R. v. G.J.R. Date:, 2013 BCPC 314

Citation: R. v. G.J.R. Date: 20131119 2013 BCPC 0314 File No: 75804-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.J.R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: K. C. Jansen Counsel for the Defendant: R. D. Ballantyne Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 8, 9, June 20, November 7, 2013 Date of Judgment: November 19, 2013

Introduction [ 1 ] The Accused G. J. R. is charged with committing the following offence: “between the 1 st day of September, 2008 and the 31 st day of December, 2009, at or near Abbotsford, in the Province of British Columbia, [he] did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of S.R., a person under the age of sixteen years, contrary to

section 151 of the Criminal Code .” [ 2 ] The Complainant S.R. is the stepdaughter of the Accused. During the time that the offence is alleged to have occurred, she was 10 or 11 years old and was living in the home of the Accused and his wife (S.R.’s mother). The Crown alleges that on a number of occasions, the Accused touched the breasts of the Complainant with his hands. For two of these occasions, the Crown alleges more specific details.

One of these incidents is alleged to have occurred in the kitchen of the family home, where it is alleged that the Accused touched the child’s breasts under the guise of checking her for breast cancer. On another occasion it is alleged that he touched the child’s breasts while applying the product Solarcaine on a rash that the child had on her chest. [ 3 ] The Accused denies that these incidents ever took place.

He also denies that he ever touched the child inappropriately at any time. [ 4 ] At the trial of this matter, the Crown presented evidence from three witnesses: (1) the Complainant, (2) the Complainant’s Aunt, and (3) a police officer who investigated this complaint. The Accused testified on his own behalf. Following is a

summary of the evidence presented at trial, a

summary of the applicable law, and the reasons for decision on this matter.

Summary of Evidence (

a) Background of the Family [ 5 ] The Accused is 44 years of age and is married to A. R., who is the Complainant’s mother. The couple are separated, but not divorced. A. R. did not testify at the trial of this matter and according to all of the witnesses, she suffers from some serious mental health problems which may be exacerbated by her drug use. According to the evidence of Detective Corrie Haines, A. R. has been reported as missing. [ 6 ] The Complainant was born in the spring of 1998, before her mother and the Accused lived together. Her biological father is a man that A.

R. was in a relationship with prior to her marriage to the Accused. He is not involved in this matter. Up until the incidents giving rise to this case, the Complainant considered the Accused to be her father for all intents and purposes. [ 7 ] The Accused had a child with A. R., a daughter named E(1) who was born in the fall of 2000. The Accused also has a son from a previous relationship. His son’s name is E(2) and he was also born in 2000, at the beginning of the year. I’m unable to find from the evidence precisely when the Accused and A.

R. began living together or when they were married, but the Complainant, according to her evidence, has known the Accused since she was about three and a half years old. [ 8 ] During the time that this offence is alleged to have happened, the Accused, A. R. and all of the three children were living in a home in Abbotsford, BC, where these offences are alleged to have occurred. The life of this family was adversely affected by the parents’ drug use. This attracted the attention of the Ministry of Children and Families and in February of 2010 the children were removed from the home.

The two girls went to live with V. K., their maternal Aunt. She is the Complainant’s mother’s sister and is the younger of the two sisters by 16 years. When the girls came to live with her in February of 2010, V. K. was only 18 years of age herself and was very generous in taking on that responsibility. At the time she was living in a one bedroom condominium with her boyfriend. The son E(2) went to stay with his paternal grandparents. [ 9 ] According to the evidence, A.R.’s drug use was quite severe. V. K. testified that A.

R. told her that she was hearing voices and seemed to be under the influence of the drugs that she was using. Ms. K. was aware of her sister’s drug use. She had observed her sister and the Accused using marijuana in their home and had also observed what she believed to be powder cocaine in the couple’s bedroom. According to Ms.

K. , her sister became less and less able to attend to her parental duties and as a result, the Complainant began to take on a caretaker role for her younger siblings. [ 10 ] The Complainant testified that when she was about eight or nine years old she became aware of her mother’s mental illness and drug use. The Accused testified that his wife suffered from depression and anxiety that he attributed to a car accident that she was in.

The children referred to her medication as her “happy pills.” The Accused agreed that while his wife was suffering from her depression, the Complainant took on some of her mother’s responsibilities within the home because he was working a lot of overtime. [ 11 ] During the time of the alleged offence, the Accused was also an active drug user, though it is his position that this was not a significant factor in his life. He testified that he was using powder cocaine for a period of eight months up to the time that the children were removed from the home.

In his words, this was “not an addiction,” it was simply something he “did for fun.” He testified that his and his wife’s cocaine use began just before Christmas of 2008 and that at first it “enhanced the relationship.” He estimated his spending on cocaine to be about $80 every two weeks. [ 12 ] In cross-examination, the Accused acknowledged that he was the one who brought cocaine into his relationship with his wife and he was the one who provided it. He said that the cocaine would “put a smile on my face” and that he and his wife would “sit and have deep conversations and talk about the future.”

[ 13 ] The Complainant testified that she recalled a lot of drug use in her home on the part of both of the adults. She testified that the two of them were “abusing a lot of drugs”. Although the drug use would not take place in her presence, the Complainant testified that her mother and the Accused would appear to be exited, loud, have red eyes and large pupils. She would see them smoking what she assumed to be marijuana. [ 14 ] V. K. testified that she recalled that while the girls were in her care, the Accused had failed a drug test.

In his evidence, the Accused denied any drug use after the children were removed from the home by the Ministry. He testified than any confusion over a possible failed drug test may be referring to a drug test that showed residual drugs in his system, not drug use recent to the time of the test. (

b) The Alleged Offences [ 15 ] The Complainant presented as an intelligent young woman with a very good vocabulary. For example, in describing herself as a student, she gave this answer: “I am a very goal-oriented person and so I like to strive to do my best. I always persevere and I’m very persistent on getting work in, and I love learning, I love listening in class and I love discussing things and contributing to topics.” [ 16 ] The Accused also described the Complainant’s intelligence in favourable terms. He described her as “extremely smart” and as having a good memory.

In cross-examination he stated that the Complainant’s memory “is probably better than mine.” He said that he had a very good relationship with her until the last part of the year that the she was living with him. [ 17 ] The Complainant testified that she was inappropriately touched by the Accused on an indeterminate number of occasions, although there were two incidents that she had a specific memory of. One of these occurred in the kitchen of the family home, the other occurred in her parents’ bedroom when the Accused was purporting to apply Solarcaine to her chest to treat a rash that she had.

She also described a number of other generic incidents of inappropriate touching which she described as frequent, but for which she was unable to ascribe specific times or circumstances.

(1) First Memory of Inappropriate Touching [ 18 ] The Complainant testified that on two occasions in 2008, she and her mother and siblings left the family home and resided briefly in transition homes. The first time this occurred was in September and the second time was in December. Her first memory of any inappropriate touching is that it occurred some time in between these two visits to the transition homes. [ 19 ] The Complainant testified that she remembers that this first occurred when she was sitting with the Accused on the couch in the living room.

The rest of her family members were in other rooms in the house at the time. She testified that she was watching television with the Accused and he began tickling her. He then put his hand on the inside of her shirt and began to feel her breasts. She testified that the Accused would say to her “oh, they’ve gotten bigger”,” or “oh, you’re turning into a young lady.” The Complainant began to cry as she gave this evidence. She testified that this sort of thing happened “a few times during that period” (i.e. between September and December of 2008).

(2) The “Kitchen Incident” [ 20 ] The Complainant testified that one incident that she specifically recalls took place in the kitchen of the home. She testified that the Accused sat her on his lap on a chair in the kitchen and placed his hands on her breasts. She said that the Accused told her that she could always trust him. He told her “I have to do this for you, I have to touch, I have to, you know, check if you have breast cancer, feel for lumps and stuff.” The Complainant said that she told the Accused not to do this. She told him to stop, but he continued.

She thinks that this might have taken place on a Sunday night. She recalled that she was wearing a bathrobe with pyjamas underneath and she believes that she went to school the next day. [ 21 ] In cross-examination, the Complainant said that this “kitchen incident” wasn’t the first time that the Accused had touched her breasts. She said that she also believed that the kitchen incident took place in October or November of 2008. [ 22 ] The Accused denied any inappropriate touching of the Complainant and specifically denied that the “kitchen incident” had ever occurred.

He testified that he recalled one occasion when the Complainant was rubbing her chest and was complaining that it was sore and that taking Aspirin didn’t help. He asked the complainant how long she was hurting and she said “about three days.” He asked the Complainant if she had spoken to her mother and she said that she had tried, but that he mother was tired.

The Accused asked the Complainant if she had hurt herself and she said “no.” He told the Complainant that she needed to speak with her mother, and if her mother couldn’t help her, she needed to see a doctor, because if she waited it could cause problems down the road. He testified that the Complainant told him that she “knew all about cancers and stuff because of school” and he replied “good.” He said that he asked her if she wanted him to speak to her mother and the Complainant said yes. [ 23 ] Specifically, the Accused gave the following answers in his examination-in-chief: Q: Was there any talk about cancer?

A: Uh well yeah, I asked her, like I asked her if she had hurt herself, and she said no, that she was, it was swollen and hurt, and I said to her that, you know, if you have a problem you need to speak to your mother right away, and if your mother can’t help you, you need to ask your mom to take you in to see a doctor, because if you wait, you know, it could cause problems down the road, and she said that she knew all about cancers and stuff because of school, and I said good.

That was, at least the school was, I was getting my money’s worth, they were teaching you good things and asked her if she’d like me to get her mother to speak to her and make time.

[ 24 ] In cross-examination, the Accused told Crown Counsel that there had been no discussion of cancer at the time. The Crown specifically reminded the Accused about what the Complainant had been told in school about cancer. He gave the following responses to the following questions: Q: Was there a discussion then about the possibility of cancer? A: No. Q: Okay, so there was no discussion about what S.R. had been told from somebody at school? A: No, no.

(3) The “Solarcaine Incident” [ 25 ] The Complainant testified that when she returned home from the second transition house in early 2009, the inappropriate touching stopped for the first few months. It was her impression that her parents were trying to work on the relationship, implying that the Accused was on his best behaviour. But then in May of that year, she testified that things changed again. [ 26 ] The Complainant testified that on one warm day that she believes was in May of 2009, she came home from school and told her mother that she had a rash on her chest that was quite itchy.

The Accused was present when she complained to her mother, and he volunteered “oh, I’ll take care of it.” She testified that he took her into her parents’ bedroom where he sprayed some Solarcaine onto a cloth and began to rub her chest with the cloth. He said some things to her that made her uncomfortable, telling her “you’re growing there.” He then tickled her chest and kept his hands on her chest.

She testified that she told the Accused to stop and said “I have to go.” She said that he told her that she could do this for herself, telling her that she could just go into the bathroom and “feel for lumps for yourself.” She testified that she put her shirt back on. The Accused told the Complainant to give him a hug, she complied with his request and left. The Complainant testified that she wasn’t expecting this to happen and that it scared her. [ 27 ] In cross-examination, the Complainant said that she was in the bathroom of the home when she initially spoke to her mother about the rash on her chest.

It was suggested that her failure to include this detail (of what room she was in when she spoke to her mother initially about her rash) is suspicious. The Accused’s counsel placed some importance on this omission, suggesting that her failing to mention this one collateral detail casts suspicion on her testimony. [ 28 ] The Accused denied that he had ever sprayed Solarcaine on the Complainant’s chest and questioned the logic of such a thing ever happening because his understanding is that Solarcaine is a disinfectant, not a product for pain relief.

He said that he would sometimes spray Solarcaine on the children in the main bathroom. He said that the Solarcaine had fumes and it stunk, and he would apply it on the children in the bathroom so that the bathroom fan could remove the fumes. [ 29 ] The Accused reiterated in cross-examination that he had never sprayed the Complainant with Solarcaine, but then said that there may have been times when he would spray the children with this product, though he had no specific memory of ever doing so to the Complainant.

(4) Later Incidents [ 30 ] The Complainant testified that there were further incidents of inappropriate touching by the Accused which continued through the summer and into that December. Many of these incidents occurred on the living room couch and she recalled that this took place about twice per month on average. She said that this occurred more frequently over the summer of 2009, even though she was trying to keep her distance from the Accused.

Often these incidents would happen in the afternoons when her mother was asleep and her siblings were active doing other things. [ 31 ] The Complainant testified that sometime in January of 2010 her mother was admitted to hospital to address her mental health issues. The Complainant and her siblings were in the care of the Accused. During this time, she said that she was afraid to be alone with the Accused in the house. In February of 2010 she and her sister were removed from the home by the Ministry of Children and Families. The two of them went to live with V. K. . (

c) Denial to Ms. Francisco [ 32 ] Sometime in 2009, the Complainant was interviewed by a social worker named Sylvia Francisco. The interview took place at the Complainant’s school. The meeting lasted about 20 minutes. Ms. Francisco did not testify at trial, but her notes disclose that in the course of her discussion with the Complainant, the subject of inappropriate touching came up. At that time the Complainant told Ms. Francisco that no one had touched her inappropriately. The Complainant said, of her conversation with Ms. Francisco, “I basically lied to her.

I was scared to tell her the truth because I knew that I’d be pulled out of home.” She added that her family was “going through rocky times and sometimes were better than others and sometimes it was more promising than others and I was prepared to tell this lady that I didn’t know about what happened. And I was told when I was younger that, like, social workers and Ministry, just stay away from talking to [them] because it meant that you would be taken away from your home and suffer those consequences.” (

d) Disclosure [ 33 ] The Complainant testified that she did not disclose any of these incidents to her mother because she felt that her mother was having enough difficulty coping with her own issues, those being her mental illness and her drug use.

[ 34 ] The Complainant was scheduled to return home to live with the Accused and she testified that this made her quite apprehensive. She had a few visits with him while she was living with her Aunt, and she describes these visits as “fine” but with some tension. Her Aunt was present for all of these visits. Shortly after V. K. spoke to the Accused, the Complainant spoke with her Ministry Social Worker, a woman named Michelle.

Michelle took the Complainant to speak to the police [ 35 ] Detective Corrie Haines of the Abbotsford Police Department testified that this complaint was first brought to the attention of her police force on June 11, 2010. Four days later she interviewed the Complainant, who was 12 years old at the time. [ 36 ] The Complainant testified that the first person that she told about the inappropriate touching was her Aunt, V. K. She recalls that she made this disclosure in May or June of 2010. She said that she had tried to forget about it and block it out of her mind because it was an uncomfortable subject for her.

When the Complainant learned that she was supposed to be returning home to live with the Accused, she began to experience stomach cramps. When her Aunt remarked said to her “oh, maybe you’re going to have your period soon,” this remark brought forward all of her unhappy memories of how the Accused had touched her, and she decided to tell her Aunt about what had happened. [ 37 ] V. K. testified that toward the end of the time that the Complainant was living with her, the Complainant seemed less willing to attend her scheduled visits with the Accused.

She recalls that the Complainant would either say that she didn’t want to attend the scheduled visits or else she would spend the visit by staying close to Ms. K.. In early June of 2010, just as it was time for the Complainant to return home to live with the Accused, the Complainant told Ms. K. about the inappropriate touching, which she said happened multiple times. Specifically, the Complainant had told Ms. K. that the Accused had touched her breasts under the guise of checking her for breast cancer. When the Complainant told her about this, Ms.

K. called the social worker for advice about what she should do. [ 38 ] The Complainant recalled that her Aunt waited a day to decide what to do about this disclosure and the following day the two of them went to see the Accused. The Complainant waited while the Accused and V. K. had a private discussion outside. [ 39 ] V. K. testified that she took the Complainant to the Accused’s home and told the Accused about the accusation that the Complainant had made. She said that the Accused denied that any inappropriate touching had ever occurred.

He told her that he did not want any further visits with the girls and did not want them moving back home. In cross-examination, she said that the Accused told her that he did not want the Complainant coming back home because he did not want her to make false claims against him, which in turn might result in his losing the care of his son. [ 40 ] The Accused denied having this confrontation with Ms. K. He testified that on another occasion, he had told her that he wasn’t sure if he wanted the Complainant to return home. He said this was because he didn’t want the Complainant making any false accusations.

At this point in time, he hadn’t been accused of any sexual impropriety with the Complainant however. When asked by his counsel as to what kind of false accusations he was talking about, he had this exchange with his counsel: Q: Was S.R. making - what false accusations was S.R. making? A: Well just speculations about drug use and friends being drug dealers and stuff like that. Q: Any accusations of inappropriate touching? A: No. [ 41 ] On cross-examination, the Accused gave these answers to Crown Counsel: Q: You in your testimony deny any face-to-face discussion with V.

K. about S.R.h’s allegations, is that correct? A: Yes. Q: Deny being approached by V. K. as she brought S.R. over to your house and has a chat with you outside your house? A: We had a chat outside my house, but that was not the topic of it. Q: Oh okay, so you had a – was there just one discussion outside the house? A: Yes, yes. Well, we’d go outside to have a cigarette. We’d talk, right. Q: Okay, just one discussion with V. K. outside the house? A: Yes. Q: And what’s your recollection of that conversation?

A: Whether I could take care of the kids, and the fact that if anything happened to them, that she’d kill me, that she was gonna be, you know, coming around and helping out and basically keeping her eye on me, talking to S.R. on a regular basis about, you know, what was going on in the home and stuff like that. [ 42 ] In his final submissions, the Accused’s counsel suggested that V. K. had threatened to kill the Accused. She was never asked about this, and the only mention of this is in the Accused’s testimony in cross-examination previously quoted.

From the context of the Accused’s testimony, it seems an overstatement to describe this remark as anything other than a demonstration of concern over the

children’s welfare on the part of Ms. K. (

e) Denial of Offence by Accused [43] The Accused gave evidence on his own behalf and denied that he ever touched the Complainant inappropriately. He testifiedthat about three weeks prior to the Complainant making these allegations, he had told the Ministry of Children and Families that he didnot want the Complainant returning home because he believed that he would have difficulty raising her. He said that he was worriedabout his son being removed, so he did not want the Complainant back in his home. [44] The Accused testified that he never spoke to the Complainant about any matter of a sexual nature.

He referred any inquiry onthis subject to his wife and told the girls to speak with their mother if they asked him any questions of a personal or sexual nature. [45] The Accused said that his cocaine usage did not adversely affect his memory. He also said that he believes that the Complainantis fabricating the allegations she has made against him because she was mad at him for grounding her. He had grounded her on oneoccasion for riding her bicycle in the dark after curfew.

He testified that he believed that this was a major reason that the Complainantwas making false accusations against him, because she was angry. He told Crown Counsel that he felt that “in the future, if I disciplinedher and grounded her, she may get mad and say something again, even if it was just speculation.” He said that the Ministry had used thephrase “S.R. suspected this and S.R. suspected that” and he felt that any accusation by her would jeopardize his custody of his son.

Position of the Parties [46] In his final submissions, counsel for the Accused went through a thorough review of the testimony of the Complainant, both inchief and in cross-examination.

He characterizes the Complainant’s evidence as “a concoction directed out of anger.” Although anaccused person is not required to suggest any motive for a complainant to fabricate evidence, Counsel for the Accused suggests that theComplainant became angry when she learned that she would not be allowed to return home [47] Counsel for the Accused also suggests that the Complainant’s evidence should be looked at with suspicion because, while she isgenerally regarded as someone with a very good memory, she is unable to recall specifics of many of the alleged incidents.

Defencecounsel characterizes the Complainant’s evidence as “all too vague for such a smart girl.” In his words, she is “too smart to be thisdumb.” [48] Counsel for the Accused also argues that it is implausible that no complaint was ever made to the mother, and that an adverseinference should be drawn from the failure of the Crown to produce the mother or any of the Complainant’s siblings as witnesses.

Heargues that this, as well as the denial made by the Complainant to Social Worker Sylvia Francisco, should be sufficient to raise areasonable doubt as to the truthfulness of the Complainant. [49] Defence Counsel also argues that the evidence of V. K. should be disregarded because in his opinion she is a biased witnesswho threatened to kill the Accused. He also acknowledged that his cross-examination of the Complainant was, in his words, “sharp”.

Headded that it would be an error to equate the Accused’s cocaine usage with his being a child abuser. [50] Crown Counsel pointed out that the fact that the Complainant underwent a very thorough cross-examination and was not shakenserves to strengthen her credibility. The Complainant did not embellish her testimony, showed no discrepancies, no harbouring of anger. [51] Conversely, the Crown noted that the Accused was contradicted on a number of important aspects, and was also internallyinconsistent as well. His denial of any confrontation with V. K. is suspect.

It is also suspect that the Accused told his counsel that he wasnever confronted by V. K. about any alleged sexual touching of the Complainant, but did not mention in his direct examination theconversation outside of the house that he described on cross-examination. The Crown suggests that the Accused’s failure to mention thisor any threat by V. K. to kill him, and the failure to confront Ms. K. about this on cross-examination suggests that this threat wassomething that the Accused had invented during the course of his cross-examination.

It is also suspicious that he testified that he wasworried about the Complainant making allegations against him at a time before any such allegations had ever been made. The Crownargues that the testimony of the Accused appears in many ways to be contrived and made up to attempt to dovetail with the casedisclosed against him. Applicable Law 1. Burden of Proof and Credibility [52] The evidence of the Complainant and that of the Accused are markedly different on the commission of the alleged offence.

TheComplainant has testified that the offence occurred on a number of occasions, at least two of which the Complainant is able to recall inmore detail. The Accused on the other hand, testified that the offence never occurred at all. [53] The test in a criminal trial is not which side I believe, but whether or not the Crown has proven the offence beyond a reasonabledoubt. I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential elementof the offence beyond a reasonable doubt.

Although some of the evidence presented on behalf of the Accused was tendered to suggest amotive for fabrication of the Complainant’s evidence, I understand the law to be that an Accused is not required to show a motive forwhy a complainant would give false evidence. Authority for this proposition can be found in the Ontario Court of Appeal decision of R.v.

Krack (1990) (ON CA), 56 C.C.C. (3d) 555 at pages 561-2. [54] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v W.[D.] (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence of the Accused which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence of the Accused raising a defence or negating an essential element of the offence, but I am left inreasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the Accused raising a defence or negating an essential element of the offence, Imust then ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the Accused’s guilt. [55] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr Justice Wood, then a member of theCourt of Appeal of this province, gave the following further advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [56] In the years since the Supreme Court of Canada has given this instruction, subsequent jurisprudence has offered furtherguidance on the question of resolving the issue of credibility. In R. v. Minuskin (ON CA), [2003] O.J.

No. 5253,Justice Rosenberg of the Ontario Court of Appeal has noted that in a trial before a judge alone, a “slavish adherence” to this formula isnot required. What is important and what must be kept in mind is that the Crown must prove each element of the offence beyond areasonable doubt. [57] In cases where an accused testifies and denies the offences, it has been held that the denial must be considered, not in isolation,but in the context of the evidence as a whole.

Authority for this statement can be found in the Ontario Court of Appeal decision of R. v.J.J.R.D. (2006) (ON CA), 215 C.C.C. (3d) 252 and in the Alberta Court of Appeal decision of R. v. J.W.A. [2010]A.J. No. 1649. Once again, what is important is that at the end of the day, the burden must remain with the Crown to prove each elementof the offence beyond a reasonable doubt. [58] There are a number of considerations which a court can often apply when determining issues of credibility. Firstly, a court mayconsider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or otherbehaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonestconduct proven, such as false statements made to police in the course of the investigation. In this case, it was not suggested that either ofthe two principal witnesses had any criminal record.

There is some evidence of dishonesty on the part of the Complainant, who hastestified that she was not forthright with Social Worker Sylvia Francisco. [59] A court may also consider the demeanour and bearing of a witness while that witness gives testimony, although many agreethat demeanour is one of the least accurate barometers of credibility.

I am unable to identify any concerns about the demeanour of any ofthe witnesses in this case, and neither counsel have suggested that demeanour should form the basis of rejection of any testimony in thiscase, [60] The credibility of a witness may be assessed by its internal consistency, which means the presence or absence of anycontradiction within itself. Credibility of a witness may also be assessed by its external consistency, which is the presence or absence ofany contradiction with the remainder of the evidence. 2. Reasonable Doubt [61] In R. v.

Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty. 3. Elements of the Offence [62]

Section 151 of the Criminal Code reads as follows: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of thebody of a person under the age of fourteen years (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment ofimprisonment for a term of forty-five days; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months and toa minimum punishment of imprisonment for a term of fourteen days. [63] The elements of this offence require proof beyond a reasonable doubt that an accused has touched the body of a person underthe age of fourteen years with either a part of the accused’s body or with an object.

The touching can be to any part of the victim’s body,but the touching must be “for a sexual purpose.” Proof that the touching is for a sexual purpose can be inferred from the circumstancesof the touching. [64] In the case at bar, neither counsel have suggested that if it occurred, the touching described by the Complainant would not be anoffence under this section, or that there was some innocent explanation for it. The Accused simply says that nothing like this everhappened.

I am satisfied that if the touching alleged by the Complainant is proven beyond a reasonable doubt, that such touching wouldbe an offence under this section. It was neither accidental nor incidental, nor of such a brief duration as to support a defence of accident.

It is a reasonable and logical conclusion, from a consideration of the touching as described by Complainant, the circumstances describedand the words allegedly uttered by the Accused at the time of the touching, that the touching, as described, was for a sexual purpose. 4. Evidence of Child Witnesses [65] Appellate courts in Canada have noted that different considerations apply to the evidence of children, as opposed to that ofadults. For example in R. v. Stewart (1994) (ON CA), 18 O.R. 509 (Ont.

C.A.), Justice Finlayson of the Ontario Courtof Appeal noted: [W]e must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses toperform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level ofscrutiny for reliability than we would do adults. My concern is that some trial judges may be inadvertently relaxing the proper level ofscrutiny to which the evidence of children should be subjected.

The changes to the evidentiary rules were intended to make childevidence more readily available to the court by removing the restraints on its use that existed previously but were never intended toencourage an undiscriminating acceptance of the evidence of children while holding adults to higher standards. [66] As I understand the authorities, children must not be expected to perform in the same manner as adults when it comes to givingtestimony in court.

There are discrepancies in their memories, their vocabularies, their suggestibility, their ability to communicate andtheir level of cognitive and emotional development. A court must make allowances for all of these factors, without ever compromisingthe requirement of the Crown to prove an offence beyond a reasonable doubt. The manner in which the evidence of children should beapproached was addressed by the Supreme Court of Canada in R. v. B. (G.) (SCC), [1990] S.C.J. No. 58.

In that case,Justice Wilson wrote: [48] Dealing first with comments [made in the court below] regarding the credibility of child witnesses it seems to me that he was simplysuggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not imposethe same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess thecredibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing withchildren as the appellants submit.

Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony shouldnot 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 entirelyappropriate. 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 morebenign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirabledevelopment. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard ofthe "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [67] From this statement of the law, I understand the following principles of law to apply when considering the evidence of children: 1.

Courts should not demand precision or an exacting standard when considering the evidence of child witnesses. Common senseallowances should be made which take into effect the child’s age, cognitive development, education, vocabulary and other similarconsiderations. 2. The inability of a child to recall precise details or collateral facts should not be construed, in and of itself, as a failure on the part ofthe child to be truthful. 3. The standard of the “reasonable adult” is not the same standard that child witnesses should be held to. 4.

Allowances for shortcomings in the evidence of children should not be taken so far as to water down the standard of proof ofoffences beyond a reasonable doubt. 5. Reporting of Sexual Offences [68] In R. v. W. (R.) (SCC), [1992] S.C.J. No. 56, the Supreme Court of Canada commented that it is no longercorrect to draw any adverse inference from the failure of an alleged victim of a sexual offence to promptly report or complain about suchabuse.

Justice McLachlan (now Chief Justice of the court) said at paragraph 30 that this is a stereotype that has been discounted, and thatsuch persons often do not disclose their abuse or do not do so until a considerable period of time has passed. It is an error for a court todraw any adverse inference from the failure to report sexual abuse in a timely manner. 6. Failure of the Crown to Call Witnesses [69] Counsel for the Accused argued that an adverse inference should be drawn from the failure of the Crown to call either theComplainant’s mother or her siblings.

I note that much in the evidence suggested that the Complainant’s mother was active in her druguse and suffering from mental illness during the time that these offences are alleged to have occurred. Constable Haines had alsodescribed the Complainant’s mother as “reported missing” and there was nothing to suggest that the Crown would have been in aposition to locate this witness. [70] At one time, long ago, it was believed that there was an obligation on the Crown to call every available witness to an offence.This is no longer the case today.

A history of the development of the law in this area can be found in the Supreme Court of Canada’sdecision in R. v. Cook (1997) (SCC), 114 C.C.C. (3d) 481. In R. v. Yebes (SCC), [1987] 2 S.C.R. 168,

the Supreme Court of Canada held that the Crown is only required to present enough witnesses to meet the burden of proving the offence. Justice McIntyre in that case stated: “The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason.” [ 71 ] In this case, the Complainant has testified that her siblings did not witness any improper touching by the Accused.

They are also children, and absent good reason, they should be spared the requirement of coming to court to give evidence. They have been interviewed by social workers and, after consultation with the social workers, Constable Haines chose not to interview them. No authority has been provided to me by the Accused’s counsel supporting the notion that any adverse inference should be drawn against the Crown under these circumstances. [ 72 ] I am not persuaded that the Crown’s failure to call these witnesses is due to any oblique or improper reason.

I am unable to find fault in the Crown for choosing not to call these witnesses to give evidence and draw no adverse inference from the Crown’s failure to do so. Application of the Law to These Facts [ 73 ] The first consideration in this case is to decide whether or not the evidence of the Accused, in which he denies the commission of this offence, should be accepted. I find that I am unable to accept the evidence of the Accused for a number of reasons.

The first reason concerns the Accused’s ability to accurately and objectively recall what was occurring in his life at the time when these offences were taking place. [ 74 ] The Accused gave evidence of events which occurred at a time in his life when he was active in the use of cocaine, to a degree that attracted the attention of the Ministry of Children and Families and resulted in the removal of his children.

His characterization of his cocaine use as being something that he “did for fun” and that “put a smile on his face”, indicates a lack of insight as to the significance of regular cocaine use by a parent of small children, and calls into question his perception of what was occurring in his life at this time. His description of his life as a cocaine user conveys the impression of some harmless vice, akin to raiding the cookie jar, and not at all acknowledging or accepting of the turmoil it visited on his home.

His testimony shows a lack of awareness or complete denial of what was occurring in his life and in his home at this time. I find that the testimony Accused demonstrates either an inability or an unwillingness to be honest about what occurred in his home during the time that these offences occurred, which makes it difficult to place any reliance on his testimony. [ 75 ] There are also a number of inconsistencies in the testimony of the Accused, both internal and external, which cast doubt on its reliability. These include: (

a) His denial of any confrontation by V. K. about the allegations made by the Complainant. In examination in chief he flatly denied any sort of confrontation, but in cross-examination he recounted a conversation with Ms. K., similar to the one she described, but about a different subject. In this encounter, first raised in cross-examination, he alleged a type of threat made by V. K., one not raised with Ms. K. when she gave her evidence. His differing responses in direct and cross-examination suggest an inability to keep a contrived story straight. (

b) He was inconsistent in his evidence about whether or not the subject of cancer came up in his discussions with the Complainant. Initially he told his counsel during examination in chief that the subject of cancer came up when the Complainant told him about what she had learned in school. In cross-examination he told the Crown Counsel that there was no discussion of cancer. He maintained this, even when Crown reminded him about what he had said in his examination in chief. Once again, this internal inconsistency suggests difficulty in sticking to a fabricated version of events. (

c) He testified that he did not want the Complainant to come home because he was concerned that if the Complainant might make allegations against him, even though she had not yet made any disclosure accusing him of any sexual touching. When asked about this, he raised a number of alternatives which were not initially suggested by him. For example, he told his counsel that he was afraid that if the Complainant returned home she would make allegations against him. When his counsel pointed out that the allegations of sexual assault had not yet been made, he then alleged that the Complainant was accusing him of using drugs. (

d) The evidence of the Accused about how the supervised visits with the Complainant went is in conflict with the evidence of V. K. His evidence is that the visits were fine, while it was V. K.’s evidence that as time progressed, the Complainant was reluctant to go to the visits. The Accused’s evidence that the visits were going well and that there were no problems between he and the Complainant is at odds with his expressed fear of having the Complainant return home. [ 76 ] Much of the Accused’s evidence seems tailored to match the evidence against him.

These inconsistencies and his suggestion that his cocaine use was a minor matter make his evidence unreliable. While I agree with his counsel’s submission that being a cocaine abuser does not automatically make one a child abuser, cocaine abuse to the degree proven in this case makes it very unlikely that the Accused’s honesty and integrity were not early casualties.

For these reasons, I can not accept the evidence of the Accused, and do not find that it provides any basis on which to support a reasonable doubt. [ 77 ] Having reached these conclusions, the next stage is to determine whether, on the evidence that I do accept, the Crown has proven all of the elements of the offence beyond a reasonable doubt. The evidence of the Complainant, if accepted, provides evidence that the Accused touched her on one or more occasions, and that he did so for a sexual purpose.

At issue is whether or not her evidence should be accepted, or if it should be rejected or doubted. [ 78 ] The Complainant gave her evidence in a very credible fashion. Her evidence was consistent both internally and externally. There was nothing in the nature of her testimony in court that conflicted either with itself or with the evidence of the other Crown

witnesses. Even after a very vigorous cross-examination, no inconsistencies arose in her evidence and no doubt was cast on its veracity. For example, in cross-examination it was suggested to her that she had been inconsistent in her evidence about where the Solarcaine incident had occurred. She was able to clear up confusion on this point when it was suggested that she may have said, on an earlier occasion, that the Solarcaine incident occurred in the bathroom. A review of her evidence shows that she was not confused about this.

She noted that it was the initial discussion with her mother that occurred in the bathroom, not the inappropriate touching. She had never been confused about this point. [ 79 ] It would not be reasonable to conclude, as argued by counsel for the Accused, that a child of her intelligence should remember more details than she does. When one factors in the Complainant’s age at the time of these offences (10 or 11 years of age) it is not reasonable to reject all of her evidence because of her inability to remember more specifics.

It is reasonable for a child of that age, who is being victimized by an adult in a position of trust and responsibility to feel powerless and to want to try to forget much of the unhappiness in her life, especially when living in a dysfunctional home. It would be an error to reject her evidence because, as counsel for the Accused argues, of her lack of a more complete memory considering her intelligence. [ 80 ] One troubling aspect of this case is the Complainant’s false statement to social worker Sylvia Francisco that no one had touched her inappropriately, when in fact the case was otherwise.

I am unable to find that this is a sufficient reason to reject to Complainant’s evidence for a number of reasons. Firstly, to do so would be to ignore the reality about when victims of sexual abuse do and don’t disclose the abuse. As the Supreme Court of Canada stated in R. v. W.[R.], supra, “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.” [ 81 ] The statement to Ms. Francisco was not made under oath or affirmation, while the evidence the Complainant gave to this court was. The Complainant’s candid admission that she had lied to Ms.

Francisco and her willingness to own up to that lie and accept responsibility for it, rather than try to minimize it or gloss over it, speaks to her character today. Her explanation for not disclosing the abuse to Ms. Francisco is a plausible one. In my view, it would be an error to reject the Complainant’s testimony on this basis. [ 82 ] The evidence of the Complainant was very compelling. This case is similar to one cited by Crown Counsel in argument, R. v. E.H.S. 2012 BCPC 450 , in which the Honourable Judge E. C.

Blake of this court summed matters up as follows at paragraph [80] of that decision: “I take the view in this case that the bare denial of the accused does not raise a reasonable doubt in the face of the credible evidence presented by the Crown.

Although I do not know exactly how many times E.H.S. engaged in sexually inappropriate behaviour toward his daughter, I am satisfied beyond reasonable doubt that the two incidents which she has described in detail in her evidence did indeed occur in substantially the manner in which she has outlined them.” [ 83 ] I accept the evidence of the Complainant and find, from that evidence, that the Crown has proven all of the elements of the offence beyond a reasonable doubt. The Complainant has shown tremendous courage in reporting her abuse, and in giving her testimony.

I believe that a grave injustice would occur if I was to reject the evidence of the Complainant. Accordingly, I find the Accused guilty of the offence set out in the single count on Information 75804-1 as amended. Dated at the City of Abbotsford, in the Province of British Columbia this 19 th day of November, 2013. _________________________________ The Honourable Judge K. D. Skilnick