R. v. R.D.Z., 2019 BCPC 370

Citation: R. v. R.D.Z. 2019 BCPC 370 Date: 20191126 File No: 20517-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.D.Z. BAN ON PUBLICATION –

SECTION 486.4 C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Mr. G. Merke Counsel for the Accused: Mr. J. Watt Place of Hearing: Colwood , B.C. Dates of Hearing: April 23, 24, 26, October 21, 22, 2019 Date of Judgment: November 26, 2019 INTRODUCTION

[ 1 ] The accused is charged with three Criminal Code offences, all of which are alleged to have occurred between July 1, 2017 and November 22, 2017. The offences may be summarized as follows: 1. sexual touching, contrary to

section 151; 2. sexual assault, contrary to

section 271; and 3. indecent exposure, contrary to section 173(2). [ 2 ] The alleged victim in each case is identified by the initials B.T. She is the step-granddaughter of the accused. She had her 8 th birthday during the time period referred to in the Information. She had reached 9 years of age the time she testified in this Court.

SUMMARY OF EVIDENCE [ 3 ] I will begin with a brief

summary of the evidence presented at trial. This

summary is not intended to be exhaustive. Its purpose is to place into context the analysis of the issues which follows later in these Reasons. During the course of that analysis, I will refer to certain parts of the evidence in more detail where it is necessary to explain my reasoning. [ 4 ] During the time period covered by the Information, B.T. lived with her parents.

The accused, who is now 55 years of age, lived with B.T.’s paternal grandmother, as the grandmother’s common-law partner. [ 5 ] The accused and B.T.’s grandmother were in the habit of providing after-school care for B.T. two days of the week during most weeks of the school year. They had done so for at least a couple of years. [ 6 ] On infrequent occasions, the accused would provide care for B.T. on his own.

This occurred, for example, when the grandmother was out-of-town or was indisposed through illness. [ 7 ] The Crown alleges that the accused engaged in sexual misbehaviour toward B.T. on a number of occasions when he was supposed to be providing childcare for her. Specifically, the allegations are that the accused engaged in the following misbehaviour: 1. Pulling down his pants and underwear on several occasions and deliberately exposing his penis to B.T.; 2. Pulling down B.T.’s pants on several occasions, sometimes pulling down her underwear at the same time.

These actions would occasionally be accompanied by tickling; and 3. On one occasion, touching B.T.’s vaginal area with his fingers, putting his hand inside her bathing suit in order to do so. [ 8 ] On November 22, 2017, B.T. disclosed to her father that she was uncomfortable with the way in which the accused had been acting toward her. Specifically, she told her father that she did not like the accused pulling down her pants. That disclosure led to B.T. providing a lengthy statement to the police the next day, outlining the specific allegations that I have mentioned above.

B.T.’s statement to the police was audio-recorded and video-recorded. [ 9 ] At the trial, the Crown invoked the procedure contemplated by

section 715.1 of the Criminal Code , seeking to introduce B.T.’s recorded statement into evidence. B.T. adopted the contents of the statement as her evidence and the statement was ultimately admitted into evidence without objection. [ 10 ] In her evidence, B.T. provided a common background for the incidents of sexual touching and indecent exposure. She described the accused engaging in both forms of behaviour within the home which he shared with B.T.’s grandmother.

She said that the behaviour occurred at times when the grandmother had stepped outside or into the bathroom for a cigarette, or when the grandmother was engaged elsewhere in the home. She testified further that the accused said nothing when he engaged in these acts, but would sometimes hold up his index finger to indicate that B.T. should be quiet. He did not touch her private parts on any of these occasions.

When the grandmother returned to the room, the accused would quickly cease his inappropriate behaviour and would act as if nothing had happened. [ 11 ] The third allegation, involving the accused touching the accused in her vaginal area, appears to be a separate, isolated incident. B.T. testified that the incident happened on the same day as the accused took her swimming at a nearby lake, in the summer of 2017.

They apparently went to the lake because B.T.’s grandmother was not well that day and wanted to rest alone at home. [ 12 ] B.T. testified that after she and the accused had returned home from the lake, she was lying on the floor in her bathing suit watching television when the accused, pretending to urinate, poured cold water over her. Apparently, he considered it a prank, but not surprisingly she was surprised and upset. The accused attempted to comfort her. This led to him placing his hand inside her bathing suit and touching her vaginal area.

The touching lasted for perhaps twenty or thirty seconds in her estimation, and ended with the accused removing his hand and returning to the video game he had been playing. [ 13 ] The accused gave evidence at trial. He denied his guilt on each of the charges, though the nature of his defences differed as between the charges. [ 14 ] The accused did not deny that he had pulled down B.T.’s pants on several occasions. He denied, however, that he had ever done so with any sexual intent.

He said that it was a sort of practical joke and that he never pulled down B.T.’s underwear in the process. [ 15 ] The accused denied outright that he had ever pulled down his own pants in front of B.T. It follows that he also denied exposing his penis to her. [ 16 ] With respect to the incident that followed after his day at the lake with B.T., the accused agreed with B.T.’s recollection of the events right up to the point of the vaginal touching. He denied that that touching occurred.

THE ISSUES [17] The issue of credibility arises as a central issue with respect to all of the charges which the accused faces. The credibility of bothB.T. and the accused must be carefully assessed. [18] A second issue of innocent intent arises, but only with respect to the charge of sexual touching. It is common ground that noissue of innocent intent can arise on the other two charges; the Crown will have made out its case on those charges if the acts themselvesare proven beyond reasonable doubt to have occurred in the manner described by B.T.

ANALYSIS [19] I will begin my analysis by discussing the approach that must be adopted when assessing credibility in this case. [20] Issues of credibility between a complainant and the accused must be resolved in accordance with the fundamental principles ofthe criminal law involving the presumption of innocence and proof beyond reasonable doubt. In the well-known case of R. v. W.(D.),(1991), (SCC), 63 CCC (3d) 397, the Supreme Court of Canada provided helpful guidance on the matter.

W.(D.) directsthat the trier of fact must determine whether the accused is to be believed, and then consider whether his evidence raises a reasonabledoubt even if he is not believed. Even if the defence evidence raises no reasonable doubt, the trier of fact must go on to determinewhether the evidence as a whole proves the charge beyond reasonable doubt. [21] Judicial

interpretation has resulted in a number of refinements being made to W.(D.) over the last quarter-century: see, forexample, the British Columbia Court of Appeal decision in R. v. C.W.H., (BC CA), [1991] BCJ No. 2753, dealingwith a situation in which the trier of fact finds it impossible to determine which witness to believe. [22] One refinement to W.(D.) that is particularly relevant here concerns the sequence to be used by the trier of fact when assessingthe evidence. It is now clear that the trier of fact is not required to necessarily follow the precise sequence of analysis which W.(D.)appears to contemplate.

As Rosenberg, JA said in R. v. Minuskin, (ON CA), [2003] OJ 5253 (CA): It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to [the W.(D.)] formulas. This suggestedinstruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise formof words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at theaccused’s evidence and then at the rest of the evidence.

It should, however be clear from an examination of the reasons that at the end ofthe day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is notnecessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believesthe prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt.

As it was put by Cory, J. in W.(D.)at p.743, the trier of fact must acquit even if he or she does not believe the accused’s evidence because they have a reasonable doubt as tothe accused’s guilt “after considering the accused’s evidence in the context of the evidence as a whole”. [23] The comments of Charron, J. in R. v. Dinardo, 2008 SCC 24, at paragraph 23 are to the same effect. [24] In this particular case, I do find it helpful to begin by considering the strengths and weakness of the Crown case, andparticularly the evidence of B.T.

The important qualification to note, though, is that it would be wrong to reach any final conclusionsuntil all of the evidence has been considered. As Lambert, JA stated in R. v. P.W., [2003] BCJ 2447 (CA), at paragraph 19: It is not the function of the trial judge to decide whether she believes the complainant and, having reached a conclusion in that, to go onand only then consider what the evidence of the appellant was on his own behalf.

The consideration of both must be deferred until theycan be looked at together and an overall conclusion reached on the basis of the whole of the evidence. [25] I will begin, then, by expressing my general views about B.T.’s credibility. I will not attempt a general assessment of thecredibility of the accused immediately thereafter, but I will make that assessment in conjunction with my consideration of each of thespecific charges.

That seems more appropriate in a case where the accused raises different defences to each charge. [26] My assessment of B.T.’s credibility must begin with the recognition that there are special considerations that apply to theassessment of credibility of children generally. These considerations have been set forth in a number of court decisions over the years,but they are helpfully gathered together in the decision of R. v. D.W.L., [2018] BCJ No. 7179 (S.C.), at paragraphs 80 to 96.

Focussingon those aspects of the matter which are particularly relevant in the present case, I would summarize the law in this way: 1. The standard of proof required for conviction of an accused person is not lowered, nor is it changed in any way, by the fact thatsome of all of the relevant evidence comes from a child or children. 2.

Courts should not use the same tests for assessing the credibility of a child witness as for an adult. “Credibility and evidencemust be assessed by reference to criteria appropriate to [the witness’s] mental development, understanding, and ability to communicate”.To put it another way, the courts should not adopt “hard and fast” rules for assessing the credibility of child witnesses but shouldproceed on a “common sense” basis, having regard to the particular circumstances of the child: R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122, at 133-134. 3.

The evidence of child witnesses is particularly prone to flaws regarding time and location, and such flaws do not necessarilydetract from the child’s credibility. 4. Articulation may be especially difficult for children, and problems of articulation may be exacerbated by the stress of acourtroom or the unfamiliarity of an interview setting. Such difficulties may be associated with unreliability in adults, but that should notnecessarily be the case with children. [27] Using this “common sense” method of analysis when assessing the credibility of B.T. in the present case, I must say that I found

her generally to be a most compelling witness. She appears to be a bright, articulate and straightforward child who provided her recollection of the events to the police officer in a very matter-of-fact way. She was told at the outset of that interview that it was important to speak the truth and she indicated that she knew the difference between truth and lies.

Subsequently, she gave her evidence in Court after promising to tell the truth and again demonstrating that she knew the difference between truth and lies. [ 28 ] B.T. was cross-examined at the trial about whether she has told lies in the past and in what context. She was asked the same sort of thing by Constable Krauss during the police interview. B.T. did not deny that she had told lies on occasion in the past, but the illustrations she gave suggested that she was really referring to the sorts of things that are often called “fibs” or “white lies”.

She spoke of telling her parents that she had completed her homework when she had not, for example. There was nothing in the parents’ testimony on that subject which suggested anything that need concern me about lying on the girl’s part.

Indeed, the fact that B.T. conceded that she had not universally told the truth in the past, coupled with her father’s confirmation that such was the case, probably added to B.T.’s credibility rather than detracting from it. [ 29 ] When assessing the credibility of B.T.’s accusations of misbehaviour concerning the accused, I was also impressed by the fact that she clearly bears him no animosity. On the contrary, during the course of her interview with the police officer she made it clear several times that she did not want to hurt the accused’s feelings or get him into trouble.

For example, she explained that she made her disclosure to her father, rather than tell the accused directly to desist in his inappropriate behaviour, because she thought that she might hurt the accused’s feelings if she voiced her displeasure to him directly. [ 30 ] In somewhat the same vein, I was impressed by the careful way in which she appeared anxious to avoid exaggeration when telling the police officer about the number of times that the accused either pulled down her pants or pulled down his own pants in her presence.

She was careful to point out that this sort of behaviour did not happen all the time when she was in the presence of the accused, but only sometimes. She also made the effort to tell the officer that the accused actually pulled down his own pants in her presence rather less frequently recently than he had done in the past. In

summary, she appeared eager to ensure that the police officer did not take an overly harsh view of her step-grandfather. [ 31 ] My impression was that B.T.’s description of the relevant events was accompanied by exactly the level of detail that one would expect from a child of her age. The events that she described were not filled with improbable amounts of detail, but neither were her descriptions so limited as to be unduly vague or ill-defined.

On some important matters, such as the sequence of events on the day when the accused allegedly touched her vagina, the details which she provided were actually corroborated by the accused himself. In the circumstances, that enhanced her credibility considerably. [ 32 ] B.T.’s evidence was not without its flaws. I must say that I was troubled by her repeated statements that the accused not only pulled down her (B.T.’

s) pants but also pulled down her grandmother’s pants on occasion. That seemed a bizarre assertion and, not surprisingly, it was put to the grandmother during the course of her evidence. The grandmother’s response was to say that she did not recall any such thing occurring. [ 33 ] This part of the evidence was not as fully developed as it might have been. I note, for example, that the grandmother did not deny outright that any such thing had happened, but merely said that she did not recall it.

Nor was B.T. asked to elaborate on her testimony in the sort of detail which might have teased out some greater context, clarified her meaning or ruled out the possibility that she had misinterpreted something that she saw. In the end, I can only repeat that this part of B.T.’s evidence was troubling. I do not really know what to make of it. [ 34 ] There were also certain details of B.T.’s testimony that were confusing and difficult to follow.

When the police officer asked her to focus on a single incident, for example, she began her answer appropriately enough, but soon drifted into combining several incidents together. [ 35 ] B.T.’s estimates of time and sequence were erratic and unreliable throughout.

She was interviewed by the police officer in the month of November, for example, but she seemed incapable of distinguishing the months of September, October and November from one another when she attempted to describe the events that the police officer wanted to discuss with her. [ 36 ] I am indeed mindful of these weaknesses in B.T.’s evidence but I am reluctant to conclude that they undermine her credibility about the central core of her testimony.

Many of the flaws which are evident in her testimony match very closely the traits which appear often in the evidence of children, but which the authorities (as noted above) caution so strongly ought not to be necessarily taken as demonstrating an absence of credibility. [ 37 ] Those are my general comments regarding B.T.’s credibility. For the reason which I mentioned earlier, I think it will be best if I consider the reliability of the accused in the course of my discussion about the specific charges, rather than attempt to make a general assessment.

I will turn now to a consideration of those specific charges. [ 38 ] The first charge arises from the allegation that the accused pulled down B.T.’s pants and underwear. B.T. was not clear in describing how many times that happened, but plainly she was referring to multiple occasions. She very carefully stated that sometimes it was just her pants that were pulled down, but that on other occasions her underwear underneath was pulled down as well. [ 39 ] The accused did not deny that he pulled down B.T.’s pants on four or five occasions, though he did deny that he ever pulled down her underpants.

He testified that he just thought that it was a joke and was never intended to be sexual in nature. [ 40 ] In assessing the credibility of the accused on this aspect of the matter, it is important to note the parts of B.T.’s testimony that he either accepted as true or at least did not contest. I will list the various items: • He accepted that he only ever pulled down B.T.’s pants at times when B.T.’s grandmother was not in the room with the two of them. Specifically, he testified in cross-examination that he “supposed” that to be true, although he claimed that he had never actually thought about it.

• He did not contest B.T.’s assertion that when B.T.’s grandmother returned to the room he pretended as if nothing hadhappened. • He did not comment on B.T.’s testimony that on occasion he would hold up his finger to indicate that B.T. should not sayanything while her pants were being pulled down. • When asked to comment on B.T.’s testimony that she resisted his actions by trying to pull her pants back up, he did notdeny it, but stated that he could not recall it. [41] I find the accused’s assertion that he never really noticed that he was alone in the room with B.T. at the relevant times to beimplausible in the extreme.

It becomes downright absurd when considered together with the uncontested evidence that he made a gestureintended to silence B.T. while he engaged in the activity. It is also inconsistent with the unchallenged evidence that he would attempt toact as if nothing had happened when the grandmother returned to the room. [42] I interject briefly to note the defence objection that B.T. never told the police interviewer that the accused would sometimes putup his index finger as a gesture intended to silence her while he pulled her pants down.

My careful review of the interview shows thatobjection to be factually accurate, but also shows that B.T. was never asked a question that would elicit that specific answer. ConstableKrauss did ask her if the accused said anything to her as he was pulling her pants down, but that was the extent of the inquiry.

An adultwho was asked that question might well interpret it as inviting a further response about gestures made by the accused, but it is not at allclear that an eight-year-old child would make that connection. [43] There are two other points that touch upon the credibility of the accused in relation to this charge. [44] The first point to note is that although the accused testified that he understood that pulling down the pants of another personwas a common prank, he testified that he had never attempted any such thing upon anyone else at any time. [45] The second point, which is a good deal more telling in my opinion, concerns the response which the accused gave when he wasfirst confronted by B.T.’s father, J.T., about pulling down the girl’s pants.

His response at that time was unequivocal: “I wouldn’t dothat.” In cross-examination, he agreed that he deliberately lied when he said that, but says that he did so because he perceived J.T. to bemaking an accusation of sexual misbehaviour against him. [46] I reviewed J.T.’s evidence very carefully in connection with the brief telephone discussion which he had with the accused inwhich he confronted the accused with B.T.’s complaint. It was my distinct impression that at that moment he was not sure what he wasdealing with, and asked the question in a very open-ended, neutral fashion.

It was not suggested to him in cross-examination that he hadin fact approached the matter in any other way. From my perspective, the important point is that the accused recognized immediatelythat there is a potential sexual component arising when an adult pulls down the pants of an eight-year-old girl, and that he reacted soquickly with a lie in an attempt to rebut the accusation. [47] I cannot leave this aspect of the matter without addressing a point raised by defence counsel in closing submissions.

Counselsubmitted that I should bear in mind that his client’s response to J.T. on the telephone should be seen in light of the fact that J.T. wasactually accusing him of both pulling down B.T.’s pants and pulling down his own pants to expose his penis, an accusation which he stilldenies. [48] With respect, counsel’s submission on this point is simply unsound on the evidence. I listened carefully to the recording ofJ.T.’s testimony to make sure that my notes were completely accurate. I was able to confirm that J.T. asked the accused specificallyabout pulling down B.T.’s pants.

The matter of the accused pulling down his own pants did not arise. [49] My conclusion on Count 1 is this: Based on the fact that the accused corroborated significant parts of B.T.’s testimony, thatparts of his own evidence were implausible in the extreme, and that he lied when confronted with the initial complaint, I do not acceptfor one moment the explanation which the accused has offered in answer to the charge. I do not find that his evidence comes close toraising a reasonable doubt in my mind.

By then referring to the comments which I made earlier regarding B.T.’s credibility, I am nowprepared to draw the various strands together and find that on the whole of the evidence which I accept, including the evidence thatB.T.’s pants and underwear were pulled down together at times, the charge has been made out beyond reasonable doubt. I find theaccused guilty on Count 1. [50] I will deal with the charge of indecent exposure next, although it is actually Count 3 on the Information. [51] The accused’s defence to the indecent exposure charge essentially involves what is sometimes called a “flat denial”.

Of course,that categorization should not be taken as meaning that it is in any way an illegitimate defence. As the Alberta Court of Appeal said in R.v. McIntosh, 2010 ABCA 352 , [2010] A.J. 1331 (CA) at paragraph 12, there are no doubt plenty of situations in which onemight fairly ask what more an accused could possibly do beyond offering a denial under oath and offering himself up to cross-examination.

That may be a particularly astute observation, it seems to me, in cases where sexual impropriety is alleged and the only twopersons with knowledge of the relevant events are the accused and the complainant. [52] The “flat denial” does raise particular and difficult issues in the context of a credibility analysis, however. As Anderson, PCJsaid in R. v. Rana, [2010] AJ 697 (PC), at paragraph 14: The accused’s denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracityof a denial without more.

The strength of a denial depends entirely on context. [53] Similarly, in R. v. J.W.A., [2010] AJ 149, the Alberta Court of Appeal said this at paragraph 22: [T]he law has not elevated the requirement of W.(D.) to include a mandatory statement as to the precise reasons for rejecting theaccused’s testimony in isolation before considering the testimony in the context of all the other testimony. This argument was advanced

to the trial judge and properly rejected. Relying on R. v. JJRD (2006), (ON CA), 215 CCC (3d) 252, she concludedthat the evidence of the accused must be considered not in isolation, but rather in the context of the evidence as a whole …. We agree. [54] Consideration of “the context”, as the Alberta Court of Appeal referred to it in the J.W.A. case, involves an in-depth assessmentof all of the evidence presented, with special reference to the credibility of the complainant. [55] In this case, I have already set forth my general assessment of B.T.’s credibility.

Some of the illustrations I gave in support ofmy conclusion arise from the evidence relating to both Counts 1 and 3 of the Information, since those counts are considerablyintertwined. It would be helpful at this point, however, if I supplement my conclusions by referring to some parts of the evidence thatrelate specifically to Count 3 of the Information, the charge of indecent exposure. [56] B.T.’s evidence about the accused pulling down his pants and deliberately exposing his penis to her reveals a number ofinstances in which she minimizes his apparent wrongdoing out of feelings of affection for him.

She was careful to volunteer, forexample, that he did not always pull his pants down in front of her, but only did so “sometimes”. She pointed out that when he did so itdid not last for long, probably “less than a minute” in her estimation, and that it had not occurred as much in the recent past as in the timebefore that. She described the penis in a perfectly unemotional, matter-of-fact way and said that she was never asked to play with it or doanything else with it.

She was specifically asked in cross-examination if perhaps the accused was joking when he pulled his pants downand her answer was this: “Maybe, but it happened a lot”. That seemed to me to be a most telling answer coming from a 9-year oldwitness. [57] In

summary, I found that the evidence given by B.T. on this charge was extremely persuasive. It was so persuasive in my viewthat it completely overwhelmed the denial offered by the accused. In the context of the whole of the evidence presented, I do not believethe accused’s denial and I do not find that it casts any doubt upon the validity of B.T.’s testimony.

I find that the accused deliberatelyexposed his penis to B.T. on multiple occasions within the timeframe alleged in the Information and that he is guilty of the offence ofindecent exposure as a result. [58] I found the analysis of the evidence on Count 2 of the Information, involving the allegation of sexual assault, to be the mostdifficult.

I say that in large part because of the manner in which B.T.’s disclosure of the relevant events took place. [59] During the course of her interview with B.T., Constable Krauss spent considerable time reviewing with the child complainanther recollections of the accused both exposing himself to her and also pulling down her pants.

It was only after perhaps an hour that hadelapsed that the police officer changed the direction of the interview and began to ask if anyone had ever touched the girl’s private parts. [60] It is not clear to me whether Constable Krauss had some knowledge before the interview began about an allegation that theaccused had touched B.T.’s private parts, or whether she was merely suspicious and anxious to cover all possibilities as the interviewproceeded.

Either way, it is apparent that the police officer was quite persistent in her inquiries when the girl initially denied that anysuch thing had ever happened. [61] When I first listened to the interview and read the transcript, I was troubled about the manner in which the police officer hadengaged in questioning B.T. on this aspect of the matter.

It appeared to me that the police officer had perhaps proceeded in a way thatwas inappropriately leading and aggressive, resulting in the possibility that B.T. may have felt obliged to come up with an instance ofsexual assault whether or not it was factually accurate. [62] On further review and consideration of all of the evidence in the case, I have ultimately concluded that my concerns are notjustified.

I have concluded that the most accurate characterization of the questioning is that the police officer guided B.T. skilfully andpersuasively into the area of discussion that she wanted to pursue -- reaching close to the border of what is appropriate, I think -- but thatshe let the girl proceed entirely on her own, without any improper influence being exerted, once the topic had been broached. [63] There are two factors which support the conclusion which I have reached on this aspect of the matter. [64] First, it is very clear to me on a review the whole of the police interview and the evidence which B.T. gave at trial, that B.T.seemed perfectly capable of resisting leading questions if she felt she was being led astray.

I do appreciate that putting leading questionsto a young child is risky at best and is downright taboo in many instances. At the same time, though, I noticed that there were severaloccasions in this trial in which B.T. either deflected such questions or outright rejected the assertions underlying the questions. [65] Early in B.T.’s cross-examination, for example, defence counsel put a passage to her from the transcript of her police interview,suggesting to her strongly that what she had told the officer could not possibly be accurate.

To my surprise, the witness responded to thatquestion by reading the passage carefully and saying that she did not remember what she meant when answering the officer’s questions.When defence counsel closed his cross-examination, as he was bound to, with the series of questions suggesting that his client neverpulled his pants down in front of her, never pulled down her pants, and never touched her privates, she stood her ground solidly, twicesaying that she disagreed with counsel and once saying simply “no”. [66] The second factor which eased my concerns about the manner in which Constable Krauss handled this part of the interview withB.T. is the fact that almost all of what she told the police officer was confirmed by other testimony.

B.T.’s grandmother confirmed thatthere had indeed been a day in the summer of 2017 when she had been ill and the accused had taken B.T. to the lake to give her somerest. B.T. had not been sure if her grandmother’s illness had been the reason for her trip to the lake alone with the accused, but that wasone of the possibilities that she raised. [67] More importantly, the accused himself corroborated the entirety of B.T.’s lengthy and detailed recollection of events, right up tothe very moment of the alleged touching of B.T.’s vaginal area.

In the circumstances, that corroboration tended to enhance B.T.’scredibility rather more than the accused’s, and greatly lessened my concern that the police officer had produced flawed statements fromthe girl. [68] With respect to this particular allegation, as with the other allegations, B.T. provided her account in a thoroughly plausible,

matter-of-fact way. In describing the events to the police, she illustrated them physically to some extent, as if she was recalling them vividly. She described the accused dumping water on her, pretending that it was urine, and then proceeding to comfort her with physical contact that brought his hands ever closer to her private parts, and then into her vaginal area.

At trial, she did not get emotional when being cross-examined about this and said that it ended quickly when she removed his hand and got up quickly to leave the room. [ 69 ] The accused conceded in his evidence that he poured water on the girl, pretending that it was urine. He testified that at the time he thought that this was an appropriate prank. He was then asked whether he still thought it was funny. My observation was that he was remarkably slow to concede that he had changed his mind about that.

That part of his evidence left me cold, but I hasten to say that I recognize that an appallingly poor sense of judgment is not necessarily reflective of an absence of credibility. [ 70 ] The accused testified that he did indeed cuddle with B.T. in an attempt to console her, having so obviously upset her with his misguided prank. He simply did not agree that he put his finger under her swimsuit and into in her vaginal area.

The question is whether his denial gives rise to a reasonable doubt. [ 71 ] In my view, there are not many cases in which a denial by an accused person fails to raise a reasonable doubt, except where the denial is patently absurd on its face (and that is not this case). In a case where there is little or nothing in the way of corroborative evidence, it requires extremely strong Crown evidence to override the accused’s denial.

In this case, there certainly is corroboration of all of the background circumstances, but no corroboration regarding the specific illegal act that is alleged. [ 72 ] For all of the reasons which I have advanced, however, I am convinced of the accuracy of B.T.’s testimony after hearing and considering all of the evidence. To summarize once more concerning B.T.’s evidence, particularly as it relates to the charge of sexual assault: 1. She testified in a straightforward factual manner and with an appropriate level of detail; 2. She was not contradicted on any matter of substance.

On the contrary, her testimony was corroborated to a large extent; and 3. She did not demonstrate any hostile animus toward the accused, but on the contrary demonstrated her affection for him by making concerted efforts to keep her accusations within bounds and to limit the extent of his wrongdoing. [ 73 ] In the face of that strong evidence, I have no hesitation in saying that I do not accept the evidence of the accused on the sexual assault charge. I reject it and I find that it does not raise a reasonable doubt in my mind about what happened.

On the whole of the evidence, the Crown has once more proved its case. CONCLUSION [ 74 ] I find the accused guilty on all three counts. [ 75 ] I only wish to add one comment. I wish to emphasize that in arriving at my conclusion with respect to each one of the charges against the accused, I have specifically and deliberately given no weight at all to either of the following items of evidence: 1.

The evidence concerning an accusation of some sort of wrongdoing against the accused in the past involving children, which was apparently investigated by a social welfare agency and did not lead to criminal charges against the accused. The Crown apparently (but dangerously) introduced that evidence in hopes of demonstrating that any defence of innocent intent must be misplaced in the present case, on the assumption that the episode with the social welfare agency must have alerted him to the seriousness of engaging with children in doubtful ways.

In my view, that evidence turned out to be altogether too vague and dated to be of any help whatever in the present circumstances. 2. The evidence that the accused appears to have had a very odd perception of what is appropriate behaviour when dealing with an 8-year-old girl. As I said earlier in these Reasons, odd perspectives on life and reduced credibility do not necessarily go hand-in-hand. To equate the two seems to me to be dangerous in the extreme, inviting a tumble down a very slippery slope. _____________________________ The Honourable Judge E.C. Blake Provincial Court of British Columbia