



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. P.E.L.
,









2017 BCCA 47




Date: 20170202

Docket: CA43206

Between:

Regina

Respondent



And

P.E.L.

Appellant

Restriction on Publication: A publication
ban has been mandatorily imposed under s. 486.4(2) of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of
evidence that could identify complainants or witnesses, referred to in this
judgment by the initials L.J., C.J., and G.T.
This publication ban applies indefinitely unless
otherwise ordered.

Restriction on Publication: A publication ban has been
mandatorily imposed under s. 517 of the
Criminal Code
restricting
the publication, broadcasting or transmission in any way of the evidence taken,
the information given, or the representations made and the reasons, if any,
given or to be given by the justice until the accused is discharged or, if
ordered to stand trial, the trial has ended.

Restriction on Publication
: A publication ban has been automatically imposed
under s. 110(1) of the
Youth Criminal Justice Act
restricting the
publication of information that would identify a young person referred to in
this judgment by initials. This publication ban applies indefinitely, unless
the information is published by that young person under s. 110(3) or the
court has ordered publication.




Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Provincial Court of British Columbia, dated March 5, 2015 (
R.
v. P.E.L. and S.C.L.
, 2015 BCPC 42,
Lillooet Registry File 8116-C3).






Counsel for the Appellant:



B.R. Anderson





Counsel for the Respondent:



M.T. Ainslie, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 6, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

February 2, 2017









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Madam Justice Kirkpatrick





The Honourable Mr. Justice Savage








Summary:

This case involved
allegations of historical sexual assaults. Appellant and one of his brothers
were convicted following re-trial of sexually assaulting (when they were
teenagers) several younger children in the 1980s. On appeal from two
convictions entered against appellant, it was argued that trial judge erred by
failing to reconcile important discrepancies or inconsistencies in the
evidence provided by complainant L.J. and various other witnesses. Appellant
also argued that judge failed to properly apply the law regarding evidence
given by adults concerning childhood events and that the charges violated the
single transaction rule by collapsing separate transactions into a single
count.

Held: appeal dismissed. The
evidence of the various other witnesses did not contradict L.J.s testimony
or create material inconsistencies therewith. The trial judge considered the
evidence and made findings of credibility and reliability that were open to him
to make. Those findings are entitled to deference. The judge did not err in his
application of the law regarding evidence given by adults concerning childhood
events. The single transaction rule was not violated, since a single
transaction may validly encompass a number of occurrences where, as here, the
alleged conduct spans a period of time and involves multiple instances of
similar conduct.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

In January 1983, five children of the J. family were placed in the
foster home of Mr. and Mrs. L. The J. family included two young girls

C.J., then age 8, and L.J.,
then age 5. Mr. and Mrs. L. had three boys

P.E.L., then age 14; and his brothers D.B.L., age 12, and S.C.L., age 10.
Both families were from the Stlatlimx Band and the L. family lived on the
Titqet Reserve near Lillooet. The J. children were returned to their mothers
home at Bridge River at the end of June, 1983.

[2]

In 2011, an indictment was brought alleging sixteen counts of assault (15
of them sexual assaults) against the three L. brothers. Since the accused had
been juveniles at the time of the alleged offences, the charges were brought
under the
Youth Criminal Justice Act
, S.C. 2002, c. 1. P.E.L., the
appellant herein, was charged with the sexual assault of L.J. and C.J. between
January 13 and June 30, 1983, and with the indecent assault of G.T. between
October 1, 1981 and October 31, 1982. Six charges were brought against S.C.L.
and the rest were brought against D.B.L. After a trial in 2011, this court
ordered a re-trial of certain of the charges. The re-trial of three charges
against P.E.L. and two against S.C.L. took place in the fall of 2014.

[3]

The trial judge delivered reasons on March 5, 2015 in which he convicted
P.E.L. of sexually assaulting L.J. and C.J. but acquitted him of indecently assaulting
G.T. The judge also convicted S.C.L. of sexually assaulting his cousin, T.L.,
between May 1987 and May 1988, but acquitted him of assaulting A.S. between
1985 and the end of 1987.

[4]

Only P.E.L. appeals his convictions.

The Trial Judgment

[5]

The case was highly fact-based and turned almost entirely on the trial
judges findings of credibility. On appeal, P.E.L. challenges those findings
with respect to L.J., who was in kindergarten in 1983, and to a lesser degree C.J.,
then in Grade 3. There was no direct evidence of the alleged assaults from any
person who was an adult at the time, and no medical evidence of what would have
been brutal and traumatic experiences for the complainants.

[6]

P.E.L. did not testify at trial. It is clear he was 14 in 1983, although
C.J. testified that she thought he had been about 18. It is not clear whether
he was in school then; but evidently he worked in some capacity in an office
in the basement of Julianne Hall, located next to an old pre-school building where
much of the alleged abuse occurred.

[7]

In all, L.J. testified that P.E.L. had sexually assaulted her so often
that it pretty much became normal. When pressed to estimate how many
incidents occurred, she said they happened about 65% of the time during her
stay at the L. home.  L.J. described in some detail three specific incidents of
being raped by P.E.L. in the L. residence (see paras. 22

26 of the trial judges
reasons); but also recounted that the appellant, whom she described as the
boss of all of us, would often call her and the other children in from the
playground into the pre-school building. There he would line them up in the
hallway outside the bathroom and call each child separately into a room where
they were abused by him and his brothers.

[8]

On one occasion, L.J. testified, the appellant directed D.B.L. to
assault G.T. On another occasion, he told D.B.L. to have sex with L.J.  D.B.L. tried,
but was unable to maintain an erection. She recalled that C.J., her brothers G.J.
and D.J., S.C., G.T., T.L. and B.L.C. were all present at the time. Five of
these persons testified at trial, but as the appellant points out in his
factum, none of them corroborated the incident.

[9]

L.J. also recalled that C.J. had been present once when L.J. was being
raped by P.E.L.; and that C.J. had reached out to comfort her as the rape was
occurring. Again as noted by the trial judge at para. 46, C.J. did not recall
this incident.

[10]

L.J. was a reluctant witness and was obviously frustrated at being
questioned for the second time on issues that, at least in her mind, were of
little relevance to the issues before the Court. She was cross-examined at
length, for example, on the location and colour of her room in the L. house;
whether she and C.J. had shared a bedroom; and the number of times she had been
abused by any of the defendants. She testified that she thought she had lived
at the L. residence for two to three months, but later said she had no idea
how long I was there for. She acknowledged that she had previously told the
police she had been seven or eight years old when the abuse occurred, but that
she had changed her evidence (in fact she had been five years old) based on
evidence she heard at the first trial. At one point, she was asked if she had
any difficulties with her memory generally or had suffered any head injury.
Her answer was no. When asked whether in her experience her memory got better
over time or got worse, she answered, I dont think mine gets worse.

[11]

L.J. was also cross-examined at length about any discussions she had had
concerning the abuse, especially her disclosure in 2007 to Ms. A. (a probation
officer to whom she is now related by marriage), and then to police. She had told
Ms. A. that
D.B.L. and S.C.L.
had lined up and sexually abused children
at the pre-school, but she did not mention any abuse by
P.E.L.
At trial,
she stated she did not remember if she had mentioned P.E.L. and I do not know
and I do not recall. When pressed about her insistence that she had not
discussed the abuse with anyone, including C.J., she said she had not spoken
in
detail
about her experiences. She had kept her words vague and her
conversations with C.J. had been abrupt, because Its like, I dont want to
talk about it. She continued at p. 283 of the transcript:

What I -- I never -- what I am
saying is, I never ever talked about anything that had happened to me in detail
to anybody, about what I endured in the home, in the residence, or the care of Mrs.
and Mr. L., and alls we said was, We were abused. I was abused. She [C.J.] knew
I was abused. She knew she was abused. We knew things happened. We knew bad
things happened to us, and thats all we ever acknowledge, and thats it. And
when I came forward and did my statements, thats it. I said, I finally put my
word in, and that's it. Thats all. There was nothing else said. Nobody ever talked
about anything.

[12]

C.J.s testimony was considerably shorter. She described one incident in
which P.E.L. had called her into his office in Julianne Hall. When she entered,
she saw L.J. sitting on a couch, fidgeting. She recalled that P.E.L. told L.J. she
could go, and then told her, C.J., to undress. She continued:

He took off his shorts and he
went to this pole and he

he ejaculated himself on this pole. He came towards me, and he took off his
pants and laid on top of me. And he stopped himself, and said he couldnt do it
anymore, so he told me to leave. I quickly got dressed, and I walked out.

She testified that she never told anyone about this
incident because S.C.L. told us if we ever told anyone that he would kill our
 mother, and I didnt want her to die. She had tried to run away a few times,
but was returned to the L. residence. She said that later, when she was about
15, she had told the RCMP about what P.E.L. had done, but they told her
nothing could be done.

[13]

C.J. agreed with the suggestion that the pole incident was the only
incident that had involved
[herself] and P.E.L.
in sexual abuse (my
emphasis) and that he had never approached her again after that. She said she
rarely saw him. She did not say she had seen L.J. or S.C. being assaulted (as L.J.
had suggested); but neither did she deny that had taken place. Indeed, as will
be explained below, she was not directly asked about these incidents at trial.

[14]

The sisters recollections on matters of detail did differ in some
respects: C.J. described P.E.L. as chubby and short, for example, while L.J.
described him as tall and thin; L.J. was unsure whether she and C.J. had
shared a bedroom in the L. house; C.J. said they had. She was not asked about
having helped L.J. move a bed against the door of her (or their) bedroom to
keep P.E.L. out, as L.J. recalled. L.J. and C.J. were obviously not always
together and had different experiences. They attended different schools and it
appears L.J. was exposed to P.E.L. much more frequently than C.J. was.

[15]

On a more important topic  her disclosure of what had happened

C.J. recalled phoning her
sister and talking with her about it, although, she added, they did not discuss
it
in detail
. L.J. said she had never approached her sister to talk
about events [they] had been involved in; in cross, said she did not remember
calling C.J. to discuss the abuse.

Trial Judges Assessment of Credibility


[16]

The trial judge began his reasons by referring to the law concerning the
assessment of the credibility of witnesses generally, and in particular, of adult
witnesses who are being asked to recall events alleged to have occurred when
they were children. He quoted passages from
R. v. W.(R.)
[1992] 2 S.C.R.
122, where McLachlin J., now C.J.C., observed for the Court:

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
.
[At p. 134; emphasis added.]

[17]

The trial judge then reviewed the evidence of L.J. and C.J. and said
this about L.J.s inability to recall various matters about which she had been
asked:

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
.

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. [At paras. 47

8;
emphasis added.]

[18]

Generally, the judge found that the discrepancies in the evidence of L.J.
and others concerning how the complaints had come to light and what had been discussed
by whom and with whom, did not credibly support any suggestion that L.J. or other
witnesses at trial had contrived to concoct allegations against the L. brothers.
Nor was he persuaded that any significant discussion had taken place between
them such that their recollections were tainted. With respect to L.J.s
credibility, he concluded:

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.

To the extent that there were
some gaps in the details of the evidence provided by L.J., Im 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. [At paras. 51

2; emphasis added.]

In the result, he found with
respect to L.J. that:

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.
[At para. 53.]

[19]

With respect to C.J., the judge found 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 Julianne Hall occurred as she described. On that basis I find P.E.L.
guilty on Count 2. [At para. 79.]

[20]

The judge went on to deal with the remaining charges

the alleged assault by P.E.L.
of G.T. (which he found was not proven beyond a reasonable doubt); and S.C.L.s
alleged assaults of A.S. and T.L. Since these are not the subject of appeal, I
need not rehearse the evidence on those counts or the judges analysis of them here.

Grounds of Appeal

[21]

In this court, P.E.L. advances the following grounds of appeal:

1.         The
trial judge erred in law by drawing an impermissible inference from L.J.s
testimony about her own memory to explain why the memories of five other
witnesses differed on the crucial issue of whether the pre-school abuse
occurred;

2.         The
trial judge erred in law by misapplying
R. v. W.(R.)
to the evidence of
adult witnesses recalling childhood memories;

3.         Separate
transactions were alleged by the Crown within counts 1 and 2 which led the
trial judge to rely upon prejudicial evidence that would have been inadmissible
count to count if the different transactions were charged and tried separately;
and

4.         The trial judge misapprehended
the facts resulting in a miscarriage of justice.

Analysis

[22]

Grounds 1, 2 and 4 all concern the trial judges findings of
credibility. Central to them all is the appellants argument that there were
important discrepancies or inconsistencies, both within L.J.s testimony,
and between her testimony and that of five of the seven persons she said had
seen D.B.L. attempting to have sex with her at P.E.L.s order. It will be
convenient to summarize here the relevant aspects of the evidence of the five
witnesses:

a)

C.J.
described one incident of sexual assault at the hands of P.E.L. As the trial
judge noted at para. 46, she 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. However, she was not asked directly about any sexual abuse of L.J.
by the appellant.

b)

G.T.
, age
seven at the time, testified that she did not recall any incident  where [she
was] sexually abused by the three brothers along with 12 other people. She did
testify that she had seen C.J. being assaulted by D.B.L., and recalled that P.E.L.
had been there watching. (At paras. 71

3.)
However, there were various contradictions between her evidence at the first
and second trials and she was clearly flippant at the second trial, answering
Sure or Whatever to several questions. Ultimately, the trial judge said he
could not be satisfied beyond a reasonable doubt that P.E.L. had been a party
to the assault by D.B.L. that G.T. said she had witnessed.

c)

G.J.
,
then age nine to ten, testified that he had suffered a stroke in recent years.
He could not recall whether the L. brothers had played with him and was not asked
directly about any allegations of sexual abuse.

d)

D.J.
, then
age seven, testified that he had since suffered head trauma. He said he could
not remember the names of the children he had played with inside the abandoned
place. He did remember that they would call us kids in one time but when
asked who they were, he could only guess that it would be P.E.L., S.C.L. and D.B.L.
He was unable to say what happened when the L. brothers called the children
into the abandoned place.

e)

T.L.
,
five years old at the time, testified that he had no memory of ever being
involved with a number of other children being lined up to be abused by the L.
brothers at the pre-school.

[23]

To my mind, the evidence of the four latter witnesses simply cannot be
described as contradicting L.J.s evidence on material points, or as
inconsistent therewith. These witnesses were either not asked about the
incidents recalled by L.J., or were unable to recall them; they did not deny
that those things happened. As far as C.J.s evidence is concerned, she was
questioned only about incidents of abuse involving
herself and P.E.L.
, and
not about the incidents to which L.J. had testified.

[24]

With this clarification in mind, I turn to the first, second and fourth
grounds of appeal. Counsel has clarified that the first two are advanced under
s. 686(1)(a)(ii) of the
Code
 i.e., on the basis of a wrong decision
on a question of law. If such an error is shown, the onus is on the Crown to
satisfy the Court that no substantial miscarriage of justice has occurred, such
that the curative proviso in s. 686(1)(b)(iii) may be invoked.

Impermissible Inference?

[25]

The first ground of appeal focuses on paras. 47

8 of the trial judges reasons, quoted at para. 17
above. The appellant submits that the judge erred in law in using L.J.s
evidence about her own memory to explain why the five other alleged eyewitnesses
to the abuse that took place at the pre-school had memories that (the appellant
says) materially conflicted with L.J.s testimony. It is said the trial judge
engaged in illogical and speculative reasoning to provide such an explanation.
Counsel emphasizes that L.J. was not an expert on childhood memory. Counsel
did not say what should follow from this point, but presumably he was
suggesting that L.J.s testimony that her memory does not get worse with time
should not have been believed (if indeed it was believed).

[26]

I do not agree with the appellants characterization of the judges
reasoning at paras. 47

8.
As I read that passage, he was accepting that adult witnesses are likely to
recall different events from their childhood (as L.J. recalled the three specific
incidents in the L. house), in contrast to their recall of
recent
events,
which would likely be more complete and detailed. The judge considered L.J.s
evidence in the context of her age at the time of the events as
W.(R.)
directs. L.J. was among the youngest of the children who played in the
playground near the L. residence, and one would expect as a matter of common
sense that years later, she would recall the most traumatic of her experiences,
and not the details of her physical surroundings or other routine matters.

[27]

Finding no error of law, I would not accede to this ground of appeal.

Misapplication of R. v. W.(R.)?

[28]

The second ground seems to be a variant of the first. The appellant
acknowledges that the trial judge correctly set out the applicable law as
stated in
W.(R.)
, and that a central inconsistency in the testimony of
an adult witness about a childhood event cannot be approached with the same
latitude as a peripheral inconsistency. However, the appellant submits that
because the law no longer requires the corroboration of assertions of sexual
misconduct involving children (see
An

Act to Amend the Criminal Code
in Relation to Sexual

Offences
, etc., S.C. 198081

82

83, c. 125, s. 5), the trial judge was obliged to
scrutinize carefully the alleged inconsistencies in this case, and in
particular, the fact that L.J.s evidence about the abuse in the pre-school
building was not corroborated by the other five witnesses discussed earlier.
Thus the appellant submits in his factum:

The inconsistency between L.J.s evidence and the evidence of
the other five witnesses went to the core of her allegations. The trial judges
analysis on this
central inconsistency overemphasized the fact that all of
these witnesses were recalling childhood events
.

The trial judge also failed to examine this central conflict
in the context of the relative ages of all the witnesses during the relevant
time period as required by
W.(R.).
L.J. was five years old at that time.
Four of the five other witnesses (who either could not recall or denied the
pre-school abuse) were older (between 7 and 10 years old respectively). As a
matter of common sense
those witnesses would presumably have better memories
of that time period because they were significantly older than L.J.

This central discrepancy,
particularly in the context of events that were alleged to have occurred more
than thirty years before the trial,
required rather than excused scrutiny
.
[At paras. 52

4.]

[29]

Although I agree the trial judge was obliged to consider the
complainants evidence carefully, I cannot agree he failed to scrutinize it adequately.
He heard full argument about the so-called inconsistencies complained of in
the appellants factum and his reasons indicate he was fully aware of their
importance in his assessment of credibility. As noted earlier, despite these
inconsistencies, he found L.J.s evidence compelling and credible (see paras.
50

2.) He also found that
C.J. was generally credible.

[30]

The same was not true of G.T., whom the trial judge did not find
sufficiently credible and reliable to satisfy him beyond a reasonable doubt
that P.E.L. had been a party to the sexual assault of C.J. by D.B.L. (para. 78).
As for the remaining four witnesses, their failure to corroborate the events in
question was explained.

[31]

Of course, it is true that another trial judge might have found L.J.s
testimony to be less compelling, might have been more troubled by the absence
of corroboration, or might have been left with a reasonable doubt at the end of
the day. But as is often said, a trial judge is generally in the best position
to assess a witnesses credibility  a
factual
determination  and has
extensive exposure to the entire factual nexus of a case. (
Housen v.
Nikolaisen
2002 SCC 33 at para. 25.) I cannot agree that the judge here misapplied
W.(R.)
or overapplied the Supreme Courts direction to consider the
complainants testimony in the context of their young ages. In this regard, I
note the comments of Wilson J. in
R. v. B.(G.)
[1990] 2 S.C.R. 30, which
were quoted at p. 133 of
W.(R.)
:

it seems to me that [Wakeling
J.A. in the court below] was simply suggesting that the judiciary should take a
common sense approach when dealing with the testimony of young children and not
impose the same exacting standard on them as it does on adults. However, this
is not to say that the courts should not carefully assess the credibility of
child witnesses and I do not read his reasons as suggesting that the standard
of proof must be lowered when dealing with children as the appellants submit.
Rather,
he was expressing concern that a flaw, such as a contradiction, in a childs
testimony should not be given the same effect as a similar flaw in the
testimony of an adult. I think his concern is well founded and his comments
entirely appropriate. While children may not be able to recount precise details
and communicate the when and where of an event with exactitude, this does not
mean that they have misconceived what happened to them and who did it
. In
recent years we have adopted a much more benign attitude to childrens
evidence, lessening the strict standards of oath taking and corroboration, and
I believe that this is a desirable development. The credibility of every
witness who testifies before the courts must, of course, be carefully assessed
but the standard of the reasonable adult is not necessarily appropriate in
assessing the credibility of young children. [At 54

5; emphasis added.]

[32]

I would not accede to this ground of appeal.

Miscarriage of Justice?

[33]

The fourth ground of appeal is advanced under s.

686(1)(a)(iii)
of the
Code

‒
i.e., on the basis that the convictions constituted a miscarriage of justice.
Counsel for the appellant acknowledged that to satisfy s.

686(1)(a)(iii),
he must show an error in law or misapprehension of the evidence that played an
essential part in the trial judges reasoning process leading to conviction:
see
R. v. Lohrer
2004 SCC 80 at paras. 12, 8, citing
R. v. Morrissey
(1995) 97 C.C.C. (3d) 193 (Ont. C.A.). Counsel also emphasized that it was not
necessary for the appellant to show his convictions could not be reasonably
supported by the evidence (in which case s. 686(1)(a)(i) could be invoked):
Morrissey
at pp. 21920.

[34]

As also noted in
Morrissey
, s. 686(1)(a)(iii) is broad in scope
and may include both errors in law and errors in the trial judges
understanding of the evidence, provided a miscarriage of justice is shown to
have resulted. In Doherty J.A.s analysis:

I turn next to s. 686(1)(a)(iii).
This subsection is not
concerned with the characterization of an error as one of law, fact, mixed fact
and law or something else, but rather with the impact of the error on the trial
proceedings. It reaches all errors resulting in a miscarriage of justice and
vindicates the wide jurisdiction vested in this court by s. 675(1).
The
long reach of s. 686(1)(a)(iii) was described by McIntyre J., for a unanimous
court, in
R. v. Fanjoy
(1985), 21 C.C.C. (3d) 312 at pp. 317

18, 21 D.L.R. (4th) 321, [1985]
2 S.C.R. 233: A person charged with the commission of a crime is entitled to a
fair trial according to law. Any error which occurs at trial that deprives the
accused of that entitlement is a miscarriage of justice.



When will a misapprehension of the
evidence render a trial unfair and result in a miscarriage of justice? The
nature and extent of the misapprehension and its significance to the trial
judges verdict must be considered in light of the fundamental requirement that
a verdict must be based exclusively on the evidence adduced at trial.
Where
a trial judge is mistaken as to the substance of material parts of the evidence
and those errors play an essential part in the reasoning process resulting in a
conviction then, in my view, the accuseds conviction is not based exclusively
on the evidence and is not a true verdict
. Convictions resting on a
misapprehension of the substance of the evidence adduced at trial sit on no
firmer foundation than those based on information derived from sources extraneous
to the trial.
If an appellant can demonstrate that the conviction depends on
a misapprehension of the evidence then, in my view, it must follow that the
appellant has not received a fair trial, and was the victim of a miscarriage of
justice.
This is so even if the evidence, as actually adduced at trial, was
capable of supporting a conviction. [At pp. 2201; emphasis added.]

[35]

In
Morrissey
itself, a trial judge was found to have
misapprehended evidence given by adult witnesses concerning sexual assaults
alleged to have occurred when they were children. The Court of Appeal allowed
the appeals from convictions on four counts after finding the trial judge had
treated the evidence of two complainants as if it had been consistent on all
significant points, and had failed to notice various inconsistencies as a
result of his misapprehension of the substance of the evidence. (At p. 221)
The cumulative effect of various mistakes in his analysis was found to be
significant in that it infected the very core of the reasoning process which
culminated in a conviction .

[36]

While counsel for the appellant in the case at bar did not say so
expressly, he seeks to persuade us that similar errors were made in this
instance. In his factum, he returns to the submission that the evidence of four
of the five witnesses (see above at para. 22) materially conflicted with L.J.s
testimony regarding the assaults at the pre-school

as opposed to their simply being unable to
recall or corroborate the events described by L.J. The appellant reviews these
so-called conflicts and inconsistencies at paras. 73

86 of his factum and I have mentioned most of
them in these reasons. Again, most are in my view differences on matters of
detail that one could not expect a five-year old to perceive in the way an
adult would, or to recall with perfect accuracy.

[37]

The appellant contends that the trial judge was obliged to resolve the
inconsistencies asserted by counsel. I cannot agree. Again, these were not
direct conflicts on matters of substance. They were differences in degree, in
experience, in recollection, in expression. The trial judge was bound to assess
the evidence by reference to criteria appropriate to [the witnesses] mental
development, understanding and ability to communicate. (
W.(R.)
at p.
134) He did just that. He concluded at para. 51 that L.J.s evidence was
particularly compelling and both credible and reliable in respect [of] the
essential events of her sexual abuse by P.E.L. This was not a case like
Morrissey,
in which the trial judge clearly misapprehended evidence relating to
substantive
issues in a manner that was
essential to his reasoning
. Rather, this was
a case like
W.(R.),
in which the discrepancies in the evidence were of
the sort to be expected in historical cases. In such cases,
W.(R.)
instructs that courts should not apply too critical an approach to the
evidence or place insufficient weight on the trial judges findings of
credibility or apply stereotypes relating to the normal behavior of victims
of sexual abuse. (At p. 136.)

[38]

The remaining topic of potential concern relates to L.J.s insistence at
trial that she did not talk to anyone about what had happened

when, as she later admitted,
she did tell Ms. A. and the police in 2007 about sexual abuse on the part of S.C.L.
and D.B.L. (but not P.E.L.). As we have seen, C.J. clearly recalled L.J.s
calling her up one night and saying, Hey, sis. Do you remember about when we
were in foster care? Further, she said We talked about what had happened, and
we talked about [how] something should be done about it. C.J. did state that
they did not discuss a lot of detail. L.J. said she could not remember
calling C.J. (L.J. was not asked if
C.J.
had called
her
) in these
terms. She then gave the explanation quoted above at para. 11.


[39]

It will be recalled that in
W.(R.),
the Supreme Court stated that
courts must consider the evidence of adult witnesses about childhood events in
the context of the age of the witness. In my respectful opinion, context
may also include ingrained ways of thinking or reacting to events such as those
to which the complainants and their communities have been subject as Aboriginal
people. It may be that L.J.s reluctance to have, or admit having, detailed conversations
with anyone about her experiences stems from the feeling that her suffering
was something that simply had to be quietly endured in the same way that many
of the adults in her community had endured suffering.  L.J. was asked at trial how
she could have been serially abused regularly, dozens of times by three boys,
along with several other children and nobody observed any of this behaviour,
except for you? At p. 303 of the transcript she replied:

No, it wasnt just except for me, because my sister went
through it, my brothers went through it, these other people went through. We
werent the only ones. It was like a -- its the historical impact from
residential school. My mom was the mother that she was because the things that
she went through. She never ever talked about the things that she went through,
but obviously she struggled because there were parent -- parenting problems,
sibling problems.

You are judging me and questioning me, based on my upbringing
and the things I went through. I went through all that shit because all the
shit that went through residential school and the things that happened to my
mom or even to Mr. and Mrs. L. and them, the learned behaviour, and look whos
here.

You wonder why so many people dont
come forward? Its because of all the stuff that we have got to go through. Be
victimized -- not by them physically anymore, but now because of this system, I
didnt even want to be here. I didnt want to come forward to this anymore.

This is how L.J. resolved her reluctance to speak
about the assaults in detail, even to C.J. Looking at the matter through the
lens of judicial experience, I believe her words ring true.

[40]

It seems to me that at the end of the day, the appellants real
objection is not to the trial judges assessment of credibility, but with the
result he reached  in other words, that in the appellants opinion, the
convictions are unsafe because they rest largely on the evidence of an adult (albeit
an articulate and educated one) who was five years old at the time and whose
evidence is uncorroborated (in the modern sense of that term). Although appellate
courts in the United Kingdom and Australia evidently have the authority to set
aside a verdict on the basis that it is unsafe or that there is a lurking
doubt about the verdict, the Supreme Court of Canada has interpreted s. 686 as
precluding any such authority in this country: see
R. v. Biniaris
2000
SCC 15 at paras. 36

8;
R.
v. Braich
2002 SCC 27 at para. 39;
R. v. Gagnon
2006 SCC 17 at para.
14; see also

R. v.
Irani
(1996) 81
B.C.A.C. 203 at paras. 8890,
lve. to app. refd
. [1996] S.C.C.A. No.
575, and

R. v. Guyatt
(1997) 97 B.C.A.C. 106,
lve. to app.
refd.
[1997] S.C.C.A. No. 601 at paras. 58
72.

In particular, the majority in
Guyatt
stated that s. 686(1)(a)(iii)
is concerned

not with the trial itself, but with the fairness of the
process which produced the verdict. (
Per
Ryan J.A. at para. 70, citing
Morrissey
.)

[41]

I would dismiss the fourth ground of appeal.

The Single Transaction Rule

[42]

The remaining ground of appeal rests on the single transaction rule,
as codified by s. 581(1) of the
Code
:

Each count in an
indictment shall in general apply to a single transaction and shall contain in
substance a statement that the accused or defendant committed an offence
therein specified.

The appellant contends that separate
transactions were alleged by the Crown against P.E.L. in each of Counts 1 and
2 of the indictment and that the trial judge was led to rely on prejudicial
evidence that would have been inadmissible as between counts if the
transactions had been charged and tried separately. Counts 1 and 2 were framed
thus:

Count 1

P.E.L., from the 13th day of January, 1983 to the 30th day of
June, 1983, inclusive at or near Lillooet, Province of British Columbia, did
sexually assault L.J. contrary to Section 246.1 of the
Criminal Code
.

Count 2

P.E.L., from the 13th day of
January, 1983 to the 30th day of June, 1983, inclusive, at or near Lillooet,
Province of British Columbia, did sexually assault C.J., contrary to Section
246.1 of the
Criminal Code
.

[43]

No objection was taken at trial by defence counsel on this point; nor
was objection taken to the admission of any evidence on the basis that it was
prejudicial given the counts as framed against the appellant. Indeed as the
Crown points out, the appellant at trial urged the trial judge to admit
evidence that was considerably wider than necessary to prove the charges,
because this afforded counsel a greater opportunity to challenge L.J.s
credibility and reliability.

[44]

The law is clear that s. 581(1) states a
general
rule that may
not apply in all cases. Exceptions are often made in cases of historical sexual
assault. Thus in
R. v. Hulan
[1970] 1 C.C.C. 36 (Ont. C.A.), a sexual
assault case, the Court stated:

In a case such as this, several
factors combine to make difficult close adherence to the usual procedure in
framing a count in an indictment. The long period over which the incidents occurred,
the practical impossibility of a complainant of this age being able to recall
the specific dates of the incidents, the position of influence of the prisoner,
the undesirable effect on the mind of the complainant of forcing a too-detailed
recall of individual incidents, all point to the necessity of a not-too-rigid
application of the procedural requirements unless possible prejudice to the
prisoner demands otherwise.
The framers of the
Criminal Code
by
referring to the general practice to be followed, have left some latitude for
exceptional cases
: and if there are to be exceptions to the general
practice I would be strongly of the opinion that a case such as the one now
before us is one of those to which the room for exception contained in this
section was directed. As I will discuss later, no prejudice to the appellant is
present in this case; if the procedural exactness were to be required the ends
of justice would be frustrated not promoted. [At p. 46; emphasis added.]

[45]

Hulan
was adopted by this court in
R. v. G.L.M.
1999 BCCA
467, where Ryan J.A. stated for the majority:

A single transaction may validly encompass a number of
occurrences, each in themselves capable of constituting an offence, where the
acts relate to a similar activity or involve a similar course of conduct. 
Thus,
an indictment will not necessarily offend the single transaction rule
even where it spans a lengthy period of time and involves a number of separate
incidents in a variety of locations.
The classic analysis of the rule
was made by Kelly J.A. in
R. v. Hulan
, [1970] 1 C.C.C. 36 (Ont. C.A.).

In the case at bar the Crown alleged a number of acts
perpetrated by the appellant against his nephew, a young boy over whom he had a
position of power and influence.  It could be said the evidence revealed
that the appellant had a continuing sexual interest in his nephew upon which he
acted when given the opportunity.
The acts were successive and
cumulative.
It was not wrong to treat this series of events as a
single transaction. (See also
R. v. Selles
(1997), 116 C.C.C. (3d) 435
(Ont. C.A.);
R. v. D.A.L.
(1996), 76 B.C.A.C. 65 (C.A.).)

Although it is not improper to charge a continuing offence as
one count in an indictment, it is open to the Court to divide the count where
the ends of justice require it.  Section 590(3) of the Code provides:

The court may, where it is
satisfied that the ends of justice require it, order that a count be amended or
divided into two or more counts, and thereupon a formal commencement may be
inserted before each of the counts into which it is divided.

The interests of justice would
require such an amendment where the count so framed would embarrass the accused
in his defence, for example where he has different defences for different
incidents (eg.
R. v. Lilly
, [1983] 1 S.C.R. 794).  In the case at
bar the appellant did not allege that he was hampered in his defence by the
manner in which the indictment was framed.  He says only that two of the
incidents were not proved against him.
Nothing has been placed before
this Court to demonstrate that the accused suffered any prejudice in defending
one charge rather than four.
I would dismiss this ground of appeal.
[At paras. 11

4; emphasis
added.]

[46]

In my opinion, similar considerations apply in this case. For reasons
similar to those expressed in
G.L.M.
, I would reject this ground of
appeal.

Disposition

[47]

In the result, I would dismiss the appeal.

The Honourable Madam
Justice Newbury

I AGREE:

The Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Mr. Justice Savage


