IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This matter commenced before me as a retrial of six counts on a multi-count information. One count against S.C.L. was stayed by the Crown in the course of this trial. The two accused, P.E.L. and S.C.L., are brothers charged under the provisions of the Youth Criminal Justice Act with sexual offences alleged to have been committed against named complainants. The complainants were young children in the 1980s when the offences are alleged to have taken place.

[2]           I will refer to the accused by their initials, as I will the complainants.

[3]           P.E.L. was born [omitted for posting] and stands charged with three counts as follows:

[4]           S.C.L., born [omitted for posting], stands charged with two other counts:

[5]           Other counts on the information, including those involving a third brother, D.B.L., are not before the court. Both accused and all the complainants are members of First Nations communities in or near Lillooet, BC.

[6]           It is a fundamental principle of criminal justice in Canada that a person accused of a criminal offence is presumed to be innocent until the contrary is proven in court. The burden lies upon the Crown to prove its case and the essential elements of each count against an accused to the high standard of proof beyond a reasonable doubt.

[7]           Each count in the information is to be considered separately. Evidence that an accused has committed an offence is, as a general rule, not admissible to establish that an accused is more likely to have committed other offences with which he may be charged. The criminal law recognizes that the probative value of such evidence will usually be outweighed by its prejudicial effect. To be clear, the Crown has not sought to apply the similar fact rule in this case.

[8]           Twelve witnesses were called by the Crown, including the five complainants. The accused each elected not to call evidence but to make insufficient evidence motions. The accused have submitted that there is insufficient evidence to warrant a conviction against them on any of the counts with which they have been charged.

[9]           In assessing the sufficiency of evidence, courts are regularly called upon to determine the credibility and reliability of witnesses. Some guidance in performing this task is found in Bradshaw v. Stenner, 2010 BCSC 1398 (CanLII), 2010 B.C.S.C. 1398. At paragraph 186, Madame Justice Dillon summarized some of the factors to be considered in assessing witness credibility generally. She said this:

[10]        The complainants in this case, now adults, recalled in evidence events alleged to have occurred nearly 30 or more years ago when they were young children. The Supreme Court of Canada in R. v. R.W. 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 considered the question of how courts should approach the evidence of children and the evidence of adults testifying about events which had occurred to them in childhood.

[11]        Justice McLachlan, now Chief Justice of Canada, delivered the judgment of the Court in R. v. R.W. At paragraphs 23 through 26 she briefly reviewed the history of the law relating to children’s evidence and commented on two particular developments in the law in this area. These developments include the removal of the notion that children’s evidence is inherently less reliable than the evidence of adults. She observed that it is now an error for a court to discount a child’s evidence automatically and without regard to the circumstances of the particular case.

[12]        Justice McLachlan also noted a change in the appreciation of children’s evidence and said that it may be wrong to apply adult tests for credibility to the evidence of children. She said that children may experience the world differently than adults and it is hardly surprising if details important to adults, like time and place, may be missing from their recollection. There was, in her words, an emerging “new sensitivity to the peculiar perspectives of children”.

[13]        Similar views were expressed by Justice Wilson in R. v. G.B., at pp 54-55, as quoted by Justice McLachlan in R. v. R.W., at para. 24:

[14]        After declining to set out any hard rules regarding the assessment of witness evidence by “adult” standards or “child” standards, Justice McLachlan said at paragraph 26:

[15]        Bearing this guidance in mind, I will deal firstly with the counts in relation to P.E.L. and then with the counts relating to S.C.L.

[16]        Count 1 alleges that P.E.L. committed a sexual assault upon L.J., between January 13, 1983 and June 30, 1983. L.J., then five years of age, is now a bright and articulate woman in her mid-thirties. P.E.L. was 14 years of age at the time of the alleged offence.

[17]        In January, 1983, L.J. and her siblings were taken into care by Ministry social workers and placed in the home of Mr. and Mrs. L., the parents of P.E.L., D.B.L. and S.C.L. L.J. and her siblings remained in the L. home until June, 1983 when the children were returned to the care of their mother. All the episodes of sexual abuse testified to by L.J. took place while she was staying in the L. home over the period charged in the information. The dates are confirmed by Ministry records admitted into evidence.

[18]        The three L. brothers, including the two accused here, lived in the L. home which L.J. described. She said the three brothers were older than her but she didn’t know precisely how much older. P.E.L. was the eldest, followed by D.B.L. and the youngest, S.C.L. She described the personalities of each of the L. boys as she recalled them, and said that P.E.L. was the leader or the boss amongst all the children in the L. home, his brothers included. The children did what they were told by P.E.L. She recalled S.C.L. as a rough, mean and aggressive and described him as a bully. She said that D.B.L. was more gentle, kind and “a bit cheeky.”

[19]        There were house rules around mealtimes in the L. home, L.J. said. Everyone had to be seated at meals and be finished eating before they could leave the table.

[20]        L.J. gave evidence that during her time at the L. home she was sexually abused on many occasions by P.E.L. It became regular, she said, “It happened all the time.”

[21]        She specifically recalled several specific episodes of sexual abuse at the hands or direction of P.E.L. and his brothers. The incidents she recalled she said tended to be the most vivid or horrific.

[22]        The first event she described, and the first she recalled with P.E.L., occurred when he led her to her bedroom. He sent the other children away to play outside but he made her stay with him. She recalled that he told her that she was to be a good girl and he sat her on her bed. He told her to take her clothes off. She recalled she was wearing blue pants, blue jeans and a red shirt.

[23]        L.J. described the act of rape which followed and also described in some detail the painful sensations she felt during the act. P.E.L.’s torso was over her head. It was very painful. When she told him that it hurt and she didn’t want to do it, she said he told her “You be a good girl. You make me feel good.” She said that when he was finished, he told her to get dressed and go out. He told her not to say a word to anybody. She didn’t. She could not say how long she had been at the residence when this incident occurred.

[24]        L.J. recalled another occasion where P.E.L. was with her in her bedroom. They were interrupted by S.C.L. who banged on the door and told P.E.L. that their mother was home. P.E.L. told L.J. to get into the closet. L.J. overheard a brief conversation P.E.L. had with his mother, Mrs. L, about where the children were. When Mrs. L. had left, P.E.L. took L.J. out of the closet, put her on the bed and sexually abused her. He told her she was sexy and that he liked “humping” her. He kissed her, fondled her vagina and then raped her, according to her evidence. L.J. said she cried and told him he was hurting her, but he continued until he was done.

[25]        There was a third occasion in the home described by L.J. She had been asleep in her bedroom. P.E.L. took her out of her room to his basement bedroom. He began to kiss L.J. and he removed her night clothes and underwear. Mrs. L was heard coming down the stairs towards the bedroom. P.E.L. lifted up his mattress, put L.J. under the mattress and then lay upon it himself. L.J. struggled to breathe under the mattress while P.E.L.’s mother spoke to him. Mrs. L. asked about the noises that had been coming from the room and asked what was going on. P.E.L. told her he was just doing exercises.

[26]        After his mother left, P.E.L. pulled L.J. out from under the mattress and placed her on top of it. She testified P.E.L. first kissed her and then raped her. She said she felt numb during this episode and that she couldn’t breathe. When he was done with her, she said, he told her to put her clothes on and return to her room.

[27]        Not far away from the L. home there were structures which included the [omitted for posting], being a community hall, and a building which had housed a pre-school. The pre-school building contained an open area, back rooms, a hall and washrooms. There was a playground nearby.

[28]        The children in the area regularly had access to the pre-school building unsupervised by adults, L.J. said. Sexual abuse occurred there with some frequency. She recalled being lined up in a hallway in the pre-school building, up to a dozen young children from the reserve, some of whom she named.

[29]        The children named by L.J. included her older sister, C.J., the complainant in Count 2, and two other young girls, S.C. and G.T.  G.T. is the complainant in Count 3.

[30]        L.J. also recalled that the brothers T.L. and L.L. were also there at times. These two boys were cousins to P.E.L., S.C.L. and D.B.L. T.L. is the complainant in Count 15. L.L. was not called to give evidence.

[31]        P.E.L., D.B.L. and S.C.L. were there, she said, and P.E.L. was in charge. L.J. stated that she and the younger children would be lined up, until called in by P.E.L., as if waiting their turn to be abused. L.J. said S.C. and G.T. were directed to lie on a towel. L.J. stated P.E.L. assigned his brothers S.C.L. to be with S.C. and D.B.L. to be with G.T. She said it was like P.E.L. was directing his brothers what to do. L.J. described what followed on this occasion, a sexual assault upon S.C. by S.C.L., in which she said S.C.L. was “really, really rough.” It frightened her. She did not pay much attention to what was happening with D.B.L. and G.T.

[32]        L.J. recalled a time when it was her turn to lie on a towel. She told P.E.L. she had to go to the bathroom but he wouldn’t let her go. P.E.L. called D.B.L. and directed him to get on top of L.J. and have sex with her. She said D.B.L. apologized to her and was apparently reluctant to do as he was told by his brother. P.E.L. told D.B.L. to “come on, be a man” and called him “a pussy”. She said on that occasion, D.B.L. tried but couldn’t get an erection. P.E.L. told him, “Better luck next time.”

[33]        At another time or date, L.J. recalled she had to line up in the pre-school building. P.E.L. directed her to lie down on the towel, which she did. P.E.L. then called over her older brother, G.J., and told him “Get over there.” G.J. protested that she was his sister. P.E.L. told him words to the effect that he’d better do as he was told or P.E.L. would have anal sex with him. This is a paraphrase of a coarser expression. L.J. said that her brother went through the motions he was directed to by P.E.L. but without obtaining an erection or hurting her.

[34]        It seemed normal to be abused, L.J. said. In cross examination she said that while the boys and girls were lined up, waiting their turn to be abused by one or other of the L. brothers, the children would chatter, giggle and laugh. She said that from or near the head of the line, the children could see into the room where the three L. brothers were and what was going on. She said she saw acts she took to include anal and vaginal intercourse.

[35]        When asked to comment on the frequency with which her abuse had occurred, L.J. had difficulty estimating that. She said it felt like a daily experience. When pressed in cross examination, she said that probably 50% of the time she went to the pre-school building to play, she was sexually abused. She repeated that the sexual abuse became normal and indeed habitual. She said it got to a point where she stopped crying when she was abused. She would just lie there and “black out” until it was over, she said.

[36]        Regarding disclosure, L.J. said that in the years that followed there was very little discussion in the community about the abuse that children had suffered at the hands of the L. brothers. There was no discussion at all about specific incidents, she said. In late 2006 or 2007 she was asked about her experiences by Denise Archie. Ms. Archie was a probation officer and was related by marriage to L.J.

[37]        L.J. made some disclosure on October 23, 2007, according to the admitted evidence of Ms. Archie, including an allegation that there was a building in Lillooet where S.C.L. and D.B.L. would line up the children and take them into a room one at a time to be sexually abused.

[38]        Ms. Archie’s evidence did not include any mention of allegations by L.J. against P.E.L. L.J. said it was only a brief discussion she had with Ms. Archie about abuse by the L. brothers. She did not recall leaving P.E.L.’s name out of the discussion.

[39]        Ms. Archie’s evidence, as read in, was that she recommended to L.J. that she make disclosure to the police. Ms. Archie advised Cst. Simpkins of the Stl'atl'imx Tribal Police Service of the disclosure made to her. Cst. Simpkins gave evidence that on October 31, 2007 she took an audio and video recorded statement from L.J. involving allegations against two of the brothers. The police investigation which followed took about three years to complete, the constable said.

[40]        L.J. was clear that she had never asked her sister C.J. or other siblings to give evidence or discuss incidents. She said they had never discussed the details of the bad things which had happened to them.

[41]        In giving her evidence, L.J. was at different points, eloquent, emotional and understandably frustrated with criminal justice processes. She confirmed that she had received transcripts of her 2007 statements and her previous trial evidence but hadn’t reviewed them as they were too traumatic. She expressed a strong preference not to be in attendance at all at the retrial but she remained to answer all the questions she was asked.

[42]        L.J. agreed that she had stated in her 2007 statement to Cst. Simpkin that she was seven or eight when these matters arose but that in court here she said she was five years of age. She said that she had changed her evidence as to timing to conform with what she had learned in the course of the first trial.

[43]        Counsel for P.E.L. submitted that the evidence of L.J. was unreliable for this and other reasons. It was submitted that her evidence was not supported by the evidence of others, or was at times inconsistent with that of other witnesses said by L.J. to be present at certain events. No other witnesses recalled being lined up in a hallway waiting to be sexually abused.

[44]        L.J. stated that she had seen her older sister C.J. in the [omitted for posting] “being raped by (D.B.L.) and he was raping her so hard and so rough her head was banging on the wall and she was hurting and struggling….”

[45]        In the same passage of evidence L.J. referred to an incident where she was being sexually assaulted in the pre-school building and her sister C.J. reached out her hand to tell L.J. that “it wasn’t going to last forever, that it was going to stop pretty soon.”

[46]        C.J., in giving her evidence, recalled one incident of sexual abuse she suffered at the hands of P.E.L. C.J. agreed in cross examination that she had reported to Cst. Simpkins that she had been raped by D.B.L. but said here she didn’t want to discuss this in court. D.B.L. was not on trial here and C.J. was not pressed on the point by counsel. In evidence C.J. did not relate any incident in which she saw L.J. being sexually assaulted or in which she offered comfort to L.J. in those circumstances.

[47]        L.J. noted with respect to her own experience that the sexual abuse she described was a regular and normalized feature of her life at the time and that she could not recall all the abuse she had suffered at the direction or hands of P.E.L. and others. She said that it may be that the events she did recall were those which stood out as being particularly vivid or horrific.

[48]        In these circumstances, it would not be surprising if adult witnesses remembering events from childhood would recall different events. It is quite a different circumstance than that arising where adult witnesses are unable to recall or corroborate more recent events about which the same or at least similar recollections would be expected to be brought forward.

[49]        A good deal of time was spent during this trial questioning L.J. and other witnesses about the manner in which the complaints came to light and ultimately to the attention of the police in 2007. While there were some discrepancies in these accounts, in my view they were not particularly significant. The discrepancies do not credibly support any suggestion that L.J., the other complainants or the other witnesses in the trial contrived to concoct allegations against the L. brothers or that there was any significant discussion between them of the details of the complaints alleged such as to taint recollections. Neither was there any apparent motive or benefit to be obtained from concocting such allegations.

[50]        I have considered the evidence of L.J. in light of all the circumstances, the submissions of counsel and the guidance provided in the cases cited above dealing with the credibility and reliability of witnesses generally, children’s evidence and the evidence of adults recalling events from childhood. 

[51]        In spite of the absence of supporting evidence from the other children, now adults, said to be present at some of the events recalled by L.J., I am bound to say that her evidence in regards to the actions of P.E.L. in these episodes was particularly compelling. I find her evidence is fundamentally credible and reliable in respect to the essential events of her sexual abuse by P.E.L.

[52]        To the extent that there were some gaps in the details of the evidence provided by L.J., I’m satisfied that those gaps are to be expected from real memories laid down by a child and recalled by the adult. L.J.’s evidence did not strike me as being at all reflective of a lack of candour, truthfulness or reliability.

[53]        The evidence of L.J., which I accept, establishes beyond a reasonable doubt that P.E.L. played roles as both principal offender and party to the various episodes of sexual assault related by L.J. I am satisfied that P.E.L. is guilty of the offence charged in Count 1.

[54]        Count 2 alleges that P.E.L. committed a sexual assault upon C.J., between January 13, 1983 and June 30, 1983, the same time frame set out in Count 1. C.J. was born [omitted for posting] and was 8 years old, going on 9, at the time of the alleged offences.

[55]        In evidence, C.J. recalled that she, her sister L.J. and her brothers were in the L. home for about 9 months in a foster placement. She described life in the L. home as a “split experience”. She said that Mr. and Mrs. L. were wonderful and that she learned many things from them. She also stated that with the “foster boys”, referring to the L. brothers, it was “an awful experience there.”

[56]        I’m satisfied that the time frame set out in the information, supported by Ministry records, accurately reflects the period over which these allegations take place. There are two distinct allegations which arise from her evidence.

[57]        In evidence, C.J. said that the L. boys played with the other children, except for P.E.L., who mostly worked in a basement office in the [omitted for posting]. She said that on one occasion, she thought about five months after her arrival, P.E.L. called her into the office. She said that her sister, L.J., was seated on the couch fidgeting. P.E.L. told L.J. she could go and she ran out.

[58]        C.J. said that P.E.L. then told C.J. to undress. She described herself as being in a complete and utter state of shock. She didn’t comply. P.E.L. removed his shorts, she said and he began rubbing his genitals against a vertical support pole until he ejaculated. The pole was a few feet away from her.

[59]        She said that P.E.L. then took his pants off so that he was wearing only a basketball shirt and had no bottom clothes on at all. P.E.L. approached her and lay her down on the couch. He took off her pants or shorts and lay on top of her. In the course of detailing her experience, C.J. described feeling a wetness on her leg and genital area. P.E.L. then “stopped himself” as she described it, and told her he couldn’t do this anymore. He told her to leave. She got dressed and left.

[60]        C.J. said that was the end of her recollection. This was the only episode of sexual abuse between P.E.L. and herself, she said.

[61]        C.J. said she never told anyone what had happened. She was asked in evidence why she didn’t tell Mr. or Mrs. L what had happened. C.J. said “Because I loved my mom.” She explained that S.C.L. “told us that if we ever told anyone it would … kill my mother. I didn’t want her to die.” On cross examination, C.J. agreed that S.C.L. had also said that telling anyone would kill his mother too.

[62]        C.J. said she twice tried to run away from the L. home. Not surprisingly, the attempts were not successful and she was returned.

[63]        The first detailed discussion of her recollections, C.J. said, was with Cst. Simpkins in 2007. In cross examination, C.J. said that she had told Cst. Simpkins in the course of the investigation that she had also been sexually assaulted by D.B.L. She said that she had made her peace with D.B.L. and didn’t want to talk about it. She was not pressed further by counsel.

[64]        C.J. said that when she was 15 or 16 she disclosed the abuse to an RCMP officer, but nothing had developed. She said late one night L.J. called her and they discussed their foster care and whether a complaint should be made. C.J. said they talked about the abuse but did not discuss a lot of details with each other.

[65]        The Crown also alleged an episode of sexual assault by D.B.L. upon C.J. It was said to have been committed at the direction of P.E.L. and in the presence of G.T.

[66]        In the course of this trial C.J. was not asked in direct examination about such an episode, but C.J. agreed in cross examination that she had reported to Cst. Simpkins a sexual assault by D.B.L. C.J. said in evidence that she didn’t want to discuss that assault. She was not pressed on the point by counsel. The evidence in relation to this allegation is entirely that of G.T.

[67]        The witness G.T. gave evidence that when she was about five, six or seven there was an incident at the [omitted for posting]. The neighbouring children were able to gain access to the Hall through an insecure window.

[68]        G.T. said that that others present on this occasion were herself, L.J., C.J., and the three L. brothers. In cross examination, she agreed that during the first trial three years ago, her evidence was to the effect that only herself, C.J., P.E.L. and D.B.L. were present and that S.C.L. and L.J. were not there. She agreed that her recollection of these events more than 30 years ago may have been more accurate at the first trial.

[69]        All the children went downstairs into the Hall basement, she said. P.E.L. and D.B.L. then instructed some of the other children to “play house.” G.T. said that P.E.L. did the directing and instructed D.B.L. how to “be with” C.J. and what he was to do with her.

[70]        In cross examination G.T. agreed that at the first trial she had given evidence to the effect that D.B.L. had said they were playing house and that C.J. was the wife. G.T. agreed that it was possible that D.B.L. had said these words, not P.E.L., and that her evidence in chief was mistaken in this regard.

[71]        As a child, G.T. said, she didn’t understand entirely what followed. However, as things progressed, she saw C.J. was lying on her back on a makeshift mattress. C.J. was crying. D.B.L. was on top of her. Neither was wearing any bottom clothing, she said. In cross examination she agreed that she did not see bottom clothing removed from either D.B.L. or C.J. but had assumed that this had happened.

[72]        G.T. recalled that she watched these events from the basement stairs. There was a tarp covering C.J. and D.B.L. which was moving with them as they moved. G.T. said that she had since come to associate this motion with sexual intercourse or a simulation of intercourse, but she could not say whether what she saw in this instance was real or simulated. She saw D.B.L. kissing C.J. on the mouth. C.J. was trying to turn her head. C.J. was crying, G.T. said. At one point D.B.L. said “This is how you play house.”

[73]        P.E.L. was there and watched what was happening, she said. She agreed that in 2011 she had given evidence to the effect that she thought P.E.L. was giving instructions to D.B.L. but couldn’t say whether that was from P.E.L.’s body language or was just an impression she had. She agreed that she had given evidence at the first trial that P.E.L. had been there to begin with, but couldn’t say whether P.E.L. had left thereafter.

[74]        G.T. said she herself left the basement room while these actions were going on and ran across the field to her home. She told no one what she had seen.

[75]        It is often a demanding task for complainants to give evidence in a case involving allegations of historical sexual assault. The Crown must ask questions designed to elicit a detailed account of difficult events occurring many years before. Defence counsel are duty-bound to ask questions challenging the credibility and reliability of the witnesses’ evidence. Testifying at a retrial adds to the difficulty facing a complainant witness.

[76]        G.T. exhibited a great deal of frustration during her evidence. At several points in cross examination, discrepancies between her evidence in 2011 and her evidence in this trial were put to her. A number of times she responded to such questions with flippant, concessionary answers such as “sure” or “whatever”.

[77]        When it was put to G.T., she agreed that she was giving these answers in order to get her evidence over as soon as possible. She added that this was the most honest answer she’d given all day.

[78]        The absence of any supporting evidence from C.J. in respect of this allegation, together with the unresolved contradictions of G.T.’s evidence given at the first and second trials as set out above, and the flippant answers given by G.T. in response to questions in cross examination, leave me in a state of uncertainty as to the facts alleged on this occasion. I cannot find sufficiently credible and reliable evidence to be satisfied beyond a reasonable doubt that P.E.L. was a party to the sexual assault of C.J. by D.B.L. I am not prepared to find that this allegation has been made out.

[79]        However, I agree that C.J. was a credible witness generally. I am satisfied that her evidence was sufficiently credible and reliable so as to prove the offence charged against P.E.L. on Count 2 beyond a reasonable doubt. The events involving C.J. and P.E.L. in the basement office in the [omitted for posting] occurred as she described. On that basis I find P.E.L. guilty on Count 2.

[80]        Count 3 alleges that P.E.L. indecently assaulted G.T., a female person, between the inclusive dates of October 1, 1981 and October 31, 1982, at or near Lillooet, BC, contrary to Section 149(1) of the Criminal Code. These dates encompass the Thanksgiving holidays of both 1981 and 1982. G.T. was born [omitted for posting]. She turned five years of age in July 1980 and became eight in July 1983.

[81]        P.E.L. was born [omitted for posting]. He would have been 11 years of age when G.T. turned five in July, 1980 and was 14 years of age when G.T. turned eight in July, 1983.

[82]        G.T. lived a few houses away from the L. residence. She knew the L family, including the boys P.E.L., D.B.L. and S.C.L. She knew L.J., C.J. and their siblings as children to play with, though she said the J children did not live at the L. house for long.

[83]        In addition to the evidence G.T. gave in relation to Count 2 as set out above, G.T. also gave evidence about another event alleged to have taken place in the L. home and involving her directly.

[84]        In evidence, G.T. said she had played at the L. residence a few times. One occasion occurred when she was in the age range of five, six or seven. She wasn’t sure of her age but thought she was then in school. She believed that it was the Thanksgiving holiday as she was aware that a turkey was being cooked in the L. house.

[85]        The three L boys, G.T. and her brother were playing hide and seek at the L. house. G.T. said she hid in one of the upstairs bedrooms in a closet. It was a nice room, probably the parents’ room, she said. P.E.L. found her. He took her by the wrist and sat her on the bed. He asked if he could tell her a secret, one that she couldn’t tell anybody.

[86]        P.E.L. then tried to kiss her face. G.T. moved away. P.E.L. slid his hands up her shorts, or possibly a skirt, and up her leg to touch her vagina over her underwear. She pushed his hand a way. G.T. said she felt very uncomfortable and moved away from P.E.L. She left, running home and she told no one what had happened.

[87]        G.T. said that she had spoken to L.J. in years following these events, probably before Cst. Simpkins began taking statements in 2007. G.T. said L.J. had asked whether G.T. would come forward to give evidence about the L. brothers. G.T. had said no and told L.J. not to ask her again.

[88]        With respect to other incidents, G.T. said she did not recall ever being lined up at the pre-school waiting in turn with a dozen children to be sexually abused by the L. brothers. G.T. did not recall any incident where P.E.L. had assigned D.B.L. to sexually assault her while S.C.L. assaulted another named girl. G.T. was not able to say whether she would have remembered such a thing had it happened.

[89]        G.T.’s evidence, if accepted, would establish the facts necessary to find that an indecent assault on a female had occurred. However it is not sufficient to say that her account is probably true; I must be satisfied of its truth beyond a reasonable doubt.

[90]        I have already commented in the discussion of Count 2 the reservations which exist with respect to the credibility and reliability of G.T.’s evidence. The same concerns arise here and I am not able to say that the evidence here comes up to the high standard required. In the result, P.E.L. is entitled to be acquitted on Count 2.

[91]        In light of this finding I do not find it necessary to address P.E.L.’s argument as to his age and legal capacity to commit a criminal offence under s. 13 of the Criminal Code as it stood prior to April 2, 1984.

[92]        Count 12 alleges a sexual assault by S.C.L. upon A.S. between January 1, 1985 and December 31, 1987, inclusive, at or near Lillooet, BC. The complainant A.S. was born [omitted for posting]. She turned four in March, 1982 and eight in March, 1986.

[93]        S.C.L., as mentioned previously, was born [omitted for posting]. He was 6 years older than A.S. and would have been between 12, going on 13 years, and 15 years of age inclusive on the dates set out to in Count 12. 

[94]        A.S. gave evidence that when she was approximately five to seven years of age, she and her mother lived at times with A.S.’s Aunt S, and her family at her home on another reserve near Lillooet. A.S. particularly recalled staying there in the summertime, two or three summers, she thought. She also recalled being collected from her aunt’s house by a specific school bus driver to go to pre-school and kindergarten during the school year.

[95]        A.S. knew S.C.L. at this time because he was a friend of the family, like a cousin, she said. He was older, she thought, perhaps in his mid-or late teens.

[96]        There were times, she said, when S.C.L. would babysit her and her cousin J. who was a year older than A.S. S.C.L. would come around on his bicycle. She and J. would ask S.C.L. to take them to Seton Lake to swim and they would go. J. would ride his own bike and A.S. would double sideways on the bar of S.C.L.’s bike, with her towel tied to the bike. Sometimes they would stop on the way to play in the puddles at the spawning channels.

[97]        A.S. testified that one time at the spawning channels S.C.L. directed her and J. to perform in a sexual way while he masturbated beside the two children. These acts directed by S.C.L. involved A.S. lying on her back on rocky ground while J. got on top of her. J.’s shorts were off and she thought hers were too. She recalled she had been wearing shorts over her bathing suit. This simulation of intercourse didn’t last long, she said, and ended when S.C.L. finished masturbating.

[98]        A.S. also gave evidence in chief that she did not think that such an event had happened more than once with S.C.L., or with her and S.C.L. alone. She could remember nothing else, she said.

[99]        However, after refreshing her memory when shown a portion of her 2008 statement to the police, she recalled that there was another similar incident with J. and S.C.L. that same summer. This was an event similar to the first incident but she said that after masturbating, S.C.L. gently got on top of her and rubbed his penis on her vagina. She described how that felt and expressed words to the effect that S.C.L. had left ejaculate on her.

[100]     In cross examination A.S. said she could not say how many times incidents of this nature had occurred. She knew it had happened at least twice and said it was like it was a ritual.

[101]     A.S. also said that S.C.L. took her frequently to the lake, perhaps weekly. She said that at the lake or on the bike he would touch her in ways that “were not very nice.”

[102]     A.S. said she told no one at the time what had happened to her with S.C.L. There was no abuse after she was apprehended by the Ministry at school and put into foster care. A.S. was not at all clear as to her age at the time she was apprehended or where she was in her schooling. At one point she said she was apprehended while in kindergarten.

[103]     At various points A.S. said she was apprehended at aged five or six or “sevenish”, which could reasonably include the years 1983 through1986. These age estimates would seem to be at odds to some extent with her assertion that the abuse ended when she was apprehended in kindergarten. Her certainty as to her stage of education at the time of leaving for foster care diminished during cross examination.

[104]     A.S. said it was a year before she was reunited with her mother. She was then eight or nine. A.S. said she never went back to stay at her Aunt S.’s home after she was taken into care. Her mother achieved sobriety while A.S. was in care.

[105]     The mother of A.S. gave evidence as well. She stated that their family lost their home to fire in 1985 and that she and A.S. lived with Aunt S. and her family after the 1985 fire. A.S. turned seven in March 1985.

[106]     A.S. said that these events involving S.C.L. came to light when she was approached and interviewed in 2008 by Cst. Simpkins. At the time A.S. was in police custody, she said, and had a hangover. A.S. said she had previously spoken to a counsellor about the events regarding S.C.L. but had not been part of any group trying to take action about complaints against the L. brothers.

[107]     In cross examination, A.S. agreed that some of her evidence at the first trial was not true or accurate, though she had been sworn or affirmed to tell the truth. A.S. explained that she had been drinking the day she gave her evidence at the first trial.

[108]     A.S. said there were times in her evidence at the first trial where she had just been agreeing with questions put to her in order to finish her evidence and be excused further attendance at court. When asked whether she was just saying things in this trial to get out of court, she answered “something like that” and added, “I didn’t want to testify.” She did not deny that she had given answers in evidence here calculated to get her out of court more quickly.

[109]     The reluctance of A.S. or of any complainant to give evidence is not surprising given the long history of this litigation. Nonetheless, it is a concern when such considerations impact the answers given in evidence and it goes to both the credibility of a witness and the reliability of her evidence.

[110]     As mentioned by Justice McLachlan in R. v. R.W. and discussed earlier in these reasons, it will often be difficult for an adult witness to recall with precision events occurring perhaps 30 years previously when she was a young child. A.S. was not able to provide anything beyond a very broad range of years for the assaults alleged against S.C.L.

[111]     A.S., in giving evidence, at times stated her answers firmly, only to admit error or uncertainty upon further questioning. For example, initially A.S. recalled in evidence only one episode of sexual abuse at the hands of S.C.L. Her answer was quite clear. However, it was only after she was shown her statement to police that she recalled a second event involving S.C.L. There were only the two incidents that she could recall. While these issues with the evidence of A.S. may be explicable, they do not increase confidence in the reliability of her evidence.

[112]     In all the circumstances, I cannot find that the evidence presented on Count 12 satisfies that high standard of proof beyond a reasonable doubt. I am left with a reasonable doubt as to the guilt of S.C.L. and he is entitled to be acquitted on Count 12.

[113]     S.C.L. is charged in Count 15 with the sexual assault of T.L. between May 31, 1987 and May 31, 1988, inclusive. The charge alleges that the offence was committed on or between T.L.’s ninth and tenth birthdays. He is now 36 years old. Over the dates alleged in Count 15, S.C.L. was 15 or 16 years of age.

[114]     Time is not an essential element of the offence in this count, nor was it argued to be. The time frame in which a count is alleged to have occurred is generally not a material averment to be proven by the prosecution, provided that any applicable limitation periods have been met. See 601(4.1) of the Criminal Code and R. v. G.B., 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at paragraphs 41 - 46.

[115]     T.L. was born [omitted for posting]. He gave evidence that when he was 9 or 10 years old his family, including his younger brother, moved to a community south of Lillooet. P.E.L., D.B.L. and S.C.L. were cousins to T.L. and his younger brother. The two L families socialized regularly after the move.

[116]     In evidence T.L. said that when he was nine or ten years old, he was in the basement of his aunt and uncle’s home with his younger brother and S.C.L. The basement was described as unfinished and bare. There were sheets hung up in the basement space and there was a towel or blanket on the floor. The rest was bare concrete.  There was an old Atari video game in the room. 

[117]     T.L. had some difficulty describing in court the events which took place when S.C.L. and the two younger boys were naked. Providing this evidence was plainly an emotional experience for T.L. According to T.L., S.C.L. directed his two younger cousins to do things to him. For T.L., these included acts of a sexual nature: rubbing, caressing, kissing and “feeling him up” as T.L. put it. T.L. recalled being on top of his cousin who was in a sitting up position. T.L. said he just remembered the chest and upper part of S.C.L.’s body.

[118]     T.L. remembered that he had gone first. Then his brother had to do the same thing. T.L. told him it was his turn. T.L. was struck by how tiny and skinny his little brother looked on top of his bigger cousin, S.C.L. S.C.L. was lying on his back. T.L.’s brother was doing what he was told, though T.L. could not recall what specifically that was.

[119]     T.L. said that when he and his brother were off S.C.L., they were required by S.C.L. to watch him while he masturbated to the point of ejaculation.

[120]     T.L. said that he wasn’t sure what to make of these events at the time. He said he was scared and confused to see his little brother like that. He didn’t tell anyone in the period following the event. He had been told by S.C.L. that it was a secret.

[121]     The truth only came out later, T.L. said, first when he was about 15 or 16 and was briefly questioned by an aunt. Nothing came from the disclosure on that occasion but discussion of the abuse also came up later when he attended counselling. Mostly, T.L. said with some emotion, he tried to keep these painful events within him. He had tried to cope with it by drinking. He said he has taken extensive drug and alcohol treatments over the years and is now clean and sober.

[122]     T.L. became aware over time that there were other complainants. Ultimately he provided a statement to Cst. Simpkin and said that he did so to support his brother. In the result, T.L.’s brother was not called to give evidence here and a count relating to S.C.L.’s conduct with the brother was stayed by the Crown during this trial.

[123]     T.L. was vigorously cross examined by counsel and he conceded that there may have been things that he has blocked out or doesn’t want to recall. T.L. had wondered whether going under hypnosis might help him recover more of his memories but he hadn’t pursued that.

[124]     T.L. allowed that his memory of the events testified to may have been fresher when his statement was given to police but added that his mind is clearer today, thanks to his sobriety. T.L. said that he was tired of being made out to be a liar in these proceedings and said he had told the truth, the absolute truth. He had done the best he could in recalling events as they had occurred, he said.

[125]     T.L.’s evidence was in my view entirely credible. While there were parts of the encounter T.L. could not recall, T.L.’s account struck me as authentic and entirely what one might expect from an adult recalling events occurring many years previously.

[126]     T.L.’s evidence is not in my view a concoction. I found his evidence convincing. The question as to whether T.L.’s recall of events can be accepted as an accurate reflection of the events described is to be answered in the affirmative. I am satisfied that the events recalled and described by T.L. in his evidence are accurate and reliable. In these circumstances, the conduct alleged amounted to a sexual assault upon T.L. by S.C.L. S.C.L. is found guilty as charged on Count 15.

[127]     P.E.L. has been found guilty on Counts 1 and 2. He is not guilty on Count 3.

[128]     S.C.L. has been found not guilty on Count 12. He is guilty on Count 15.