Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. T.K.B., 2024 NSSC 203

Date: 20240705

Docket: CRH No. 519688

Registry: Halifax

Between:

His Majesty the King

Plaintiff

v.

T. K. B.

Defendant

 

 

 

Judge:	The Honourable Justice Ann E. Smith
Heard:	September 25 and 26, 2023; January 26, 2024 and February 23, 2024 in Halifax, Nova Scotia
Counsel:	Tanya Carter, for the Plaintiff Carbo Kwan, for the Defendant

 

 

 

 

Order restricting publication — sexual offences

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a)  any of the following offences:

(i)  an offence under section 151, 152, 153, 153.1, 155, 160, 162,

163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273,

279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346

or 347, or

(ii)  any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b)  two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

 

Order restricting publication — victims and witnesses

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

By the Court:

Background

Introduction

[1]             There is a publication ban in place in this matter.  The name of the complainant and any information which could identify her may not be published or broadcast.  In the circumstances of this case, that means that the defendant must be referred to by his initials, TKB.  I will refer to the complainant, either by her initials, BP, or as “the complainant”.  I will refer to the BP’s mother as “JM”.  I will refer to the community where the family lived in Nova Scotia as “T”.

[2]             A direct indictment was preferred in this matter against TKB on November 24, 2022 on the following charges:

1.	that he, on or between the 1st day of January, 1993 and the 31st day of December, 2003, at or near T, in the County of Halifax in the Province of Nova Scotia, did unlawfully commit a sexual assault on BP, contrary to Section 271 of the Criminal Code,
2.	that he at the same time and place, did have sexual intercourse with BP, while knowing that she was his daughter, contrary to Section 155 of the Criminal Code,
3.	that he at the same time and place, did for a sexual purpose touch BP, a person under the age of sixteen years, directly with a part of his body, to wit: his penis, hands, and mouth contrary to Section 151 of the Criminal Code,
4.	that he at the same time and place aforesaid, did for a sexual purpose, invite, counsel, or incite BP, a person under the age of sixteen years, to touch directly a part of his body, to wit: his penis, hands, and mouth contrary to Section 152 of the Criminal Code,
5.	that he did at the same time and place unlawfully assault BP, contrary to Section 266 of the Criminal Code.

[3]             At the outset of trial, Crown counsel moved that the indictment be amended from referring to 2003 throughout to 2004 throughout.  Defence counsel did not oppose the motion and it was granted by the Court.

[4]             The complainant testified.  She was 32 years old at the time.  As is evident from the charges, she claims that her biological father, the defendant, sexually abused her from the age of 3 or 4 years to age 13 years.  When she was 13 years old, she and her mother left Nova Scotia and moved to Alberta.  The complainant also says that the defendant physically abused her during the same time period.

[5]             The defendant denies that he is guilty of any of the offences with which he is tried and puts the Crown to the burden of proving his guilt beyond a reasonable doubt.  The defendant did not testify which is his right.

[6]             The defendant, as with all criminal defendants, is presumed to be innocent of all of the charges before the Court.  He remains innocent unless and until the Crown proves each and every element of each of the offences with which he is charged beyond a reasonable doubt.  That is a heavy burden on the Crown.  There is no burden on the defendant. 

[7]             For the accused to be found guilty of the offences pursuant to s. 151 of the Criminal Code, known as sexual interference, the Crown must prove each of the following essential elements beyond a reasonable doubt:

•        The complainant was under the age of 16 years at the time;

•        The defendant touched the complainant, directly or indirectly; and

•        The touching was for a sexual purpose and the accused intended it to be for that purpose.

[8]             For the accused to be found guilty of the offences pursuant to s. 152 of the Criminal Code, known as invitation to sexual touching, the Crown must prove each of the following essential elements beyond a reasonable doubt:

•        The complainant was under the age of 16 years at the time;

•        The accused invited, counselled or incited the complainant to touch the accused;

•        The invitation, counselling or incitement was for a sexual purpose which purpose the accused intended.

[9]             For the defendant to be found guilty of the offences pursuant to s. 271 of the Criminal Code, sexual assault, the Crown must prove each of the following essential elements beyond a reasonable doubt:

•        The defendant intentionally applied force to the complainant; and

•        The force applied took place in circumstances of a sexual nature.

[10]         Because the complainant was a child at the time the alleged s. 271 offences took place, there is no need for the Crown to prove that the complainant did not consent to the sexual activity.

[11]         For the defendant to be found guilty of s. 155 of the Criminal Code, the Crown must prove each of the following essential elements beyond a reasonable doubt:

•        the defendant must engage in sexual intercourse with a person who he knows to be, in this case, his biological daughter.

[12]         For the defendant to be found guilty of physical assault the Crown must prove beyond a reasonable doubt that the defendant applied force to the complainant without her consent.

[13]         There is no dispute as to the identity of the defendant.  Nor is there a dispute that the events which gave rise to these charges occurred in Nova Scotia.  The age of the complainant was not disputed.

[14]         As noted earlier, there is never a burden on an accused to prove their innocence.  Rather, the Crown must prove each element of a charge beyond a reasonable doubt.

[15]         The Supreme Court of Canada has explained in R. v. Starr, 2000 SCC 40 and in earlier decisions such as R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. Bisson, [1998] 1 S.C.R. 306 that the phrase, “beyond a reasonable doubt” has a special meaning in a criminal trial.  The Supreme Court in these decisions explains that the standard of proof beyond a reasonable doubt is more than proof on a balance of probabilities, which is the standard which applies in civil trials.

[16]         Rather, proof beyond a reasonable doubt requires more than proof that the accused is probably guilty.  It does not involve proof to an absolute certainty, and it is not proof beyond any doubt.  Proof beyond a reasonable doubt is logically connected to the evidence or lack of evidence.

[17]         The trial on these charges was heard by this Court over 4 days.  The complainant testified.  She did so behind a screen.  The Crown initially brought a s.486.2(2) application seeking an order that she might give her evidence this way.  However, the Defence did not oppose the application.

[18]         During the cross-examination of the complainant, she gave certain evidence that resulted in the Defence bringing a s.278.1 application.  This Court heard that application on several days in November and December, 2023 and rendered oral decisions on the record for the Stage 1 part of the application and the Stage 2 part of the application.  The trial resumed on January 26, 2024, after the Court rendered those decisions.

[19]         During her evidence in chief, the complainant testified about matters of sexual abuse by the defendant which the defendant claimed had not been disclosed to it by Crown counsel and the police statement which led to the charges against the defendant which are before the Court.  The Crown and the defence agreed to the following Agreed Statement of Facts because of these matters:

Agreed Statement of Facts:

[20]         In the trial matter of R. v. TKB, the following facts are agreed by the Crown:

1.	During meetings with the investigator, D/Cst. Kristen Bradley and Crown Attorney, Tanya Carter, the following was disclosed/not disclosed:
	(a)	The complainant disclosed that one occurrence of oral penetration occurred in the shower;
	(b)	The complainant disclosed that the Accused asked her to touch his penis and she followed his direction in so doing;
	(c)	The complainant disclosed that there was digital penetration but did not disclose a specific progression starting with one finger then two, then three.

[21]         The complainant provided a statement to the police in November 2021 which led to the charges before the Court.  The defence says that the complainant testified about matters which were not in, or not fully described in, that police statement.  The complainant was cross-examined on these matters and this testimony will be reviewed later in this decision. 

[22]         The Crown called two witnesses – the complainant and the complainant’s mother, JM.  The Defence did not call any witness.

[23]         In this case, the Crown’s case is dependent on the testimony of the complainant and her mother.  It is therefore essential that this Court test the credibility and reliability of that evidence very carefully.

[24]         When the Court talks about credibility of witnesses, it is not talking about whether their demeanor in the witness stand, and their evidence had the ring of truth.  The assessment of credibility is much more than that.  Putting too much weight on a witness’s demeanor in such a fashion is fraught with difficulty.  Rather, the Court must conduct the kind of analysis which is described in the jurisprudence.

[25]         In Faryna v Chorny, [1952] 2 D.L.R. 354, the majority of the British Columbia Court of Appeal discussed credibility as follows:

11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of the truth.  The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.  In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the place and in those conditions…

[26]         In Baker-Warren v. Denault, 2009 NSSC 59 (as approved in Gill v. Hurst, 2011 NSCA 100) the Court provided the following guidelines:

[18]	For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations.  It is important to note, however, that credibility assessment is not a science.  It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”:  R. v. Gagnon, 2006 SCC 17, para. 20.  I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization”:  R. v. R. E. M., 2008 SCC 51, para. 49.
[19]	With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:
	(a)	What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses:  Re:   Novak Estate, 2008 NSSC 283 (S.C.)
	(b)	Did the witness have an interest in the outcome or was he/she personally connected to either party;
	(c)	Did the witness have a motive to deceive;
	(d)	Did the witness have the ability to observe the factual matters about which he/she testified:
	(e)	Did the witness have a sufficient power of recollection to provide the court with an accurate account;
	(f)	Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions:  Faryna v. Chorney [1952] 2 D.L.R. 354;
	(g)	Was there an internal consistency and logical flow to the evidence;
	(h)	Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
	(i)	Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving.
[20]	I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility:  R. v. Norman (1993) 16 O.R. (3d) 295 (C.A.) at para. 55.  In addition, I have adopted the following rule, succinctly paraphrased by Warner J. in Re:  Novak Estate, supra, at para 37:
	There is no principle of law that requires a trier of act to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, a trier of fact may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence.  (See R. v. D. R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra).

[27]         I have also mentioned “reliability” as a concept to be considered when assessing the evidence of a witness.  Credibility and reliability are two different, but somewhat related concepts.  The relationship between credibility and reliability was explained in Cameco Corporation v. The Queen, 2018 TCC 195:

[11]  The reliability of a witness refers to the ability of the witness to recount facts accurately.  If a witness is credible, reliability addresses the kinds of things that can cause even an honest witness to be mistaken.  A finding that the evidence of a witness is not reliable goes to the weight to be accorded to that evidence.  Reliability may be affected by any number of factors, including the passage of time.

[28]         At this point, the Court will review some of the important case law which deals with what is sometimes called historic sexual abuse.  When an adult testifies about abuse which happened to them as a child, the Court must be aware of certain features of that evidence.  A complainant in such a case is giving evidence about memories they have of events which happened many years ago.

[29]         Like any adult who testifies, issues around the credibility and reliability of that person’s evidence must be assessed.  However, special considerations apply when the adult is testifying about matters that took place many years before when they were a child. 

[30]         In this case, counsel for the defendant says that the evidence of the complainant should leave the Court with reasonable doubt that the defendant is guilty of the charges. 

[31]         The Court will now review some of the key decisions in this area which will provide direction to this Court on how to assess this evidence.  This case law emphasizes that how children experience their world from a psychological and cognitive perspective, differs from how adults with developed cognition relate to the world. 

[32]         Saunders, JA, in R. v. JMM  2012 NSCA 70 set out at paras 47 to 48 guidance and remarked on the challenges inherent in the evaluation of evidence in a historical sexual assault matters as follows:

[47]         The variety and significance of the conflicts in the evidence in this case obliged the judge to subject the complainant’s testimony to a very critical eye, using criteria appropriate to her circumstances.  In my respectful view, that was not done.  R. v. D.D.S., 2006 NSCA 34.

[48]         In a case like this one, the strong warning expressed by McLachlin, J. (as she then was) in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134 is especially apt.  The Chief Justice observed:

As Wilson J. emphasized in B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards    to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[Emphasis added] 

[33]         Decisions of the Nova Scotia Supreme Court and other Canadian courts have drawn a distinction between testimony of adults about childhood memories which contain inaccuracies or inconsistencies on peripheral matters as opposed to inaccuracies or inconsistences about “core” matters, including of course matters that lie at the heart of the charges the defendant faces.  The former may not negatively impact the witness’s credibility or reliability, but the latter may do so, depending on the totality of the evidence. (R. v Bishop, 2009 NSCA 32 at paragraph 5 and see also R v R.B., 2018 NSCA 78 at paragraph 80). 

[34]         It may not be an easy task for a Court to separate those issues which are “peripheral” from those which are “core” in the context of childhood memories.  It is essential, however, that a defendant who faces charges, and very serious charges, in such circumstances, receive a fair trial and that the trial judge rigorously apply the standard of proof beyond a reasonable doubt.  That standard does not change because the complainant is testifying about childhood memories. 

[35]         In W.R., the Supreme Court of Canada confirmed that the scope of “peripheral matters” includes the exact time and location of the alleged offence (at paragraph 26). 

[36]         As reviewed by Keith, J. in R. v. Michaud, 2022 NSSC 160, in R. v Hughes, 2020 NSSC 143, D.B. was the victim of multiple sexual assaults.  However, he could not remember the precise date or time of day each attack occurred.  He did recall significant details as to who sexually assaulted him; where the various assaults occurred and how he was violated.  At paragraphs 5 – 31, Arnold, J. in R. v. Hughes concluded: “D.B. was unsure about the dates and times of the events he described. Considering his age at the time of those events, and the frequency with which they occurred, his inability to testify accurately about the chronological issues is peripheral to the more pertinent aspects of the alleged sexual assaults” (paragraph 66).

[37]         Keith, J. in Michaud, also stated, and I paraphrase here from his decision, that examples of other details considered “peripheral” in the jurisprudence include the complainant’s inability to recall whose shirt she was asked to wear, or the title of a book described during the complainant’s testimony, or whether the complainant was on the accused’s left or right when alleged assaults occurred  (R. v. G.S., 2021 NSSC 133).

[38]         Keith, J. also noted that similarly, in R. v D.G., 2020 ONCA 671, the Ontario Court of Appeal addressed certain inconsistencies in the complainant’s evidence around whether the bedroom door was locked during the first alleged assault and whether the back seat of a car was folded down during the second assault.   The Court noted that the trial judge described these details as “peripheral”.   The accused disputed that characterization.   The Court of Appeal disagreed with the accused and determined that the trial judge “accepted the complainant’s evidence as to what the appellant did and concluded that this satisfied her beyond a reasonable doubt.   That conclusion was available to her on the evidence” (para 11).

[39]         Another case reviewed by Keith, J. in Michaud was R. v M. (J.M.) 2012 NSCA 70.  In that case, the complainant was an adult testifying as to alleged abuse when she was a teenager.   She insisted that the historic abuse occurred in an old trailer and denied that it occurred in the family’s new trailer.   That recollection was clearly wrong.   The Nova Scotia Court of Appeal found that this error could not simply be excused as a flawed but forgivable childhood memory as to location.   It wrote that the trial judge’s failure to bring “an uncritical and superficial eye to the complainant's evidence by forgiving her inconsistencies and ignoring her inability to recall events, dates, and places on the basis that she was ‘a child’.   That failing, in this case, amounts to reversible error” (at paragraph 49).

[40]         Keith, J. in Michaud also noted that a similar complication arises around mistakes or inconsistencies regarding frequency or the alleged number of assaults.   He referred to R. v B. (H.S.), 2008 SCC 52 where the complainant testified as to 14 different assaults as a child.   The trial judge found “...the complainant's evidence as to the frequency and duration of the incidents unreliable.  However, he also found that the frailties in the complainant's evidence were explicable as the natural distortion that occurs when events from childhood are recounted at an older age” ( para 11).  The Supreme Court of Canada upheld this finding and concluded that, “It is also clear that the trial judge found the frailties in the complainant's evidence to be an understandable result of trying to remember events that happened in childhood and were, in any case, related to peripheral, not core, issues” (para 14).

[41]         Another case reviewed by Keith, J. in Michaud was R. v A.A.G., 2020 ONCA 356.  There, the accused was convicted of numerous sexual assaults over a period of 2 ½ years, including sexual touching, forced oral sex and vaginal intercourse, sometimes facilitated by forced consumption of marijuana or sleeping pills.  The complainant was between 12 and 14 years old at the time of the offences and 24 years old at the time of trial.  She testified that the abuse occurred daily during a trip from British Columbia to Ontario and that it was "persistent, constant, and unrelenting" thereafter (para 14).  The trial judge agreed that numerous sexual assaults occurred in the chronological order described by the complainant.   However, "it was probably not daily"; rather, the attacks occurred "perhaps with less frequency" (para 12).  The trial judge found that this inaccuracy did not undermine the complainant’s reliability.   It was "more likely a marker of the memory of a child” (para 12).  The Ontario Court of Appeal agreed and concluded: “The frequency with which the assaults were alleged to have happened was by no means a trivial matter, but in the context of historical offences said to have occurred repeatedly over a period of several years, we cannot say that the trial judge erred in placing the weight he did on the complainant's characterization of the frequency of the abuse” (paragraph 13).

[42]         In R. v H.(D.), 2016 ONCA 569 (“R v H.(D.)”) the complainant originally reported 10 different incidents of alleged abuse to the police.   By the time of trial, the number of alleged incidents of abuse rose from 10 times to possibly 120 times (para 53).   The Ontario Court of Appeal concluded that:

Although the trial judge was entitled to treat the frequency of the abuse as a peripheral matter in terms of an adult recalling events from childhood, the trial judge failed to also treat and assess the major inconsistency between the complainant's report to the police and her trial evidence the next year about the number of times the sexual abuse occurred, as a prior inconsistent statement. She failed to consider how this significant change in the complainant's memory should be viewed in the context of both her credibility and reliability in recounting the events in a formal context with legal consequences. (para 54)

[43]         However, mistakes and inconsistencies around the time, location or frequency of childhood abuse are not automatically forgiven; and cannot always be excused as a frailty of childhood memories on peripheral matters.   Thus, as indicated, important concerns arise with respect to a complainant who alleges 10 separate incidents of sexual abuse and then, over time, alleges 120 assaults.   Where these types of mistakes and inconsistencies touch upon central issues or compromise the accused’s ability to make full answer and defence, the complainant’s credibility and reliability may be called into question.

[44]         What this Court takes from this jurisprudence is that the Court must be vigilant in assessing the credibility and reliability of the complainant’s evidence.  I must recognize the frailty of childhood memories, be alive to the fact that “peripheral inconsistences” do not necessarily negatively affect the veracity of the core allegations before the Court, but also constantly be aware that inconsistences and mistakes that go to the very heart of the accusations against the accused may undermine the credibility and reliability of the complainant’s evidence so that reasonable doubt exists.  The backdrop to all of this, of course, is that the defendant comes to the court and remains before the Court as an innocent person unless, and until the Crown proves the charges against him beyond a reasonable doubt.

[45]         I will now review the evidence of the complainant and that of her mother, who I will refer to as JM or as the complainant’s mother.  Although I may not mention all of the evidence of each of these witnesses, I have considered all of it in coming to my decision.

The Evidence of the Complainant

[46]         BP was 32 years old at trial.  She was born and grew up in Nova Scotia but left for Alberta with her mother when she was 13 years old.  BP lived in Alberta until she was 21 years old when she returned to Nova Scotia.  She has lived in this Province since that time.

[47]         BP was born in Nova Scotia and lived with her biological father, TKB and her mother, JM, in a house in T until leaving for Alberta.  BP is an only child. 

[48]         When asked by Crown counsel why she and her mother went to Alberta when she was 13 years old, BP said “because we were leaving him” (her father, the defendant).  When asked why, her evidence was, “My mother didn’t know at the time, but I was leaving because I was being physically, sexually and emotionally abused”.

[49]         BP’s evidence was that most of this abuse occurred in the family home in T, but there was also abuse “at the graveyard in Sackville where my nanny B is buried” and well as Port Elgin, Ontario.  The Court did not consider the alleged abuse in Ontario in coming to my decision in this case.

[50]         BP gave a detailed description of the T family home:

It was a yellow house at the time.  I’m not sure if it still is, but if you go in the main door off to the right there would be a living room.  If you go forward a little bit more from the main area, off the left would be a hallway.  Now, down that hallway on your left would be a bedroom, but we use it as a computer room.  To the right of that was a bathroom in that hallway.  Same hallway, a little bit past that bathroom on the right was my bedroom.  Same hallway at the very end was my parent’s bedroom and they had an ensuite bathroom.  The kitchen was all the way striped (sic) in from the main door, off to the right of that was the dining room.  There were doors that led outside onto the back porch from the dining room.  There were also stairs at the end of the dining room that led to the basement which was unfinished.

[51]         The basement was used for laundry and storage.

[52]         BP stated that the abuse started when she was around three or four years old.  She turned 3 years old in October 1993.

[53]         When asked by Crown counsel whether there was anything about that age that stood out, in terms of her recall, BP’s evidence was that, “I spoke to my grandmother about it at the time…and explained to her that my vagina was hurting and she had asked why, and I had just told her that I was touched very inappropriately”.  When asked by Crown counsel if there was anything about that conversation with her grandmother that reminded her how young she was at that time.  BP’s response was “not specifically”. 

[54]         BP said that the abuse lasted until she was 13 years old.  She said that the sexual abuse got worse over time.  She said that the physical abuse “was always there”.

[55]         When asked by Crown counsel to describe how the sexual abuse got worse over time, BP testified about it being worse after seeing a Dr. Goldbloom:

Sure. So, when I was around three or four, it started by touching over the clothes,  my private areas, my vagina, my butt, and my, I didn’t really have boobs, obviously at the time, but boobs.  And…around the time I started seeing Dr. Goldbloom, after the end of that, it got worse and started being under the clothes, then it graduated to insertion of finger, then two fingers, then three fingers.  After that, it would be vaginal sex with penetration via penis or oral sex.

[56]         BP said that she didn’t have a time nailed down for when she started to see Dr. Goldbloom, but she was in elementary school.  She said that she was seeing Dr. Goldbloom because “I was getting a diagnosis of ADHD”.  BP’s evidence was that she thought that she only saw Dr. Goldbloom in the years before she started junior high school at approximately 12 years of age.

[57]         BP said that the physical abuse could be with the sexual abuse.  “Sometimes it was without, depending on where we were, of course”.  When asked when the physical abuse started BP testified “for as long as I can remember”.  Her evidence was that the physical abuse continued “right up until we left” when she was 13.

[58]         BP stated that her mother worked in housekeeping at a long-term care facility and TKB also worked in that same facility, in receiving.  When asked what shifts each parent worked, BP testified:

They worked days, but they weren’t always the same schedule.  So sometimes, mom would be home or sometimes he would be home.  After a certain point, I had started going to a babysitter.

[59]         If both parents were working, BP said that she went to a babysitter, AZ at first, but “then eventually I moved just to go into my grandmothers”.

[60]         If only one of her parents was working, BP said that the other parent would look after her. 

[61]         BP’s evidence was that her mother did not work night shifts, that she recalled.  She said that both parents worked about the same amount of time.

[62]         BP stated that she wasn’t 100% sure the time of year when she and her mother left Nova Scotia when she was 13.  She said it might have been fall or winter.

[63]         When asked by Crown counsel to describe the physical abuse, BP testified:

Often it would be getting hit in the head with a fist, a closed fist, or I would have my fingers crushed whenever we went out in public to the point that it made me cry and my knuckles were hurting.  There would also just be slapping around or choking.

[64]         BP was asked further questions by Crown counsel about the physical abuse:

                   Q:        Now you mentioned being hit about with a fist or knuckles, slapping, hand-crushing.  How often would you say one of these incidents happened?

                        A:        Daily.

                        Q:        Daily?

                        A:        Yes, For the physical aspects.

                        Q:        Okay.  And what about the sort of punching or being hit hard like that?

                        A:        That would be depending on how angry he’d be that day.

                        Q:        Okay.  And where would you be hit?

                        A:        In the head.  Mostly spots that wouldn’t be noticed.

                        Q:        Okay.  Do you recall seeing any visible bruising?

                        A:        Not that I recall, no.

                        Q:        Do you remember how often it was the more serious end, like the choking, that occurred?

                        A:        Again, dependent on how angry he’d be.

                        Q:        Okay.  Where would that type of physical assault occur?  Just being slapped or hit?

                        A:        Out in public or anywhere really for that.

                        Q:        Okay.  And would there by anything that would precipitate or come before he hit you or squeezed your hand like that?

                        A:        No.  Just if he thought I was acting out or being too loud or was just doing something he didn’t like, dragging my feet.

                        Q:        Did you do anything to try to avoid that type of physical assault?

                        A:        There as really nothing I could do at that age.

                        Q:        And how hard would you be hit?  Do you have a sense of who it impacted you physically?

                        A:        Enough  to make me cry.  It would hurt quite a bit.

                        Q:        And how did that type of assault make you feel?

                        A:        Anxious, scared, belittled…like I’m nothing.  I couldn’t understand why it was happening.

[65]         When asked about the emotional abuse, BP said that she would often be called names such as “stupid bitch”, “stupid idiot” and “brat”.

[66]         Crown counsel asked BP about the choking which she had testified to.  When asked if she remembered anything specific about that, BP stated:

I remember being held against the wall by my throat, right beside the bathroom as I was exiting once.

[67]         When asked what she meant by “choking”, BP stated, “hands around my neck, right up against the wall, held there”. 

[68]         The following questions and answers ensued between Crown counsel and BP:

                   Q:        Do you remember how long you were held there?

                        A:        A few minutes, if that.

                        Q:        Do you remember where you were exactly before that happened?

                        A:        In the bathroom.

                        Q:        Okay.  Do you remember what you were doing?

                        A:        Peeing.

                        Q:        Okay.  And do you have some recollection of how old you would have been?

                        A:        No.

                        Q:        Is this something from your older years.  Like pre-teen?

                        A:        I believe it to be the older years, yes.

                        Q:        Okay.  And so, when you came, what do you remember about leaving the bathroom or how you left the bathroom?

                        A:        I just remember coming out and he wanted to become sexually aggressive, and I had turned him down and he got physically aggressive and grabbed me by the neck and held me against the wall and did what he wanted.

                        Q:        Sorry, did you indicate how long you recall being held there?

                        A:        A couple minutes.

                        Q:        And how were you physically feeling with the hands on your neck?

                        A:        Strangled.  Scared.

                        Q:        Did you affect your breathing at all?

                        A:        A little bit, yes.

                        Q:        How so?

                        A:        It was harder to breathe.  It felt like breathing through a straw.

                        Q:        And so, was there anything else happening while you were held there?

                        A:        Yes, he tried to grope me.

                        Q:        Did he grope you?

                        A:        Yes.

                        Q:        And how did that incident end?

                        A:        Me running away to my bedroom.

                        Q:        And was there a struggle or did he just let go?  Could you tell us how it ended that way?

                        A:        A little bit of a struggle, yeah.

                        Q:        Okay.  Did anything happened after you went to your room?

                        A:        Not that I recall.

                        Q:        Did you ever tell your mom about that particular incident?

                        A:        Yes, I believe so.

[69]         Crown counsel asked BP about the frequency of sexual abuse which she described as being over her clothes in the earlier years.  BP said that it was just about every week.  BP said that sometimes it would be more often, “it really depended on how he was feeling that week.  How aggressive he was”.

[70]         BP said that most of this sexual abuse occurred in their house in Nova Scotia.  Sometimes it was in her mother’s room, sometimes in the ensuite in her parent’s bedroom and there was a time as well that it happened in her room. 

[71]         BP was asked by Crown counsel to describe what she remembered about her parents bedroom.  She said that the bed was to the left after entering the room, with a window to the left of the bed.  There was a dresser against the wall to the back of that.  To the right of the bedroom there was a tiny hallway with a closet on each end.  Straight through to the end of that hallway was her parents’ ensuite bathroom.

[72]         She said that she believed that TKB’s side of the bed was the right, which was further away from the window.

[73]         BP was asked by Crown counsel about the touching over her clothes:

          Q:      Okay.  So, can you tell us what you an remember about this touching over the clothes.  Like, how would you go from doing whatever you were doing to ending up in that situation?

            A:        I could be doing whatever and he would just get in the mood to do that I guess and just drag me along and then I would have to do exactly what it was he said.

            Q:        So, what did that look like when you were small.  Where would you go in the house?

            A:        In his room.

            Q:        Okay.  And from when you walk into the room, then where do you go?

            A:        To sit on the bed.

            Q:        Okay.  So, you would sit on the bed?

            A:        Yes.

            Q:        On either particular side of the bed?

            A:        No.

            Q:        Okay, and then what would  TKB do?

            A:        He would tell me to take my clothes off or tell me to do something specific.

            Q:        I’m talking about when you were younger, and you said that touching was over the clothes?

            A:        Yes, sorry.

            Q:        Okay.  Would TKB be standing, sitting, what would he do?

            A:        He’d be sitting.

            Q;        Okay.  And was there any discussion or words spoken before?

            A:        Not that I recall.

            Q:        Okay, so what you recall is how you were touched then.  When you were small and it was over the clothes.

            A:        He’d just grab my boobs or my butt, or my vagina.  He’d just touch it and poke around through the clothes.

            Q:        And what would he use to touch it?

            A:        His fingers.

            Q:        Do you have any sense of how long those encounters would last?

            A:        No. Felt like forever.

            Q:        Right.  And what were you doing when he was touching you in your vagina, your butt or your chest area?

            A:        Just sitting there.

            Q:        Was there any reciprocation of you touching TKB?

            A;        Not at that age, no.  Not until later on.

            Q:        Not early, and when, so did that start later?

            A:        Yes.

            Q:        Do you have a sense of when that started?

            A:        After Dr. Goldbloom.

            Q:        Do you recall when you were little, the touchings over the clothes, any discussions, your father saying anything to you after it was over?

            A:        Not off-hand.  No.

            Q:        And what did you think of it at that age, when you were small?

            A:        I didn’t know what to think.  I thought it was all normal.  That’s your parent, that’s somebody who is supposed to teach you right from wrong, raise you to make the right decisions.

[74]         The complainant was asked by Crown counsel if there was a time when she started to realize that what was happening to her wasn’t normal.  She said that this happened around the age of 10 or 11when she started hanging out with friends outside of her house.  She said that being at her friend Juanita’s house made her realize that Juanita’s family was not “like that at all.  They were never handsy or gropey or touchy”.

[75]         Crown counsel asked the complainant further questions about when the touching was over her clothes.  The complainant made certain gestures at that point with her hands and said, “He would poke”.  When asked what she recalled in terms of how much force or pressure was used, the complainant was, “It was enough to make it hurt.  It was enough that I told my grandmother it hurt”.

[76]         The complainant testified that this grandmother had passed away before the trial. 

[77]         The complainant could not say how long the sexual encounters she described with the defendant would last in terms of a few minutes versus twenty minutes or a long period.

[78]         The complainant stated that nothing stood out to her as to how these events would end.  She said that they pretty much just got up and left and he went to do his own thing.

[79]         In terms of seeing Dr. Goldbloom, the complainant testified that she stopped seeing a doctor on a regular basis that did physical examinations and that was when the sexual abuse started to get worse.

[80]         The complainant testified that after she stopped seeing Dr. Goldbloom, “It would graduate to touching under the clothes.  From then it would go to insertion of one finger, then two fingers, and then three fingers, and then penis”.

[81]         She testified that these things would occur with her clothes off – that he would tell her to remove them.  She described the insertion of his finger as penetration.  The complainant said that this felt weird at first, but then he brought it to a point where it was enjoyable.  The complainant testified that she didn’t have a conversation with the defendant at the time about why it was happening.  She stated that she still felt that it was normal, “because if I felt okay, why would it be wrong?  I don’t know”.  She said that the defendant did not tell her not to share what was happening with other people.

[82]         In terms of the frequency of the events of digital penetration, the complainant said that they became worse.  She could not say long each of these incidents would last.  She stated, “Again, it felt like forever”. 

[83]         The complainant testified that the defendant taught her how to masturbate him and he taught her how to give him a blow job.  When she touched him in these ways it was under his clothes.  When asked how frequently she would do so, she said “weekly, if not more.  Sometimes more in a week, depending on again on how he was that week”.

[84]         When asked how the defendant showed her how to masturbate him, the complainant said that he told her to grab on to his penis and go up and down with it.  She said that he would ejaculate and then put his clothes back on and get up and leave.  She would clean herself up with her hands and leave as well.

[85]         Crown counsel asked the complainant if she recalled anything about how much force the defendant used with her and whether he was gentle or aggressive.  She replied, “Always aggressive”.

[86]         She said that the digital penetration and the masturbation of the defendant was usually in his bedroom, but also in the bathroom, in the shower or in her room. 

[87]         When asked what she remembered about the shower, the complainant stated “having to give him a blow job in there and not being able to breathe because the water was all over my face”.  She said that giving a blow job meant to her, “to put their sexual object into your mouth, whether it be their penis, or if it was a woman obviously their vagina’.  In this case, the complainant said that it meant putting a penis in her mouth and doing that until the ejaculate.  She said that those encounters would end with the defendant ejaculating in her mouth.

[88]         When asked by Crown counsel how she felt at the time, she said that she didn’t really realize what was going on.  “I always thought it was normal until I started hanging out with my friends and we’re at their house”.

[89]         The complainant testified that she couldn’t say how many times the oral penetration happened.  She added, “Years”.  In terms of the defendant putting his penis into her mouth, the complainant said that these incidents would start “just the same as always.  He would tell me to come here, and I had to do what he said and if I didn’t do what he said, I’d get hurt”.  She said that him putting his penis in her mouth happened in the shower, in her bedroom and in his bedroom.

[90]         She said that she believes that she was 10ish years old when these events (putting his penis in her mouth) took place.  She said it was after she stopped seeing Dr. Goldbloom.  When asked what she remembered seeing of the defendant when she was getting her to touch him, the complainant said, “everything, really”.  She said that she saw his penis and his rear side.  His penis would be hard.  When she was masturbating the defendant, she said that it lasted maybe a couple of minutes.  When the defendant started touching her under the clothes, this would at times include her touching him, but not always.

[91]         Asked again how these incidents came about, she said that she would be playing in her room or watching TV in the living room or reading a book.  She said that it didn’t really matter what she was doing, that he was telling her to go with him and if she didn’t, she would get hurt.  When asked how she would be hurt, she responded, “with fists, hit in the head or slapped around or called names”. 

[92]         She said that most of these kinds of incidents happened in his bedroom.  He would make her sit on the bed, tell her to take her clothes off and to sit on the bed.  He would remove his clothes as well.  She said that the lights were always off.  The curtains would be open, and the blinds would either be open or closed.  Sometimes the window would be open.  She said that he was paranoid that the neighbour’s kid was in the yard.  She said that every time he heard a noise, he’d get up and look out the window.  She said that his and her clothes would end up on the floor.  She stated that there were a lot of kids in the area.  She said that there were two to one side of their house and two right behind their house and then multiple other kids up and around the other streets.

[93]         She said that she played with kids outside of her house, and sometime the neighbour’s kids came to her house.  She said that more often she went to their houses, that they wouldn’t often come to her house.  In terms of interactions with extended family, the complainant stated that she would sometimes go with her father to visit his brother and his sister-in-law and their kids.  She would sometimes go visit Nanny B with him when she was alive.  “As for people over in our house, not often”.

[94]         She said that she didn’t recall that either of her parents worked on the weekend.

[95]         The complainant said that the bed in the defendant’s bedroom was always made and these incidents took place over the comforter on the bed and never under the sheets.

[96]         She testified that before the sexual activity (digital or penal penetration) there would not be other sexual activity.  The only conversation between her and the defendant was to follow him and do what he asked.  She said that depending on the day it would either be finger penetration or oral sex with groping, or it would be with his penis.  She would be laying on the bed at the time.  She said that the penis penetration was “doggy style” sometimes.  She could not recall other positions.  By doggy style she said that she meant on your hands and knees on the bed.  She said that he would come at her with his penis and put it inside her vagina.  He would be right on top of her.  She said that a condom was never used.

[97]         She said that the first time this happened, it felt “weird”.  She remembered having to go to the bathroom to clean up.  She said that this changed over time saying that “he made it to a point where it became enjoyable”.  At first, she said that it felt weird and hurt.  By enjoyable she said that he made her orgasm.  They would not have a discussion afterwards. 

[98]         The complainant could not say how long the incidents involving penis penetration would last.  She said, “if felt like forever”.  When asked if she knew whether the defendant ejaculated, she said that he did.

[99]         The complainant said that she thought this behaviour was normal.  She got up, went to the bathroom and cleaned herself up.  The defendant got dressed and left.

[100]    When asked by Crown counsel how would things be between him and her afterwards, when she would come out of the bathroom, she said that the defendant would act nice for a little bit.  “But only for a little bit, then he’d become aggressive and violent again”.

[101]    The complainant was asked where her mother was during these incidents.  She answered, “Work”.

[102]    The complainant was asked by Crown counsel whether her behaviour around the defendant was affected once she started to realize that this wasn’t normal behaviour.  She responded, “Yes, I started denying him more and told him that I didn’t want to do this anymore, that it wasn’t okay, that it was gross.  It wasn’t normal”.  The complainant said that she then tried to get away from him more.  She described that she would try to get up, leave the room, or leave to get away from him.  She tried not to be home when he was home.  She tried to be out with her friends.  She testified that she tied her comforter to her bed once and jumped out the window and thought that was a great idea.  She said that she wasn’t allowed to leave her room once and that’s when she did that (jumping out the window with her comforter).  She said that she then couldn’t get back in the house, so she waited until her mom got home and then came home. 

[103]    Crown counsel asked the complainant whether she told her mom about these incidents when she was young and still living in Nova Scotia.  She replied, “no”, that she didn’t tell her mother until she was 16 years old living in Alberta. 

[104]    Crown counsel asked the complainant why she didn’t tell her mother while they were still living in Nova Scotia.  She responded, “I thought she would be mad at me and disgusted”. 

[105]    Crown counsel asked the complainant how she felt about the defendant at that time.  She responded that she didn’t want anything to do with him and that she didn’t want anything to do with him now.  “I don’t even wanna be in the same room as him, let alone the same building”.

[106]    When asked by Crown counsel what would happen when she tried to refuse the defendant, she testified that he would become more violent.  She said that sometimes he made her stay there.  She added, “It hurt too much.  I couldn’t get away from him and he still just did what he wanted”.  When she was able to get away, she would go outside and go over to her friend’s house.  The Court notes that the complainant was crying slightly at this point in her evidence, as she did at various points while testifying.

[107]    The complainant said that she started menstruating at age 16.  She said that as far as she was aware, her father would have known that she wasn’t menstruating at age 13.

[108]    The complainant testified that after she was sexually assaulted, she would feel used, disgusted and abused.  This was after the time when she realized this behaviour was not normal.  She would be disgusted with herself that she let it happen, disgusted with him because he was supposed to be her father and that was just not something you did to your kids, let alone anybody.

[109]    When asked about the defendant’s demeanour during these acts of sexual abuse and whether that changed over time, the complainant testified that he was physically aggressive and emotionally aggressive.  She said that when he was done and got what he wanted, he would be nice for a little while until he got crabby again.

[110]    When physical abuse took place, the complainant said that he would be crabby “for god knows what reason”.

[111]    When she came home from elementary school, she said that she would put her stuff away and try to avoid her father.

[112]    The complainant started to give some evidence about being sexually assaulted by her father while alone with him in Ontario.  The defence objected as this incident took place out of the jurisdiction.  The Court had heard the allegation before there was a defence objection.  Crown counsel said that this evidence was part of the complainant’s narrative even though the incident did not form part of the charges before the Court.  I indicated that I didn’t want to hear further on the matter.  I have not considered this evidence in reaching my conclusions in this matter.

[113]    The complainant was questioned by Crown counsel about the events leading up to her leaving with her mother to go to Alberta when she was 13 years old.

[114]    Her evidence was as follows:

I remember that my, that he was being more physically and emotionally abusive than usual.  I was getting hit more and he was just being more vulgar, and I had had enough and I finally got the nerve to go down the hall and talk to my mom and tell her I was leaving with or without her, but I would prefer to go with her.

[115]    The complainant did not remember specifically what the defendant was saying to her that night.  Her mother was in her bedroom when she spoke to her.  After she told her mother that she was leaving with or without her, her mother went out and told the defendant that she wanted a divorce.  The complainant testified that she remembered her mother coming back down the hall into the bedroom, closed the door and locked it.  She said that the defendant then came and started banging on the door.  She said that she was terrified that he was going to break it down.  She said that the defendant eventually left the house.  She and her mother came out and went to her grandmother’s house, just to escape the area and be in a safer place.  They stayed with her grandmother that night.  The complainant testified that she believed that her mother and her uncle Steven went to her house the next day to collect a few things and then the next day they were off to Alberta.

[116]    The complainant stated that once she got to Alberta, she didn’t want a relationship with the defendant, but she had to visit him because the courts made her do so.  She said that her parents were “going through custody”. 

[117]    The complainant said that she didn’t know how many times she returned to Nova Scotia from Alberta, but that she did so at least twice.  She said that she remembered having to meet with a mediator to discuss where she wanted to be.  She testified that the mediator asked her if “any of this sexual stuff was going on and I told him no, that was disgusting because I was still too scared to talk about it”.

[118]    The complainant was asked by Crown counsel whether anything else happened during her visits to Nova Scotia in connection with the court proceedings involving her parents.  She said “yes”:

Yes.  Nanny B’s grave in Sackville.  There was when I visited, he drove up the hill, that was there at the graveyard, and he parked to the left of the graveyard, in the back where it was a dirt road at the time, and he pulled me into the driver’s seat and started touching me under the clothes.

I was in the passenger’s seat in the front, he grabbed unto me, and pulled me over onto his lap.

[119]    She did not recall where she was staying that week when she was in Nova Scotia but believed that she wasn’t staying with the defendant.  She testified that after the defendant pulled her onto his lap, he began to touch her under the clothes, with his fingers in her vagina.  She said that her clothes were on, but he stuck his hands under her pants.  She didn’t recall how long this incident lasted or how it ended.

[120]    She said that the vehicle she and the defendant were in was a green Sunfire, the same vehicle that had been the family car before she left Nova Scotia for Alberta.

[121]    When asked whether she remembered anything else that she did with the defendant that week, she said that they went shopping at Walmart and the defendant bought her some things.  She said that he then turned around later and said that she just came back to get information and stuff and that she was a gold-digging whore like her aunt and her mother.  She said he said this later, she believed in an email.

[122]    The complainant said that she didn’t have a full understanding of what was happening between her parents in court.  She said that she remembered meeting the mediator at an A & W at the Halifax Shopping Centre.  She was asked by Crown counsel what she thought the mediator’s role to be she said to figure out where she would best be.

[123]    The complainant testified that she returned to Nova Scotia after that visit where she met the mediator.  She didn’t know how many times she returned but said that she remembered coming back when her grandfather died, her mother’s father.  She came with her mother on that occasion.  She did not see her father on that visit, but her evidence was that he saw her and was well aware to let her know that.  She said that she saw his vehicle stop at the end of the driveway, that he slammed his brakes on.  She realized it was him.  She was sitting outside with her cousin and ran in the house.  She said that he then tore off.

[124]    The complainant was asked whether she had any communication with the defendant while she was a teenager in Alberta.  She testified that she believed she called him once from school because she was still so confused about the whole situation.  She said that she didn’t know what was up, what was down, what was right, what wasn’t right.  She stated, “because like I said, this was your parent.  This is somebody that’s supposed to teach you right from wrong and clearly, he did not”.

[125]    The complainant was asked by Crown counsel about telling her mother about the defendant’s behaviour when she was 16.  Her evidence was that she told her mother “just brief, vague details.  I didn’t want to get too much into the details with her”.  The complainant said that she told her friend, S, before she told her mother when she was 14 or 15 years old.  S and her mother were the only people that she told at that time.

[126]    When asked what was the next thing that she remembered happening with respect to her interaction with the defendant, the complainant stated that she started getting messages from him on Facebook around 2008 when she was 18 years old.  She said that the defendant was not a Facebook friend.  He sent these messages to her from his personal Facebook account.  His name was written on the account.  She said that these messages all had the defendant’s name until she blocked that account.  She stated that he then started messaging her from accounts with other names attached to them.  She said that she knew these messages were from the defendant because he spoke in the exact same way, the same wordage and verbiage.  He said that in these messages he called her mother and her aunt “down to the lowest.  Being absolutely vulgar, mean”.  She stated that she received these messages for around a year, maybe longer.

[127]    The complainant was asked if she did anything because of those emails.  She said that she wrote a letter with the help of her mother, and she went to see Cst. Jack Waitrose in Wainright, Alberta to talk about it because she had had enough at that time.  The complainant was asked whether she started an investigation in Alberta in relation to the matters before this Court.  She stated that she did, “but then I got scared again and backed out”.  She gave a statement to the Alberta police at that time.

[128]    The complainant was asked whether, before the email happened, she had ever confronted the defendant about the sexual and physical abuse.  She said “no” and that she didn’t do so in the emails to the defendant.  When asked whether he ever brought it up, her evidence was not that she recalled, except for when she told him to leave her alone and “he better leave me alone before I go to the cops and that he’ll probably end up in jail for what he did to me and did he really want that”.  She said that the defendant’s emails before that were all negative and vulgar with name calling of her, her mother and her aunt.  She said then it could change to totally nice emails.  She said that that was after she confronted him. 

[129]    The Crown counsel said that these emails were provided to defence counsel pursuant to a waiver under section 278.  She showed the complainant two of these emails.  Defence counsel raised no objection.  The complainant described the first email as being sent from CJ Noddin which she said was an account that the defendant used as an alias.  The first message was sent on May 29, 2009.  She said that she knew it was from the defendant because of the words and verbiage.  She said that he told her to change her profile and referred to her as a “little traitor”.  Part of the email stated, “I will never forgive your mother for taking you out there, and I hope karma gets her”.  The second message was sent from the complainant later in the day on May 29, 2009.  In it she stated that he had done wrong in the past, referred to the “shit” he did to her as a child and that her testimony could land him in jail for a few years.

[130]    This email was entered as an exhibit at the trial, with no objection by defence counsel.

[131]    The complainant said that the defendant did not respond specifically to this email.  The complainant was around age 19 at the time she sent this email.

[132]    The Court notes that it does not consider any part of the complainant’s email to stand for the truth of its contents as it relates to the “wrongs” done to her by the defendant in her childhood.  The Crown suggested that the only purpose the Court should use this evidence was that the defendant didn’t respond to it and didn’t deny the alleged abuse. 

[133]    The complainant’s email has no probative value.  Nor does the fact that the defendant allegedly did not respond to it.  I have insufficient evidence to come to that conclusion and I do not.  I reject the usefulness in any manner of this evidence, including the defendant’s alleged lack of denial to its contents.

[134]    Further, I am not fully confident that the email from the Noddin account was actually sent by the defendant.

[135]    The complainant was asked by Crown counsel why she came forward more recently to the police.  She said that she’s been in therapy for a while, and she hasn’t been able to move on with her life and heal.  She said that she feels like she’s stuck in a rut, that she’s never been able to accomplish anything and noted that she hadn’t finished school.  She said that she keeps having to take time off work.  She also said that her anxiety keeps acting up and getting in the way of everything.

The Evidence of JM

[136]    JM is the biological mother of the complainant.  She was fifty-three years old at the time of trial.  I do not intend to review all of JM’s evidence in this decision, but I have considered all of it.  Rather, I will review parts of it, and refer to it in the context of the defence submission that JM was not a credible witness.

[137]    JM met TKB in 1989.  She married TKB at some point and the complainant was born in 1990.  TKB is the complainant’s biological daughter.  They had no other children together.  At first, she and TKB lived together in Dartmouth, but then moved to an apartment in Lakeside and finally to T, Nova Scotia.  They were living in Dartmouth when BP was born.  BP was four years old when they moved to T. 

[138]    When asked in cross-examination how she recalled that the complainant was four when they moved to the house in T., JM stated that she just remembered for some reason that that’s how old she was, and because she was four when she started private school, so she sort of remembered those dates.  When asked by defence counsel if the name of the school was CA, JM agreed that that was the name of the school.  JM thought that BP was at that school until she was 6.  She said in cross-examination that she believed that the next school BP went to was T Elementary.  She said that BP would have been in T Junior High as well until she left.

[139]    JM’s evidence was that she and TKB and BP lived together in T until she and BP left in January 2004 and moved to Alberta.  BP was 13 years old at that time.   When asked by Crown counsel why they left, JM said that she was tired of the mental and emotional abuse.  She stated that she knew that TKB was physically abusing BP and she came to the point where she wasn’t going to take it anymore so BP and her had a conversation and JM thought it was in the best interests to move away from Nova Scotia.  Her evidence was that at that point she’d had enough and wanted a divorce and she left.

[140]    She said that during the conversation with BP, BP told her that if she didn’t leave, that she’d be leaving without her.  JM said that BP didn’t tell her anything else that day.  Her recollection was that this conversation took place in the home during the afternoon.  She said that TKB was present in the home at the time.  JM said that she and BP decided that they were going to leave right there and then.  She stated that she told TKB that she wanted a divorce and went into her room to start packing some things, closing the bedroom door behind her and locked it.  BP was in her room at this time.  She said that then there was a lot of banging and yelling from TKB and eventually he left.  She stated that she then packed a few pieces of clothing and left with the dog and BP.  They went to her parents’ house.

[141]    JM stated that his sister was living in Alberta.  They arranged for her and BP to go out to Alberta.  Her evidence was that they went to Alberta that same night. 

[142]    When asked by Crown counsel to describe her relationship with TKB up to the day she and BP left, JM stated “It was tense”. 

[143]    JM stated that she was working at that time in a long term care facility.  She said that she just left her job. 

[144]    JM described the house in T where the three lived until she and BP left for Alberta as being a yellow, ranch-type bungalow.  She described the house as having three bedrooms, a sunken living room with a propane fireplace.  The living room was to the right coming in the front door.  The kitchen was straight ahead front the front door and the bedrooms were down the hall to the left.  BPs bedroom was the last room on the left down the hallway and on the back of the house.

[145]    JM confirmed the location of the various rooms in the house on an exhibit as drawn by BP during her testimony.

[146]    JM stated that she shared a bedroom with TKB until she left for Alberta.   There was a queen-sized bed with the foot of the bed facing the door and the headboard against the wall.

[147]    The basement was used for storage.  There were two bathrooms in the house.  One was off the main bedroom she shared with TKB; and other was in the hallway.  The main bathroom had a sink, toilette and shower; the bathroom in the hallway had a sink, toilette and a bathtub.  She believed that there were blinds on the windows of the bedrooms; the living room had flowery curtains.

[148]    JM’s testimony was that up to four years before she left, there was no sexual intimacy with TKB. 

[149]    When asked by Crown counsel if BP had any challenges school-wise, JM stated that BP was diagnosed with ADHD when she was 6 years old by a doctor whose name she believed was Dr. Goldbloom.  She believed that Dr. Goldbloom was a child psychiatrist. She said that BP did not see Dr. Goldbloom for very long, maybe for about three months.  She stated that BP did not have any other medical conditions.  She did describe BP as having febrile seizures as a child from about 2 to 6 years of age.  When a seizure happened, she would put BP on her side and cool her down with a fan.  TKB would also be involved.

[150]    JM said that BP was on medication, Ritalin, for the ADHD for a short time, but that she took her off it because she was just too groggy.  Her evidence was that BP was probably taking Ritalin for maybe two months.

[151]    JM’s work at the care facility was cleaning.  Her shifts were Monday to Friday and every second weekend.  If she worked on a weekend, she would have a day off during the week.  JM stated that she did not work any nights.  That was her only job while BP was growing up.

[152]    JM’s evidence was that TKB worked at the same care facility in materials management.  She said that his job was delivering supplies to each floor in the facility.  She said that TKB was working at the facility when she first met him and was working there when she left in 2004.

[153]    Her evidence was that TKB worked through the week, Monday to Friday.  He did not work evenings or weekends.  She said that TKB also did work for his union.  He said his role with the union was secretary/treasurer.  She said that he would do work for the union on a few evenings (outside the home) and go on trips “here and there”.  A few of those trips were to Ontario.  Her evidence was that she and BP joined TKB on one of those trips in Toronto.  They arrived later than TKB and went to Niagara.  JM also stated that there was a family trip to Port Elgin which BP went on with TKB, but she did not go. 

[154]    JM said that grocery shopping was “probably joint”, with her getting groceries sometimes and TKB getting groceries other times. 

[155]    JM was asked a series of questions by defence counsel about her working schedule and that of TKB.  When BP was between 4 and 6 years old, JM said that her shift schedule was Monday to Friday and every second weekend.  She had a day off during the week if she worked on the weekend; she did not recall which day of the week.  JM said that schedule did not change over time as BP got older.  She believed that TKB’s work hours were 8 am to 4 pm, Monday to Friday.  She said that her hours were the same, 8 am to 4 p.m.

[156]    In terms of childcare when BP was young, i.e., pre-school, JM said there was a babysitter, AZ who would take BP.  After BP started school AZ would also look after her, as would JM’s mom and dad would take her.  If JM was working and TKB was not, then he would look after BP.

[157]    Asked whether BP reached an age when she didn’t need a sitter, JM said that if BP was not with a sitter after school, she would be with her parents (BP’s maternal grandparents).

[158]    JM’s evidence was that there were many days when she and TKB worked the same shift.  She said that on those days they would go to work together by car.  There were different cars over the years, but the last car was a green Sunfire.  When they didn’t have the same shifts, JM said that she would drive herself to work as she would on weekends.  During those times, TKB would be home without a car or vice versa. 

[159]    Crown counsel asked JM if she was ever witnessed any abuse which happened to BP.  Her response was, “Physical and mental abuse, yes”.  When asked about the physical abused, JM stated that she remembered one time BP was watching TV, she didn’t recall what BP said, but TKB got up and smacked her across the head with the remote.  She didn’t recall how old BP was at that time.  JM was asked by Crown counsel if she ever saw any injuries on BP.  Her evidence was that one day she came home from work, and she couldn’t find BP and TKB didn’t know where BP was.  Her evidence was that she then went to a few of the neighbours to ask if they had seen BP and nobody had.  She stated that eventually BP did come home, and she had redness right around her neck area.

[160]    JM said that she asked BP what had happened, and BP said that he had pinned her down on the floor and tried to choke her.  Crown counsel advised the Court that this evidence was part of the narrative and was not being relied upon for the truth of its content. 

[161]    JM said that she did nothing about what BP told her and she did not speak to TKB about it.  JM said that BP was about 10 years old at this time.

[162]    JM said that she knew TKB’s mother and that she lived on a street in north end Halifax.  She said that she believed TKB’s mother passed away in 2000 and was buried in Sackville Cemetery.  She said that TKB had a brother who lived in Sackville, Nova Scotia.  She said that they sometimes visited TKB’s brother and sometimes his family visited their family in T, but not very often.

[163]    JM was asked by Crown counsel about the custody arrangements for BP once she and BP moved to Alberta in 2004.  Her evidence was that she got a lawyer and there was a court order drawn up for custody.  She wanted full custody of her daughter.  She did not recall how long it took to get the order.  JM’s evidence was that it was court-ordered that BP come back to Nova Scotia periodically.  She thought there were three visits.  BP went on each occasion by herself.  She believed that these visits were for a week. 

[164]    JM stated that she thought that BP was supposed to stay with TKB and his brother on these visits, but she “was not one hundred percent”.  JM believed that she had to return to Nova Scotia for the court order.  BP came with her and stayed with her parents (BP’s grandparents).

[165]    JM said that there was a mediator in place as part of the family court proceedings and each one of them had to talk to the mediator, including BP.  JM said that visitations with TKB and BP did not continue after the court order.  She said that custody was settled after that, with her having custody of BP.  She said that this all took place in 2004 within the time span of about four months. 

[166]    When asked by Crown counsel whether BP ever disclosed abuse to her apart from the incident of physical assault involving the TV remote that she referred to earlier in her testimony, she said, “No”.  JM’s evidence was that BP disclosed sexual abuse to her when BP was sixteen.  When asked by Crown counsel if BP disclosed details to her of the sexual abuse, JM said, “very little”.  She said that she did not call the police.  Her evidence was that she suggested that BP go to the police and file a report but said that she didn’t think that BP ever did. 

[167]    When asked if she was involved at any other time when BP went to the police, JM stated that she knew that BP had done a statement and had it witnessed, but she never went forward with it.  She did not recall how old BP was at the time.  JM said that she, herself, did not give any statements at that time. 

[168]    JM said that the last time that she had face-to-face communication with TKB was nineteen years ago.  Her evidence was that the only communication she had with TKB since 2004 was “nasty emails”.

[169]    At this point in this decision, I will review the defence’s position and submissions, as well as evidence adduced on cross-examination of the complainant and her mother, particularly those aspects of the evidence of these witnesses which defence counsel says this Court should conclude raises reasonable doubt.  The Court will state its analysis and conclusions on the various matters raised by defence counsel.

[170]    The cross-examination of the complainant was lengthy.  It took place on September 25, 2023, starting approximately 11: 35 a.m. and ending (with a lunch break) at approximately 15:45.  At that point defence counsel advised the Court that the defence wished to make a s. 278 third party record application, seeking therapeutic records related to the allegations against the defendant.  As noted earlier in this decision, this application resulted in a voir dire, which involved several days to deal with the Stage 1 and 2 aspects of the request for disclosure.  As a result of the Court’s decision at Stage 2, redacted records of therapist Knapton’s sessions with the complainant were provided to counsel.  Several conference calls and meetings between counsel, including counsel for the complainant took place in November and December 2023.  The defence made no further applications in connection with the redacted record disclosure.  The complainant’s cross-examination resumed on January 26, 2024.  Defence counsel had obtained a transcript of the complainant’s evidence in direct and cross-examination (up until the defence made the s. 278 application) which was made available to Crown counsel and this Court.  The cross-examination of the complainant on January 26, 2024 lasted approximately one hour and forty-five minutes.

[171]    The Court notes this only to say that the complainant was thoroughly cross-examined, including on evidence that she gave in direct examination on September 25 when her cross-examination resume on January 26, 2024.  The defence counsel points out that the complainant could not recall whether or not she had given certain evidence on September 25 when her cross-examination continued on January 26, 2024.  The defence suggests that that means that the complainant’s current mental difficulties negatively effect her memory and, as a result, there is a frailty to her evidence, which this Court cannot ignore.

[172]    I will review this issue later when I consider the complainant’s evidence as a whole and attempt to separate what I consider to be peripheral matters which don’t go to the heart of her allegations against the defendant, and what are core matters central to those allegations.

[173]    Defence counsel emphasized in their closing submissions on what they describe as “new incidents” of sexual abuse which the complainant raised neither in her November 2021 police statement or to Crown counsel in meetings close to the commencement of trial.  It is suggested that these new incidents should have been disclosed before, especially since the complainant gave evidence that while she did not mention these events in her police statement, that she had recalled them by the time she met with Crown counsel in preparation for this trial.

[174]    The first matter which the defence raised in its closing submission was the matter of the complainant’s motive to fabricate. 

[175]    The defendant does not have to advance, suggest or prove any motive to fabricate.  Nor does a lack of motive to fabricate bolster BP’s credibility.  However, it can be one, among many factors a trial judge can consider when assessing the credibility of the complainant.  It is an error for a trial judge to place too much emphasis on a complainant’s lack of motive to lie or fabricate.  The case law in this regard was usefully reviewed by the Ontario Court of Appeal in  R v Ignacio, 2021 ONCA 69:

22	The trial judge rejected the defence's allegation that the complainant had a motive to fabricate.  He commented on motive in two paragraphs, the first of which is the contentious one for the purpose of this appeal and is placed under the heading "[The Complainant's] Evidence":
	I note as well that [the complainant] had no motive to falsely accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I am mindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witness would testify falsely: R. v. Krack (1990), 56 C.C.C. (3d) 555 (Ont. C.A.), at pp. 561-562. Nonetheless, this is a factor to consider: R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at para. 4; R. v. Plews, 2010 ONSC 5653, at para. 335. I recognize that the defence has alleged a motive to fabricate that is related to [the complainant's] fear of having become pregnant, an issue I will address later in these reasons.
23	Two paragraphs later, under the heading "The Alleged Motive to Fabricate”, the t trial judge wrote the following:
	It was submitted on behalf of Mr. Ignacio that [the complainant] had a motive to fabricate a sexual assault because she was afraid that she had become pregnant as a result of Mr. Ignacio ejaculating inside her and needed to explain any pregnancy to her parents in such a way as to absolve herself of having any responsibility for the situation. It was also submitted that this fear of pregnancy explains why [the complainant] was so upset the following day. In my view, the problem with this theory is that [the complainant] had the wherewithal to obtain a "morning after" pill immediately after Mr. Ignacio ejaculated inside her. She took the pill and there is no suggestion that she had any reason to think that it would not work. She had no real reason to believe that she was pregnant. Even if she had such a fear, it is difficult to understand why she would subject herself to a "rape kit" examination the following day. If she was worried about being pregnant, surely undergoing a pregnancy test would have made far more sense.
24	The trial judge accepted the complainant's evidence and found beyond a reasonable doubt that the appellant sexually assaulted her.
…
30	In addressing this appeal, there are in essence two questions that require a response:
		(i)	Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crown asserts, simply an absence of evidence of any motive to fabricate?
		(ii)	If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting to an absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant's credibility?
			(b)	Absence of evidence of motive to fabricate may be considered in credibility analysis
37	This does not end the matter, however. The question then becomes: was the trial judge entitled to treat the absence of evidence of motive to fabricate as a consideration in assessing the complainant's credibility?
38	Both R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.) and L.L. say that the absence of evidence of motive may be considered as a factor in assessing credibility.
...
52	Consistent with this interpretation, in several cases following Bartholomew (see, for example, W.R. ; R. v. Mirzadegan, 2019 ONCA 864 (Ont. C.A.) ; and R. v. MacKenzie, 2020 ONCA 646 (Ont. C.A.)1), this court has confirmed that the trier of fact is entitled to consider the absence of evidence of motive to fabricate as one factor in assessing the complainant's credibility. As in Batte and L.L., the cases caution against placing an improper emphasis on the absence of evidence of motive to fabricate, finding a proven absence of motive when the evidence does not support such a finding, and placing an onus on the accused to prove the complainant had a motive to lie. But assuming these errors are not present, the trier is entitled to consider the absence of evidence of motive to fabricate as one factor among many in assessing the complainant's credibility.
…
56	Lastly, a case that bears some similarities to the case under appeal is this court's decision in R. v. M. (O.), 2014 ONCA 503, 313 C.C.C. (3d) 5 (Ont. C.A.). There this court dismissed an appeal where the trial judge explicitly found that the Crown had "proven an absence of a motive to fabricate the allegations (at para. 106), or put differently, no motive to fabricate. Before this court, the appellant argued that "the trial judge erred by finding that the Crown had established the complainants' lack of a motive to fabricate ": at para. 104. This court rejected that argument.
57	Cronk J.A., writing for the court, accepted the distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate: at para. 107. She held that there was "no basis to conclude that the trial judge confused the absence of evidence of a motive to fabricate with the absence of such a motive": at para. 108. The trial judge considered and rejected the defence suggestion that each complainant had a motive to fabricate. He did not suggest that the complainants must be telling the truth because no motive to fabricate had been demonstrated. Instead, he considered the absence of an established motive to fabricate as only one factor among many in assessing the complainant's credibility. This was not in error, as it was consistent with Batte . Cronk J.A. concluded that it was "open to the trial judge to find an absence of apparent motive by the complainants to fabricate": at para. 109.
58	In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider.
59	In this case, the trial judge's treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant's credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider. As in W.R. , the trial judge's comment about motive did not "drive the trial judge's credibility findings", nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth.
60	Credibility findings are the province of the trier of fact. In this case, the trial judge clearly had no reasonable doubt that the appellant was guilty of sexual assault. His treatment of motive to fabricate did not infect that conclusion. In these circumstances, there is no need to rely on the curative proviso.
	[Emphasis added]

[176]    In this case, the defence suggests that the complainant had harboured a very long-standing animosity against her father which led to her reporting his alleged conduct to the police in 2022.  She suggests that the complainant was at pains throughout her testimony to not mention the word “love” in connection with her father and to downplay the good things that she and her father did together.  The defence suggests that it was the defendant who took the complainant to see Dr. Goldbloom when she was a child to get help to address certain instances of childhood misconduct (the complainant put a knife into a wall socket, for example).  JM testified that she was the one who took BP to see Dr. Goldbloom.  The defendant picked her up from school at times.  The defendant took her to Moosehead hockey games.  The complainant acknowledged that the defendant took her to the hockey games.  However, she said that it was her father who enjoyed hockey, not her.

[177]    I do not take this a downplaying her father’s contribution to her happiness as a child, as suggested by the defence.  That is because the complainant said many times, in one fashion or another, that “it was all about him”, and that “he got what he wanted”.  To this Court that tells me that the complainant experienced her father as controlling and coercive.  She added to such statements that “if you didn’t do what he wanted, you got hurt”.  That was her experience and her repeated evidence at trial.

[178]    The complainant also said that the “good” her father did, did not outweigh the “bad”.  She did not outright deny that her father did “good”.  It goes without saying that her father held a significant position of trust in this home for the complainant.  She testified that her mother “was not there for her”.

[179]    The complainant’s evidence left me in no doubt that she feared her father.  Her evidence was that he was always aggressive with her.  She said that she didn’t even want to be in the same room with him.  She testified as to having at present a very small circle of people she trusts.  She didn’t disclose the abuse she says she suffered to her mother until she was sixteen years old, and even then, she said that she did not provide a lot of details.  Her mother corroborated this evidence, in terms of being provided with very few details.

[180]    Defence counsel referred to the complainant’s supposed lack of opportunity to carry out the kind of abuse which the complainant alleges he perpetrated on her.

[181]    JM testified that she had a consistent work schedule when the complainant was between 3 and 13 years of age:  Monday to Friday 8 am to 4 pm and every second weekend. 

[182]    However, the complainant testified that she didn’t recall that either parent worked on the weekend.  The complainant also testified that as she got older her parents’ work schedule changed.

[183]    JM’s evidence was that TKB worked Monday to Friday at the same location as she did but not on weekends.  She said that he got off work an hour before she did, at 3 p.m.  JM said that they drove home together in the one family car. 

[184]    Defence counsel says that if that evidence is accepted, it doesn’t leave a lot of opportunity when JM was not home and TKB was home alone with the complainant.  That is because, defence counsel says,  the complainant testified that to the best of her recollection every time TKB sexually abused her, her mother was not home.  The complainant said that if her mother wasn’t home, her mother was at work.  When asked by defence counsel if her mother could have been running errands or getting groceries she said that she would have most likely been with her mother for such activities.  Defence counsel says there is not much room to fit the complainant’ description that her mother was always at work when these events happened. 

[185]    The Court notes that BP also testified that when she came home from school sometimes her father would be home, and she would put her school things away and try to avoid her father.  The Court didn’t hear evidence of the time that BP got home from school, but it seems unlikely this would have been before the defendant got off work at 4 p.m. and drove home with JM.

[186]    Of course, that still leaves weekends when TKB was home with the complainant when JM was working (every second weekend).  It also leaves evenings after supper, when JM sometimes left the family home to go to visit with her parents.

[187]    I am not persuaded by the defence argument that there was no or limited opportunity for TKB to assault the complainant.  I accept that as an adult giving evidence about these incidences of abuse going back decades, the complainant is unable to accurately know her parents’ work schedule, or whether these events happened on weekends.  Defence counsel suggested to the complainant that she would likely remember if these kinds of assaults were on a weekend, in the sense that weekends would stand out to a young child.  I disagree with that contention.  I consider the exact times of the assaults to be in realm of the peripheral in this context.  The complainant did testify that she usually went with her mother when her mother was running errands.  That does not mean that she invariably was with her mother every time her mother left the home, other than for work.  The exact time her mother left at times after the family supper to go to visit her parents, could mean, as suggested by defence counsel, that these events happened during the evening, not during the day, as recollected by the complainant.

[188]    However, in the view of this Court, that is exactly the kind of peripheral detail that I should be careful to assess in light of the fact that these events took place decades ago and memories can certainly fade over time.  Further, I conclude that the exact times of the assaults is peripheral, not core to the allegations before the Court. 

[189]    Even realizing that the defence counsel has raised it for the most part as a question of “opportunity”, I nonetheless conclude that TKB had opportunity to assault the complainant in the manner she describes.  There were weekends when JM worked.  There were times when JM left the home after supper to visit with her parents. 

[190]    The defence counsel says that JM’s work schedule also is relevant in terms of the complainant’s allegations about TKB sexually touching her breasts and vagina area while they were both in the bath tub naked together.  The complainant’s evidence was that her mother came home early from work that day and TKB was surprised by her early return.  The complainant said that TKB quickly got out of the tub and put a towel around himself before meeting his wife.  JM’s evidence was that she did not recall unexpectedly coming home early from work.

[191]    Defence counsel says that in her cross-examination of the complainant she said that this occurred at a time when she thought that such sexual behaviour was normal.  The complainant’s evidence was that by around 11 years old she came to know that this behaviour was not normal.  Defence counsel queries that if this incident was normal, why would it stand out to the complainant?

[192]    This Court notes here that the defence did not call any expert evidence concerning memory and memory as it relates to abuse perpetrated on children which they disclose many years later.  That is only an observation and not determinative of anything because I do not accept that it follows that just because the complainant thought that being with her father in a bath tub naked, with him sexually touching her was normal at an age before eleven years, that that means that as an adult, knowing that such behaviour is very wrong, now precludes her from having a memory that this assault happened.

[193]    I will return to the bath tub incident later in this decision when I discuss the defence’s concern that this incident was not disclosed in the complainant’s police statement or to Crown counsel.

[194]    The defence propounded a theory that since the complainant experienced some febrile seizures when she was between two and six years of age, with TKB sometimes putting the complainant in the bath tub to cool her body temperature, that the complainant could have confused these times with the sexual touching which started around the age of three years, according to the complainant’s evidence.  The complainant’s evidence was that the febrile seizures happened at least ten times.  She could not estimate their frequency with any greater precision.

[195]    There were a couple of aspects of this defence theory.  One was that TKB might have accidently and unintentionally touched the complainant’s vagina while she was a young child while placing her in the bath tub in an effort to cool her down.  Another was that after a seizure the complainant might have been confused or disoriented, meaning that her recollections of these events might be affected.

[196]    Defence counsel says that the complainant testified that after she experienced one of these seizures, she felt hot, tired and confused about her surroundings and what had just happened.  This would last for a period of about of fifteen to twenty minutes.  Defence counsel says that the defence isn’t submitting that the complainant was confused following a seizure to the point that she was confused about what TKB was doing.  Rather, the defence notes that the complainant was asked about an incident when she had a seizure and TKB had put her in a bassinet in the bathtub to cool her temperature down.  Defence counsel says that there is physical contact of the kind expected by a parent when a child is ill.  Defence counsel says that it is very possible and cannot be excluded that during one of the seizure episodes that the complainant could have mistaken TKB for touching her in her vagina area at that age.  The defence says that BP may or may not have still been in diapers, her evidence wasn’t clear.  Defence counsel says that a father would have parental duties changing diapers which could mean incidental touching in the vagina area. 

[197]    Even if the Court were to accept that the complainant’s recollection was frail in remembering these seizures, as a result of some confusion in their aftermath, that doesn’t resolve the fact that the complainant testified about weekly abuse by the defendant.  These seizures happened about ten times over the course of four years.  Even if the complainant was confused about whether TKB sexually touched her deliberately or accidently as a young child during these seizures, that does not account for all of the other evidence the complainant gave of repeated, frequent and escalating sexual touching.

[198]    The defence counsel also raised the complainant’s use of Ritalin.  JM gave evidence that Dr. Goldbloom prescribed that medication to the complainant.  She had had some incidents of childhood misbehaviour in the family home and school representatives had advised her parents that she was “acting hyper” at school.  JM testified that BP only took the Ritalin for about three months.  JM took the complainant off the medication because the complainant said that it was making her groggy and not functioning well at school.  JM used her judgment as a parent to take the complainant off the medication.

[199]    JM testified that she was unaware that there was sexual abuse in the family home until the complainant disclosed to her around the age of 16.  Defence says that that is not being contested.  Defence counsel says that it’s important that up to that point in time JM had no idea there was any sexual abuse.  JM was certainly aware there was physical abuse because she testified to observing a couple of occasions of physical abuse in the home.

[200]    Defence counsel says that the credibility of JM is extremely concerning.  Defence counsel says that JM was not entirely honest in her evidence to the Court.  Counsel says that JM disclosed an entirely new and undisclosed incident of physical assault that she witnessed on the complainant by TKB.  She described that TKB used a TV remote and hit his daughter on the head.  JM said that she witnessed this incident and afterwards consoled the complainant.  Defence counsel says that when asked whether she disclosed this incident in her police statement, JM first said that she wasn’t sure.  Given an opportunity to refresh her memory by reviewing her police statement, JM then said that she did not tell the police.  Defence counsel says that JM only recalled this new incident as she was testifying, and it was not one which BP testified to.  Defence counsel says that JM’s description of this event and her response doesn’t make sense if it actually happened.  Counsel says that she fabricated this event to provide a concrete event of physical abuse that she witnessed. Counsel says that up to that point she didn’t provide any specific details of physical abuse.  Defence counsel submits that JM should remember, as an adult, not a child, if she witnessed specific incidents of physical assault on her daughter by TKB. Counsel says that this was just a convenient explanation, and the Court should not accept her evidence.

[201]    On this point, I find that JM was not credible.  She could have easily disclosed this incident before giving her testimony.  I agree with defence counsel that there was no good reason for her to have this recollection for the first time while testifying.

[202]    However, that does not mean that I do not, and in fact I do, find JM to be credible in other parts of her evidence.

[203]    Defence counsel also points out that JM testified about a choking incident.  JM did not personally see TKB choke the complainant but described that she came home from work and couldn’t find her daughter and went around the neighbourhood looking for her.  When she finally found the complainant, she found a red mark around her neck and was told by the complainant that TKB had choked her, and that’s why the complainant had left the home and went to a neighbour.

[204]    Defence counsel says that JM’s explanation of these events was not “straight-forward” at all.  Counsel says it doesn’t make sense why she went to a neighbours.  The neighbour didn’t mention anything about seeing the complainant in distress.

[205]    On the latter point, nothing turns.  There might be any number of reasons why the complainant didn’t show “distress” to the neighbour or why the neighbour didn’t recognize distress.

[206]    I do not put any weight on JM’s evidence about this supposed choking incident.  She did not witness this event. 

[207]    Defence counsel asked JM about the day that she asked TKB for a divorce.  She suggests that this day was a turning point when JM took her daughter, left Nova Scotia and relocated to Alberta.  She had been married to TKB at that point for about thirteen years.  The decision according to JM’s evidence was made right there on the spot.  Defence counsel suggests that this was a day JM would not easily forget.  Her daughter had come to her and told her that she’d had enough, was going to leave, but would like to leave with her mother.

[208]    Defence counsel asked many questions about the sequence of events, including where everyone was in the home.  She says that JM’s evidence gave an extremely convoluted explanation of these events.  She says that JM should recall where her daughter was when JM was confronting TKB.  JM testified that this happened in the afternoon and that by 11 p.m. that evening she and BP were on a plane to Alberta.  Defence counsel points out that the complainant’s evidence was that she and her mother left for Alberta two days later.  She points out that that is a discrepancy between those two witnesses.  Defence says that JM did not describe that day honestly.

[209]    I do not fully accept that contention.  This day occurred approximately 19 years ago.  Neither an adult, nor a child can reasonably be expected to know precisely the details of how that evening unfolded.  Both JM and the complainant said the same thing – that it started with the complainant telling her mother that she’d had enough and was leaving with or without her.  Both testified that JM told TKB that she wanted a divorce.  Both testified about TKB banging on the bedroom door.  Both said that they left the family home together and went to JM’s parent’s home. 

[210]    JM’s evidence was that once she and the complainant were in Alberta, and TKB initiated family court proceedings to have access and custody of the complainant.  JM agreed with defence counsel that there was nowhere in the family court filings, including affidavits, where she made any reference to family violence.  Defence counsel focussed on the physical assaults because that is all that JM testified that she was aware of.  Defence counsel said that JM tried to rehabilitate that evidence by saying that she told her lawyer about the physical abuse of her daughter.   Defence counsel submits that the more reasonable explanation is that JM didn’t actually disclose physical violence to family court because it didn’t happen. 

[211]    Defence counsel says that at this juncture in her relationship with TKB where they are divorcing, and there is an issue as to whether TKB would have access to her thirteen year old daughter, there was no better time to say that there was physical violence in the home.  Defence counsel says that JM could easily have disclosed these incidents she says she witnessed of physical assault.  She was fighting for custody of her daughter.  Why not disclose that TKB was abusive?  Defence counsel suggests that it makes more sense that BP didn’t disclose the physical abuse because it didn’t happen.  Defence counsel says that there is support for that when one looks at the complainant’s evidence on this issue.  JM was challenged that she was frustrating TKB’s attempt to communicate with his daughter during this period of family court proceedings.  Counsel suggests that TKB wanted to be able to speak with the complainant on the phone or communicate by letters.  JM testified that she didn’t try to frustrate these efforts by explaining that TKB had given up his parental rights before the family court mediator was involved.

[212]    Defence counsel says that that is important because the complainant came back to Nova Scotia when she was 13 or 14, shortly after she left for Alberta.  She was back for the family court proceedings.  The complainant testified that she had a mediator who was going to ascertain her wishes in terms of whether she wanted to live with her mother or her father.  Defence counsel says that obviously TKB had not given up his parental rights because there would be no need for a mediator to be involved if that were the case.  Defence counsel says that the mediator’s role at this point was not about access, but about which parent the complainant wanted to live with.

[213]    However, there is no evidence that defence counsel is right on that point.  The complainant testified that she really didn’t understand what was going on in the family court proceeding.  She did testify that the mediator was trying to determine what her wishes were and where she wanted to live.  But that does not necessarily rule out the possibility that custody was off the table.  However, in the end nothing turns on this point for reasons which I will explain.

[214]    JM’s evidence was that she told her lawyer about TKB’s physical assaults of her daughter.  If she did so, whether that was raised as an issue by her lawyer as part of the proceedings is unknown.  Even if defence counsel’s submissions on this point are fully accepted, that does not mean that the complainant’s evidence as to physical assault are not to be believed.  

[215]    Defence counsel suggests that JM’s evidence was problematic. 

[216]    Defence counsel says that JM saying that TKB gave up his parental rights is another convenient explanation to excuse herself from denying TKB contact.  She did not say, for example, that she denied TKB contact because he had physically assaulted her daughter. 

[217]    In terms of the Complainant’s evidence, defence counsel says that she was not expecting her to provide very vivid and specific details of the alleged sexual abuse that she suffered 20 to 30 years ago, for example, the type of pants or panties she was wearing, or whether she was wearing a tank-top or a tee-shirt or sweater.  She says that none of those details were asked, that what was asked related to a something connected to a specific sexual activity.  The defence counsel says that the Court still must find a sufficient degree of recollection to assess the complainant’ evidence.  The Defence submits that the complainant’s testimony as a whole should cause serious concerns as to her credibility and her reliability.

[218]    The defence counsel pointed to certain areas of evidence which it characterized as internal inconsistencies.

[219]    I will now review these alleged inconsistences.

[220]    Defence counsel referred to one of these areas the complainant’s “lack of crying” and “tolerance of pain”.  The complainant testified that from the young age of 3 up to the age of 13 a progression of sexual abuse went from touching over the clothes, to touching under the clothes to penetrative sex.  Defence counsel says that regardless of what actual age the complainant was, she was a child with a child’s body.  She was being digitally penetrated, anally penetrated and vaginally penetrated on a child’s body by an adult.  Defence counsel suggests that there would be pain and the complainant accepted that there was.  Defence counsel says that what is concerning is that the complainant described this pain but did not vocalize at all.  The complainant explained why.  She said,” I wasn’t allowed to”.  Defence counsel points out that she didn’t testify that the defendant physically restrained her or put something in her mouth to keep her from calling out our yelling.  Defence counsel says that this was the complainant’s own free will – she’d grit her teeth and bite her tongue because, mentally, she wasn’t allowed to express pain.

[221]    I reject in its entirety this line of argument.  It borders, if not engages, a myth.  All victims of sexual assault do not respond in the same way to assault.  The complainant was a child.  She said that she gritted her teeth and didn’t cry out.  She repeated often, “you had to do what he said, or you’d get hurt”, or words to similar effect.  There is no reason for this Court to accept that because the complainant didn’t react by crying out in a manner suggested by the defence, that her evidence is not credible or reliable.

[222]    Defence counsel says that the complainant was cross-examined on a physical assault where she said that she did express pain.  She said that there were times when she was out in public with TKB, with him holding her hands with pressure, crushing her fingers.  This made her cry.  Defence counsel says that the complainant is therefore capable of crying.  Defence counsel says it is not reasonable to expect that a child wouldn’t cry in response to pain.

[223]    I find this theory to be objectionable.  I reject it.  The complainant did not cry out.  She said, candidly, that her father “tried to make it pleasant” at times.  She admitted that on occasion she had an orgasm.  To discount or reject the complainant’s evidence because it’s not reasonable that she wouldn’t have cried out in pain, is unsupportable.  The Court notes that if the complainant’s evidence is accepted, she experienced sexual trauma carried out by her father starting at age three or four years.  By the time she was thirteen, she was being sexually assaulted, on a very frequent basis for approximately ten years.  She was not a child who was penetrated vaginally for the first time at age thirteen.  As Crown counsel points out, the complainant’s body may have adjusted to years of sexual abuse, so that the experience of pain became normalized.

[224]    However, to the extend that that is speculative reasoning, the fact remains that the complainant, as a victim, cannot be expected to react in any particular fashion to being sexually assaulted.  To do so would be to engage in prohibited stereotypical reasoning.  The complainant said that she gritted her teeth and that if you didn’t do what the defendant said, ‘you’d get hurt”.  I accept that evidence as reasonable in the circumstances of this complainant’s life.

[225]    Defence counsel also says that when the complainant was digitally penetrated, she would have experienced pain.  Counsel submits that the pain of digital penetration would be greater than the pain of crushing fingers when holding the complainant’s hand.  BP said that she did cry out when her father crushed other fingers or knuckles together.  Defence counsel says, yet BP’s pain tolerance during digital penetration, anal penetration was such that she did not cry at all. 

[226]    For this Court to accept this theory or explanation about pain and crying out is fraught with danger.  This theory falls into the dangerous area of stereotypical thinking about how victims should react to abuse.  I do not accept that anything of concern arises from the complainant’s evidence that she did not cry out or vocalize pain while she was being sexually assaulted.

[227]    The complainant testified that there was a progression of digital penetration, starting with one, then two, then three of TKB’s fingers.  Defence says that the progression itself isn’t alarming, but it is alarming that with three fingers inserted into a child’s vagina that would cause significant pain and with that kind of penetration it would be highly likely that this would cause spotting or bleeding.  The complainant admitted that at that age if she were to see any blood it would cause her concern.  Defence counsel says that a child doesn’t normally see blood coming out of this lower area of her body.  The complainant said that she didn’t see anything.  Defence counsel points out that she would have seen blood, because after penetrative sex the complainant testified that she would go and clean herself up.  If she did so she would have seen some sort of spotting.  The Defence says that it is not saying that every single time she was penetrated she would have seen blood but there is a high degree of possibility that she would have seen blood at some of these incidents.  The defence counsel concludes this argument by saying that if BP didn’t see blood that likely it didn’t happen in the manner which the complainant described with the kind of force she says was exerted by TKB. 

[228]    The defence says that the Court doesn’t need an expert to accept that anal sex is extremely painful.   here was no mention by the complainant of lubrication.  The complainant said that after the first incident of anal sex, the pain lasted for days.  Defence counsel accepts that that level of pain is reasonable but suggests that what is not reasonable is that the complainant testified that she saw no blood or spotting at all. 

[229]    The defence goes on to argue that the complainant testified that she did not see blood or spotting after penetrative sex.  The defence challenged the complainant as to whether she saw any spotting or bleeding as a result of penetrative sex.  Crown counsel points out that the complainant wouldn’t have been looking for blood or spotting, since until age 10 or so she thought such behaviour on her father’s party was normal.  In response, defence counsel says that the complainant didn’t have to be looking for blood given that her description of any penetrative sex was that it was always aggressive.  The complainant said that vaginal sex was more painful than digital penetration but not as bad as anal sex.  She was able to offer a qualitative assessment of the pain she was experiencing.  The defence led no medical evidence to suggest that there even would had been blood or spotting in the circumstances of a child would had been penetrated regularly or a number of years.

[230]    In terms of vaginal sex, the complainant testified that that happened at least once a week.  Defence counsel says that vaginal sex is also very intrusive and could cause tears.  Defence counsel agreed with Crown counsel’s suggestion that over time the body gets used to it.  However, defence counsel says that at least at the beginning, in the context of a child’s body which is growing, her body would perhaps adapt, but wouldn’t adapt in a short period in this time frame.

[231]    The Court rejects the theory that because the complainant didn’t see blood, that penetrative sexual assault could not have taken place.  There are two many variables that could come into play as to whether, and if, a young child’s body would bleed after vaginal or anal intercourse and it so, whether that kind of spotting or bleeding suggested by the defence, would even be visible on a child’s underpants or in her urine.

[232]    Defence counsel refers to the complainant’s assertion that she could not resist TKB’s sexual advances.  Defence counsel says that she is not saying that whether she resisted or not is irrelevant to the allegations, but what she is pointing to is that the complainant is trying to explain why she didn’t do something.  This she says, is in reference to the last incident of sexual assault.

[233]    Once again, what the complainant did or did not do after being sexually assaulted is not presumptively relevant.  Defence counsel says that it is in connections with the last incident of sexual assault which the complainant testified about which occurred when she was 13 or 14 years old.

[234]    The complainant had returned to Nova Scotia from Alberta in connection with the family court proceeding.  She testified that she went with her father to her Nanny B’s grave or plot.  She described being alone with TKB in the car on a dirt road in back of the cemetery.  She was sitting in the passenger seat.  This incident is described in detail earlier in this decision.  Defence counsel says that the complainant told the Court that she could not resist him, not because TKB had restrained her in any way but that there was really no point, he was going to get what he wanted.

[235]    Defence counsel says that she challenged the complainant on this because she testified that she resisted TKB in the past.  She said that once she started learning, at the age of 10 or 11, that what was going on with her father was not normal, she started to resist TKB.  She said that she would fight him off, leave the house more often to reduce the opportunity that something would happen although she said that the abuse continued to happen.  Defence counsel says that it is relevant that the complainant did resist in the past.  Defence counsel says that the complainant says that she couldn’t resist at a point in time when she is older than she was when she did resist. 

[236]    I do not accept this contention.  Victims of sexual assault react in different ways in different circumstances.  In this circumstance, alone with TKB on a dirt road close to a cemetery, the complainant did not actively resist.  She said that TKB always got what he wanted and “you’d be hurt” in you didn’t comply.  That was her lived experience in dealing with years of abuse.  It cannot benefit TKB that she did not resist being sexually assaulted at 13 or 14 years old when she had put up some resistance, or avoidance of him, when she was younger.  Recall, as well, that she said that even after she started to resist TKB, the frequency of the assaults did not decrease.  In other words, resistance was futile.

[237]    Defence counsel points out that the complainant met with the mediator on two occasions.  Defence says that she was aware at the age of 13 years that the mediator was a neutral party, not there for one parent or the other, that he was trying to be friendly and to ascertain what her wishes were as to where she wanted to live.  The complainant explained that she was confused and that she had conflicting feelings for her father.  Defence counsel says that that’s all reasonable.  However, defence counsel says that the mediator asked her very specifically whether there was any “sexual stuff” (the complainant’s language) and she said, “No”.  Defence counsel says that it is important to highlight this.  She says that she is not saying that the complainant should have disclosed the alleged abuse earlier to assist her credibility.  Rather, defence counsel says that at this point in time when it’s being decided where she will live, and someone asks her a direct question which she understood she gave the answer “no”, not “I don’t know” or anything else equivocal.

[238]    This Court notes that the complainant said that she lied to the mediator because she didn’t know if she could trust him.  She says that she was still too scared to talk about the abuse.  Defence counsel says that she accepts that, but the complainant didn’t have to answer.  She could have said, “I don’t know” or “I’m not sure”.  Defence counsel submits that the complainant did not lie to the mediator, but rather, was telling the truth.  Defence counsel says that BP could have also talked at that point about the physical assault if she wasn’t ready to talk about the sexual assault.  She could have, but didn’t say, that TKB smacked her around and hit her, but she didn’t.  The defence submits that the complainant did not tell the mediator, and it is not in the family court file, that physical or sexual violence was happening in the home.  Defence counsel says that it is not there, because there was nothing of that nature to report.

[239]    This Court rejects this contention.  I accept that the complainant did not tell the mediator, and in fact lied to the mediator about the sexual abuse going on in her home.  She said that he was a “stranger”.  She said that she didn’t really understand what the Court proceeding was all about.  She said that she was still too scared to talk about the sexual abuse.  She didn’t tell her mother until age 16 years.  She disclosed to a friend around the age of 14 of 15 that she had been sexually assaulted by her father.  There is no reason for this Court to find that the complainant didn’t tell the truth to the mediator because the abuse didn’t happen, which is the defence’s contention.  Such a conclusion would involve this Court accepting that the complainant should have been aware that custody was at issue, and now was the time to speak out to a stranger about being sexually abused by her father.  I am not prepared to accept this contention when I consider the totality of the complainant’s evidence on this point.

[240]    Defence counsel points out that the complainant was challenged as to why she did not tell her mother about any sexual abuse even during the time she thought it was normal.  However, as noted by Crown counsel, if this sexual behaviour was normalized why would she recall certain details.  I do not accept, as contended by defence counsel that, by the same token, why keep it secret?  It is true that TKB did not testify that TKB threatened her or did anything to entice her, for example by giving her gifts of candy. 

[241]    However, I am not prepared to accept that it follows because the complainant kept this behaviour to herself, that it didn’t happen.  She testified that she didn’t tell her mother because she didn’t trust her, that she “wasn’t really there”.  She also said that she thought if she told her mother, that her mother was be “disgusted” and “mad at me”.  Defence counsel says that this is the first time we heard this because the complainant generally portrays her relationship with her her mother as not entirely negative, but as someone she could trust because at the end of the day on the day when the complainant wanted to leave, she went to her mother.  Defence counsel suggests that the complainant had enough trust in her mother to go to her and confide in her and tell her, “I’ve had enough”.  Defence counsel submits that this is not engaging with a myth, i.e. that if abuse happened, she should have told her mother because that would make it true.  Defence counsel argues that in circumstances where abuse is happening and given her relationship with her mother, it doesn’t make sense that she didn’t tell her mother that TKB had touched her inappropriately, touched her vagina and touched her breast, even if she didn’t want to tell her about penetrative sex.  Defence counsel says that the complainant is only saying that she didn’t trust her mother as a convenient explanation for her to explain why. 

[242]    The Court does not accept this defence contention which seeks to undermine the complainant’s credibility because she didn’t tell a mother she trusted.  That is how this Court assesses the complainant’s evidence on this issue.  She went to her mother at age 13 to tell her that she’d had enough and that she planned to leave, with or without her, but she hoped that her mother would come with her.  Trust is not an all or nothing proposition.  Clearly the complainant was prepared to leave home on her own at age 13, but she hoped her mother would come with her.  However, she also felt that her mother hadn’t been “there for her” as a child.  She could both trust her mother to help her deal with the world as a thirteen year old alone, and not trust her mother enough to reveal that her father had been sexually assaulting her for many years in the family home.

[243]    It does not follow that the complainant should have disclosed to her mother in these circumstances.  It needs to be said again, that victims of assault disclose in different ways, at different times and to different people.  They may not disclose at all.  I am not prepared to accept the defence’s contention on this issue.

[244]    The defence counsel emphasized the fact that the complainant is testifying about events that took place twenty to thirty years ago as a thirty-two-year-old woman.  She notes that there are inherent reliability issues with historic sexual assaults.  She suggests that the further back in time the greater the difficulty of recollection

[245]    Defence counsel says that even if the Court accepts that TKB could not, as a parent have touched the complainant in the vaginal area for any legitimate reason at that age, then the Court must still examine the complainant’s evidence.

[246]    Defence counsel notes that BP’s first memory of being sexually touched was over the clothes when she was 3 – 4 years of age.  On direct examination the complainant was asked by Crown counsel how she recalled that she was that age.  Her answer was that she spoke to her grandmother and told her that her vagina was hurting.  Defence counsel points out that at this time the activity was touching over clothes.  It was also put to the complainant that if it was painful enough for her to complain about it, it must have been a great deal of pressure.  Defence says BP could not really testify to the pressure she felt.

[247]    On cross-examination Defence counsel asked the complainant the same thing, how does she know that she was between the ages of 3 and 4 when she first recalled the sexual touching.  Her answer was that she recalled the remodelling of her grandmother’s bathroom.  Defence says that this was completely new disclosure, that those details were not in BPs police statement.

[248]    Defence counsel says that the additional details about the grandmother’s redo of her bathroom in cross-examination is new evidence because all BP said in direct examination and in her police statement was that she told her grandmother.  Defence counsel says that it is a different answer than BP gave in direct.  Defence counsel points out that when she asked her the same question that had been asked by Crown counsel, BP then recalled the remodelling of her grandmother’s bathroom, including that there were certain fixtures that were changed over time.  That was how the complainant placed her age as to when the abuse started. 

[249]    Defence counsel says then that she asked BP again on the last day of trial the complainant combined the answer ,saying that she had told her grandmother that her vagina was hurting in the bathroom of the house.  Defence counsel says that the significance of her putting the two answers together is that not only does she put these two explanations together, but if you look back on the record, defence counsel says that she didn’t ask the complainant what specific finishings were in the bathroom, but the complainant went on to say that she recalled that there were certain mirrors, a cabinet, etc.  There was something about the bathroom that was unique and stood out for her and she was offering that as an explanation.  The defence says that this is an instance of the complainant embellishing her evidence.  Defence counsel suggest that BP thought that defence counsel was challenging her memory of the bathroom, therefore she offered, without any prompting, talking about the bathroom, its furnishing, and gave more detail. 

[250]    Furthermore, defence counsel says that the complainant was challenged on how she recalled the conversation with her grandmother.  She told the Court that she told her grandmother that her vagina hurt.  She spoke of it as if she had actual memory.  She said she had the actual memory when challenged. 

[251]    However, in BP’s police statement, which defence counsel put to her, she used the word, “supposedly” in that she “supposedly told her grandmother that her vagina hurt”.  Defence counsel submits that the word “supposedly” is an uncertainty and that BP does not actually have an independent memory of telling her grandmother.  When asked why she used the word “supposedly” in her police statement, BP said, “I don’t recall”.  Defence counsel then suggested to BP that she used the word “supposedly” because she was actually not sure, that she didn’t actually have this memory of telling her grandmother.  BP responded, “You can suggest all you like, but it doesn’t negate the facts”.  BP then added that she had a lot of time to reflect since November 2021 when she gave her police statement.  She added that she suffered from PTSD and that defence counsel didn’t understand the effect that had on her brain.

[252]    On its face the word “suggested” in BP’s police statement is of concern as it relates to what she said at trial, i.e., that she told her grandmother.  It certainly suggests she was told by someone else that she told her grandmother that her vagina hurt.  That would make this memory lack independence.

[253]    However, in cross-examination BP said that she placed the first sexual touching by TKB, over her clothes, as being before her grandmother remodelled her bathroom.  She gave very specific evidence about those renovations, including that her grandmother had a picture of a cardinal bird on the wall, which she now has in her possession. 

[254]    What I take from all of this is that BP placed the abuse that started when she was 3 or 4 years old as being before her grandmother remodelled her bathroom.  I do not however, have corroborative evidence as to when those renovations took place.

[255]    As a result, I do not accept the complainant’s evidence on this point as being accurate as an independent memory of sitting on the toilet at age 3 or 4 and telling her grandmother that her vagina hurt.  However, that does not mean that I do not accept her evidence that the abuse started at a young age before she went to went to school for the first time.  However, I do not consider the lack of reliability of the complainant’s memory on the point of telling her grandmother to have a negative effect on the remainder of her evidence in all of the circumstances.

[256]    The defence counsel made a number of submissions about the event that took place at Nanny B’s grave.  This was the last incident of sexual assault.

[257]    The first of the defence counsel’s points focussed on whether the car, the green Pontiac Sunfire, had a centre console.  The only evidence the Court heard on this factual issue came from the complainant.  She said she didn’t know whether there was a console or not. 

[258]    Defence counsel says that BP’s evidence that she did not recall if there was a console is concerning and constitutes evasion on her part.  Defence counsel says that the complainant didn’t want to answer that there was a console because she knew where the questioning was going.  She testified that she was with TKB in this vehicle, and it was parked at the gravesite.  Defence counsel says that TKB somehow got her sitting on his lap. 

[259]    Defence counsel then makes a series of assumptions which were not all rooted from the evidence.  She says that at the age of 13, TKB would have had to adjust his seat to make room for the complainant to even sit on his lap.  By sitting on his lap in the way she described, her legs would have had to have been over the central console.  The complainant disagreed that there was bend in her knees.  Defence counsel says that the significance of that is that if her knees were bent, it was because they were over the central console, and that would make it very hard, not impossible, for TKB to put his hand under her pants to touch her vagina.  On redirect, on this point, BP said that she most likely was wearing jeans at the time, but she didn’t recall if there were buckles, zips, or flies.  Defence counsel says there would have to be something to keep the jeans together which would have to be loosened in order to put a hand in between the hands and skin to reach the vagina.  Defence counsel suggests that with a raised console, it would be even harder for TKB to shove his hand down there.  Defence counsel says that BP was not able to testify to how much force was used, but based on her evidence it would have to be a significant level of pressure.  Defence counsel says that there must have been no pressure, or it didn’t happen at all.  Defence counsel says that that was why BP said that she can’t recall if there was a console.

[260]    When this Court pointed out to defence counsel that there was no evidence that there was a console, only BP’s evidence that she couldn’t recall if there was one or not, defence counsel suggested that I take judicial notice of the fact that a car at that time, around the year 2004, would have a central console.  I am not prepared to do so.  That is not a universally generally unassailable fact of the kind that a court can take judicial notice of.

[261]    Defence counsel says that in general, the way in which the complainant testified was of concern and that she was at times evasive.  Defence counsel says that BP was getting defensive, particularly the last day.  She appeared to be more anxious and was pushing back on her answers in a deflective way.  Defence counsel says that BP was challenged on why it is that she remembers things that took place 20 or 30 years ago but had difficulty recalling what happened just recently, as far as four months ago, her last day in court on September 25, 2023.  Defence counsel says that BP’s explanation was that she (defence counsel) didn’t know how the brain works, and she has PTSD issues which affect her ability.  Based on that evidence, defence counsel suggests that BP puts a linkage between her mental health to her ability to recall recent events that are out of the ordinary.  Defence counsel suggests that it should be of concern to the Court when assessing BP’s recollection of things in the past that happened to her as a child. 

[262]    The Court notes that the complainant had two meetings with the Crown prior to the commencement of the trial.  She didn’t know the exact days, but agreed with the defence that the last one was two weeks before she testified, on September 25, 2023.

[263]    During these meetings with the Crown the complainant discussed her allegations against TKB.  She also disclosed to the Crown other incidences that were not in her police statement.  Defence counsel says that what is important is that the complainant confidently told the Court that she told the Crown incidences of digital penetration.  She recalled she told the Crown the progression of one to three fingers.   She also said that she told the Crown of the incidence of sexual touching in the bathtub with TKB.

[264]    However, in the Agreed Statement of Facts, three areas of disclosure or non-disclosure are listed as agreed facts.  These disclosures (or non-disclosures) happened during meetings with Crown counsel. 

[265]    The first one (a) is the complainant disclosed one incidence of oral penetration that occurred in the shower, (b) the complainant disclosed that TKB asked her to touch his penis and she followed his direction in doing so; (c) the complainant disclosed that there was digital penetration, but did not disclose specifics, a progression starting with one finger, then two, then three.

[266]    Defence counsel says that those are the only new incidents disclosed during the Crown meeting.

[267]    Defence counsel says that in total there were six new instances of sexual assault.  She says that all six of the instances were not in BP’s police statement, which BP acknowledged.

[268]    The first concerns choking by TKB.  BP testified to an incident where she was choked by TKB when she was leaving the bathroom (in the family home).  BP said that as she was being choked, TKB attempted to grope her and touched her breast.  BP testified said that she resisted this assault, there was a struggle, and she ran off.  This incident was not in her statement to the police.  It is also not in the Agreed Statement of Facts, meaning that it was not a new disclosure to Crown counsel.  BP gave this evidence for the first time at trial.

[269]    The second incident was oral sex in the shower.  It is not referred to in BP’s police statement.  It was, however, disclosed to the Crown during a pre-trial meeting, as is evident from the Agreed Statement of Facts.

[270]    The third incidence was the complainant’s evidence about being choked during vaginal sex.  This was not in BP’s police statement and not disclosed during Crown meetings with BP.  It was not in evidence she gave during direct examination but was evidence she gave first on cross-examination when she was asked about incidents of choking.

[271]    The fourth instance, says defence counsel, has to do with digital penetration.  Defence counsel says BP disclosed this to Crown counsel in pre-trial meetings (see Agreed Statement of Facts) but did not describe a progression of penetration involving one, two, then three fingers.

[272]    The fifth instance relates to masturbation.  BP did not disclose in her police statement that TKB had her masturbate him.  This was disclosed to Crown counsel and is in the Agreed Statement of Facts.

[273]    The sixth instance is sexual touching in the bath tub.  Defence counsel says that this instance wasn’t really mentioned in BP’s police statement, that all BP mentioned was “tub”, not saying whether the something that happened was sexual, physical or something else.  Defence counsel says that BP didn’t mention this in her direct examination but talked a great deal about in in cross-examination.  The question put to BP at that point was whether any sex with TKB happened outside of the main bedroom.  In answer, BP talked about touching in the tub that she used, not the main bathroom.  The defence counsel suggests that she was adamant that she told the Crown counsel about this instance, but it is not in the Agreed Statement of Facts, or in her police statement.

[274]    In response to that Crown counsel says that at the same time that BP was meeting with her for trial preparation in the presence of a police investigator, she was also attending therapy sessions.  Accordingly, she suggests it might have been difficult for BP to remember who she told about what.  Defence counsel says that that doesn’t hold up, because BP would know the context of meeting with Crown counsel in the presence of the police investigator, not something she could mix with talking with her therapist.

[275]    Defence counsel also raised and discussed the issue of incremental disclosure in light of these “new” instances of disclosure.  It is correct that the evidence was that after BP started attending therapy in 2022 she recalled instances of abuse that she had not spoken about in her police statement.  That resulted in a defence s. 278 application.  The therapist records were obtained, reviewed and redacted by this Court and given to the Crown and defence counsel.  The defence counsel made no further applications to this Court in that regard.  She now suggests that these memories from therapy are unreliable and that it took therapy in order for these memories to come to light. 

[276]    I do not accept that these memories are presumptively unreliable because they were elicited during therapy.  However, the issue of incremental disclosure, and the recollection of these memories as part of that incremental disclosure should be addressed by this Court.

[277]    To do so, I will refer to some of the jurisprudence I have found helpful in considering the issue of incremental disclosure by a complainant of sexual abuse.

[278]    In R. v. Ramos, 2020 MBA 111 an accused was convicted of sexual assault and sexual interference with a child.  On appeal the trial judge’s assessment of the complainant’s credibility was at issue.  The child had give an initial video statement to the police when she was 10 years old in 2013.  She gave a second video statement to the police in February 2016 when she was 12 years old.  She was 13 years old when she testified at the trial.

[279]    One of the issues on appeal was the supposed frailty of the complainant’s evidence.  One of the suggested difficulties with the complainant’s evidence was that she disclosed the nature of the sexual touching incrementally.  In her first video statement, she made no mention of sexual touching at a particular location.  The touching at that location only came to light in December 15 disclosure to her mother and in the February 2016 video statement.  In the second video statement, the complainant also first disclosed that the accused showed her child pornography and that he gave her gifts of candy and hamsters.  Also, in the second disclosure to her mother and the second video statement, she revealed that the accused encouraged sexual touching between her and her brother.  There was a further incremental disclosure at trial.  During cross-examination the complainant mentioned that the accused had taken one nude photograph of her.  The complainant did not tell the police about this incident.  The complainant’s mother testified that the complainant had told her about the accused taking a picture of her.  However, the complainant’s testimony at trial was that she had never told her mother about the nude picture taken of her by the accused.

[280]    The majority decision upheld the trial judge’s decision on the issue of whether his decision grappled sufficiently with the issue of the complainant’s incremental disclosure.  The minority decision did not, saying that the additional details were to the “core element of the offences”  (at para 164) and that the complainant’s delay in disclosing additional facts should have been addressed by the trial judge in a more than conclusory fashion in his reasons when he assessed the complainant’s credibility.

[281]    However, the law relied on by the majority in reaching its decision to uphold the conviction, was not in dispute.

[282]    I note that while the complainant was a child when she testified at trial in R. v. Ramos, and the complainant in the case before this Court was an adult at the time she testified about matters which occurred when she was a child, the case law about incremental disclosure equally applies to both child and adult victims of sexual assaults.  However, this Court is aware that all of the circumstances of a particular case must be considered before ruling on whether or not incremental disclosure negatively affects the credibility or reliability of a complainant’s evidence.  Certain of that case law was reviewed by Mainella, JJ.A in R. v. Ramos starting at para. 65 of the majority decision:

65	Delayed or incremental disclosure is a common occurrence in sexual assault cases, particularly those involving children.  Trimble J put it well when he stated in R. v. M.H., 2018 ONSC 7366 (Ont. S.C.HJ. ) (para 74):
	Some victims of sexual assault will report immediately, some later, some incrementally, and some not at all.  Some will tell the truth, initially, and some later.  Their reasons for not reporting, delayed reporting, or not being truthful when initially reporting are as many and varied as the victims, but include, fear, guilt, embarrassment, or lack of understanding and knowledge…
66	In R. v. D. (D.J.), 2000 SCC 43 (S.C.C.), the Supreme Court of Canada explained that there is “no inviolable rule” (at para 65) as to how different people react to sexual trauma.  A mere delay in disclosure is not enough by itself to give rise to a negative inference against the credibility of a complainant.  Questions regarding the timing of disclosure of sexual abuse are individual ones which are unique to each complainant (see R. v. C.A.M., 2017 MBCA 70 (M. C.A.) at para 53; and R. v. A.R. J.D., 2018 SCC 6 (S.C.C.) at para 2).
67	67        In R. v. P. (D.), 2017 ONCA 263 (Ont. C.A.), leave to appeal to SCC refused…..the complainant failed to disclose all of the historical sexual assaults committed against him by his step-father in his first statement to police.  The trial judge dealt with the incremental disclosure by stating (at para 30): “The decision to disclose is a difficult one that can be very painful for victims.  It cannot be surprising that it would take [the complainant] more than one occasion to shed a burden that had been weighing on him for years.”
68	Applying D. (D.), the Cout found no error in the trial judge refusing to negatively assess the complainant’s credibility because of the “delayed and bifurcated disclosure’ (at para 31).  It said that the principles in D. (D.) apply equally to the situation of incremental disclosure.  Accordingly, the impact of incremental disclosure will depend on the circumstances of the case.  There is no presumptive negative consequence to a complainant’s credibility due to him or her making incremental disclosure of sexual abuse.
69	The circumstances of this case speak for themselves.  The complainant said she had been molested by someone she trusted as a father figure and had a positive relationship with.  It took her several years before she was able to tell her mother about the sexual touching which she described made her fell “stressed out”.  The accused had threatened her that, if she told anyone, her moths would go to jail and she would be alone….

[283]    As is evident from this case law, there are many and varied reasons why victims of sexual abuse do not disclose, disclose in stages and disclose reluctantly.

[284]    I return now to the six instances of alleged new disclosure.  The first relates to choking by TKB.  BP testified to an incident where she was choked by TKB when she was leaving the bathroom (in the family home).  BP said that as she was being choked, TKB attempted to grope her and touched her breast.  BP testified said that she resisted this assault, there was a struggle, and she ran off.  This incident was not in her statement to the police.  It is also not in the Agreed Statement of Facts, meaning that it was not a new disclosure to Crown counsel.  BP gave this evidence for the first time at trial.

[285]    In her police statement the complainant mentions “strangling”.  This was pointed out by Crown counsel.  She also mentioned being sexually assaulted in the bathroom.  She did not specially mention this particular account.  What I will accept from this is that TKB physically assaulted her on this occasion.  I do not find that TKB also groped her at the same time. 

[286]    The second instance of alleged “new” evidence is oral sex in the shower.  It is not specifically referred to in BP’s police statement.  It was, however, disclosed to the Crown during a pre-trial meeting, as is evident from the Agreed Statement of Facts.  As noted by Crown counsel, BP told the police the different types of sexual touching which happened in the various areas of her childhood home.  She said that sexual touching happened in the bathroom.  Her supposed new evidence that it happened in the “shower” does not constitute new evidence.  She also disclosed to the police that there was oral penetration.  I don’t view this evidence, taken in context to be a new revelation of sexual abuse, as suggested by the defence.

[287]    The third instance of alleged “new” evidence is the complainant’s evidence about being choked during vaginal sex.  This was neither in her police statement nor in her disclosure to the Crown.  Crown counsel says that BP talked to the police about sexual violence.  She talked about different types of violence.  She talked about vaginal penetration.  BP is saying that she remembers being choked while having vaginal sex with TKB for the first time at trial.  I do not accept this evidence.  It is too serious an allegation to not have been disclosed by BP to the police.  I do accept that TKB had vaginal sex with BP and I do accept that TKB had choked her, but I do not put these two incidents together.

[288]    The fourth instance of supposed “new evidence” has to do with digital penetration.  Defence counsel says BP disclosed this to Crown counsel in pre-trial meetings (see Agreed Statement of Facts) but did not describe a progression of penetration involving one, two, then three fingers.  I do not accept that this is “new evidence”.  The complainant disclosed to the police that she had been digitally penetrated by the defendant.  The progression she describes from one to three fingers is simply more details about something she already had disclosed.  I accept this evidence.

[289]    The fifth relates to masturbation.  BP did not disclose in her police statement that TKB had her masturbate him.  This was disclosed to Crown counsel and is in the Agreed Statement of Facts.  I consider this as part of incidental disclosure which happens in the circumstances of a case such as this where a complainant is remembering events that happened decades before and happened themselves over a period of ten years.  I accept this evidence.

[290]    The sixth instance is sexual touching in the bath tub.  Defence counsel says that this instance wasn’t really mentioned in BP’s police statement, that all BP mentioned was “tub”, not saying whether the something that happened was sexual, physical or something else.  I do not accept that this is new evidence.  The complainant disclosed that the bathroom was a place where things took place, including the bath tub.  She said so in the context of alleging that TKB had sexually assaulted her.  Further, I find it a peripheral detail as to whether this assault in the bath tub happened in TKB’s bathroom or in the bathroom down the hall which BP used.

Conclusions

[291]    After that lengthy review of the evidence and the positions of counsel I come to several conclusions.

[292]    I want to emphasize that I have considered the complainant’s evidence in its totality.  I have also considered her evidence carefully on each count in the indictment. 

[293]    I start by saying that there was nothing in the manner in which the complainant gave her evidence that was concerning to me.  She clearly struggled to do so at certain junctures, and she cried at various points during her testimony.  By these comments I am not saying that I have based my ultimate conclusions in this case on the complainant’s demeanour.  I have not.  I have observed it, but I have also carefully searched her evidence for reasonable doubt.  That has involved a detailed look at whether her evidence holds together as a whole or contains internal inconsistences.  I have considered whether it is logical in light of the prevailing circumstances at the time, as I understand them.  I have done the same with the evidence of her mother, JM.

[294]    With only two witnesses before the Court, it is extremely important that the Court conduct a comprehensive search for the kind of troubling inconsistencies, lack of candour or unreliable evidence that could result in an injustice to a defendant who has been presumed to be innocent of each any every charge he faces.

[295]    What I am left with is the evidence of JM which I considered to be helpful in the sense that it corroborated the complainant’s evidence about the home in which the family resided, the schools she attended, her seeing Dr. Goldbloom and being prescribed Ritalin and the febrile seizures BP experienced as a young child.  It also corroborated BP’s evidence that she was 16 years old when she disclosed the sexual abuse by TKB to her, with few details.  She also corroborated BP’s evidence that she went to the police about the abuse in Alberta when she was about 19 years old, but did not pursue the matter further at that time.

[296]    JM also largely corroborated the evidence of BP about how the two came to leave Nova Scotia for Alberta.  JM’s evidence was that the two left for Alberta the same night she made the decision to depart with her daughter.  BP’s evidence was that they left two days later.  This is a peripheral fact, and it would be entirely understandable for BP not to remember the same thing as her mother on the day they actually flew to Alberta.

[297]    I note here that there was no suggestion by defence counsel that JM and BP colluded in giving their evidence to effect a consistent story at trial.  Indeed, their evidence differed in ways that I have noted.

[298]    However, an aspect of JM’s evidence which I find that I can not rely on is her evidence about witnessing TKB strike BP in the head with a TV remote.  She didn’t disclose this to the police when she said that she was aware of physical abuse by TKB.  She appears to have raised this for the first time during direct examination.  Further, BP herself did not testify to being hit with the TV remote.

[299]    I also note that JM did not corroborate the complainant’s recollection, at least not entirely, of the hours her parents worked and their work schedule.  I have reviewed the details of that earlier in this decision.  I accept JM’s evidence as an adult remembering a time when she was an adult over that of complainant as to her work hours.

[300]    I have already found that TKB had the opportunity to commit these crimes.

[301]    Overall, on the key question of whether the charges against TKB are made out beyond a reasonable doubt, I am largely left with the evidence of the complainant.  The defendant was her biological father.  That has been proven by the evidence of the complainant and JM.  There is no dispute as to her age.

[302]    In terms of whether BP had a motive to fabricate, I accept that she is very angry with her father.  However, that is not surprising given what she said he did to her over the course of ten years or so when she was a very young child to the age of 13 years.  I do not see that the evidence disclosed a motive for BP to fabricate the allegations against the defendant.  There was no evidence of the complainant having an ulterior motive to fabricate her allegations.  However, the absence of a motive lie is just one, and a minor factor in the circumstances of this Court’s overall assessment of the complainant’s credibility.

[303]    In conclusion, I accept the complainant’s evidence that the defendant, her father, sexually abused her over an approximate ten (10) year period, starting when she was three or four years old to when she was 13 years old. 

[304]    I find that the complainant’s evidence was generally logical.  She described a progression of sexual abuse which started over her clothes, and involved his touching of her “but”, “so-called breasts” and her vagina, then moved to under her clothes and at some point before she was 13 years old involved digital, anal and vaginal penetration.  I accept the complainant’s evidence that until she was about 10 or 11 years old she thought this behaviour was normal, only realizing that it was not normal until she was a bit older and observed other families not behaving “handsy, gropey or touchy”.  This may not be a complete explanation as to why she realized this behaviour was wrong, but she was not challenged on this explanation.  Further, it must not be forgotten that this was behaviour carried out by BP’s father, a person she had ever reason to believe would protect her, or do his utmost to protect her from all manner of harm. 

[305]    I do not find anything unusual in BP’s inability to recall when the behaviour progressed from over the clothes touching to under the clothes touching.  She did, however, say that touching under the clothes started when she stopped seeing a doctor who would perform a physical examination. 

[306]    It is also not unusual that BP could not recall the first time she was penetrated vaginally.  I’ve dealt already with defence arguments about her supposed failure to express pain, her not noticing blood after being penetrated vaginally and anally and the fact that she didn’t disclose the behaviour even when she thought it was normal.

[307]    I accept the complainant’s evidence that she experienced frequent sexual abuse at the hands of TKB.  In those circumstances, events can run together.  If she had alleged a single, or only a few instances of assault, perhaps her testimony could have been more specific as to her age and specific locations.

[308]    The complainant could not remember with specificity exactly when she was grabbed by the neck or choked.  But she did clearly testify that these assaults occurred over time, even if she didn’t know the precise dates and all of the specifics.  And these matters do not go to the very core of the allegations; rather, they are peripheral.

[309]    In terms of BP’s recollection, for the first time in Court, that she was choked during sexual penetration, I have said that I cannot accept that allegation.  While she mentioned “strangling” in her police statement she did not say that she was strangled while undergoing penetrative sex.  This is too serious an allegation against TKB for the Court to accept that it was only recalled for the first time at trial.

[310]    She mentioned to the police that the abuse took place in different locations in the house, including the bathroom.  She disclosed that there was oral penetration.  For the complainant to say that something happened in the shower with TKB was not a new incident, in terms of location.  It is not as though she said that she was sexually assaulted by her father in the basement for the first time at trial. 

[311]    BP ‘s cross-examination was long and detailed.  She did not waiver as to her key allegations.  Her evidence about the progression of one finger to three fingers was not in her police statement or disclosed to Crown counsel in that kind of detail.  However, I do not find that this constitutes an inconsistency in her evidence.  She talked to Crown counsel about digital penetration.  When cross-examined she testified about the use of one, then two, then three fingers.  In the circumstances of this very long period of on-going abuse, I do not find it concerning that the complainant gave this evidence for the first time on cross-examination, especially when I consider her evidence as a whole.  That evidence discloses a progression of on-going abuse of a young child over many years.

[312]    I find that TKB is guilty beyond a reasonable doubt on each of the charges in the indictment. 

[313]    In particular, I find that he sexually assaulted BP between January 1, 1993 and December 31, 2004 in Nova Scotia, contrary to section 271 of the Criminal Code, that BP had sexual intercourse with BP, while knowing that she was his daughter, contrary to Section 155 of the Criminal Code; that TKB, for a sexual purpose, touched BP, a person under 16 years of age, directly with his penis and hands, contrary to Section 151 of the Criminal Code.  I also find that TKB invited BP, while she was under 16 years of age to touch his penis, contrary to section 152 of the Criminal Code and that he physically assaulted BP, contrary to Section 266 of the Criminal Code.

Smith, J.

 

SUPREME COURT OF Nova Scotia

Citation: R. v. T.K.B., 2024 NSSC 203

Date: 20240709

Docket: CRH No. 519688

Registry: Halifax

Between:

His Majesty the King

Plaintiff

v.

T. K. B.

Defendant

 

 

 

 

Judge:	The Honourable Justice Ann E. Smith
Heard:	September 25 and 26, 2023; January 26, 2024 and February 23, 2024 in Halifax, Nova Scotia
Counsel:	Tanya Carter, for the Plaintiff Carbo Kwan, for the Defendant
Erratum:	Page 5, paragraph 17 reads “The trial on these charges was heard by this Court over 4 days.  The complainant testified.  She did so behind a screen.  The Crown initially brought a s.278.1 application seeking an order that she might give her evidence this way.  However, the Defence did not oppose the application.”, it should read “The trial on these charges was heard by this Court over 4 days.  The complainant testified.  She did so behind a screen.  The Crown initially brought a s.486.2(2) application seeking an order that she might give her evidence this way.  However, the Defence did not oppose the application.”
	Page 5, paragraph 18, reads “During the cross-examination of the complainant, she gave certain evidence that resulted in the Defence bringing a s. 266 application.  This Court heard that application on several days in November and December, 202 and rendered oral decisions on the record for the Stage 1 part of the application and the Stage 2 part of the application.  The trial resumed on January 26, 2024, after the Court rendered those decisions.”, it should read “During the cross-examination of the complainant, she gave certain evidence that resulted in the Defence bringing a s.278.1 application.  This Court heard that application on several days in November and December, 2023 and rendered oral decisions on the record for the Stage 1 part of the application and the Stage 2 part of the application.  The trial resumed on January 26, 2024, after the Court rendered those decisions.”