R. v. C.C.C.

2020 BCSC 1367 R. v. C.C.C.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. C.C.C., 2020 BCSC 1367 Date: 20200911 Docket: 107567-2 Registry: Kamloops Regina v. C.C.C. Before: The Honourable Mr. Justice Marchand Oral Reasons for Judgment Counsel for the Crown: F.J. Caputo Counsel for the Accused: D.J. McNamee Place and Date of Hearing: Kamloops, B.C. August 11-14, 2020 Place and Date of Judgment: Kamloops, B.C. September 11, 2020 Introduction [1] C.C.C. is charged with one count of sexual assault and one count of sexually touching a person under 16 years of age. The charges relate to incidents that are alleged to have occurred between July 2013 and January 2019 in a small First Nations community near [location redacted], British Columbia. The complainant is Mr. C's step-granddaughter. [2] In these reasons for judgment, I will not refer to the complainant by name. By doing so, I intend no disrespect to her nor to depersonalize her experiences. Instead, I intend only to preserve her dignity and privacy to the greatest extent possible. [3] The only issue is whether the Crown has proven beyond a reasonable doubt that Mr. C committed these alleged offences. The case centres on credibility and reliability issues. Background [4] The complainant was the only witness to testify for the Crown. Mr. C, his wife, Ms. C1, and his sister-in-law, Ms. C2, testified for the defence. Family Background [5] The

complainant was born in 2007 and is now 13 years old. She has a sister who is two or three years older than her. Sadly, when the complainant was two or three years old, her mother was murdered. As a result, the complainant and her sister were in and out of foster care before being placed permanently with their maternal grandmother, Ms. C1, and her husband, Mr. C. [6] The complainant and her sister would have been placed with their grandmother and Mr. C sooner but child protection workers had concerns about the adequacy of their home, neglect and drinking in the home. Eventually, Ms. C1 and Mr. C satisfied the child protection workers that they could provide a good home for the children. The children were placed with them when they were still quite young. [7] Soon after the children were placed with their grandmother and Mr. C, they moved into a relatively large two-storey home. The master bedroom, living room, kitchen and bathroom were on the main floor. The girls' bedroom, a TV area, Mr. C's workshop, and two or three freezers were downstairs. There was a door at the bottom of the stairs and a door into the children's bedroom. [8] Ordinarily, the children lived in the home with their grandmother and Mr. C only. From time to time, one of the children's uncles also stayed in the home. The children slept together in their bedroom. Mr. C slept in the master bedroom. For the last

five years or so, for health reasons, Ms. C1 mostly slept on a bed in the living room. The bed was next to the stairs. When he was staying in the home, the children's uncle slept in a separate area downstairs. The Testimony of the Complainant [9] Over a fairly lengthy period of time, the complainant says that Mr. C repeatedly came to her bedroom when she was alone. She says that Mr. C took off her clothes and got on top of her on her bed. She says that he had a shirt on but no pants or underwear. At times, the complainant says that Mr. C made her touch his penis. At other times, the complainant says that Mr. C touched her bum and vagina. Still other times, the complainant says that Mr. C put his penis inside her vagina and moved up and down. [10] The complainant says that she was too scared to say anything. Sometimes she tried to roll away from Mr. C or push him off of her but he was too heavy. She says that Mr. C would tell her to stop moving. If she did not stop moving, he would get mad at her. For example, one time Mr. C told her that she was a "worthless bitch", slammed the door and went upstairs. According to the complainant, the next day Mr. C told her she would be in trouble. [11] The complainant says that sometimes these things happened when Mr. C was drunk, but not always. She also says they happened when her grandmother was upstairs lying on her bed watching

television or out at bingo. In cross-examination, she confirmed that her grandmother was home almost all of the time. The complainant described that sometimes the sexual abuse would not happen, for example when Mr. C was not home or when he was drinking with her grandmother after work on Friday nights. [12] The complainant could not remember exactly when Mr. C first touched her inappropriately. When asked how often these events occurred, the complainant responded "I don't want to say every night because it wasn't every night." She estimated that it occurred more than three times per week. [13] The complainant recalls that the last event occurred in January 2019, the day before she told her social worker. In cross-examination, the complainant agreed that the last incident occurred on January 6, 2019 because that was the last day before school started. She could not recall what she was doing on January 5, 2019 and was unable to say that on January 6, 2019 she was driving back from visiting family in [location redacted]. [14] In cross-examination, the complainant agreed that she was only able to describe the one incident with her step-grandfather on January 6, 2019 in detail. She added that was not because the sexual abuse only happened once. When asked if she knew about other times, she answered "no". When it was put to her that she could not describe other events because there

were no other events, she replied "That's not true." [15] She was asked in cross-examination if Mr. C had "invited" her to touch him. She paused for a long time before she responded "Do you mean that I wanted to do it?" When the question was clarified for her, she agreed that he asked her to touch him and that she did touch him. [16] The complainant's social worker was, of course, obliged to report what the complainant had told her. The complainant then gave a video-recorded statement to the RCMP. [17] The complainant agreed in cross-examination that she had seen Mr. C's penis but had told the RCMP that she had not. When asked to confirm she had not told the RCMP that Mr. C had "invited" her to touch his penis, she asked with some indignation "What do you mean by invited?" When the question was asked in a different way, she agreed she had not told the RCMP that Mr. C had asked her to touch his penis. She also agreed that when the RCMP had asked whether her vagina hurt, she replied that it did not. She also testified that she has not had any medical appointments for problems with her vagina. [18] The RCMP took the complainant to the SCAN clinic at Royal Inland Hospital. The complainant did not consent to an internal exam and no medical report was before the court. In cross-examination, the complainant acknowledged her understanding that the examination was to find evidence and

testified that she wanted evidence to be found. She denied that she refused the internal medical examination to conceal evidence. In re-direct, the complainant testified that she does not know what evidence is. She also explained that she refused the internal medical examination because she felt uncomfortable. She was unable to explain why she felt that way. [19] In cross-examination, the complainant confirmed that she was very close with her sister. She testified that they shared secrets with each other, then added "but not everything." She agreed that she did not tell her sister about the sexual abuse. [20] In cross-examination, the complainant agreed that, in spite of the sexual abuse, she still did "normal" things with Mr. C, such as attending social gatherings, playing baseball, going to the movies or going shopping. When she was asked whether her relationship with her grandparents remained good, she answered "I didn't know if they hated me." [21] In cross-examination, the complainant agreed that there were lots of rules in her grandparents' home and that she frequently argued with them. When asked if she wanted out because the household was strict, she answered "No. I did want out but this is true." It was subsequently put to the complainant that making up her complaints was an easy way out and that the accusations got her into a house with less rules. The complainant

replied "Did you ask him what happened? I told her not to tell." [22] In re-direct, the complainant testified that it was her social worker she had told not to tell. She explained that was because she "didn't want to be the one to fuck up the family." She then added that her grandmother had told her that "some day, I'd fuck up the family." [23] In cross-examination, the complainant denied having stolen money from her school and that her relationship with her aunt, Ms. C2, had changed. She denied drinking alcohol but admitted saying in her victim impact statement that she had tried "weed" to help her let go of her emotions. She testified that she started smoking weed when she was seven and acknowledged she had not said that in her victim impact statement. She denied there was a difference between saying that she started smoking weed at seven and saying that she later tried weed to let go of her emotions. [24] In re-direct, the complainant confirmed a longer excerpt from her victim impact statement as follows: and I didn't know how to deal with all these feelings and whatnot, like guilt, that it was my fault this happened and a lot of anger and sadness and I heard people say smoking weed was a good way of letting go of all your emotions you have for you wouldn't feel anything so I tried it out and they were right. It did help. Testimony of Mr. C [25] Mr. C testified that he has

been together with Ms. C1 for 25 years and married to her for 16 years. He says they have a regular sex life. [26] Mr. C described that the complainant's mother was murdered when the complainant and her sister were very young. Soon after, the complainant and her sister were taken into care. Ms. C1 and Mr. C worked with "social services" to have the children placed in their care. For some time (that Mr. C was unable to specify), the children were in and out of their care. At least twice, they were apprehended from Ms. C1 and Mr. C due to allegations of neglect and Mr. C's drinking. [27] Mr. C acknowledged that he had a drinking problem in the past. He denied having a drinking problem when the children were in the home. He admitted that he and Ms. C1 smoked and split most of a 15-pack of beer together, sometimes more, on Friday nights. He testified that this occurred in a room upstairs and away from the children. He testified that they drank only after the children had been fed and the doors locked. According to Mr. C, he and Ms. C1 did not get impaired. [28] Mr. C says that he and Ms. C1 did not fight with social services. Rather, they did what was asked of them, such as attending counselling. Eventually the children were placed in their full-time care. Mr. C was not clear on dates and details but he was clear that the complainant and her sister have been in Ms. C1's and his

care since they were young. [29] According to Mr. C, he raised the children like they were his own. He was protective of them. He described many fun activities that he did with them. He and Ms. C1 provided just about everything they wanted. He denied that they were spoiled. [30] Mr. C described the rules of the house and some of the children's responsibilities. When the children were young, they had the same bedtime. As the complainant's sister got older, she was allowed to stay up later than the complainant. The children were not allowed to be out in the community without supervision because it could be dangerous. [31] According to Mr. C, the children did not have behaviour issues that called for any significant discipline. He felt they were dream children. The complainant, in particular, was a "good kid" who was happy, obedient, mostly truthful, helpful and well liked. When asked to give an example of the complainant being untruthful, he described her saying that the school had not sent a permission slip home with her when the school said they had. If the children were ever too loud downstairs, Mr. C said that all he had to do was tap on the wall and they would settle down. [32] Mr. C was not aware that the complainant was using marihuana. If she was, that was against the house rules. [33] Mr. C described the layout of the house as the complainant had. He testified that he

slept in the upstairs bedroom while, for health reasons, Ms. C1 required a lower bed which he set up for her in the living room. Mostly they slept separately but sometimes they slept together. [34] Mr. C denied the complainant's allegations that he had sexually abused her. He even denied that he was ever alone with her. He testified that he was rarely downstairs, was often away from home for long periods of time for work, never tucked the children in, never had to go downstairs to discipline the children, and never had to go downstairs because the children had wet their beds or thrown up. He said it was a rule that he never went downstairs when he was drinking. [35] In cross-examination, Mr. C acknowledged that, in recent years, he has mostly worked in [location redacted]. Other than staying at his boss' home in [location redacted] a few times per year, the last work he described that took him away from home for a lengthy period of time was in 2013. [36] In cross-examination, he conceded that sometimes he went downstairs to say goodnight to the children and give them a little pat on the back or shoulder. He also conceded that he may have seen the complainant in her room alone when he went downstairs to get something from the workshop. [37] Despite Ms. C1's health problems (which made going downstairs difficult for her) and having the children's bedroom, his workshop, the

freezers and the laundry downstairs, Mr. C estimated that he went downstairs once per day. Usually this was right after he got home from work. In cross-examination, Mr. C denied that he was trying to minimize how often he was downstairs. [38] Mr. C testified about events on January 6, 2019. Mr. C, Ms. C1 and the children were in [location redacted] visiting friends and family that day. They left [location redacted] at about 1:30 p.m. and got home at about 4:30 p.m. After they unpacked the car, Mr. C put his gear for work the next day in the car. At bedtime, he did not tuck the complainant in. He went to bed before Ms. C1. Testimony of Ms. C2 [39] Ms. C2 is Mr. C's sister-in-law. Until March 2020, she worked at the complainant's school. She saw the complainant regularly in the community and at school. She spent quite a bit of time with the complainant at Christmas and branding time. She also saw her from time to time when Mr. C dropped by with the children for a quick visit or to feed the horses. [40] Ms. C2 described the complainant as very polite, sweet, energetic, smart and honest. She said the complainant was a good girl. At school, the complainant used to run up to Ms. C2 for hugs and kisses. The complainant told Ms. C2 that she loved her. [41] Around March or April of 2019, Ms. C2 said that her relationship with the complainant changed very abruptly. The complainant

suddenly began ignoring Ms. C2, for example, walking right by her like she was not there. Overnight, the complainant was no longer the happy girl she was before. She turned into an unhappy child. [42] Ms. C2 never saw the complainant smoke marihuana and never suspected that she did. [43] Ms. C2 also described that, at some point, fundraising money went missing from the school. [44] Ms. C2 described Mr. C as a "good stern father figure" for the complainant and her sister. She never saw the children get out of line. She said they got what they wanted but were not spoiled. She never saw Mr. C drinking or drunk when the children were in his care. She also never saw any inappropriate touching. Testimony of Ms. C1 [45] Ms. C1 confirmed that she has been together with Mr. C for 25 years and married to him for 16 years. She says she has a normal marital relationship with Mr. C and that they have no significant marital issues. [46] She confirmed that due to her health problems they sleep in separate beds. Ms. C1's bed is at the top of the stairs in the living room. Ms. C1 said she is a light sleeper. Little noises wake her up, like the horses coming into the yard. [47] According to Ms. C1, the complainant and her sister began living with Mr. C and her when the complainant was two and her sister was five years old. Ms. C1 acknowledged that there were some interruptions due to the

children being removed from their care. [48] Ms. C1 testified that she and Mr. C treated the children like their own daughters. According to Ms. C1, Mr. C never kissed the children but he gave them a hug when they wanted one, and he also played and cuddled with them. She denied, however, that Mr. C ever changed them, put them to bed or cuddled with them after they went to bed. She said that the children never wet their beds or vomited. [49] Ms. C1 described some of the rules of the household. For example, the children were not allowed to see friends on school nights, to eat candy, to drink pop, or to use drugs or alcohol. They also had to clean their room. She never really had to enforce these rules and Mr. C never had to check to see if the children's room was clean. According to Ms. C1, the complainant's sister would report if their room was not clean. Ms. C1 never found either of the children using drugs of any kind, including marihuana. Once, she found $20 in the complainant's backpack and told her to return it. [50] Ms. C1 also testified that swearing was not allowed in the home. She said that she never caught Mr. C swearing. [51] Ms. C1 described the complainant as a happy, obedient and good child who rarely misbehaved and never required discipline. Despite telling the RCMP that the complainant had been acting differently and wanted to move out, Ms. C1 denied in

cross-examination that was so. She testified that the complainant remained happy until she left the house and had never said she wanted to move out. [52] In terms of bedtimes, Ms. C1 testified that from the time the claimant was seven or eight years old, the children went to bed at different times. On weeknights, Mr. C usually went to bed at 9:00 p.m. so that he could be up early to go to work. Ms. C1 normally stayed up watching TV and went to bed at 11:00 p.m. [53] Ms. C1 described many fun activities that Mr. C enjoyed with the complainant and her sister. She said he was not a strict parent because the children never really got into trouble and he did not need to be. She could only remember one time when Mr. C got angry with the children and hollered at them. If the children were too loud, Mr. C would tell them to be quiet. Ms. C1 could not remember him ever tapping on the wall as a signal for the children to be quiet. In fact, at one point, she testified that the children were never too loud downstairs. [54] Though at times during her testimony, Ms. C1 gave the impression that Mr. C rarely went downstairs, in cross-examination, she gave numerous examples of when he did. She confirmed that for the last five or six years, she has been unable to go downstairs much due to her health problems so it was important for Mr. C to go downstairs to access his tools, the laundry or the

freezers. During hot weather, there were times when he slept downstairs. Mr. C also watched TV downstairs at least a couple of times per week, sometimes for several hours. Ms. C1 testified that the complainant and her sister stayed upstairs with her to watch TV when Mr. C was downstairs but she acknowledged that sometimes just one or the other of them stayed upstairs with her. [55] Initially, Ms. C1 testified that neither she nor Mr. C has ever had a drinking problem. In cross-examination, however, she acknowledged that drinking has been and remains an issue for Mr. C. She testified that she and Mr. C drink together, generally on Friday nights, and that they typically split a 15-pack. She testified that every few months, Mr. C drinks a lot more, but no more than an 18-pack. She said he gets drunk, passes out and cannot remember things the next day. She said this has been the case over the last five or six years and perhaps as recently as the last few months. [56] Ms. C1 testified that she was quite protective of the children. She and Mr. C tried to separate their drinking from the children because drinking has been an issue. Nevertheless, the children had seen the two of them drunk. She testified that Mr. C was not allowed to go downstairs when he was drinking. She said it was not right for him to be downstairs when he was drinking because the complainant and her sister were

young girls. [57] Ms. C1 testified that she and Mr. C were always together. In cross-examination, she acknowledged that was not the case when he was downstairs. She also acknowledged that over the last number of years, her focus has been on what is happening upstairs not downstairs. She maintained, however, that Mr. C did not spend much time alone with the complainant. She says she never saw Mr. C touch the complainant in a sexual way. [58] Regarding January 6, 2019, Ms. C1 testified that she and Mr. C travelled to [location redacted] to pick up the complainant and her sister from their aunt's home. They got back home at about 4:30 p.m. that afternoon. They finished supper at about 6:00 p.m. The children did the dishes and then everyone watched TV together upstairs. The complainant went to bed at about 8:30 p.m. Mr. C did not go downstairs that night. Ms. C1 was home all night and did not hear a door slam, or any shouting or swearing downstairs. In cross-examination, Ms. C1 agreed that her memory of January 6, 2019 is probably not perfect. Analysis Presumption of Innocence and Burden of Proof [59] Under s. 11(d) of the Charter, Mr. C is presumed to be innocent. That presumption remains in place unless and until the Crown proves his guilt beyond a reasonable doubt. The burden of proving Mr. C's guilt is always on the Crown and never shifts. Mr. C does not have to prove

anything. [60] As has often been said, a reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it must be based on reason and common sense. It must logically come from the evidence or the absence of evidence. [61] In a case such as this where Mr. C testified, I must pay heed to the well-known instructions in R. v. W.(D.), [1991] 1 S.C.R. 742: 1. If I believe Mr. C's testimony, I must acquit; 2. If I do not believe Mr. C's testimony but it leaves me with a reasonable doubt, I must acquit; and 3. If I do not believe Mr. C's testimony and it does not leave me with a reasonable doubt, if, on the whole of the evidence, I am left with a reasonable doubt, I must acquit. [62] As pointed out in R. v. B.P., 2020 BCSC 541 at para. 72, I must not determine guilt by simply determining which evidence I prefer. It is not a credibility contest. The Crown must prove every element of the offences beyond a reasonable doubt. Assessing the Testimony of Child Witnesses [63] The complainant was 11 years old when she disclosed that Mr. C had allegedly sexually abused her. She was 13 years old when she testified at trial. In assessing her credibility, I must take into account that children may not perceive and recall events in the same way as an adult: B.P. at para.

75. Given the complainant's young age when the alleged sexual abuse occurred and when she testified, this may be particularly so regarding peripheral matters: R. v. R.W., [1992] 2 S.C.R. 122 at 134; R. v. A.G., 2000 SCC 17. [64] While the standard of proof does not change when assessing the evidence of children, I must be sensitive to the unique perspective of the complainant as a child witness: R.W. at 133. Even if she was not able to recount precise details as would be expected of an adult witness, "this does not mean that [she] misconceived what happened to [her] and who did it": R. v. B.(G.), [1990] 2 S.C.R. 30 at 54-55. [65] Despite tolerating, or even expecting, that some details important to adults may be missing from the complainant's recollection, protecting the liberty of Mr. C and guarding against a wrongful conviction requires that I carefully assess the complainant's testimony: R.W. at 133-134; B.(G.) at 54-55. In doing so, I must avoid stereotypical reasoning, such as that she would likely report the alleged abuse to her sister or try to avoid Mr. C: B.P. at para. 83; R. v. F.J.C., 2018 BCSC 1443 at para.

44. The reality is that "victims of sexual assault will react in a myriad of ways to the trauma of having been assaulted": F.J.C. at para.

44. The Credibility and Reliability of the Complainant [66] Mr. C submits that the complainant was neither a credible nor a reliable witness. I will begin my analysis of whether that is so by setting out his submissions. [67] Mr. C submits that the complainant's testimony lacked important detail. For example: · She was not able to describe where she was the day before the last alleged sexual assault without prompting; · She did not include any detail regarding the events leading up to the last alleged sexual assault in her narration of events that day; · Despite testifying that she was sexually abused multiple times per week for perhaps years, she was only able to specifically describe one event; and · She did not provide any detail regarding how the sexual assaults began, such as with grooming activities and/or lubrication. [68] Mr. C submits that the complainant's testimony was unbelievable in certain respects. For example: · She did not indicate that the sexual abuse was painful; · She testified that she did not have any medical problems; and · She testified that she began using cannabis at age seven without any plausible explanation of how that could occur. [69] Mr. C emphasizes that there was no corroborative evidence. For example: · The complainant knew the purpose of the medical examination at Royal Inland Hospital yet declined a medical examination, leaving the court

without any medical evidence consistent with the complainant having been sexually abused as she described; and · There was no evidence to establish that Mr. C had a pattern of opportunity to sexually abuse the claimant as she described. [70] Mr. C highlights inconsistencies between the complainant's testimony and the testimony of the other witnesses. For example: · The complainant's testimony was inexplicably at odds with the testimony of Ms. C2 that there was a sudden change in their relationship in the spring of 2019; and · The complainant's testimony of events on January 6, 2019 was inconsistent with the testimony of Ms. C1 that Mr. C stayed upstairs that evening, and that Ms. C1 did not hear a door slam or any shouting. [71] Mr. C submits that the complainant's testimony was inconsistent with common sense in that, by all accounts, she had a very good relationship with Mr. C until she left the home. [72] Mr. C submits that I should not put much weight on the complainant's demeanour in the witness stand. He submits that the complainant's demeanour did not change when she lied about how old she was when she began using cannabis and when cross-examined on how that was inconsistent with what she wrote in her victim impact statement. [73] Mr. C is quite right that he does not have to establish a motive for the complainant to fabricate her complaints. He suggests, however, that

perhaps the complainant got caught telling a white lie to her social worker and then became stuck in her story. Mr. C theorizes that the complainant's emotions during her testimony are consistent with the warning from Ms. C1 that the complainant would "fuck up the family one day". [74] In spite of Mr. C's able submissions, overall, I found the complainant to be a credible and reliable witness. [75] The complainant testified with emotions consistent with having been sexually abused by Mr. C. She was emotional and/or tearful when the topic of Mr. C was first raised, when she described the sexual abuse, when she wondered if her grandparents hated her, and when she testified that her grandmother told her that someday she would "fuck up the family". She frequently paused to gather herself before tackling answers to difficult questions. She appeared genuinely hurt when she thought counsel for Mr. C was suggesting that she wanted the sexual abuse to happen. She became understandably frustrated when it was suggested that nothing had in fact happened. [76] The complainant was an attentive, careful and responsive witness. She refused to answer questions she did not understand and indicated when she was not sure about an answer. To her credit, she declined to exaggerate her testimony. For example, she was careful to say that the sexual abuse did not happen every night. [77] The

complainant was not a defensive witness. For example, she acknowledged telling the police that her vagina did not hurt and that she had never seen Mr. C's penis. She also acknowledged that she had no medical issues with her vagina and described some "normal" aspects of her relationship with Mr. C. [78] While I agree that the complainant's testimony lacked important detail, in some cases that may be because she was not asked direct questions. Further, some awkward descriptions and lack of detail is not unexpected given that she was only 11 years old when the sexual abuse ended and 13 years old when she testified. [79] In my view, she gave an expected and adequate level of detail for a child of her age. For example, she was able to describe suffering multiple types of sexual abuse. It is hardly surprising that she could not associate them to specific dates or even provide much of a timeframe. [80] For the most part, the complainant's testimony was internally consistent. She gave a coherent and cohesive version of events. Any internal inconsistencies were minor and, in my view, a product of her age, the foreign environment of the courtroom, and counsel's use of language she did not understand. [81] For the most part, the complainant's testimony was also externally consistent. For example, only one inconsistency with her statement to the RCMP was drawn out in cross-examination when

she admitted that she had, in fact, seen Mr. C's penis. It is completely understandable that she may not have wanted to admit this to the RCMP when she gave her statement. [82] Notably, the complainant was not asked why she did not tell the RCMP that Mr. C had asked her to touch his penis. There are numerous innocent possibilities. For example, the complainant may have been understandably reluctant to share everything with the RCMP or the RCMP interviewer may not have asked the right questions. [83] The complainant was not asked whether, contrary to what she had told the RCMP, it was true that her vagina did not hurt. I, therefore, do not know whether that statement was true or, if it was untrue, why the complainant was not honest about it with the RCMP. Again, there are numerous innocent possibilities. [84] I agree with the complainant that there was nothing inconsistent between her testimony and her victim impact statement. She may have been using cannabis for some time before trying it to let her emotions go as she described in her victim impact statement. [85] Importantly, the complainant's description of her home, her grandparents' pattern of drinking and her being alone in her bedroom was largely consistent with the testimony given by Ms. C1 and, in some respects, even Mr. C himself. [86] I place no weight on the apparent contradiction between the complainant's perception

of her relationship with Ms. C2 and Ms. C2's perception of that relationship. Witnesses often have different perceptions of the same events. It was apparent to me that the complainant has no issue with Ms. C2 and did not intentionally ignore her. As an 11 or 12 year old girl, it may simply be that her interests, focus and behaviours were going through a normal evolution. In any event, I consider this to be a peripheral matter. [87] I do not find it unusual that the complainant did not tell her sister what was happening to her. [88] I am unable to make anything at all out of the effort by Mr. C to establish that the complainant had stolen money from the school. There was no evidence that she did and, in any event, this is a peripheral matter. [89] I also consider the complainant's inability to describe what else happened on the weekend of January 5 and 6, 2019 to be normal and peripheral. [90] I agree that it is hard to believe that the complainant began using cannabis at age seven. I note, however, that no witness in the trial was particularly good at estimating ages and/or dates of important events. I certainly do not think that the complainant was intentionally lying when she gave this testimony. I find, rather, that, given her age and stage of development, she was honestly mistaken about this peripheral subject. [91] Though not the subject of submissions, I have considered

whether the complainant hiding her marihuana use from her grandparents affects her credibility and reliability. I find that it does not. Many children hide information from or even fib to their parents from time to time. That the complainant did so regarding her marihuana use is peripheral and does not undermine her credibility and reliability regarding the sexual abuse she endured. [92] I acknowledge that a medical report may have been helpful to me. It was understandable, however, that the complainant declined an internal examination. Given her age, her experiences, her stated wish that the social worker not tell anyone and the fact that she was surrounded by strangers, it is no wonder she felt uncomfortable. I reject the suggestion that the complainant, an 11-year-old child, declined an internal medical examination to conceal evidence. In any event, even if the medical examination had come back "negative", that would not have established there was no sexual abuse. [93] I admit that I would have expected the sexual abuse to have caused the complainant pain but I do not know and, in the absence of expert evidence from either side, am not prepared to make assumptions. In any event, as I have already explained, the complainant only acknowledged that she told the RCMP that her vagina did not hurt. During the trial, she was never directly asked whether the sexual abuse caused her

pain. In the result, I do not know whether the complainant did or did not experience pain. [94] I find nothing at all unusual about the complainant's relationship with Mr. C appearing "normal" to others. Often, abused children do not exhibit overt signs of abuse. Frequently, they maintain an outwardly appearing good relationship with their abuser. There is no universally expected reaction to sexual abuse. [95] I do not accept Mr. C's submission that there was no pattern of opportunity for Mr. C to abuse the complainant as she described. History has shown that adults who perpetrate sexual abuse on children find their opportunities and avoid detection. In this case, Ms. C1's testimony clearly establishes that she generally stayed upstairs while Mr. C spent time downstairs, sometimes for a long time. He clearly had opportunity. [96] I can accept that Ms. C1 believes Mr. C remained upstairs on January 6, 2019, and that she did not hear a door slam or any shouting. Given the frailties of human memory, her acknowledged desire to support her husband and the fact that she was busy watching TV, that does not mean it was so. [97] After carefully considering all of the evidence, I believe the complainant. [98] The biggest reason why is the authenticity of her testimony and the way that she gave it. She is an unsophisticated 13-year-old girl who lacks the guile to fabricate an elaborate

story about such an important person in her life. I am unable to accept that the complainant faked her emotions or was mistaken about what happened. In my view, the only reason she reacted to various questions the way she did is because she was telling the truth. The Credibility and Reliability of Mr. C [99] There were a number of positive aspects to the testimony provided by Mr. C. [100] Mr. C was an attentive, respectful and responsive witness. He did not get flustered or angry during his rather lengthy cross-examination. He remained calm despite the obvious stress he was under. He provided an adequate level of detail. He acknowledged when he was not sure of an answer. [101] To his credit, Mr. C provided testimony that could be considered contrary to his interests. For example, he spoke in glowing terms about the complainant and acknowledged, to a point, his heavy drinking habits. He also restrained himself from providing false testimony to bolster his case. For example, he did not try to provide an explanation for why the complainant would make up her allegations. [102] I do not hold it against Mr. C that, like the other witnesses who testified, he was not very good with dates. Given the passage of time, there was nothing unusual about Mr. C's inability to recall details such as when the complainant and her sister came into the home he shared with Ms. C1, and how often and

for what reason they were apprehended from them. [103] Despite the positive aspects to his testimony, I had serious concerns about Mr. C's credibility and reliability on material matters. [104] In all of the circumstances, I do not believe Mr. C's testimony that he went downstairs only once per day. Ms. C1 had health issues and could not go downstairs. Mr. C quite obviously had to regularly go downstairs to access the freezers and his workshop. Further, Ms. C1 explained that he often went downstairs to watch TV and even slept downstairs during hot weather. I found it quite improbable that, as an attentive parent, Mr. C never had to go downstairs to check on the complainant or her sister. In my view, Mr. C purposely set out to minimize his opportunity to have sexually abused the complainant. [105] Mr. C's testimony was also at odds with his wife's regarding the extent of his drinking. Despite his denials, it is apparent that Mr. C has a long-term drinking problem and drank far too much while the children were in his care. In my view, Mr. C purposely set out to minimize the extent of his drinking to enhance his credibility. [106] Finally, and most importantly, given the authenticity of the complainant's testimony, I do not believe Mr. C's denial that he sexually abused her. Credibility and Reliability of Ms. C2 [107] I agree with the parties that there was nothing particularly

controversial about the testimony of Ms. C2. Nothing much turns on her testimony in any event. Credibility and Reliability of Ms. C1 [108] I agree with the parties that, for the most part, Ms. C1 was a credible and reliable witness. At times, she minimized Mr. C's opportunity to have sexually abused the complainant. Nevertheless, she painted a realistic picture of how frequently Mr. C spent time downstairs. She was also honest about the extent of drinking in the household. Finally, I do not find it hard to believe that she was unaware of what was happening downstairs. That she did not see or hear anything unusual does not mean nothing happened. Conclusion [109] In this case, the complainant's testimony was not perfect and it was not corroborated by eyewitness, forensic or medical evidence. Nevertheless, there were aspects of the complainant's testimony that she could not have been mistaken about or made up. In particular, the following evidence convinces me beyond a reasonable doubt that Mr. C repeatedly sexually abused the complainant over a fairly lengthy period of time: 1. Her compelling description of the sexual abuse; 2. Her heartbroken testimony that she wondered if her grandparents hated her; 3. Her horrified reaction to questions that she thought suggested she wanted the sexual abuse; 4. Her hurt reaction to questions suggesting that she made up her allegations because

she wanted to leave; and 5. Her offended reaction to questions suggesting that she had not been sexually abused. [110] The complainant was simply too young and too unsophisticated to be mistaken about what happened, or to weave and credibly maintain such an elaborate fabrication. Given her age and stage of development, the complainant could not have provided the testimony she did with the emotions she displayed, unless what she was saying was true. [111] She cried describing the sexual abuse because it happened. [112] She wondered if her grandparents hated her because why else would Mr. C have done this to her. [113] She was aghast when she thought counsel was suggesting she wanted the sexual abuse to happen because she did not. [114] She was taken aback by the suggestion that she made up her allegations because she wanted to leave. It is true that she wanted to leave but only because of the sexual abuse. [115] Finally, in her unsophisticated mind, she thought the truth would come out if only counsel would ask Mr. C what happened because it did happen. [116] Neither Mr. C's testimony nor the evidence as a whole leaves me with any reasonable doubt about what happened. While I cannot say specifically when the sexual abuse started or how many times each particular type of sexual abuse occurred, I am satisfied beyond a reasonable doubt that over the course of at least several months, Mr. C repeatedly made the complainant touch his penis, sexually touched the complainant and had forced vaginal intercourse with the complainant. Verdict [117] For all of these reasons, I find Mr. C guilty of sexually assaulting the complainant contrary to s. 271 and sexually touching the complainant contrary to s. 151 of the Criminal Code. "L.S. Marchand J." MARCHAND J.