R. v. J.

R. v. J. Court Supreme Court Date 2013-02-26 Citation 2013 NSSC 107 Docket CRK 358543 Judge/Registrar/Adjudicator Warner, Gregory M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: R. v J., 2013 NSSC 107 Date: 20130226 Docket: CRK 358543 Registry: Kentville Between: Regina v J Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Section 486.4(1)(a)(i) - Ban on Publication of any information that could disclose the identity of the complainant. HEARD BY: The Honourable Justice Gregory M. Warner HEARD ON: November 23, 26 and 27, December 11, 12 and 13, 2012 at Kentville, Nova Scotia ORAL DECISION AND WRITTEN RELEASE: March 20, 2013 COUNSEL: Jillian Fage, Crown Prosecutor Thomas Singleton, Counsel for the accused BY THE COURT: 1 For six days, interrupted by a break of twelve days, evidence was heard on the allegation that J committed several sexual offences against his daughter T between April 2008 and May 4, 2011, as outlined in five counts. 2 Counts #1, #3 and #4 allege sexual interference (CC 151); that is, (1) between April 2008 and February 24, 2011; (3) on or about February 24, 2011; and, (4) between February 24 and April 8, 2008, J did for a sexual purpose touch T, a person under the age of 16, directly with a part of his body (in counts one and four with his hands and in count three with his penis). Count #2 alleges incest (CC 155(1)); that is, on or about February 24, 2011, J had sexual intercourse with T knowing she was by blood relationship his daughter. Count #5 alleges sexual exploitation (CC 153(1)); that is, on or about May 4, 2011, J touched directly T’s body with his hands for a sexual purpose, T being in a relationship of dependency on J. (On my own motion, I have amended Count #5 pursuant to s. 601 of the Criminal Code, as discussed below.) 3 It is not contested, and the oral evidence is, that T turned 16 on April 8, 2011; additionally, T is the daughter by blood relationship of J. History of Proceeding 4 On May 17, 2011, T accompanied a friend to a meeting between the friend and a school guidance counsellor. During that meeting, T disclosed information that lead to her being interviewed on the same day by an RCMP officer, the collection of some physical evidence, and laying of an Information alleging these five counts on May 18, 2011. 5 In July 2011, J elected trial by judge and jury. At his preliminary in October 2011, he was committed to stand trial. On December 21, 2011, he reelected to be tried by judge alone. His trial commenced on November 23, 2012 and continued on November 26, November 27, December 11, December 12 and concluded on December 13, 2012. In direct, the Crown’s evidence consisted primarily of the oral evidence of T. 6 J’s evidence consisted of oral testimony from himself, A (his wife and mother of T) and three alibi witnesses - two respecting his whereabouts from about noon on May 4, 2011 and a third respecting his whereabouts after 4:00 p.m. on February 24, 2011. 7 No notice of the alibi evidence was given to the Crown before the close of the Crown’s case on November 27, 2011. During the direct evidence of the first alibi witness, the Crown objected to the alibi evidence because of absence of notice. The Court dismissed Crown’s motion, but granted the Crown a short adjournment to investigate the proposed alibi evidence. 8 At the end of the accused’s evidence, the Crown called three rebuttal witnesses respecting the alibi evidence. The Evidence T’s Evidence 9 T, born April [...], 1995, is a Grade 12 student who resided, at the time of the relevant events, with her parents J and A; her younger brother, aged 14 and sister, aged 12. Her father was arrested on May 17, 2011 and did not return to the family home. T remained in the family home until September 2011, when, because she was not getting along with A, she moved to her maternal grandparents’ home (with whom she continues to reside). 10 All of the events related to these charges occurred at the family home situate in a small community in central Nova Scotia. It is a split-entry residence. The finished upstairs includes the front room, kitchen, the only bathroom in the home, and two bedrooms occupied by T’s younger siblings. Downstairs consists of a large open space with a washer and dryer, and two bedrooms; T’s bedroom and her parent’s adjacent bedroom. Counts #2 and #3 - February 24, 2011 11 T testified first about the events of February 24, 2011. 12 She was in her bedroom. J called her into his bedroom where he was lying on the bed watching a movie on television. When she was at his bedroom door, he told her to come in and watch tv with him. He told her to get on the bed; she tried to stay as far away as she could. He grabbed her and pulled her to him. 13 They watched tv for a few minutes and he put his hands on her. He pulled her pants down then touched and rubbed her vagina. He pulled her over to the edge of the bed; took her pants off; stood on the floor by the side of the bed; pulled out a bag of condoms and put one on so as not to make a mess. As he started to penetrate her vagina, she tried to push herself back and he told her to let go. She was scared. He penetrated her vagina. 14 When he had finished, she got dressed, went back to her bedroom and locked her bedroom door. She heard J go upstairs to the bathroom. 15 T had a very active online friendship with CM. Her testimony, supported by documents tendered by both parties, reveals that CM and T were very close, and shared their private lives, thoughts and feelings on everything, on an almost-daily basis. Immediately after entering her bedroom and locking her door, T texted on MSN with CM using her I-pod. She was crying. 16 T testified that CM asked why she was crying. T knew that CM’s brother had the password to CM’s MSN account and might see any messages. She did not want anyone other than CM to know what had happened. She therefore sent her a private message via Facebook. This was about 15 minutes after she had left her father’s bedroom. 17 T testified that her father came back downstairs and gave her $120 for a planned weekend visit with her cousin K; he then left. A half hour later he called and asked if she was hungry. He returned with food for the children. 18 T testified that she was sure that her mother was not home at the time of the forced sexual intercourse, and believed she may have been at a gym with her good friend, SVJ. 19 T then repeated, in considerable detail, the incident with her father and her communications with CM. T was unable to remember the date that J raped her. She relied on the date on the Facebook message to CM, Exhibit 2,recovered by her and provided to the police officer on May 17, 2011. She further recalled that she had spent the weekend with her cousin K, shortly after the incident, but before March 7. Count #4 - Two Weeks Later 20 The Crown asked T to describe any incidents after February 24. T next described what constitutes Count #4. 21 T was sitting upstairs in the front room with her siblings about two weeks after February 24. Her father came in and sat beside her. He asked her to get him his Sunjing oil; she told him to get it himself. He went to his room to look and yelled up to her that it was not there; she ignored him. Her younger sister said she would go find it. T did not want her younger sister to go, so she looked for and found it in the bathroom cabinet. She took it downstairs to J’s bedroom, threw it at him and turned to leave. He said he could not rub his own back. She did not want him angry at her. He took his shirt off and lay on his stomach on the bed; she got on her knees and rubbed his back. 22 She described the incident in detail. She described how he touched her on her vagina with his hands. While she was rubbing the oil on his back and he was touching her in a sexual manner, she was using her free hand to message her friend CM on MSN. She rubbed him with her left hand and was texting with her right hand. Count #5 - May 4, 2011 23 T was asked if any other incidents occurred after February 24. She answered one more. The date was May 4, 2011. She slept in and missed school. About half way through the day she heard her dad outside with friends; then he came inside and was on the couch upstairs watching tv. T had to go to the bathroom; J heard her going to the bathroom and asked who it was. When she finished using the bathroom, she went back to her bedroom. 24 Half an hour later, J left. She went upstairs to the bathroom to clean her goldfish bowl. When she came back downstairs, she spilled water on the steps. When she left her bedroom to clean it and returned to her room, she forgot to close her door. Her father returned an hour later. T stated that she did not notice until it was too late that she had not closed her door. She was playing in her bedroom with an “app”. Her father asked what she was doing and she showed him; they had a conversation. 25 He got under the blanket on her bed; pulled his pants down and put his hand on his own penis. She was fully dressed and he undressed her, throwing her clothes all over the room. He touched her sexually with his hands. He put her hand on his penis. He did this a lot. When he was done, he said they were going out to get something to eat for lunch. They went to a take-out restaurant across from the local police department. He had pizza; she had a pop. He then drove her home; before he left, he gave her a strawberry milkshake in a bottle. 26 T then wrote a note to herself, which she intended to either send or relay to her on-line friend CM. 27 When her mother came home there was an argument about why she was not in school. She said no one else was home except her and her father when she went up to clean the goldfish bowl and spilled the water. She then repeated again in detail the May 4 incident with her father. Count #1 - April 2008 to February 24, 2011 28 Finally she was asked if anything had happened before the incident of February 24, 2011. She replied: Yes, lots of time. The incidents had all blended together. They started when she was about 13 years old. 29 She remembered the first incident occurred when she got home from school; no one else was home. She was upstairs and J told her to watch tv with him. He told her not to tell anyone and she was scared. On that occasion, he touched her vagina with his hands and licked her nipples; she touched his penis with her hand and put it in her mouth. 30 While she said these events happened a lot, there was no pattern to them, and they did not happen every day. She described how she shared an upstairs bedroom with her sister until she turned 14 when she got her own room downstairs. 31 Other than her friend CM, the first time she told anyone about the incidents between herself and her father, was her friend SSL on May 16, 2011. 32 T gave the police a statement on May 17, 2011. She returned to the RCMP detachment and gave a sworn videotaped (KGB) statement on May 22, 2011. 33 In November 2012 she reviewed her statement at the police station. She was asked if she remembered anything differently. She made one minor correction to her earlier statement. 34 T was asked when on February 24, 2011 the rape occurred. She stated that she came home from school about 3:45; her contact with J would have occurred a little after that. She communicated with CM immediately after returning to her bedroom and the Facebook message was about 15 minutes after she returned to her bedroom. Cross-Examination 35 T was cross-examined for about one day. 36 She was first cross-examined about Exhibit 3, a note written by T for communication to or delivery to CM. The note, dated May 4, describes the events of J’s sexual touching of the same day and was provided to the police on May 18. J’s counsel produced as Exhibits 4 and 5 earlier drafts of Exhibit 3 which T’s mother (A) had found crumpled up in the waste basket in T’s bedroom shortly after May 17, and had delivered to J’s counsel. J’s counsel challenged T on why she wrote three versions of the May 4 incident and suggested they represented efforts to make up (fabricate) a better story. 37 T’s credibility was not brought into doubt by the fact that she rewrote her description of the incident at least three times. The notes are not inconsistent. The notes themselves are not evidence of the truth of their contents. How T responded to cross-examination on the three notes was used by the court for assessing the credibility of T. 38 J’s counsel tendered schematic outlines listing events as they unfolded on May 16, 17 and 18. These outlines, marked Exhibits 6, 7 and 8, were also found in T’s bedroom by T’s mother and delivered to J’s counsel after May 17. T was asked about them. These outlines show the sequence of events beginning on May 16 with T’s revelation to a guidance counsellor of her allegations against her father. Defence Counsel suggested to T that the outlines represent T’s staging of an untrue story. 39 T testified that the outlines were prepared by her to assist her to remember the sequence of events as they unfolded on May 16, 17 and 18. Her credibility was not brought into doubt by her straightforward responses to this cross-examination. 40 J’s Counsel tendered as Exhibit 9, and T was shown a Facebook message to T from SVJ, posted at 10:16 p.m. on February 25, 2011, in which SVJ asked the name of A’s hairdresser so that she could get A a gift card for her birthday. Initially T did not remember receiving the message but recalled calling SVJ to tell her who her mother’s hairdresser was. (This message became a part of J’s alibi evidence for February 24 and is dealt with later in this decision.) 41 In preparation for her evidence, T acknowledged receiving her police statement and confirming with CM what T had given in her statement to the police of May 17, 2011. She further acknowledged that CM had previously disclosed to her that CM had been sexually assaulted. 42 T was asked and replied that she always told CM the truth, then qualified it by saying that she sometimes would not tell CM something because CM would overreact. At this point J’s Counsel produced Exhibits 10 and 11, parts of logs of T’s text messages of June 19, 22 and 23, 2011. These messages had been downloaded and printed by A, and delivered to J’s counsel. 43 J’s Counsel suggested that the substance of portions of the text messages contained admissions by T that she was a liar. T explained the passages to which J’s counsel directed her attention. Her credibility was not diminished by the manner in which she explained the passages to which she was referred. 44 T denied making the allegations against her father because her mother and father were not getting along. At one point she responded that her father always took T’s side in disputes between T and A. 45 T was asked if she was upset at her father for giving her a car on April [...], 2011, when she turned 16, and then taking it back from her. Her answers regarding the gift and the subsequent use of the car by her parents did not disclose any motive for T to lie. T was asked whether her father had sold other gifts given to her. She acknowledged that her father had once sold her bike, and she had been upset at the time. 46 T was cross-examined and acknowledged that CM had previously disclosed to T that she had been sexually assaulted, and that she was aware that another friend “S” had been assaulted by her brother; she could not remember the particulars. 47 She recounted the circumstances of May 17 that lead her to accompany her friend to see the school counsellor. She reiterated that she had no intention of discussing what had happened to her. When she did discuss the matter with the counsellor, she had no knowledge that there would be criminal consequences to J. 48 T was shown Exhibit 12, four pages from a small notebook dated May 17 and 18, 2011. She acknowledged that the counsellor had given her the small green book to keep notes and she was trying to keep things current. On the third page there is reference to “Dad going to prison for 10 years.” She acknowledged that someone had told her during the interview with the police, when she asked what could happen to her dad, that he could be imprisoned for up to 10 years. 49 T was examined about the dates of the alleged offenses. When asked whether she always told CM everything, she replied that she did not tell about her father’s sexual assaults until long after they had started happening. Her code word for her father was “purple popsicle” and when she used this word in MSN messages, CM knew that she was talking about yet another incident with her father. She acknowledged that CM was her best friend and a person to whom she would confide. She did not confide everything to her until she felt comfortable and knew that CM would not judge her. This commenced after CM had told her what had happened to CM. 50 When shown by J’s Counsel Exhibit 13, a transcript of MSN messages from the evening of June 18, 2011, between T and CM, T gave an explanation about what was being communicated and repeated again that, on those occasions when she sometimes held back information, it was so that CM would not overreact. She acknowledged that on occasions she fought with CM. On one occasion CM deleted her as a Facebook friend, but this did not last. She confirmed that they were only online friends. At some point in or about June 2011, CM moved from Nova Scotia to[...]; however, they continued communicating as online friends. 51 J’s counsel examined T about each of T’s allegations. 52 The first sexual touching began when she was 13 years of age, after which her father regularly “touched her breasts and things like that.” When it was suggested that she first told CM about this on February 24, 2011, she said no she had told her before what was going on but it was a while after it had started. The word “purple popsicle” was the codeword by which she let CM know how often her father touched her. 53 J’s counsel asked T to confirm that the February 24 rape incident occurred 15 to 20 minutes before T sent Exhibit 2. T agreed that the rape ended 15 or 20 minutes before the Facebook message. She confirmed that the rape incident lasted not more than 20 minutes. She confirmed that it would not have started before 5:30 p.m. and that February 24 was a Thursday. She acknowledged that her younger brother and sister would have returned home from school but she did not know whether they were in the house (upstairs) or not. She did not remember hearing them. She testified that her siblings have friends and are usually at their friends’ homes. 54 She confirmed J’s counsel’s suggestions that her mother went to the gym, as this incident occurred before a trip that her mother and father, with SVJ and SVJ’s husband, took to [...] in March. Her mother was trying to lose weight for that trip. 55 She responded to J’s counsel’s questions about whether her father always came home straight after work with the statement: not always, but she would not say that it was rare that he came home after work. When asked about possible reasons why her father would not come home from work, T replied that he chose his friends over A. 56 T was again asked and repeated her description of the incident of February 24, 2011 with her father. 57 T was asked about the incident with Sunjing oil that occurred a few weeks after February 24. She acknowledged that she did not communicate with CM or write a note about this incident. She was asked and repeated, in detail, the particulars of this incident. 58 Similarly, T was asked and repeated the particulars of the third incident of May 4, 2011. Redirect 59 Crown counsel redirected T respecting several of the exhibits tendered to her by J’s counsel. T’s answers were consistent with her prior evidence and, in some cases, relayed details that made her evidence more plausible. 60 In each of T’s descriptions of sexual events with J, her evidence was internally consistent. Her answers were forthright, were responsive, were logical (plausible), and added to her credibility, and the reliability of her evidence. All of T’s evidence was logical and conformed with common sense. While demeanor is a tool for assessing credibility, it is one that must be used with caution. J’s Counsel confronted T with exhibits to suggest inconsistencies in her evidence and directed T to events that might suggest motives for T to lie. T’s replies consistently negated inconsistency or that any of the events that might give a motive to fabricate her evidence influenced her evidence. 61 One statement, of many small exchanges between T and both counsel, that demonstrated her reluctance to accuse her father and added to her credibility, occurred early in direct examination when Crown Counsel wanted T to identify Exhibit 2. It was the Facebook message of February 24 to CM. Counsel said: “Could we have the Exhibits? Let me show you Exhibit 2.” T said in a low voice and showing genuine distress: “I don’t want to do this.” Similarly, in a passage put to T by J’s Counsel from one of the MSN messages (Exhibit 11), T texted: “everyone in the house was crying at the same time and it wouldn’t have happened if I just fucking kept my mouth shut.” 62 One example of T’s attitude toward J is found in SVJ’s direct evidence. SVJ spent an hour with T in T’s bedroom after she returned from the police interview on May 17, 2011. After T had told SVJ about ‘the stuff’ that took place with J, SVJ told T that maybe she (SVJ) should not refer to J as her father. SVJ testified that T replied: ‘he’ll always be my dad’. Defence Evidence Defence Witness #1: JCH 63 JCH was the first defence witness. In May 2011 he was the Director of Finance for the business of which J was a manager. He testified that a meeting of those responsible for the business was attended by J and JCH on Tuesday, May 3, 2011; at the meeting, several issues respecting the area of J’s responsibilities were discussed and not resolved. 64 As a result, the next morning, Wednesday, May 4, 2011, J met JCH in JCH’s office between 10:00 and 10:30 a.m. Their meeting ended at noon, at which time they left together (without any others) to a nearby diner for lunch. They returned to the office at 1:15 p.m. Each went to their own office and JCH did not see J thereafter on May 4. 65 JCH said that they spoke with the front desk receptionist when leaving for lunch and when returning after lunch. The front desk receptionist kept a written log of the time when all employees entered and left the building. 66 At the end of JCH’s direct evidence, the Crown objected to the fact that JCH’s evidence was alibi evidence, and had not been previously disclosed to the Crown. T had testified that the incident of May 4 had occurred close to noon on May 4. 67 During argument on the Crown’s objection, it became apparent that J intended to call other alibi witnesses regarding the allegations of February 24 and May 4. The Court ruled that it would not exclude the defendant’s alibi evidence but that its non-disclosure would be taken into account in determining what weight, if any, would to be given to it. The Crown requested, and the Court granted a short adjournment, for the Crown to investigate the proposed alibi evidence. 68 Twelve days later, on December 11, the trial resumed and JCH was cross-examined. He was shown a letter he wrote at J’s request on July 29, 2011: “To Whom It May Concern.”, and delivered to J’s Counsel (Exhibit 14). It reads (with the Court’s editing to protect the identity of the victim): Please be advised that on the date of May 4, 2011, that [J] was present at his employment office located at [business office] from approximately 9am till 4pm with the exception of lunch from 12:15 pm to 1:30 pm where he accompanied myself and [the business’s] legal council [sic,counsel] as well as a number of [officers] at [xxxxx] Diner located in [xxxxx]. 69 JCH prepared this letter himself. He stated that the letter was in error. The lunch he was referring to in the letter occurred on May 3; however, he and J alone did go to the same diner for lunch on May 4. JCH stated that his statement that J was in his office from approximately 9:00 a.m. to 4:00 p.m. was a reference to Wednesday, May 4. He was positive that he saw J at 4:00 p.m. on May 4 in the business office building. 70 The Court notes that, on November 27 in direct examination, JCH testified that he did not see J after 1:15 p.m. on May 4. 71 JCH was shown Exhibit 15, a letter dated June 27, 2011, by SLJ, the front desk receptionist (and second proposed defence alibi witness for May 4), also addressed: “To whom it may Concern,” which letter reads: “On May 4, 2011, [J] started work at 8:00 a.m. to 4:00 p.m. I then saw [J] go to lunch with JCH at 12:00 p.m. to 1:30 p.m.” 72 JCH was asked whether he prepared that letter and asked SLJ to sign it. His response was vague and given with hesitation. He eventually indicated that he did not recall whether he wrote it or not. 73 JCH was asked about SLJ’s job. He testified that she sat at the front desk and kept a log book of when everyone arrived and left the building. He was shown a copy of the log record from the front desk for May 4, 2011 (Exhibit 16). It had been obtained by the Crown during the adjournment after November 27. The log record is not consistent with JCH’s evidence. For JCH and J it shows: Employee Time In - A.M. Time out - A.M. [other staff members] JCH 7:00 [other staff members] J 8:00 (out 11:04 sick) ⇨ out Employee Time In - P.M. Time out - P.M. [other staff members] JCH out 3:55 [other staff members] J ⇨ out 74 Despite the contents of the log record, JCH stated that he went to lunch with J on May 4 from 12:00 to 1:15 p.m. 75 JCH confirmed that his employment as Director of Finance with the business ended in February 2012 as a result of a “few disagreements” and allegations of impropriety against him respecting a loan from the business. 76 JCH was reminded that on November 27 he had testified to seeing SLJ when he left for lunch and returned from lunch on May 4. When shown SLJ’s log record on May 4, which had no record of his leaving for lunch or returning from lunch, he did not recall 100% if she was there either when he left or returned. He did recall seeing her when he arrived in the morning and says that he would have been advised if she was not at work that day. 77 When asked if he was absolutely sure that he had a meeting with J in the morning, he said yes. When asked if he was absolutely sure if he saw J at 4:00 p.m. that afternoon, he said that he went to J’s office regarding some missing documents in the afternoon. This is a direct contradiction to his evidence of November 27 when he said he did not see J after returning from lunch at 1:15 p.m. 78 When referred to his July 29, 2011, statement (Exhibit 14) respecting J’s presence in the office from 9:00 a.m. to 4:00 p.m., he acknowledged that he had not been in his presence the entire time. Defence Witness #2: SVJ 79 SVJ is married to SJJ, J’s best friend. She has known J for 16 years and A for 12 years, but has known A ‘better’ for only the last four years. 80 She testified that A was with her on May 17 at J’s home when T returned home from the police station. A and T sat on the couch and talked. Later the police arrived and asked T for a letter that T could not find and said she would give to them the next day. When A went to the police station, SVJ went downstairs to T’s bedroom and talked with her for about an hour. SVJ told T that the same thing that happened to T had happened to her as a child. T told her all the “stuff” that had happened. SVJ then told T that SVJ should not have referred to J as her dad, to which T replied: “He will always be my dad.” She stated she found it unusual that T showed no emotion in relating what her father had done, as SVJ still got upset about what had happened to her. 81 SVJ testified that she remembered February 24, 2011, because every Thursday, she and A went to the [...] at a gym in the neighbouring community in an effort to lose weight for a vacation trip they were taking with their husbands in March. It was the only night she missed going to the “[...]” She had arrived home from work and was making a macaroni pasta. J arrived between 4:00 and 4:30 p.m. When asked why he came to her home that day, she replied that he came almost every day; he was best friends with her husband. She recalled J eating supper with her family. Between 6:30 and 7:00 J and SJJ left in J’s truck, and she left right after them. 82 When J was at her home, she asked him who A’s hairdresser was so she could get A a gift certificate from the hairdresser for her birthday. J said he did not know and she would have to ask T. 83 SVJ identified Exhibit 9, a message she sent to T on Facebook on February 25, 2011. It read: hi [T] how r ya? i was just wonderin what the ladys name / number that does your moms hair i have no idea what to get her for her bday so i think ill get her a gift card fr there thanks 84 When asked why she sent the Facebook message the next day she said that she left her home right after J and SJJ left; came home later and went right to bed because she had to be to work early the next morning. When asked if she saw J after he and SJJ left, she said she saw J drop SJJ off at their home between 9:00 and 9:30 p.m. that night. 85 SVJ was cross-examined. 86 While she knew T about four years, she was not very familiar with her. She had only once had a conversation with her. 87 She did not know if what T said about J bothered T because T “did not shed a tear.” This was unusual as she had seen T get mad at her mother and father, and had seen tears before. 88 SVJ explained that, while A attended the “[...]” on February 24, she did not because she had made plans before February 24 (but was not sure when) to meet a friend for coffee at a Tim Horton’s near the gym. She said the reason she arranged to meet a friend at Tim Hortons was because she did not feel like going to the gym, and she had to be at work early the next morning. She did not tell A before that day that she had made other plans, but A called her that day and asked if she was going, and SVJ told her no. Normally SVJ and A went together first to the gym, then to supper, then back to the gym, and were home between 9:00 and 9:30 p.m. 89 On February 24, she arrived at the Tim Horton’s between 7:00 and 7:30 and stayed for about an hour or so. She was home by 8:30 p.m. 90 She recalled that J had brought from his [...] two Red Bulls or “G2's” when he came to her home that evening. 91 She sent T the Facebook message on February 25 because she did not know T’s phone number until the next day. 92 On February 26, on a break at her employment at about 10:00 a.m., SVJ called T, who SVJ said was in school, to get the information about A’s hairdresser. 93 SVJ was questioned about when she arrived home on the evening of February 24 and said by 8:30 p.m. She was up when her husband and J returned. She looked at the clock when J and SJJ arrived home and recalled that the time was 12 minutes past nine. She acknowledged giving a statement to the police a few days before her evidence (given on December 11, 2012) in which she said that SJJ arrived home between 9:30 and 10:00 p.m. She then said that the time she looked at the clock was when they drove in the driveway and they talked in the truck for about a half hour. 94 She was asked why she did not contact T on the night of February 24 and replied rather vaguely that she had other plans and then went to bed. 95 She believed that she sent the Facebook message to T in the evening of February 25, but was not sure of the exact time. 96 The Court had trouble with several aspects of SVJ’s evidence. Her explanation as to why she waited 24 hours after J told her that she would have to ask T, before contacting T for the name of A’s hairdresser, and her evidence as to her contact with T, was not plausible both as to content and the demeanor in which it was given. 97 I was particularly troubled by the fact that if, as SVJ says, SVJ waited a day until the evening of February 25 to send the message to T; it would have been Friday evening. When she claims to have phoned T at school the next day, she is in fact saying that T was in school on Saturday morning (February 26, 2011). Not likely. 98 SVJ’s answers as to when she made the arrangement for coffee at Tim Hortons - some time before February 24, did not jive with her direct evidence that she did not recall when she made the Tim Hortons plan, and that she did not go to the “[...]” that night because she was tired and did not feel like going. Her evidence as to the phone call with A on February 24, during which she told A that she was not going to the gym is inconsistent with the evidence of A, who said that there was no phone call. 99 I had difficulty with SVJ’s certainty about the events of February 24, when J is at her home almost every day. Defence Witness #3: A - Direct Examination 100 A met J while they were in high school; they have been together for 20 years. They have three children: T, aged 17, and two others, aged 14 and 12. T has lived with A’s parents in a community about 30 km away since September 2011, when T got into an argument with A. A lives in the matrimonial home with the two younger children. A and J own a [...] together, which A runs on a day-to-day basis; she is usually home from work when the children get off the bus from school. 101 On May 17, 2011, the police came to the [...] and asked where they could find J. She learned he was being arrested and went home. Hours later the police brought T home. After the police were satisfied that T was okay, they left. 102 A tried to talk to T about what was going on but T did not want to talk about it. Later that evening the police called and A went to the police detachment. 103 T would not say much about the allegations to A but, at one point, A states that T replied to her questioning about what happened with words to the effect: “What if it did not happen? What if I am just crazy?” When A asked T to go to counselling, T refused saying she was not crazy and did not need therapy. 104 A stated that her relationship with T was not very good after May 17; everyone was stressed. T refused to listen and had the attitude that she could come and go as she pleased. At this point, A’s mom offered to have T live with her. 105 A stated that in the six months before May 17, things were “touch and go” between T and A. T was always late for school. It was difficult to discipline T because she never went anywhere; she just stayed in her room on the phone or her laptop. In contrast with her ability to discipline the children, A stated that when J disciplined the children, they all listened. 106 A did not recall anything “standing out” between T and A before May 17. 107 One morning T and A were arguing, “as we did quite often,” about T being late for the bus. T was in the bathroom; J went into the bathroom and asked T why she was arguing with A. T called her mother a “bitch” and A heard J slap T. It is suggested that this might be a motive for T making the allegations against J. 108 A stated that A, J, SVJ and SJJ were leaving for [...] in a month and she asked, “How are my parents going to deal with them [the kids] if we can’t?” T was upset and went to her room. 109 To get ready for the vacation trip, A and SVJ joined a “[...]” held every Thursday night from 5:00 until 9:00 at a nearby gym. A missed the third last week and SVJ missed the second last week. They did go on the [...] trip together on March 27. 110 A is now aware of the allegations against J; before May 17, A never saw J touch T inappropriately and T never said anything to that effect. 111 On May 17, A became aware of the allegations against J and some of the dates of these allegations, including the dates of May 4 and February 24. 112 A recalled getting into a big fight with J about T not going to school on May 4. She did not know that T had skipped school until after 4:00 p.m., when she did not arrive home on the bus. A had contacted the school and eventually knocked on T’s bedroom door. T answered the door and explained that she had missed the bus; had called J at work but he was too busy so she just stayed home. She did not call A because A would get mad at her. 113 A said that she fought with J about T not being in school on May 4, first by texting him and, later that night, when he got home. She was not sure when J got home but it was after she went to bed. She usually goes to bed at 10:00 p.m. 114 She noticed nothing unusual about T’s demeanour on May 4 when she spoke to her that afternoon. 115 A recalled February 24, a Thursday, was the second last day of her “[...].” She went to the gym. SVJ was not there. A did not know where she was. [This evidence is contrary to SVJ’s evidence that A called SVJ before she went to the gym and SVJ told her that she was not going to gym that evening.] When she left home at her normal 5:00 p.m. time on February 24, the three children were there but not J. She did not recall if the children had eaten supper. She normally leaves at 5:00 for the gym; gets weighed in; goes for supper and then returns for the class at 7:00 p.m. It ends about 8:30 and she is home about 9:00 p.m. When she got home, everyone was home except J. 116 April [...] was T’s 16th birthday. A and J had bought her a car for birthday. T was not to get it until she had obtained her beginner’s license. The car had been purchased and stored secretly at another location. 117 A was in a car accident before T’s birthday and needed a vehicle, so she ended up driving the vehicle purchased for T. The cost of the maintenance of that car turned out to be so high that she and J decided to sell it and get a more affordable car. The car purchased for T’s birthday is still for sale. 118 A said that T was upset that they were selling her present. A stated that J had sold two other of T’s presents - a prepaid cell phone and a miniature dirt bike. T had not been pleased with either of these events. It is suggested that this may be a motive for T’s allegations. 119 A testified that she found Exhibit 4 crumpled by the garbage in T’s bedroom a few days after May 17. A recalled a police officer asking T about a letter when T was dropped off on May 17. At the time, T had gone downstairs then returned to tell the officer she could not find it but would bring it in the next morning. The next morning A was in T’s room and noticed a lined paper and pencil on her bed. 120 A testified she found Exhibit 4 a few days later. She also found Exhibit 5, another of the crumpled up notes in T’s bedroom, behind the garbage bag. She found Exhibits 6, 7 and 8, crumpled up together in the garbage bag in T’s bedroom. She gave all of these exhibits to J’s lawyer. Similarly, she found and copied Exhibits 10, 11 and 13, some of T’s MSN conversations, which she provided to J’s lawyer. Finally, she found crumpled up in T’s bedroom, and provided to J’s lawyer, the papers which were marked as Exhibit 12. 121 A had never met or spoken to CM. When asked if she knew if T had met CM, she replied, not to her knowledge. 122 She repeated that T frequently stayed in her room and did not go many places. Periodically she stayed with a friend in a nearby community and a cousin in the next county. Her parents transported T when she visited her cousin. J was always too busy to drive her. 123 T’s trips to her cousin’s were usually for the weekend. J or A would give T money for gas and spending money for these weekend trips. A’s Cross-Examination 124 A was asked who was at her home on May 17 when the police brought T home. She believed her mother and SVJ were there. SVJ came after A had arrived home and stayed two nights. At some point both A’s parents showed up. 125 A was cross-examined as to the incident in which T called A “bitch.” She said it was around February 24. When asked how she knew the time when this incident occurred, she stated first it was about a month before she went away and it was in the last week before the “[...]” ended. In the end, A stated she did not know the exact date. 126 With respect to SVJ not attending the “[...]” on February 24, and SVJ’s evidence that A was aware because of a phone call, A repeated she was not aware that SVJ would not be there and she could not have called SVJ because she did not have her phone with her. She repeated that all three children were at home when she left. She left at 5:00 p.m. every Thursday night, so she assumes that she left at 5:00 this night. She would not have left if all of the children were not there. 127 A stated that J was not there because he was never home; he always went to the home of his friend’s SJJ. She said she knew he was there because he always went there - every day, or pretty much every day. 128 When asked how it was that she came to find Exhibits 4 to 8, A stated she was not snooping but rather cleaning. She stated the bedroom door was locked but she had a key; T would probably know that she would be cleaning the room. A did not tell T about what she had found or that she had not taken them to the police but rather had given them to J’s lawyer. When asked why she did not turn the papers she found in T’s room over to the police she replied that she did not know what they had to do with them. 129 A acknowledged looking for, finding and copying some of T’s MSN communications after May 17. A stated she did not read T’s MSN’s messages before May 17. 130 A acknowledged that J was T’s biological father. 131 She acknowledged that between January and May 2011 she and J were using condoms that were kept in the bedroom in a jewellery box on the night table on his side of the bed. Defence Witness #4: SLJ 132 SLJ has been the front desk receptionist at the business where J works for 21 years. Her work station is just inside the front entrance to the building. Her duties include: signing employees and guests into and out of the building; answering the phone; faxing and photocopying. Thirty-five to forty persons work in the building. 133 She has known J all her life and JCH for the few years that he worked in the building. 134 One of J’s responsibilities was to pay the wages of thirty-seven outside workers associated with the business. In May 2011, they were paid biweekly on Wednesdays. 135 She signed Exhibit 15, a letter dated June 27, 2011, which reads: To whom it may Concern: On May 4, 2011, J started work at 8:00 a.m. to 4:00 p.m. I then saw J go to lunch with JH at 12:00 p.m. to 1:30 p.m. If you have any questions or concerns please feel free to contact me at [phone number]. SLJ 136 She testified that JCH prepared it as she does not have a computer. 137 She recalled May 4 because it was a hectic day with upset outside workers looking for their pay. On this particular occasion, the outside workers were paid two days later (on Friday). She recalled that J and JCH worked that day. She saw J go to lunch with JCH. When they returned, JCH was teasing J about how messy J’s truck was. They were standing in front of her desk at this time. 138 She was shown Exhibit 16, her log record, obtained by the police from her employer during the adjournment of the trial. 139 She was interviewed by the police on December 10 (her trial evidence was given December 11) and shown the log record. The log record contained the names of employees in the left column with four columns opposite each name headed: Time In - A.M.; Time Out - A.M.; Time In - P.M.; Time Out - P.M. 140 On May 4, she made the entries on the log as employees entered and left. If she is not there, other staff will write their own information in the log. 141 On the log record for May 4, opposite her name, is typed: “Out Medical Reasons” in all four columns. These typed words are crossed out. In the space for Time In - A.M., it shows that she arrived at 8:10. Time Out - A.M. is blank. Time In - P.M. shows 1:10 and Time Out - P.M. shows 4:00. 142 She testified she was scheduled to be off for a medical appointment that day but cancelled it and came to work. She marked herself in on the log sheets. 143 She made the entries for J. Under the column Time In - A.M. she wrote: “8:00 (out 11:04 sick)”. Under the column Time Out - A.M. she wrote: “out”; under the column Time In - P.M. she wrote: “out”, and under the column Time Out - P.M. she wrote: “out”. 144 She explained that when J was overwhelmed, as he was that day because of the problem getting the information necessary to prepare the outside workers’ pay cheques, she wrote in the log that he was out sick when in fact he was there and did not want to be bothered. 145 Her direct testimony was brief. Her cross-examination took more than an hour. 146 On cross-examination she acknowledged that the outside workers’ pay cheques were not delivered on May 4 but two or three days later. She described the process for payment of cheques as: first; JCH approved them; then an employee in the finance department prepared the cheques and delivered them to SLJ, and then J delivered them to the workers. 147 When she was directed to her entry in the log showing that she signed J out sick at 11:04, she stated that she would write that if he asked her to. She said that all the other entries in the log were true. She acknowledged that the human resources (HR) department used the log records to track who was sick. If the person was out sick, it would be reflected in his or her pay. She stated that she was told by her bosses that she could make an entry that someone was out sick, who was not in fact out. But when asked to identify who and the circumstances, her answers were evasive. 148 Her oral evidence respecting the letter she signed on June 27 (Exhibit 15), which says that J worked from 8:00 a.m. to 4:00 p.m., was evasive. In the end she said J told her when he was working. At one point she said that he did not feel well. She did not remember the hours he worked on May 3 or May 5. She remembers May 4 because it was busy day; every Wednesday was a busy day because it was pay day for the outside workers. 149 SLJ was asked about a statement she gave to the police the day before her trial evidence. She was asked if she had told the police that she could not remember what day she was referring to in Exhibit 15. She acknowledged uncertainty about the date, and whether J was at work all day. Her answers were vague. 150 She agreed that she had not told the police officer on December 10 that she would write in the log that the person was off sick when they were really at work. 151 She acknowledged that she had told the police officer that she thought her log record (Exhibit 16) would confirm the times in the June 27, 2011, letter that she signed. She assumed the June 27 letter was correct. She had not checked the log when she signed the letter. She denied that JCH had told her the times in the June 27 letter. 152 When asked whether she had told the truth to the police officer on December 10 she replied yes. 153 Her answers at this point of the cross-examination were inconsistent with her prior evidence, vague, and evasive. She was not credible or reliable. 154 She testified during cross-examination that the statement she made to the officer on December 10, to the effect that she “lived by her log book” and its contents were true, was true. The exception was that if her bosses told her to write in that someone was sick when in fact they were not, she would do so. 155 SLJ ’s explanation to the Court as to why her log did not confirm her direct evidence and June 27 letter, left the Court with no doubt that the log record, a business record prepared by SLJ , was correct. SLJ’s trial evidence, as well as that of JCH, was false. 156 JCH’s and SJ ’s letters were prepared for the purpose of providing an alibi for J which, I find, she and JCH knew were not correct. Their evidence that J was at work all day on May 4, and at lunch with JCH at the time that T says J was home with her, is not credible, and not believed. 157 It is not plausible that, if she entered in the log that J was out sick when in fact he was at work, she would write in the log that he was out sick at 11:04, as opposed to, for example, 11:00; especially if the time that she was told by J to mark him as ‘out’ was at about 9:30 a.m. (as J testified). It is not plausible that she would not mark in the log the time when J and JCH left for lunch and returned from lunch, if she was at her desk when they left and/or returned. 158 The evidence of each of SLJ , JCH and J, with respect to their respective activities on May 4, was internally inconsistent, inconsistent with each other, and contrary to the log (which I believe to have been truthfully completed by SLJ ), and contrary to common sense. Defence Witness #5 - J - Direct Examination 159 J testified. He is the father of T. He has resided separately from his family since May 17, 2011. 160 J continues in the same employment, as before May 17. He described his job and, in particular, his responsibility for the 37 outside workers. He usually received information from a contractor respecting the work carried out by the outside workers on Tuesday and would be in a position to calculate their wages and deductions by Wednesday. The finance department would sign off on his work and issue the cheques for delivery by J to the workers. 161 The outside workers would get very upset if they were not paid on time. They would go over his head and, on occasion, had become physically violent. This caused him stress as he was not permitted to defend himself. 162 On Wednesday, May 4, he was at work at 8:00 in the morning. He was in a meeting with the head of the business, JFS, when SLJ buzzed up that J was in demand. J stated that JFS told her to tell those looking for cheques that J was out. 163 At a formal business meeting on May 3, JCH had proposed that the business increase the fees charged to outside contractors with respect to the business managed by J. J opposed this proposal. He met with JCH on the morning of May 4 from about 10:00 a.m. until noon to discuss the issue further. At 12:05 J invited JCH to go to lunch with him at the diner where he usually ate his lunch. They returned to work at 1:20. 164 When he returned, he contacted the outside contractor to get the information he needed to calculate the workers’ wages. He completed his calculations by 3:20 p.m., and delivered his work to the finance office for approval and preparation of cheques. He finished his work and left the building between 3:50 and 4:00 p.m. 165 He did not go home. He went to his [...] , bought ‘G2s’ and went to the home of his best friend SJJ. 166 His only contact with T on May 4 was when she called him between 8:30 and 9:00 a.m. to tell him she had missed the bus; he told her he was busy and to call her mother to get a ride to school. He was aware that A had not taken T to school when he received a text from A at about 4:30 blaming him for not helping. 167 J denied T’s allegations of inappropriate conduct on May 4, stating he was with JCH at lunch, when those events are alleged to have occurred. When asked whether he took T to the pizza place on May 4, he stated that he was not home that day. The pizza place is run by his friend JAS. JAS is J’s youngest daughter’s godfather. He testified that he had taken T to the pizza place but not on May 4. He went to JAS’s pizza place quite often. 168 J described the layout of his house. He noted that T and her younger sister shared a bedroom upstairs until T’s 15th birthday, when they built her a separate bedroom downstairs next to their own. J and A had used the dining room upstairs as their bedroom until they constructed their own bedroom downstairs about three years ago. 169 J denied T’s allegation that between 5:30 and 6:00 p.m. on Thursday, February 24, 2011, he had ‘done things’ her. He recalled that SJJ had asked him to take SJJ and six cartons of cigarettes to SJJ’s friend in Dartmouth. He worked all day, got six cartons of cigarettes from his [...], and arrived at SJJ’s home about 4:00 p.m. They “chilled” and watched tv. SVJ was making a macaroni casserole, which they ate for supper. J and SJJ left for Dartmouth at about 7:00 p.m.; dropped off the cigarettes with SJJ’s friend in Dartmouth at 7:30 p.m. and then got subs at a store before returning home. He said he got home around 10:00 p.m. 170 The only time he saw T on February 24 was in the morning. He got into an argument with T and “somewhat of a fight” because T was late for school and arguing with A. He slapped T on her face. He had never done this before and immediately regretted it. 171 J stated that the basic discipline of the children originated with A; he was the enforcer. It usually involved T going to her room or being denied access to the internet and her I-pod. 172 J did not force intercourse with T on February 24 or touch her other than the slap in the morning. He agreed that he had given her $120 to go to her cousin’s house, but he thought he had given her the money the next day, Friday (February 25). 173 On February 24, J was upset because he and A planned their first vacation in ten years - to [...] , and A was concerned that her mom would not be able to handle their kids if they acted like this. 174 J denied that he had left the home and brought back subs and chips for T and his two other children on February 24. 175 J was asked about T’s allegation of sexual misconduct on a date a few weeks after February 24, when T alleges that he asked her to rub oil on him in his bedroom, and touched her sexually. He denied that it happened. 176 J and A were back from [...] in time for T’s 16th birthday on April [...]hen she was 15, they had arranged for her to take her beginner’s driving license and had given her the driver’s handbook. Several months before her 16th birthday, they had purchased a used Audi for $3,200 and stored it at A’s mother’s home. 177 A had a car accident before T’s birthday and had to use the Audi. The cooling system had leaked, requiring repairs costing $1,630. Shortly after that, the Audi broke down again; the repair estimate was more than $1,600. J decided instead to sell the vehicle and buy a vehicle that was easier and cheaper to maintain. 178 J stated that, as on an earlier occasion when he had sold a “pocket bike” that had been gifted to T, T was angry when the Audi was put up to sale, even though she had not obtained her beginner’s license, and therefore could not drive the car anyway. 179 Respecting T’s allegations of inappropriate sexual touching in the three years before February 24, 2011, J simply testified that it did not happen. He testified that he worked every day from 8:00 a.m. to 4:00 p.m. and that he was not usually at home at the end of the home. Almost every day he was at SJJ’s house or playing cards. 180 J was asked if he knew JHM, a witness proposed to be called by the Crown in rebuttal. J said that JHM was the sister of his friend JAS. He knew her for 16 years. She had two young children and lived a few doors from his home. He knew that she helped at the pizza store, until she and JAS had a falling out. 181 He suggested that there was an issue between his own son and JHM’s son that escalated to the point where Children’s Services were involved. As a result, he said JHM did not like him. J’s Cross-Examination 182 J testified that being late with the pay cheques for outside workers, as occurred on May 4, 2011, was not unusual. On these occasions, the outside workers often threatened him. A month or so before May 4, JFS and the former HR person had told SLJ that she could tell workers that he was out, when in fact he was at work. 183 J was shown the entry in the log, made by SLJ on May 4 that J was “out 11:04 sick” and for the rest of the day. J said that he did not tell her that he was sick, he told her to say that he was out. This occurred between 9:00 and 9:20 in the morning, when SLJ called him and one of outside workers was at the front desk looking for his pay; J did not have the information to arrange for him to be paid. 184 J was asked for the names of the persons who were at work in the building that morning. He confirmed that JFS was one of them. 185 J stated that he spent the rest of the morning in his office alone, on the phone with the outside contractor and his associates trying to get the information he needed to prepare the pay cheques and pay records for the outside workers. 186 He identified the persons he saw at work in the morning of May 4. He stated that he was in JFS’s office at about 8:30 to 8:45 in the morning, before he told SLJ that he would not take any calls. He said JCH and another person (RA) were there at the same time. He later saw another co-worker and JCH. 187 He repeated that he went to lunch with JCH at five or ten past 12:00. SLJ was not at her desk when he and JCH left, but he saw her car parked in the front of the building and assumed she was in the area. When asked why he remembers seeing SLJ’s car out front on May 4, he replied that when one is accused, as he was two weeks later, ‘you think’ and run everything through your mind. 188 He remembers seeing his mother and father at the diner when he arrived with JCH; however, he sat at the table he always sits at and not with his parents. He recalls that he ordered what he ordered every time; he paid for his meal in cash. When asked if he was concerned about being seen in public by the upset outside workers, he answered no. 189 He gets one hour for lunch. He was late on May 4. He returned about 1:15 to 1:20 p.m. He believed that he texted to SLJ on her personal phone to say he was late. 190 J stated that the outside contractor was at his office by 2:00 p.m. on May 4 with the information he needed to calculate the payroll. He worked on the figures for about an hour and a half. He went to JCH’s office to get them approved, and then to the finance office where he placed his paperwork in a basket on a file cabinet in JAP’s cubicle. JAP would then process the cheques and put them in the envelopes; he would get them to the outside workers. He testified that, after he did his paperwork that afternoon, he saw JCH, JAP and a third person (RA) that afternoon. 191 The cheques were not prepared on May 4 and he notified SLJ that the paperwork was done and he hoped that the cheques would be ready as soon as possible. He then said he would have left for the day. He said that he saw SLJ when he left. 192 J was shown the entry in SLJ ’s log for May 4 respecting himself, JFS and JAP. The log record showed that JFS did not arrive in the office building until 11:45 and left for the day at 11:55. This is contrary with J’s evidence that he had a meeting with JFS, JCH and RA for about 15 minutes between 8:30 and 9:00 a.m. J said that SLJ must have made a mistake and that she had gotten in trouble before for making mistakes. 193 SLJ ’s log showed that JAP arrived at the office building at 8:25 a.m. but left for an outside location at 10:30 a.m. and was not in for the rest of the day. J’s reply was that JAP was constantly running out to the other location. Despite the log record showing that she was out for the rest of the day, J’s evidence was the SLJ log did not say JAP did not return to the building. 194 J’s explanation as to why the log record was not consistent with his evidence; was internally inconsistent; was inconsistent with the evidence of SLJ and JCH as well as inconsistent with the evidence as to how and why the log record was maintained. It made no sense. J’s explanation was not believed. Based on all the evidence respecting the maintenance of the log record, the Court does not believe J’s evidence that he was at work all day. 195 J acknowledged that he asked SLJ to write the letter of June 27, 2011 (Exhibit 15), which was given to his lawyer, but he said it was SLJ who remembered what happened. 196 J acknowledged that he asked JCH to write the letter of July 29, 2011 (Exhibit 14). When directed to the part of the letter where JCH says that the business’ legal counsel and board accompanied J and JCH to the diner on May 4, J stated that event occurred on May 3 not May 4. On May 4, it was only J and JCH. When directed to the part of the letter where JCH said that J was at the office from 9:00 a.m. to 4:00 p.m., and asked how JCH could know that, J replied that JCH came up with those hours himself. 197 J repeated that he left the office at 4:00 and went to the home of his best friend SJJ. He stopped at his [...] to pick up energy drinks, which were intended for him and SJJ. SJJ was usually physical fatigued (sore arms and legs). He had been diagnosed with MS eight years ago. 198 J acknowledged that he received a call on his cell phone from T on the morning of May 4. He said it was at about 8:30 a.m., when he was in the meeting with JFS. He says he was only in JFS’s office for 15 minutes at most. He said that he told T to call A. He denied texting A, but said that A did text him that day. 199 J agreed that T missed school on May 4. When the Crown suggested that the record showed that she was not in class and had been excused, he replied that he did not remember excusing her but it was possible. Exhibit 18 is a school record, admitted as to the truth of its contents, that shows that T was not in class on May 4, and was “excused by a parent/guardian.” 200 When asked whether JAS’s sister (later identified as JHM) worked at JAS’s pizza place, J replied that his whole family cooked there. J confirmed that he ate there often with one or more of his children. He had taken T there, “maybe 10 times total.” 201 J testified that he did take his children out but was only home alone with them “once in a while.” 202 J was aware that A and SVJ were on a diet program but he did not recall the night that they went to the “[...] .” When A went out, the kids looked after themselves, including their meals. He would sometimes buy them pizza, KFC, McDonalds, and subs but he denied ever buying his children Gatorade or chips. He did buy Gatorade or chips for his friend SJJ. 203 J stated that he was always somewhere other than home: SJJ’s home, the gym, playing poker a lot, movies, 4-wheeling, motorcycling or at the bars in Halifax with friends. 204 J recalled that he was at SJJ’s on February 24 because he and A had gone over the events together after his arrest on May 17 and, at that time, it was fresh in his mind. J stated that he was with SJJ five out of every seven days. J was sure that he arrived at SJJ’s home at 4:15 on February 24. He recalled SVJ’s macaroni casserole and leaving for the city with SJJ at 7:00 to be at SJJ’s friend’s home by 7:30; then he and SJJ went for something to eat. J then dropped SJJ off at his house, then he “probably gambled a bit - I gamble a lot” before going home. (In his direct evidence, J did not say he went gambling that night.) 205 He repeated that on the morning of February 24 he had slapped T in the bathroom, where she was doing her hair. He remembered the date because he had never hit any of his kids before; it was more painful for him and it stuck in his head. He had an argument with A that day and did not return home. He was upset that, because of the incident with T, he may lose the planned vacation to [...] . 206 J stated that on February 25 he gave T $120 for A’s father to drive T to her cousin’s home that weekend. He did not drive her because it would cost him more for gas for his truck to drive her than to pay A’s father to do it. He acknowledged that he had paid for the gas in his truck when he drove SJJ to the city the day before. 207 J had been in an accident before Christmas in 2010. In addition, at one time, he weighed 313 pounds. As a result, he frequently got cramps. A got Sunjing oil and used to rub it on his back, legs, shoulders and chest. 208 J acknowledged that T used to get mad at him when J sold things purchased for her. 209 J was aware that A would be home from work when the kids arrived from school, even if it meant calling her mom to work at their [...] early. A would take the kids with her when she went shopping. T would be away visiting family or friends every weekend. When T was younger she was bullied and they did not leave her at home alone. J said that their community was an unsavoury place. If A asked him to be there for the kids, he would be. 210 J stated that his office was a short two or three-minute drive from his home. Their [...], where A worked, was less than a five-minute drive in the opposite direction. SJJ’s home was in the same direction as, but closer to his home than, their [...]. 211 J acknowledged that he was the biological father of T and T had always lived with him, except for a year in the late ‘90s when J and A were separated. 212 J acknowledged that he and A had used condoms since their last child was born. He kept them in a jewellery box on top of his night table as well as in a shoe box under the night table. 213 J repeated that he saw SLJ upon his return from lunch on May 4. The only time he saw JCH in the afternoon was once at about 3:25 p.m. 214 As to the whole of J’s evidence, the Court noted that, when asked questions directly related to T, J responded with very little detail about T, or J and T. When asked a question about T, J would often go into detailed descriptions of unrelated events related to the relevant time-frames. J’s evidence was not believed. It was internally inconsistent, and inconsistent with other defence witnesses. His alibi evidence (which includes the alibi evidence given by the other defence witnesses) for February 24th and May 4th - his defence to three of the five counts, was disbelieved. His evidence with respect to each of the five counts was not believed. Nor did J’s disbelieved evidence leave the court with a reasonable doubt about the events described by T, which descriptions were believed. These descriptions established beyond a reasonable doubt each of the essential elements of the five counts. Crown Rebuttal Witness #1: JHM 215 JHM lives in the same community as J. She has known J a long time; she went to school with his sister. She knew T to see her but not personally. 216 JHM worked at her brother JAS’s pizza shop the entire month of May 2011, between five and seven days a week. She testified that J came to the pizza shop almost every day; she recalls that he came with T once. It was the first time she served the two of them. J got a donair and T got poutine. 217 She recalls it was a busy day; they had to wait for their food. During their wait, J spoke with her brother JAS. 218 JHM testified that she recalls that on that day she stepped outside to smoke some dope but an RCMP constable (PL) arrived just as she was about to start and a co-worker shouted a warning to her. 219 She testified that on the occasion J and T came to the pizza shop together; she had been training her nephew on the job. She, in direct evidence, estimated the time to be at the end of the April or “more towards the beginning of May.” 220 She has three children; one, aged 13, knew J’s son. The only issue between her and J was when their sons were five or six years’ old respectively; that situation had been dealt with. At the time she was upset but their sons have been very good friends for a long time and spend a lot of time together. She lives on J’s street. They are acquaintances but have no real relationship. 221 JHM was cross-examined about her memory for dates, including when she had seen J and T at the pizza shop. In particular, she was referred to a statement that she had given to the police since the adjournment of this trial on November 27, 2012. It appeared from her cross-examination that she was unable to recall times with any accuracy. She said the time that she saw J and T together at the pizza shop was definitely more than a year ago; she had not worked at the pizza shop since February 2012. 222 She acknowledged that T could have been to the pizza shop on other occasions when JHM was working in the kitchen in the back and did come to the front counter. She was certain that on the occasion she took the order from J and T that it was after lunch but before evening. 223 JHM’s evidence was not helpful. If it was intended to confirm that J took T to the pizza shop on May 4th, her evidence of the time that T and J were there was too vague to be relied upon. Crown Rebuttal Witness #2: Corporal PL 224 Corporal PL is a 27-year veteran of the RCMP. Exhibit 17 was identified by him as his shift schedule for the period April 7 to May 18, 2011. It shows, and he confirmed, what times he was scheduled to work and what times he did work. It shows that between April 25 and May 15, 2011, PL only worked two day shifts: on May 3 and May 4. With respect to his May 4, 2011 shift, PL testified that he worked from 8:00 a.m. to 5:00 p.m. 225 Because JHM’s evidence was so vague as to dates, PL’s evidence was of no value. Crown Rebuttal Witness #3: WJS 226 WJS has been the human resources officer for the business where J works for about three years. He has known J for much longer. 227 Exhibit 16 is a true copy of a portion of one of the daily time records (elsewhere referred to as the log record) of the business, kept by the business and stored in a locked cabinet under WJS’s control. He testified that Exhibit 16 is a true copy of the record for May 4, 2011, given by him to the RCMP a few days before his evidence. 228 The log record is maintained by the front desk receptionist, SLJ , as part of her duties. He gets the log book from the front desk receptionist when the log book is full. He uses the record made by the front desk receptionist to keep track of the time that all employees are at work and when they are away, either out, sick, or on vacation. He takes the information out of the log record and inputs it into the computer where he keeps employee records. He relies on the log book for employee work information. 229 When asked how he would treat the information in Exhibit 16 respecting the attendance of J on May 4, 2011, he replied that he would mark J as on a sick day. I conclude that he relied on the log record to do his job. 230 WJS denied that he had ever given instructions to the front desk receptionist (SLJ ) to mark an employee as ‘sick’ when he or she was at work. He also was not aware of any direction from anyone at the business that would allow SLJ to mark in the log that an employee as out, or sick, when they were in fact at work. 231 He reviewed the entries on the May 4 log record respecting J, JFS and JAP. J was in at 8:00 a.m. and out sick at 11:04 a.m.; he did not return. JFS was in only between 11:45 and 11:55 a.m.; he did not return. JAP was in at 8:25 and out, at another location, at 10:30 a.m.; she did not return. 232 The front reception desk, where the log book is kept until delivered to him and secured, is surrounded by a glass partition. 233 On cross-examination WJS confirmed that SLJ makes the entries in the log and starts work at 8:00 a.m. When asked how the record of someone who arrives at work before SLJ gets recorded, WJS said that the protocol or instruction is for SLJ to call the offices and check who may have arrived before her. WJS acknowledged that if SLJ is not at her desk, it could be that nothing is entered in the log, even though the protocol is that she should check with employees at their office. 234 When asked if JFS could have been in the building before 8:00 a.m. and that SLJ might not have known, WJS said yes. 235 If someone is on vacation, SLJ would be notified by WJS that the person was not in attendance because they were away on vacation. 236 When asked what the busiest days were in the building before May 17, 2011, WJS acknowledged that pay days and some social events would be the busiest days. 237 WJS was asked to describe J’s job and acknowledged that it required him, on occasion, to work both at the building and away. 238 WJS’s evidence was believed and was important to the court’s determination that SJ would have completed the log record as accurately as she could, and that the log would accurately reflect the coming and going of employees such as J, JCH, JAP and JFS on May 4th, 2011. I am further satisfied that the log record, Exhibit 16, is a business record, as both a principled common-law exception to the hearsay rule, and pursuant to s. 30 of the Canada Evidence Act. It is admissible for the truth of its contents and to assess the credibility of the witnesses. Because the existence of the log record only came to the Crown’s attention during the November 27 adjournment granted to the Crown to investigate the previously-undisclosed alibi evidence, and because it relates to the alibi evidence, notice pursuant to s. 30(7) of the Canada Evidence Act is waived by the Court. The log record was testified to by SLJ, who made it as part of her regular employment responsibilities, and by WJS, on whose direction and in whose custody the log was kept. Additional Exhibits 239 Crown and Defence Counsel, by consent, marked as exhibits, for the truth of their contents, Exhibits 18 and 19. 240 Exhibit 18 was the school attendance record for T for the week of May 2, 2011. It shows that she was not in class on May 4, 2011, by reason of being excused from attendance by a parent / guardian. 241 Exhibit 19 is a Hotmail account record related to Exhibit 2, the message posted by T to CM on her Facebook account at 6:21 p.m. on February 24, 2011. No agreed-upon explanation was given to the Court as to the meaning of Exhibit 19 and the various times shown on different parts of the document. Absent an agreed explanation or alternatively viva voce evidence as to the meaning of Exhibit 19 and the various times on it, the Court is unable to understand the reliability and significance of the Exhibit, and what impact it might have on the evidence given in respect of how Exhibit 2, downloaded from T’s Facebook page on May 17, 2011, came to be created by T. Evidentiary Value of Some Exhibits 242 Several documents, and records of electronic communications, were marked as exhibits. Most were put to T by Defence Counsel during his cross-examination of T, on the premise that they were prior inconsistent statements, or evidence of fabrication by T. The Defence tendered Exhibits 4 to 13 without an objection from the Crown, all but Exhibit 9 (introduced by Defence through SVJ), through cross-examination of T. The Crown tendered, with consent of Defence Counsel, for a limited purpose (not the truth of their contents) Exhibits 2 and 3. Exhibits 14 and 15 were statements of the two alibi witnesses for May 4th, presumably provided by Defence to the Crown during the short adjournment granted to allow the Crown to investigate the alibi evidence. No voir dire was requested or held. 243 Counsel seldom made clear the purpose for which each of the documents was admitted. No objections were made to the admission of the documents. Both counsel asked questions about the contents of the documents. 244 The Court was, and remains, concerned about the lack of clarity from counsel with respect to the purpose for which each of these exhibits was used by both counsel, and the basis upon which they could become admissible evidence. Prior consistent statements are not generally admissible for proof of the underlying facts. A prior consistent statement cannot, in and of itself, enhance the credibility of the maker of the statement. 245 There are some circumstances and purposes for which prior consistent statements, or documents (including electronic communications) that have elements of a prior consistent statement may be admitted. One circumstance is where a prior consistent statement may be used as part of narrative to show the fact and timing of a complaint to assist in the assessment of credibility. This includes impeachment by cross-examination, and by other evidence suggesting that the witness’s evidence is false because of recent fabrication. In this case, Defence Counsel suggested T’s evidence was fabricated on or about May 17, 2011, because (a) J had slapped her on February 24th, 2011, (b) J had taken a birthday gift away, or (c) T was influenced by similar experiences related to T by CM and another friend. The law I have applied in the analysis of the use of these exhibits is that described in R v Ellard, 2009 SCC 27. 246 Unless otherwise stated in this decision, this Court has not considered any of these documents or recorded electronic communications as proof of the underlying facts or as establishing the credibility of the complainant. The defence advanced, expressly and implicitly, the suggestion that some of these prior statements in fact prove either an inconsistency in the evidence of T, and that she was a liar, and that she fabricated some documents after her interview with the police on May 17. These constitute circumstances where, for limited purposes, these exhibits were admitted, and were considered by me. On one occasion, an exhibit was admitted for the limited purpose of establishing a time of an allegation as past recollection recorded. 247 Exhibit 2 is a copy of the Facebook message T authored and says that she sent to CM a few minutes after having been subjected to forced sexual intercourse by J on February 24. When T was disclosing the allegations to the police during the interview on May 17, T was unable to recall the date on which she alleges J had forced sexual intercourse with her. She told the police officer that she had sent the Facebook message right after it happened. The police officer provided her with access to a computer. T went to her Facebook page and found her private Facebook message to CM, which message was copied, and tendered as Exhibit 2. 248 This message is not admissibility for the truth of the underlying fact that “my dad jsuyt [sic, just] raped me”. However, because T had no independent recollection of the date of the rape, and she was relying upon the Facebook message, a record made by her at or near the time of the event, and she identified the tendered copy, it is admissible as her evidence respecting the time of what she stated in her oral evidence occurred (and which I believed). 249 Defence Counsel questioned T about Exhibit 2. It formed the foundation for the Defence’s alibi evidence for February 24, 2011. At the end of the evidence, the parties tendered by agreement and without reference by a witness, Exhibit 19, a later and different document that appeared to incorporate part of the private Facebook message posted by T to CM. It was tendered for the truth of its contents. I have not considered it for the truth of the allegation by T that J raped her. 250 The source of Exhibit 19 was not identified. T was never questioned about Exhibit 19. The Court considered Exhibit 19 respecting the suggestion that the time the Facebook message in Exhibit 2 was authored or sent might not have been as stated by J, in the context of the questioning of T with respect to her MSN and Facebook messages on February 24. I have decided that Exhibit 19 does not create a doubt as to the time that T authored or sent the Facebook message. The Court has not considered Exhibit 19 (or Exhibit 2) for the truth of its underlying allegation of fact. 251 Exhibit 3, tendered by the Crown, and Exhibits 4 and 5, tendered by the Defence, respecting the incident of May 4 are in the same category. Exhibit 3 is a prior consistent statement. On its face, it is not admissible for the truth of its contents or to determine T’s credibility. 252 The Defence, through the evidence of A and SVJ, as well as the cross-examination of T, including the cross-examination of T on Exhibits 4 and 5, attempted to show that the three exhibits were in fact drafted after T’s interview with the police on May 17. Because T could not find Exhibit 3 when the police brought her home on the evening of May 17, and only delivered Exhibit 3 to the police on May 18, together with A’s evidence that she saw a notepad and pencil on T’s bed and Exhibits 4 and 5 crumpled in the garbage in T’s bedroom on or about May 18, Defence Counsel suggested that the three exhibits respecting the May 4 incident were fabricated after May 17 to support a story made up on May 17, and that the allegations against J were possibly influenced by T’s online friends. Exhibits 4 and 5 were used by Defence to suggest that T was changing, as well as fabricating, her allegations respecting May 4. 253 I have compared the contents of Exhibits 3, 4 and 5, in the context of Defence Counsel’s cross-examination of T in respect of Defence’s position suggesting that the three statements are inconsistent, that T was untruthful, and that they were created on or after May 17 (and therefore recent fabrications), possibly influenced by T’s online friends. 254 The cross-examination by Defence counsel of T respecting these exhibits, and respecting Exhibits 6, 7, 8 and 12, including how those exhibits came into existence, satisfied me that the evidence of T was logical and consistent. They do not support a suggestion of recent fabrication. None of these exhibits detracted from the Court’s assessment that T was a truthful and reliable witness. 255 Exhibits 10, 11 and 13, printouts of MSN messages between T and CM in June 2012, were put to T by Defence counsel in cross-examination to suggest that T was admitting to being a liar. The exhibits were obtained by Defence counsel from A. 256 The cross-examination of T on portions of these exhibits is relied upon by the Court to the extent that T’s answers to the questions by Defence counsel were logical and consistent. They do not support a suggestion that T lied. Relevant Legal Principles 257 J enters the proceedings presumed to be innocent and the presumption of innocence remains throughout the trial. The Crown bears the burden of proving guilt beyond a reasonable doubt. 258 The burden of proof never shifts to the accused. The accused does not have to prove anything. 259 The principle of proof beyond a reasonable doubt was authoritatively described in R v Lifchus [1997] 3 SCR 320. A reasonable doubt is not an imaginary or frivolous doubt. It is not doubt based on sympathy for or prejudice against anyone involved in the proceeding. It is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence. 260 Proof beyond a reasonable doubt does not involve proof to an absolute certainty; that is impossible. However, the standard of proof is not probable guilt (the civil burden) and falls much closer to absolute certainty than to probable guilt. The accused has the benefit of any reasonable doubt with respect to any of the essential elements of any of the counts in the indictment. 261 In this case, the credibility of witnesses is an important factor in the determination of guilt or innocence. 262 The seminal three-step analysis is set out in R v W(D) [1991] 1 SCR 742, and discussed further in R v Dinardo, 2008 SCC 24 and R v JHS, 2008 SCC 30. At the first step, if I believe the testimony of J that he did not commit the offences charged, I must find him not guilty. At step two, if I do not believe the testimony of J, but it leaves me with a reasonable doubt about his guilt or about an essential element of the offence, I must find him not guilty. If I do not know whom to believe, it means there is a reasonable doubt and I must find J not guilty. At step three, even if the testimony of J does not raise a reasonable doubt about his guilt, or about any essential element of any of the offences, if, after considering all the evidence I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. 263 In this indictment there are five counts. The verdict on each count must be based on evidence admissible with respect to that count; however, in assessing the credibility of each witness, including T and J, I am entitled to consider the totality of the evidence given by that witness, without engaging in a prohibited line of reasoning contrary to the rule against similar fact evidence. (See R v PEC, 2005 SCC 19). 264 There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it. I may believe some, none or all of the evidence of any witness. The following are some of the questions I kept in mind during my assessment of each witness’s evidence. Since the Crown’s case depends entirely on the evidence of T, I considered each of these questions in assessing her evidence and the evidence of each of the defence witnesses. I Did the witness seem honest? Is there any reason why the witness would not be telling the truth? II Did the witness have any reason to give evidence that is more favourable to one side than to the other? III Was the witness in a position to make accurate and complete observations about the event? What were the circumstances in which the observation was made? What was the condition of the witness? IV Did the witness seem to have a good memory? Did the witness have any reason to remember the things about which he or she testified? Was the event itself unusual or routine? V Did the witness seem to be reporting what he or she saw or heard or simply putting together an account based on information obtained from other sources rather than from personal observation? VI Did the witness’s testimony seem reasonable and consistent? VII Was the witness’s testimony similar to or different from what other witnesses’ said about the same events? VIII Did the witness say or report something different on another occasion? IX Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important or a minor detail? Did it seem like an honest mistake or a deliberate lie? Was the inconsistency because the witness said something different or because he or she failed to mention something? Is there any explanation for it and does the explanation make sense? X What was the witness’s manner when he or she testified? In considering the witness’s manner or demeanour, I cautioned myself from jumping to conclusions based solely upon how a witness testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many and people react and appear differently. Witnesses have different abilities to communicate. However, sometimes whether a question was answered in a manner that came naturally, or appeared contrived, assisted in the value and the weight given to the answer. 265 The documentary and electronic exhibits, and how a witness reacted to and explained an exhibit played a part in the assessment of the credibility and reliability of the evidence of the witness. 266 In this trial, T was confronted with various versions of prior written and electronically recorded communication for the purpose of showing that she had made prior inconsistent statements, was a liar, and had fabricated some or all of her evidence on or after May 17, 2011. The Court considered those prior statements and electronic communications for the purpose of determining whether they constituted different versions of events from her testimony at trial. Not every difference or admission is important and I considered the fact, nature and extent of any differences when deciding whether to believe or rely upon T’s testimony. In doing so, I relied solely on the testimony given by T under oath at trial as evidence of what actually happened. 267 Defence counsel advanced three possible motives for T to fabricate evidence against J: first, that J had slapped her in the face on or about the morning of February 24, 2011; second, that he had taken back birthday gifts, including a used vehicle intended to be given to her at her 16th birthday on April [...]; and third, that T was influenced by information about similar incidents relayed to her by her online friends. I have considered that evidence and discounted it as not having affected T’s oral evidence at trial about the incidents she says she experienced. The Law: Alibi 268 As part of the right to silence, and the principle that the Crown carries the burden of proof throughout the proceeding, and the burden of proof never shifts to the accused, the accused is under no obligation to disclose to the Crown his defence(s). This includes the alibi defence. 269 A defence based on alibi evidence means that the accused was elsewhere than at the scene of the crime at the time of the alleged offence and therefore could not have committed the crime. 270 Alibi evidence that is believed or that raises a reasonable doubt is determinative of the final issue of guilt or innocence as it contemplates that it is impossible for the accused to have committed the offence charged. 271 The authors of The Law of Evidence in Canada, Third Edition (Markham; LexisNexis; 2009) write at para 8.279 that despite the accused being under no obligation to disclose an alibi defence he is relying upon, that if timely disclosure is not made, the accused runs the risk that the Crown may use this fact to attack the credibility of the alibi and the trier of fact may draw an adverse inference affecting the weight of the alibi evidence. 272 The Supreme of Canada has given guidance to the Court on how it is to treat the issue of untimely or inadequate disclosure of alibi evidence in R v Cleghorn [1995] 3 SCR 175 and R v Turcotte, 2005 SCC 50. The rule is that failure to disclose to the Crown an alibi in a sufficiently early time to permit it to be investigated by the police is a factor that the trier of fact may consider in determining the weight to be given it. It is a rule intended to guard against surprise alibis fabricated at a time when the Crown is almost powerless to challenge the alibi. Proper disclosure must meet two criteria: timeliness and adequacy. 273 Timeliness refers to the alibi evidence being disclosed to the Crown in sufficient time for the police to meaningfully investigate the alibi. Adequacy means that the alibi must be given with sufficient particularity to enable the authorities to meaningfully investigate the alibi. 274 Neither criteria require disclosure at the earliest possible moment. 275 Failure to disclose or improper disclosure does not vitiate the defence but it does mean that failure to properly disclose may have an important and unfavourable consequence in the sense that the Court may drive an adverse inference when weighing the alibi evidence. 276 In the case at bar, J eventually produced alibi evidence with regards to Counts 2 and 3 (for February 24, 2011) and Count 5 (May 4, 2011). The alibi evidence was given by J himself and, in respect of February 24, by SVJ, and in respect of May 4, by JCH and SLJ . 277 After the Crown’s case had closed at trial, JCH was called as the J’s first witness. His direct testimony was the first notice to the Crown of an alibi defence. The Crown objected to the fact that it had received no notice of alibi evidence. After a brief recess, the Court suggested that J had the right to present alibi evidence without prior notice, but agreed to offer the Crown a short adjournment to receive particulars of the proposed alibi evidence and investigate them. 278 The second issue respecting alibi evidence is what use, if any, the Court can make of an alibi that is either disbelieved or determined by the Court to be false. 279 The Supreme Court of Canada dealt with this in R v Hibbert, 2002 SCC 39, at para 67: Before turning to the application of the proviso in light of the above, it may be useful to summarize briefly the state of the law with respect to the rejection of a defence or alibi. -- In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value. -- A disbelieved alibi is insufficient to support an inference of concoction deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt. -- In appropriate cases, for instances if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission. -- Where there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt. -- In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn. -- A fabricated alibi is not conclusive evidence of guilt. 280 In this case, respecting the alibi evidence for February 24, 2011, the Court ultimately disbelieved the evidence of J and found the evidence of SVJ to be unreliable. The evidence was disbelieved. However, the Court does not draw the inference that the evidence was concocted or deliberately fabricated. 281 With respect to the alibi evidence for May 4, 2011, the Court disbelieved the evidence of J, of JCH and of SLJ , based on the totality of the evidence including the cross-examination of those witnesses on Exhibits 14, 15 and 16. The Court finds, based on all the evidence, that the log record contains the accurate account of when J was at, and was not at, his workplace on May 4, 2011. He was not at his workplace after 11:04 a.m. on May 4, 2011. 282 The Court applies the analysis in R v O’Connor, [2002] O.J. No 4410 (ONCA) at paras 34 to 38 to the alibi evidence. While all the evidence respecting Exhibit 16 may support an inference of deliberate fabrication in respect of the May 4 count, the Court does not do so. The disbelieved alibi evidence respecting February 24, and May 4 has no evidentiary value. The Court is left with no reasonable doubt by the alibi evidence for both dates. I determined whether I was convinced beyond a reasonable doubt of J’s guilt respecting counts 2, 3 and 5 on the basis of all the other admissible evidence. 283 In considering the alibi defence, I applied the principle that the Crown is required to prove beyond a reasonable doubt that the evidence adduced should be not believed. I disbelieved the alibi evidence; furthermore, it did not leave me with a reasonable doubt as to J’s whereabouts on February 24th and May 4th. In the context of all of the evidence, I had no doubt respecting the guilt of J respecting Counts 2, 3 and 4, about which the alibi evidence was tendered. Analysis and Conclusions regarding each of the Five Counts Count #5 That between April 8, 2011 and May 15, 2011, being a person to whom T, a young person, was in a relationship of dependency, did, for a sexual purpose touch directly the body of T, a young person, to wit, his hands, contrary to s. 153(1) of the Criminal Code. 284 Count #5 on the Indictment included the superfluous and factually incorrect phrase “under the age of 16". The phrase was not part of the original Information. The Indictment was not formally amended before or during the trial. Pursuant to s. 601 of the Criminal Code, I amend Count #5 in the Indictment to delete this defect in the statement of the substance of the offence; that is, the phrase “under the age of 16". 285 This amendment does not change the Crown’s case so as to create a prejudice to the accused. The accused was always aware, as discussed by his counsel before and during the trial, that the purpose of Count #5 was to encapture the same alleged sexual acts covered by Counts #1, #3 and #4, pursuant to s. 151 of the Criminal Code, that occurred after T’s 16th birthday on April [...] 2011. 286 In effect, by Count #5, J is charged with sexual exploitation contrary to s. 153 of the Criminal Code. The purpose of s. 153 was described by the Supreme Court of Canada in R v Audet [1996] 2 SCR 171 beginning at para 14. Its purpose is to protect young persons who are in a vulnerable position toward certain persons because of an imbalance inherent in the nature of the relationship between them. 287 The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt: I T was a young person at the time. II J intentionally touched T with his hands. III The touching was for a sexual purpose. IV T was in a relationship of dependency with J. Consent is not an element. 288 Respecting the first element, a young person is, by definition (s. 153(2)), a person 16 years of age or more but under the age of 18 years. The oral evidence is not in dispute. T was born on April [...], 1995 and turned 16 on April [...], 2011. May 4, 2011, is the date T says J touched her for a sexual purpose. 289 Respecting the second element, that J intentionally touched T with his hands, J’s defence is that he was not present in his home, or in T’s company, from early in the morning until very late in the day. His defence is the defence of alibi. It was supported by the evidence of JCH and SLJ. 290 As noted earlier in this decision, the Court does not believe the alibi evidence. It had no credibility and raised no doubt in the Court’s mind that it was not true. The Court does not believe J’s alibi and does not believe JCH nor SLJ. Their evidence does not raise a reasonable doubt. 291 T testified that she remained home from school on May 4. In the middle of the day, J came home. She heard him upstairs when she went to the bathroom and he heard her and asked who was there. J then left and returned about an hour later. She was lying fully clothed on her bed in her bedroom, playing with an “app” on her I-Pod. 292 J entered the room and asked what she was doing. He lay on her bed, between her and the door. He got under her blankets. He pulled his pants down. He put her hand on his penis. He took all her clothes off and threw them on the floor. She says they were “touching and stuff”. At this point in her evidence, she blanked out and was unable to remember any further particulars. 293 When T stated that she was blanking out and could not remember, she was directed to the statement she had given to the police on May 17, 2011 and then to her sworn and videotaped statement of May 22, 2011. On reviewing this statement, T recalled that on May 4, the last time she had a sexual encounter with J, J had touched her on the outside of her vagina with his fingers and he made her touch his penis. 294 On cross-examination, T was shown Exhibits 4 and 5, found by A in the garbage in T’s bedroom shortly after May 17. T acknowledged that they were drafts of Exhibit 3, a note she had prepared to communicate with her online friend, about the events of May 4. Exhibits 4 and 5 were put to her by defence counsel to suggest that her story changed and that she had made prior inconsistent statements and that she had fabricated her statement of the events of May 4 after May 17. This Court is satisfied, based on the oral evidence of T, that those exhibits are not prior inconsistent statements and were not fabricated on or after May 17, 2011. 295 I do not believe J’s evidence. I do not believe his alibi. His evidence was not consistent throughout and was inconsistent with the evidence of JCH and inconsistent with the evidence of SLJ. The evidence of JCH and SLJ was not consistent with each other. Most important, their evidence was not consistent with the log record, which I found based on all of the evidence, to be an accurate statement to the effect that J left his place of business claiming sickness at 11:04 a.m. 296 I do not believe J’s alibi evidence. Furthermore, it does not leave me with a reasonable doubt that he may have been at his business all day except for lunch with JCH. 297 In contrast, T’s evidence is believed entirely. Her evidence was internally consistent. It was logical with respect to every particular described by her. It was reasonable with respect to the few times that she was unable to remember a particular. It is seldom that I have heard the description of an event that is so clear and that rings so true, both on direct examination and cross-examination. This is in respect of both its content and the manner in which it was delivered. 298 The Court has no doubt that T was a truthful witness, whose evidence with respect to the events of May 4, 2011, are honest and reliable. I find beyond a reasonable doubt that the event described by her on May 4, 2011, by which her father touched her both by putting his fingers on her vagina and by putting her hand on his penis happened as she described them. 299 The third essential element is that the touching is for a sexual purpose. T’s description of the events leaves no doubt that when J put T’s hand on J’s penis and touched her vagina, after undressing himself and her, that it was for the purpose of violating T’s sexual integrity and for his own sexual gratification. 300 The fourth essential element is that T be in a relationship of dependency with J. Dependency is the relationship where one person is supported by another. In particular, it is a relationship by which a young person relies on another person who, in some manner, has assumed a position of power or influence over the young person. T at this time was under the age of majority and had resided in the family residence with her parents. Based on all of the circumstances, including the age of T and the fact that she was a student and not employed and resided with, and was dependent upon her parents (one of whom was J) for all her needs, she was clearly in a relationship of dependency. 301 I find J guilty of the offence of sexual exploitation of T on May 4, 2011, contrary s. 153 of the Criminal Code. Count #2 and 3 302 These two counts relate to the events of February 24, 2011. The first is that J had sexual intercourse with T, knowing she was his biological daughter, contrary to s. 155(2). Count #3, which I presume is an alternative count, is that on February 24, 2011, J did for a sexual purpose touch T, a person under the age of 16, directly with his penis, contrary to s. 151 of the Criminal Code. 303 Respecting Count # 2, the Crown must prove, in addition to the date and place, these essential elements: I. J had sexual intercourse with T. II. T was a blood relative of J. Sexual intercourse is defined in s. 4(5) of the Criminal Code. It is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted. 304 Respecting Count #3, the Crown must prove, in additional to the date and place of the offence, the following essential elements: I T was less than 16 years of age at the time. II J intentionally touched T, either directly or indirectly, with his penis. III The touching was for a sexual purpose. 305 T alleges that the sexual intercourse occurred at their residence between 5:30 and 6:00 p.m. on Thursday, February 24, 2011. J’s defence is the alibi defence that he was not in his residence or with T from early in the morning (before school) until late at night. He says he went to work in the morning and that when he completed work at about 4:00 p.m. he went to the home of his best friend, as he does almost every day; that he had supper with his best friend; that they went to Dartmouth and to the City, returning late in that evening. His alibi evidence is supported by the evidence of SVJ, the wife of his best friend SJJ. 306 In assessing the credibility of the evidence of J and of SVJ with respect to his alibi, I considered the questions identified earlier in this decision for the purpose of determining whether I believe J or SVJ. 307 With respect to J’s evidence, as in the case of his alibi evidence for May 4, I found his evidence to be unbelievable. I did not believe him. One circumstance that affected my conclusion not to believe J and SVJ was their claimed ability to remember the particulars of February 24th when J went to SJJ/SVJ’s home almost every day. 308 With respect to the evidence of SVJ, I had the sense throughout that she was reconstructing the events of February 24, 2011, not basing upon what she specifically recalled. Her evidence was internally inconsistent and troubling with respect to how she came to skip the “[...]” that evening; whether she arranged to meet a friend at Tim Horton’s near the gym on a prior day or on that day. Her evidence was in conflict with A’s as to whether she had a conversation with A before the “[...]” to tell her she would not be there. 309 Most troubling was her explanation as to why she waited more than 24 hours before sending a Facebook message to T to ask her the name of A’s hairdresser so that she could buy a gift certificate. It made no sense that if, between 4:00 p.m. and 7:00 p.m. on Thursday, February 24, 2011, she asked J for the name of A’s hairdresser and J referred her to T for the answer, she would wait more than 24 hours to contact T by a Facebook message, a process that would take seconds. Her explanation for the delay made no sense. 310 Equally troubling was the fact that she claims, after sending the Facebook message in the evening of February 25, which the Court noted was a Friday evening, SVJ says she spoke the next morning, during a break at her work, by telephone with T and that T was in school. It is unlikely that T was in school on Saturday morning. 311 In her evidence, SVJ expressed a bias for J. I noted that SVJ and SVJ’s husband, together with J and A, took a vacation to [...] in late March together. J was at SJJ’s house almost every day. J was of great assistance to her husband. 312 On the totality of the evidence of J and SVJ, I believed neither. I do not believe the alibi. The alibi has no evidentiary value. 313 In contrast, T gave credible, logical and consistent evidence with respect to the events of February 24, 2011. She described in detail the circumstances as to how the events progressed and lead to him placing her on the bed and having sexual intercourse with her. Her evidence clearly established that J’s penis penetrated her vagina, despite her efforts to back away. Her evidence was internally consistent, despite extensive cross-examination. No element of her evidence was brought into doubt by the cross-examination. 314 The particulars T described showed a unique knowledge of what happened. The manner in which she gave her evidence reinforced her credibility. At no point in her direct or lengthy cross-examination did her answers, either in substance or in the manner in which she gave it, cause any hesitation or doubt as to her truthfulness. 315 Respecting the essential elements of both counts, I am satisfied that they occurred at J’s home in Nova Scotia in the late afternoon of February 24, 2011. It was not challenged and the evidence confirmed, that T was 15 years of age on February 24, 2011, the date that her father, J, forced sexual intercourse on her. The evidence of T, believed entirely as to the progression of events that occurred in his bedroom at about 5:30 p.m. on February 24, 2011, establishes the application of force by J on T; that is, the insertion of his penis in her vagina intentionally and without her consent. There is no other possible explanation for the events that T described than that they took place in circumstances of a sexual nature and for J’s own sexual gratification. 316 The Court has no doubt, based on the evidence of T, that J’s penis penetrated T’s vagina. 317 It is not disputed, and the evidence confirmed, that T is the daughter of J; J is the biological father of T, and knew he was the biological father of T. 318 The Court believes T. None of the other evidence given in the trial, including the evidence of J, raises any reasonable doubt that J, knowing he was the biological father of T, forced sexual intercourse on T in his bedroom on February 24, 2011. To the extent that his penis touched T and the touching was for a sexual purpose, he has committed all the elements of sexual interference contrary to s. 151 of the Criminal Code. Count #4 319 T alleges that about two weeks after February 24, J did, for a sexual purpose, touch her on her body with his hands, contrary to s. 151 of the Criminal Code. Earlier in this decision I recounted the evidence of T and J. J’s evidence is simply that it did not happen. 320 T’s evidence was that in the afternoon she was in the living room playing or watching television with her younger brother and sister when J asked for Sunjing oil. He went to his room and was unable to find it. Apparently Sunjing was an oil which A had obtained, and had, for some period of time, been rubbing on J. 321 A poignant moment in the evidence of T came in her description of why she went to get it in the bathroom and take it to J’s bedroom. J asked T’s younger sister at one point to get it and J testified that she did not want her sister to get it and give it to him. It was clear to the Court by the manner in which she gave that evidence that she was afraid of what her father would do to her younger sister. 322 T went to the upstairs bathroom; found the oil and took down to J’s bedroom. He was lying on his stomach. She described how J touched her vagina with his hands and caused her to touch his penis. Her evidence was clear, logically given, and contained particulars that negated fabrication. It was given in a manner, both in direct and cross-examination, that added to her credibility. 323 The Court recognizes that it is difficult for J to provide any particulars or circumstances of an event that he simply says did not happen. The absence of particulars leaves little by which to test his denial. 324 There is no precise formula for the application of the W(D) test. The evidence of T was believed. The evidence of J was not believed. Neither J’s simple denial, nor any of the other evidence at trial, caused the Court to have a reasonable doubt that what T described occurred. Count #1 325 T alleges that J did, for a sexual purpose, touch her when she was under the age of 16 directly on a part of his body between April 8, 2008 and February 24, 2011. 326 J’s evidence was that it did not occur. Basically, he was never home. He worked every day and when he was not at work, he was at his best friend’s house; at the gym; at a poker table or at a bar. 327 The Crown’s evidence is the evidence of T. Her evidence is already set out in this decision. With respect to this count, a summary of her evidence is that beginning when she was about 13 years of age, J, on many occasions, touched her and caused her to touch him for a sexual purpose. She said that the sexual interference occurred on many occasions and, as of the time she gave her evidence, they all had blended together. 328 She recalled particularly the first time. She just got home from school. No one else was home. She was upstairs. J told her to watch television with him. She was scared. He told her not to tell anyone. On this occasion, he touched her vagina, tickled her nipples, and caused her to touch his penis with her hand and to put his penis in her mouth. 329 She says it did not occur every day and there was no particular pattern but it happened whenever he felt like it. It happened at different parts of the house. She recalled it happened once in the bedroom she previously shared with her sister before she moved downstairs. She recalled an event in the shower and an event that had happened in the kitchen. 330 I do not believe the testimony of J that he did not commit this offence. Furthermore, his evidence does not leave me with a reasonable doubt about any of the essential elements of the offence of sexual interference as set out in Count #1 and described by T. After considering all of the evidence, I am satisfied beyond a reasonable doubt that J intentionally touched T, who was under that age of 16 at the time, before the events of February 24, 2011, described in Counts #2 and #3 and that these several sexual touchings, while not specified as to date, occurred for at least two years. 331 I find J guilty of Counts #1, #2, #4 and #5 in the Indictment. Count #3 is redundant by reason of the finding of guilty respecting Count #2. J.