evidence about the ongoing sexual disinterest the complainant had shown in the accused, and the ready availability of a private bedroom. (3) The Effect of Reasoning Errors Related to the Plausibility of Human Behaviour [71] Does a reversible error occur whenever a trial judge violates the rule against unfounded common-sense assumptions, or the rule against stereotypical inferences? As a matter of principle, such errors are reversible only when they ‘ground’ the relevant inference by playing a material or important role in the impugned conclusion. Put otherwise, it is not per se a reversible legal error to draw impermissible inferences that do not matter, but it is a reversible legal error to reach a material factual conclusion based on such reasoning. [Emphasis added.] J.C. has been favourably cited by this Court: R. v. D.C., 2023 NSCA 20, at ¶59; R. v. Cooke, 2020 NSCA 66; R. v. Al-Rawi, 2021 NSCA 86. [52] The Crown reminds us of the admonition of this Court in R. v. W.J.M., 2018 NSCA 54 that the proscription against stereotypical thinking does not survive a compelling encounter with the evidence: [52] With respect, the appellant’s argument has a certain degree of superficial attraction, but on closer examination lacks merit. [53] In A.R.J.D., majority reasons by Paperney and Schutz JJ.A. of the Alberta Court of Appeal concluded that the trial judge acquitted because his doubt relied exclusively on the expected behaviour of a victim of sexual assault. That is, the trial judge expected the victim to avoid her abuser or exhibit a change in behaviour, and this ran contrary to the trial judge’s view that the evidence disclosed a normal father-daughter relationship. [54] The majority reasons found that the claimed significance for absence of avoidance was an impermissible generalization because sexual assault victims behave differently; particularly where the victim is a child living in the abuser’s house. The Supreme Court of Canada dismissed the as of right appeal for substantially the reasons of the majority—that is, the trial judge assessed the complainant’s credibility based solely on the discordance between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. [55] I do not read those reasons as suggesting it is an error to rely on the actual conduct of an adult complainant, witness or accused in the context of the case being heard. [...] [59] In this case, the trial judge’s assessment of the appellant’s evidence was based not on stereotypical generalizations about how the appellant should have behaved, but how he did behave. [Emphasis added.] Also see R. v A.R.D., 2017 ABCA 237, at ¶6-9, 28, 43-44 and 71, aff’d R. v. A.R.J.D., 2018 SCC 6; R. v. Paulos, 2018 ABCA 433, at ¶24, 26-29 and 39; R. v. C.M.M., 2020 BCCA 56, at ¶138-139; R. v. Kodwat, 2017 YKCA 11, at ¶27 28, and 41. [My underlining added] [29] To reiterate, the starting point is that no presumptive adverse inference can be drawn against MC based on when the alleged offence is disclosed to a third party/parties. [30] Correspondingly, prior statements by a complainant made to third parties that are to be used to show they are consistent as to content with the complainant’s testimony at trial are generally inadmissible – see paras. 70-73 in Justice Beveridge’s reasons in Laing v. R., 2017 NSCA 69; and Justice Derrick’s reasons in R. v. LaPierre, 2022 NSCA at para. 110. [31] They are inadmissible for the truth of their contents (see para. 7 in R. v. Stirling, 2008 SCC 10) because they are “hearsay”; and the content thereof has presumably been repeated at trial by the complainant and therefore is said to lack probative value. After all, the mere repetition of a potential lie should not cause it to be accepted as the truth. [32] However, where there is an argument put forward by the Defence of “recent fabrication” of the allegation by the complainant, the Crown may be entitled to rebut that argument with evidence of earlier disclosures. [33] Recent fabrication is associated with motive to lie. [34] The premise for allowing the Crown to present evidence in response thereto, is that if the complainant made earlier disclosures before a potential motive to lie existed, then it is appropriate for a trier of fact to consider this evidence as a counterweight to the argued recent motive to lie. [35] JG did not formally suggest that MC’s allegation was a “recent fabrication” - presumably because MC’s first disclosures were made as early as three years after 1973 when the offence is alleged to have happened and she made no complaint to police until 2022. [36] JG’s legal position did, however, question MC’s honesty. [37] Inherent therein is the premise that MC’s dishonesty was driven by some unknown ulterior motive. An absence of evidence of proof of motive to lie can be considered in assessing the truthfulness of such a witness. [38] The mere fact of MC’s disclosures being made over time (not their content per se) - to her close friend in the 1970s and to her husband and then her family in the 1990s, can be relied upon as a factor in assessing the credibility of MC. [39] As a matter of human experience and logic, in the circumstances of this case, I conclude that the timing and circumstances of MC’s multiple disclosures tends to modestly enhance her credibility. ii - JG’s position at trial was that MC was not honest or reliable in her giving testimony [40] JG argued that MC’s testimony regarding the single alleged incident of indecent assault here was not credible or reliable.[3] [41] JG’s counsel questioned her about the reliability of her memory. [42] However, MC had known JG because she lived with her parents and he was a regular fixture in her parents’ home, from when she was born, and certainly as a young child (I infer by 1961) until she left her family home in about 1975-1976. [43] She regularly babysat for him and his wife at some point after their first son C was born in November 1971 - based on the evidence presented I find that this was likely so between 1972 and 1975. [44] In the summer of 1973, MC was nearing 16 years of age. [45] JG himself confirms that she babysat for his son in the travel trailer at Braeshore, in 1973, where she testified the single instance of an indecent assault occurred. [46] She knew JG very well. For good reason, it was not suggested to her that she had misidentified JG as the alleged perpetrator. [47] JG’s argument was focused on bringing into question the honesty and reliability of her factual testimony in relation to what, if anything, had happened in the trailer at Braeshore. [48] JG did not go so far as to expressly suggest that MC must have had a motive to fabricate/lie about these allegations. [49] However, as I understood his legal position and his evidence that it “never happened”, he is arguing that MC’s evidence was not honestly/sincerely and reliably given. [50] I am satisfied that JG was also questioning her honesty/veracity/sincerity. [51] JG’s counsel’s position in closing argument was expressed as: this case comes down to the credibility and reliability in particular of MC. [52] JG’s counsel’s argument, in relation to the offence she described was not restricted to an argument that she is merely mistaken about what happened, because her memory of what happened is not reliable. [53] That he also questioned her honesty is clear. [54] In doing so, he necessarily insinuates that she had a motive for being dishonest. No specific motive was proffered. [55] Although this reasoning might lead to a conclusion that effectively JG was arguing a so-called “recent fabrication” by MC, and therefore the content of her earlier statements to her close friend, husband and later to her assembled family in 1993, could be evidence to rebut JG’s argument, I do not find it appropriate to rely on the doctrine of “recent fabrication” in the circumstances of the present case. [56] However, I conclude that the mere fact of, rather than the precise content of, her disclosures over time is a factor that I can consider in assessing her credibility. [57] Whether those disclosures are seen as “narrative” evidence, or as being relevant to why I conclude there is an absence of evidence of proof of motive to lie, or a basis upon which to draw inferences from MC’s actual conduct, which effected an estrangement (there being no other suggested reason) between her family and herself from approximately 1993 onward until at least 2017 for some of her siblings, and to present day in relation to her mother, I conclude they modestly tend to enhance her credibility. iii - Greater details of the timing of MC’s disclosures [58] The Crown did call evidence from witnesses to whom MC generally disclosed what she alleged and when she told third parties, including her parents and siblings. [59] The Crown was properly permitted to do so, at least for the purpose of narrative, and it was received without objection of any kind by JG’s very experienced counsel. [60] JG’s counsel did explore with such Crown witnesses the content of what MC had alleged against JG. I infer his counsel was of the view that any variations in the content of MC’s testimony over time could be a basis for the court to question the credibility/reliability of MC. [61] MC first revealed what JG did to her in the summer of 1973 to a very close friend (NM), when they were in their early 20s (approximately 1977-1979). JG testified that he had been married for 52 years and together with his wife of 57 years - by calculation, that being in 1972 and 1967 respectively. [62] NM testified and confirmed that in her “later teenage years” (approximately 1974 – 1976), MC told her of the circumstances (who had done it and what had been done to MC – “JG sexually abused her”). [63] NM testified that she “just listened… I did not know what to do… I kept it private.” [64] MC moved out of the family home once she completed Grade 12 (circa 1975-1976). [65] She never returned to live there or in the area. Her education and employment pursuits were continuous thereafter and she had a very successful and varied professional career. [66] MC next disclosed the general nature of what JG had done to her husband, LC, which in cross-examination she says was within 1 to 2 years of meeting her husband in 1991 (LC said it was “after we were married [mid year 1992] as far as I remember”). [67] When they were married in 1992, according to both her and her husband, MC insisted to her mother that JG not attend the wedding, which was to be held at her parents’ home. However, both LC and MC testified that JG did attend - over MC’s protests. [68] She disclosed the sexual abuse by JG to her parents and siblings at a family event in 1993 (her oldest brother born 1961, G testified that he had been told by her of JG’s sexual abuse not long before then), and that the family event was Thanksgiving 1993 at his house; whereas MC suggested it was Mother’s Day 1993 which they all attended at GM’s house. I find G’s evidence more likely on this point. [69] Her father and siblings were upset that MC had spoiled the occasion and so upset MC’s mother. [70] This evidence tends to confirm that, if it happened, JG’s alleged indecent assault happened before the earliest disclosure (1974-1979 to NM) and explains the reason for estrangement from her siblings and parents after a family-only get together at her brother G’s home in Dartmouth on Thanksgiving Day 1993, when she disclosed to them that JG had sexually abused her. [71] At that time, her parents consciously preferred to deny, ignore or minimize her allegation. [72] According to MC, her mother said: “Why are you doing this to me?” [73] Her brother G testified that their mother said: “No! It couldn’t be – and it’s so long ago, why bring it up now? So long ago.” [74] MC’s revelation caused her mother shortly thereafter to have what appeared to be a cardiac-like event. [75] She claimed to her family in 1993 that JG had sexually abused her. [76] Her parents were prepared to not have further contact with her[4] if it meant being able to have further contact with JG (who remained resident in the area where her parents resided). [77] I find as a fact that, solely as a result of the allegation made by MC in 1993 against JG to her assembled family, their initial collective rejection of her and MC’s continued defiance in light of their rejection caused MC’s lengthy estrangement from her family, especially her mother, even to this day. [78] No other reason beyond her complaint of JG’s indecent assault upon her in 1973 was put forward in the evidence or suggested in legal argument regarding why the complete estrangement from her parents (and to a lesser extent her siblings) began in 1993 and continued for so long. iv - The absence of evidence of proof of motive to lie [79] Pursuant to Justice Moldaver’s reasons for the court in R. v. Gerrard, 2022 SCC 13, in assessing MC’s honesty, where there is an absence of evidence of proof of a motive to lie, which I find to be the case here, I may consider this absence of evidence of a motive to lie as a modest factor that can, and I find does, enhance her honesty/credibility. [80] Importantly, the reasons in R. v. Gerrard, 2022 SCC 13, effected a change in the law regarding the significance of a finding of absence of evidence of proof of motive to lie. [81] Previous decisions (including R. v. Laing, 2017 NSCA 69 at para. 68; R. v. Bartholomew, 2019 ONCA 377 at para. 25) have concluded that where there is no apparent motive to lie - also described as an absence of evidence of proof of motive to lie - it is a neutral factor and therefore a trial judge should place no weight on such evidence in assessing credibility. [82] More recently, however, the position of the Ontario Court of Appeal is reflected in the reasons from R. v. Booker, 2024 ONCA 181: [33] It is well recognized that where there is no apparent motive to fabricate, [which I say equates to an absence of evidence of proof of motive to lie] but the evidence falls short of proving absence of motive, it is impermissible to conclude a witness has no motive to fabricate and must be telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 19-22. [83] The comments in Booker, when carefully read, reference the impermissible use of a finding that there is an absence of evidence of motive to lie. [84] In that respect, the reasons in Booker remain consistent with the earlier law (R. v. Ignacio, 2021 ONCA 69 at paras. 36-38 and R. v. Swain, 2021 BCCA 207 at paras. 26-34, the latter of which dovetails with the reasons in R. v. Gerrard, 2022 SCC 13) that a finding of the absence of evidence of a motive to lie should not be confused with a conclusion that the witness has no motive to lie and therefore must be telling the truth, because only proof of no motive to lie can lead to that conclusion. [85] However, the reasons in Gerrard have expanded the permissible use of a finding of the absence of evidence of motive to lie. [86] Since Gerrard the absence of evidence of proof of motive to lie can be a positive factor in assessing a complainant’s credibility - as opposed to remaining “neutral” evidence which previously was the only permissible use thereof. [87] Justice Moldaver, for the court in Gerrard, stated: [4] Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10 11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31 33). [My bolding and underlining added] [88] The reasons in Gerrard prevail over those of the other courts that have addressed this issue before and after Gerrard.[5] Most recently, the Court (2024 CanLII 108265 - reasons to follow) has affirmed Gerrard, in its upholding of the Saskatchewan Court of Appeal in R. v. Stevenson, 2024 SKCA 40, at paras. 34-42. [89] I am satisfied that my doing so does not effectively reverse the burden of proof, while I also bear in mind such evidence should not be relied upon as “conclusive” of a credibility analysis. [90] As a matter of human experience and logic, that there is an absence of evidence of proof of motive to lie on the part of MC, and that MC made the disclosures over time, are matters that I can consider in a restrained manner when assessing MC’s overall credibility. [91] As Justice Monnin stated for the majority in R. v. Perrone, 2014 MBCA 74 (affirmed by the court 2015 SCC 8, specifically para. 48 of 2014 MBCA 74) a witness’ testimony can be evaluated on two primary bases – their honesty and reliability: [25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. wrote (at p. 526): Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination. [26] In R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, Watt J.A. described the difference between credibility and reliability (at para. 41): Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. 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, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.) (1995), 1995 CanLII 3498 (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.]. [27] In short, the fact that a witness may be found to be credible does not answer the question of whether the evidence provided is reliable (see R. v. Vickerson (W.) (2005), 2005 CanLII 23678 (ON CA), 200 O.A.C. 87). [28] The distinction is an important one and must be recognized by a trial judge in order to reach a just verdict. [My bolding added] [92] Therefore, since I find that there is an absence of evidence of proof of motive to lie on the part of MC, I am entitled to give that some consideration in assessing MC’s overall credibility, albeit to a lesser extent than if there is evidence disproving a particular motive to lie. The close-knit nature of JG’s association with MC’s family [93] MC testified that when she was growing up, her family and JG’s family lived very close to each other and that JG’s relationship with her family was very close. [94] Once JG married (1972) he only moved across the street, yet he remained a fixture in her parents’ house. [95] MC testified that her mother was particularly fond of him (she was similarly described by JG himself). [96] Her oldest brother (but younger than her) G testified that he “considered him like an older brother … like a family member …” [and that G’s mother] “was very close to” [JG] and “treated him like a son”. [97] This remained the case at all relevant times. [98] G testified that MC had told him some time in 1992-1993 (before Thanksgiving 1993) that JG had sexually abused her. He did not wish to know the details and MC did not provide them. [99] G testified that the impact of the disclosure by MC on Thanksgiving Day 1993 created “hard divisions for many years” between MC and her family. [100] He tried to act as a go-between them in and around 1998-2003, but he found he could not continue in that role and consequently severed his relationship with MC for about 15 years, until approximately 2017. JG’s acknowledgement [101] In the period between 1998-2003, G confronted JG about what MC alleged, and he believed JG had done. [102] G testified: I remember it very clearly … at my parents’ house. … [JG turned to him and said]: “Do you even know what this is all about?” [G answered]: “I do” [although to be clear, I accept that MC had offered to give him details when earlier she told him that JG had sexually abused her - but he did not want to know]. [JG stated]: “But do you really know?” [JG went on]: “I will acknowledge I have done something to your sister but nothing more than what I would do to your wife in front of you. Do you want to know what I did?” [G responded]: “No, I don’t want to know” [JG stated]: “It was nothing”. [In cross-examination JG’s counsel cited G’s November 26, 2022, police statement back to him wherein JG’s counsel suggested that JG stated to G: “what I did to your sister was nothing more than what I have done to your wife in front of you”. G responded “that’s not what I said” – effectively disagreeing with the transcription of his statement. He reiterated his testimony that JG said: “I will acknowledge I have done something to your sister – nothing more than I will do to your wife in front of you”. In response to my question about whether he was ever precisely told by MC what JG had done to her, G answered that it was “sexual in nature, but not to the extent of rape”.] [103] G testified that he did tell MC and his brothers what JG had told him “many years later”. [104] He also confirmed that MC and her mother still had very limited contact at least as late as in 2014. Her father passed away in December 2023 but her mother is still living. MC’s allegation The first incident [105] Let me then briefly set out what MC testified JG did to her in August 1973 in JG’s travel trailer in which she was babysitting JG’s son, C, who I find was likely 22 months old at the time. [106] She was not there overnight – by late morning she was already there with JG’s wife B and son C. When JG pulled up with his truck, they were all present. MC did not recall how she got to the campground but she believed there was no school in session at the time. Her testimony, and that of JG, satisfied me that it was summertime. [107] The family travel trailer was already at the rented space at the waterfront location not far from the Town of Pictou. [108] MC remembered a husband and wife who were friends of JG, their surname starting with L, who had a boat and they invited JG and her out on the boat with them while JG’s wife stayed behind with their son. [109] She vividly remembered that she was wearing a “white dress with navy trim” which her mother had made for her. It had short sleeves and elastic on the sleeves. [110] She remembered this, in particular, because she got sunburned that day when she was out in the boat. [111] Her next memory is being inside the trailer which had bunk beds. [112] She was laying in the upper bunk bed, which could be secured against the wall and dropped down when required. Except JG, no one else was there and no one walked in. [113] Next, she stated: he touched my vagina – digitally penetrated my vagina… He was standing to the side of the bunk/bed… I remember I was laying down… on my back… under my clothing – directly touching me… moving his finger around – and asking me if it felt “good”? I said: “No, it didn’t feel good”. I cried… and it stopped. I did not say ‘stop it’. [114] She does not recall what happened in the immediate aftermath of the touching. [115] She did continue to babysit for JG and his wife thereafter. [116] She and JG never spoke about what had happened. [117] She confirmed she did not want that to happen - and she did not consent – “absolutely not”. [118] As she put it: “I was so young – I didn’t know what to do with that information”. The second incident [119] She also referenced an incident that happened likely between 1983 and 1986 when she was driving her car on a winter day in the vicinity of her parents’ home and it got stuck. [120] She was in New Glasgow visiting friends but living in Halifax at the time. [121] I find that two friends were with her that day in her car – NM and CM (a man of a similar age to MC and NM). [122] MC testified that she remembered JG being around in his truck while her car was stuck in the snow and that she and her two friends were sitting on a bench row seat in his truck when “his hand shot under my jacket to grab my breast… I pulled away”. [123] She testified that she told her female friend: “he just did it again”. [124] NM had testified that she was there with MC and that MC’s car was stuck in snow near her parents’ house but at some point, NM was alone and at the wheel of MC’s car while a male friend of theirs, CM, and MC were outside of the car. [125] She did not see where they were. [126] NM testified that when MC returned to the car, MC said to her: “he just did it again”. NM understood that MC meant “JG just did it again”, and that “it” was some form of sexual touching. [127] I am satisfied more likely than not that MC did have a personal encounter with JG that day, likely in his truck, but that she was mistaken about her two friends also being in the truck with her at the time of JG’s alleged sexual touching of her. [128] The Crown is not relying on this later incident as a criminal offence, but rather only to confirm that the first incident had already been shared by MC with NM, as both MC and NM testified to the identical reference - “he just did it again”- which implied a previous incident was discussed. [129] NM had testified that MC first disclosed JG’s sexual abuse to her in her later teenaged years (1974-76) whereas MC estimated it was in their early 20s (being classmates and of the same age) or 1977-79. These differences are not of consequence in the circumstances of this case. JG’s testimony [130] JG was born in mid 1943 and has been self-employed in the New Glasgow area doing odd jobs and a trucking business, including long-haul trucking in the later 1980s. [131] Although he had a camper which was on the back of a pickup truck initially in the years including up to 1972 (his son C was born in November 1971), it appears that by the summer of 1973 (August) he had purchased the travel trailer which would be pulled behind his truck, and that it was parked in the summer at a campground on the water not far from the Town of Pictou (photos were provided by JG which were endorsed on the back with a year (1972 and 1973) in what he said was his wife’s handwriting). [132] He agreed that MC did babysit for he and his wife at that location in the travel trailer. [133] However, he was adamant that the incident MC described “never” happened. [134] He agreed his relationship with G was “very close” although at some point it ended. He recalled being confronted by G about what had happened in relation to MC. [135] He testified that he did discuss the allegation with G and with MC’s parents, but no one else that he recalled. [136] The Crown put to him that when G confronted him, something serious had happened between he and MC, yet he made light of it. [137] When he was directly asked whether he had touched MC’s vagina, he answered “No”. [138] He conceded “it is possible she was on the bunk but I never touched her”. [139] The Crown put to him, regarding the content of their conversation when MC’s brother G confronted him in Dartmouth - did he agree with what G had said? [140] JG testified that he pretty much agreed with the content of what G testified that they talked about in the late 1990s/early 2000s. [141] He agreed that in relation specifically to something happening at the trailer as MC had testified, he answered to G that “something did happen… but what did happen, I would’ve done to your wife with you there”. [142] The Crown put to him that, therefore “you assess it [what happened] differently?”. [143] JG responded: “Yes, you could say that…”. [144] He acknowledged that the relationship with the family of MC had “become strained” after they became aware of the allegation [1993] and that he did not speak to anyone from the family except MC’s mother at the funeral/wake of her father who died in December 2023 – “I kept my distance to keep the peace”. [145] In cross-examination, JG stated: “I have an excellent memory”. [146] He also agreed that MC’s memory of the layout of his house, where she babysat his son C regularly (before she left the area in 1975-76) was correct these many years later. My credibility and reliability findings [147] MC was doing her best to be responsive, honest, accurate and fulsome as a witness in giving her evidence. She conceded at times that she was not certain about some things she had testified about, and that she must have been mistaken about other things when confronted with contrary evidence. [148] However, on the core allegation, which happened on one day in August 1973, her testimony was compelling. [149] She stated: I’m sure it happened in a trailer and to the best of my recollection, a tow behind trailer. He touched my vagina - digitally penetrated my vagina… He was standing to the side of the bed/bunk… I remember I was laying down… on my back… under my clothing – directly… moving his finger around… asking me if it felt good… I said ‘no it didn’t feel good’. I cried… and it stopped – I did not say ‘stop it’. [150] She agreed that she continued to babysit for JG and his wife. She was asked, why did you not tell your parents? She answered: “it never occurred to me – I was so young – I didn’t know what to do with that information”. [151] She remembered the boat ride that day with Mr. and Mrs. L and JG, and that she was wearing the short-sleeved white dress with navy trim that her mother had made for her, and she got sunburned. [152] I find that MC testified in a compelling, convincing, credible and reliable manner as to matters of evidentiary significance. [153] Her evidence did contain what turned out to be some possible, and some likely, unreliable evidence; however, those instances were in relation to peripheral matters, not surprisingly so given that the events happened decades ago, inter alia: i. She initially thought the offence, by process of deduction, had taken place in a travel trailer in 1970 during the summer. It was pointed out to her that JG had a camper on the back of a truck until 1972, but that only thereafter did he have a travel trailer to be pulled behind a truck. Having realized the year in question was not accurate, she reconsidered (“it appears it is possible that I got the year wrong”) and testified reliably that the offence must have occurred in the summer of 1973. An amendment to the dates in the Indictment was permitted by the Court. JG himself testified and provided photos of the travel trailer he purchased to have available in the summer of 1973. ii. When she gave her police statement, she was unsure in which specific trailer campground the incident had occurred although she believed it was not far from the Town of Pictou. However, by virtue of her description it was suggested to her that it was in the Toney River area/Seafoam campground and that was included in her statement. Later, the investigating officer Constable Darren Peach concluded that the campground could not be Seafoam campground, but rather had to be in the Braeshore area on the Sunrise Trail, and I am satisfied that that is correct. iii. I have concluded that MC was mistaken in her testimony that, what I have referred to as the “second incident”, happened in JG’s truck with her friend NM, present as a result of MC’s car getting stuck in a snowbank in New Glasgow between 1983-1986. NM testified that she remembered MC’s reference to a “second incident”, but she was not in JG’s truck that day. NM confirmed she was behind the wheel of MC’s car trying to get it unstuck from the snow, while MC and CM were outside the car somewhere, and at some point, MC returned and told her that JG “did it again”. iv. In cross-examination MC agreed that she had limited recollection of the day of the alleged offence – she did not recall where JG’s wife was at the time of the alleged offence; she had no idea how she got to the campground or back home (although she did testify she arrived before 11 am); she did not remember much of anything else about the day, except the details of the alleged offence, and the boat ride that caused her to have a sunburn while wearing her favourite dress that her mother made for her. v. LC testified that he believed MC told him “about this incident … after we were married as far as I remember”. He understood from what MC told him, “that JG had tried to force himself on her when she was in a vehicle as a 14 – 15-year-old… while driving her home. I did not want the details – I could read her face”. He also testified “I don’t want to know what happened – I never did”. He was not asked more precisely what MC had said happened to her. I do not attach much significance to any suggested difference (whether MC said to LC it was in a vehicle or the travel trailer) between LC’s recollection and that of MC’s recollection, in part because: it was never put to MC (and she had testified in cross examination – “I’m sure it happened in a trailer”); and LC may have been mistaken since he testified his state of mind then was “I don’t want to know what happened – I never did”. vi. It was confirmed by MC on cross-examination that at times she had consumed significant amounts of alcohol since she was about 15 to 16 years of age and during her adult life. The questions insinuated that this has/may have affected her ability to accurately recall events from the past. She agreed at times she engaged in excessive consumption of alcohol – but I conclude it would amount to no more than speculation to attempt such an assessment. [154] My observations of her powers of recall suggest that she does not suffer from any unexpected diminishment thereof, given that she was testifying in relation to: an alleged offence which occurred in 1973; she only first disclosed to NM that something had happened without going into detail several years later - and then not again until 1992/1993; and she did not give her police statement with greater details until 2022, which was likely the first occasion where she explicitly recounted her allegation and had to answer questions about the surrounding circumstances. [155] Her recall of life events between 1973 and the present day was generally very good. She listed all the various places she worked in the years in question, her continued professional development as well as other milestones within that time interval; as well as having a strong grasp of other details e.g.: the layout of the interior of JG’s house where she babysat his son C at similar times; and in relation to the core facts relevant to the offence alleged here in the summer of 1973. LC’s evidence [156] MC’s husband, LC, testified. [157] His testimony was very consistent with MC’s as to the milestones between their meeting in 1991 and present day, and the evidence relevant to this trial. [158] Significantly, he said that MC made only one notable request of her mother in relation to their wedding which was held in her parents’ home and backyard in mid-1992: do not invite JG. [159] Her mother invited JG to her wedding over MC’s protestations. [160] LC noticed that MC was “flustered” by JG’s presence at the wedding and especially when he came back to the house afterwards. [161] Sometime not long afterward, he finally asked her about it. Why were JG’s visits to her mom’s house bothering her so much? [162] She disclosed to him that, as he put it: “I understood that JG tried to force himself on her when she was 14 years old … I did not want the details … I believe my wife.” [163] In cross-examination, he agreed that in his police statement he believed, based on what MC told him, that JG had assaulted her in his motor vehicle while taking her home. [164] He referenced the 1993 Thanksgiving at G’s house. [165] MC tried to explain so her parents would understand what had happened - what JG had done to her. [166] Her mother did not want to acknowledge that anything had happened. The Thanksgiving event ended “unpleasantly”, and so began a period of estrangement between her and her family for about 10 to 15 years. [167] I found LC to be a credible and reliable witness. G’s evidence [168] MC’s brother G also testified. [169] He said that JG was very close to the entire family and he personally considered him like an older brother. JG was there “like a family member … pretty much every day”. He noted that rarely, if ever, was JG’s wife at their house. [170] He agreed that particularly his mother was very close to JG. She “treated him like a son”. JG always gave “exceptional” gifts to G’s mother. [171] MC called him in 1992/early 1993 to meet her on a weekend morning at her house in Halifax Regional Municipality. While there, she told him that she had been “living with something for years”. She had been sexually assaulted. She had to tell someone. She did not say who had done it. With his encouragement, she identified JG as the perpetrator. [172] He testified that: “I remember clearly - she was upset – very nervous – incredible stress – she cried, as did I, for the next 10 minutes. She asked me if I wanted to know details – I said I didn’t need to know.” [173] He kept it to himself until MC approached him and said she needed to tell the entire family, and whether she could do so at his home. He agreed. [174] He said it was Thanksgiving 1993 and her parents were both there as were her brothers. G says MC “told them verbatim what she told me… She had been sexually molested by JG.” [175] He confirmed that her mother stated, “No – it couldn’t be – and so long ago – why bring it up now? – so long ago.” [176] MC’s father was quiet, and then her mother had what seemed like it might have been some kind of “cardiac event”, and everyone was then focused on that. [177] He remembered that MC did babysit for JG and his wife. He also recalled that JG had a travel trailer although he was never invited to spend time there. [178] I have already canvassed his confrontation about the allegation with JG between 1998-2003, wherein JG acknowledged that he had “done something to your sister”. [179] G did not have any follow-up discussions with JG at any time thereafter. [180] G confirmed that MC was estranged from her family for about 10 to 15 years after her Thanksgiving 1993 disclosure. [181] In 2017, he and MC decided to get together for her birthday and they achieved significant reconciliation between themselves. [182] In cross-examination, G testified that he did not have the details thereof, but understood that MC’s allegations “were sexual in nature, but not to the extent of rape”. [183] I found G to be a credible and reliable witness. The direct evidence of JG [184] JG agreed that it was probably by mid summer/August 1973 that he had the travel trailer at the Braeshore campground, on the ocean, not far from the Town of Pictou. He confirmed that it was an annual rental during the summer on their part. [185] In the summer of 1973, JG and his wife only had one child, C, who in August was 21 months old. [186] He was asked by his counsel: “Did you touch her inappropriately?” [187] He answered: “No – I never had sexual contact with her”. [188] He was asked about being confronted by G. He testified “I recall it”. [189] He was again asked whether he touched MC’s vagina. To which he answered “No”. [190] He was asked if he said to MC: “does it feel good?” to which he answered “No”. [191] He testified that after MC had disclosed to her family in 1993 about him sexually abusing her, “it was talked about” between JG and MC’s parents, and that “our relationship remained the same”. [192] I conclude that after 1993, MC was estranged from her family, but JG’s relationship, particularly with her parents, “remained the same”- even up until the present day. [193] He confirmed he has no criminal record, and has never used drugs or had a drink in his life. [194] He again is asked whether he touched her vagina, and he answered: “No”… “With your fingers?” and “No sir”. [195] He added: “It’s possible she was on the bunk, but I never touched her.” [196] He testified that there was some overnight babysitting in the trailer and that he would pick MC up on his way from work and take her down to the trailer when he and his wife would go out, and once they’d come back, if it was late, MC would sleep in the back of the trailer with the kids, and his wife and he would sleep at the front. [197] To his recollection, MC babysat both his sons C and S [born in November 1974]. [198] In relation to the second incident, JG admits that MC once called him to drive her from the Aberdeen Hospital to CM’s house and then take both of them to Linacy, Pictou County. [199] He had no recollection of her car ever being stuck, and said he “never” reached under her coat to fondle her breast. Cross-examination of JG [200] JG agreed that MC’s memory of his own home at the time she babysat there, which she testified to at trial, was accurate. [201] He agreed that MC babysat his son C in the travel trailer at Braeshore, which trailer he got after his mother had passed in February 1973. [202] He confirmed he had spoken with G (between the late 1990s and early 2000s) as G claimed. [203] JG pretty much agreed with the content of the conversation as related by G. [204] He agreed that G had told him that MC’s allegation was one of “sexual touching”.[6] [205] He agreed that he knew “what the substance of the allegation was”. [206] In response to G’s reference to sexual touching, JG further agreed that he did not deny saying to G that something had happened. [207] JG never says expressly what he did to MC. [208] However, JG testified: “I knew it wasn’t as serious as what it was being made out to be”. [209] The Crown asked him: “So you assess it [what happened with MC] differently?” [210] JG answered: “Yes, you could say that … I didn’t say I didn’t do anything -because I did do what I said I did”. [211] The Crown asked: “You didn’t offer a denial - you explained your actions?” [212] JG responded: “Exactly”. [213] In summary, I am very satisfied that JG agreed that he was involved in some form of sexual violation of MC. His response to G was not a denial – it was an acknowledgement that he had done something sexual. [214] JG agreed it was very important to him to maintain his contact with MC’s parents and he had continuously maintained contact with them since he was a young age. [215] However, he acknowledged that in spite of that long-standing deep relationship with MC’s parents, the relationship with MC’s family had “become strained” after they became aware of the allegation (in 1993), and he tended not to speak to anyone from the family - except her mother. [216] JG agreed that, for some time, the relationship had dramatically changed. If the drapes were opened in MC’s parents house, he knew he was welcome to come to visit; if the drapes were closed, he knew he was not welcome to come to visit. [217] A further example he cited was when MC’s father died in December 2023 - he went to the wake and funeral, but did not offer his condolences to the entire family - he only spoke to MC’s mother. [218] He did not go to the reception as he did not feel welcome by the remainder of her family: “I knew some didn’t want me [there]… I kept my distance just to keep peace”. [219] In relation to MC going out on a boat with JG and the Ls (husband and wife) he testified “it was possible that that happened”. [220] He agreed that the travel trailer in 1973 had drop-down bunks on top, as MC described. Conclusion [221] After a very careful consideration of all the evidence (and absence thereof) and arguments made by counsel, I am satisfied that MC’s core allegation has been proved beyond a reasonable doubt. 1. I do not believe JG’s evidence, specifically when he denies that he indecently assaulted MC as she testified that he did; 2. JG’s evidence does not raise a reasonable doubt that he is guilty as charged; 3. I conclude on a consideration of the whole of the evidence, and absence of evidence, that the Crown has proved the offence beyond a reasonable doubt. [222] Consequently, I am satisfied beyond a reasonable doubt, that: In August 1973, inside his own travel trailer at Braeshore, Pictou County, JG did, without MC’s consent, while she was awake in the top bunk laying on her back, and under her garments, touch her vagina by digitally penetrating her vagina while standing to the side of the bunk and moving his finger around, and asking her if it “felt good” – to which she answered: “No it didn’t feel good” - and then [she] cried, after which it stopped - although [she] did not say ‘stop it’. [223] These circumstances constitute an indecent assault. [224] JG is guilty as charged. Rosinski, J. [1] Indecent assault upon a female remains an offence in 2024 because, per s. 156 of the present Criminal Code: “the conduct alleged would be an offence under this Act if it occurred on the day the charge was laid”. [2] More recently in her decision R. v. Guindon., 2020 ONSC 1449, [2020] OJ No. 1929 at paras. 129-131 (affirmed 2022 ONCA 821), Justice O’Bonsawin (as she then was) discussed the elements of the offence of indecent assault on a male, which are identical except as to the matter of gender. [3] A good discussion of this arises in Justice Monnin’s reasons for the majority in R. v. Perrone, 2014 MBCA 74, at paras. 25-28, of which paragraph 48 was specifically affirmed by the Court in 2015 SCC 8. [4] Once she left home in 1975-76 she was living elsewhere in Nova Scotia or Canada. [5] See also recently, the reasons in J.L. v R., 2024 QCCA 1047. [6] As I noted earlier herein, in response to my question to G, about whether G was ever precisely told by MC what JG had done to her, G answered that it was “sexual in nature, but not to the extent of rape”. This knowledge therefore would have informed G’s conversation with JG when he confronted him about MC’s allegation.