R. v. W.A.H., 2022 BCPC 199

Citation: R. v. W.A.H. 2022 BCPC 199 Date: 20220926 File No: 35510 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. W.A.H. BAN ON PUBLICATION:

Section 486.4(2.2) CRIMINAL CODE OF CANADA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. Miller Counsel for the Defendant: R. J. Strahl Place of Hearing: Cranbrook , B.C. Dates of Hearing: September 13 and September 14, 2022 Date of Judgment: September 26, 2022

Introduction [1] The Accused, W.A.H., is charged with two offences which are alleged to have occurred between May 1st and October 1st of2013. He is charged with sexual assault contrary to

section 271 of the Criminal Code and with sexual interference, contrary to section151 of the Criminal Code. These offences are alleged to have been committed against a child who has been identified by her initials D.B.She is now 17 years old and was 8 years old at the time these offences are said to have occurred.

They are alleged to have taken placeinside the Accused’s apartment in Cranbrook. [2] The Accused denies that the offences occurred, and goes further than that, saying that the Complainant has never even been inhis apartment at any time. [3] There is no dispute that what the Complainant and another Crown witness say happened, if true, makes out the offences that theAccused is charged with. The conduct they say that the Accused did amounts to sexual interference and sexual assault.

It is a significantand an intentional application of force to the body of the Complainant of a nature that violates her sexual integrity. Given her age,consent is not possible in this case, nor is it alleged. There is no suggestion that any touching may have been something innocent oraccidental that was misperceived. The Accused says that the Complainant and the other witness were never alone with him in hisapartment and that what they testified to never happened. Applicable Law 1. Subject Offences [4] A sexual assault, as that offence exists under

section 271 of the Criminal Code, is an assault that is committed in circumstancesof a sexual nature, such that the sexual integrity of the victim is violated. (This is how the Supreme Court of Canada defines the offencein R. v. Chase (SCC), [1987] 2 S.C.R. 293 at paragraph 11.) An assault is defined in

section 265 of the Criminal Codeand it includes the intentional application of force by one person against another to a degree that is not trifling. [5] The offence of

section interference as set out in

section 151 of the Criminal Code is committed when an accused person touchesany part of the body of a person under the age of sixteen, either with a part of the body or with an object, and does so for a sexualpurpose. [6]

Section 150.1 of the Criminal Code makes it clear that if an accused is charged with either of the two offences that this Accusedis charged with, and the complainant is under the age of 16, the consent of the complainant does not excuse the act and is not a defenceto the charge. 2. The Burden of Proof and the Presumption of Innocence [7] A criminal case is not a competition between the evidence of the Crown and the evidence of the Accused. It is not a contest todecide which side is more believable.

In every criminal case, an accused person is presumed to be innocent until the Crown has met theburden of proof of every element of the offence that an accused is charged with. Each element of the offence must be proved beyond areasonable doubt. If reasonable doubt exists on any of these, an accused person is entitled to the benefit of that doubt. This is afundamental principle contained in

section 11(

d) of the Canadian Charter of Rights and Freedoms. [8] In R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada explained just what is meant by 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.

Issues of Credibility [9] In cases such as this one, where the evidence of witnesses for the Crown and for the Accused are in conflict, the court mustdecide that conflict in such a manner than does not offend the presumption of innocence or remove the requirement of the Crown toprove its case beyond a reasonable doubt. An accused person is not required at law to show a motive for why a complainant would givefalse evidence against him or her. (R. v. Krack (1990) (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.) at 561-2.) [10] In the leading case of R. v.

W.(D.) (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed trialjudges that in those cases where there is conflicting evidence, this is how the credibility is to be decided: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit an accused. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but am left in reasonable doubtby it, I must acquit an accused.

Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [11] In cases like the one now before this court, where an accused person makes a bare denial of the offence, that is where an accusedsimply says, “I didn’t do it,” a court is required to look at the entirety of the evidence together to determine what conclusion can bereached respecting credibility. In R. v.

P.W. 2003 BCCA 542 , 2003 B.C.C.A. 542, Justice Lambert wrote, 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.

[12] In cases of sexual assault, a complaint’s credibility is not lessened simply because of a delay in reporting the offensive conduct.There is no presumption or assumption that people will complain immediately if they have been assaulted in this manner, especiallychildren. Victims of sexual offences suffer a trauma that defies any sort of stereotypical notions about how the person should behave.

Inthe Alberta Court of Appeal decision of R. v T.E.M., 1996 ABCA 312 , 1996 A.B.C.A. 312, Justice Kerans explained this atparagraph 11 as follows: … [T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will want to raise ahue and a cry, some will want to crawl into a hole and die. Reactions vary.

It surely would not surprise the [trier of fact] to hear, forexample, that some children who are sexually abused… are so humiliated that they do not want to tell anybody, but want instead to takethe secret to their graves. [Triers of fact] must decide whether, on the basis of their experience in life, this complainant acted after thealleged incident in a way that is consistent with her story.

To assess that, the [trier of fact] must consider the state of mind of the witnessat the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her allegedabuser… [13] Finally on the subject of credibility, both counsel spoke about how the evidence of child witnesses should be addressed and bothreferred me to the Supreme Court of Canada’s decision in R. v. G.B. (SCC), [1990] 2 S.C.R. 30. There Justice Wilsonstated that a “common sense approach” must be taken when dealing with the evidence of young children.

Courts should not impose the“same exacting standards on them as it does with adults.” She went on to state (at paragraph 48): While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does notmean that they have misconceived what happened to them and who did it.

Summary of Evidence [14] In 2013, sometime between May 1st and October 1st, the Complainant (who has been referred to as D.B.) was 8 years old andwas living in a townhouse with her parents. A cousin of hers (who has been referred to as M.B.) lived in the same rental complex, whichcontained townhouses and at least one apartment building. There was a courtyard in the complex where these children played. Next tothe courtyard was the apartment building where the Accused lived on the second floor.

The balcony of his apartment looked down ontothe courtyard. [15] The Accused testified that he would often buy “Freezies,” a water based frozen confection, similar to a Popsicle, but made byfreezing flavoured liquid in a plastic casing. He would buy these to hand out to the children who played in the courtyard and this musthave been a frequent occurrence because he testified that he would buy boxes of these things. [16] According to their testimony, on the day of the alleged offence the Complainant and her cousin were playing out in the courtyard,when they were called over by the Accused.

He said that he had Freezies for them and asked them to come inside of his apartment. All ofthe witnesses agree that it was not unusual for the Accused to offer Freezies to the children, but the children say that they had never goneinto the Accused’s apartment before. The Accused says that the Complainant has never been inside his apartment at any time, while thecousin may have been inside once with her mother, to look at a television set. He says that he is “98 per cent certain” that theComplainant has never ever been in his apartment.

The Complainant says that she had been in the apartment before “a couple of times”with her father for brief periods. [17] The Complainant testified that the Accused told her and her cousin to “come in and help yourself inside” to the Freezies. Theapartment building was locked on the outside, but the Complainant believes that the door may have been propped open with a rock.

TheAccused says that the door was always locked and never propped open with a rock, but this is unlikely, because he also testified that hislandlord had sent tenants a note telling them not to do this, which would indicate that in fact sometimes the door had been propped openin this manner. The Complainant’s cousin recalled that the Accused came down and let them into the building, but later in her evidence,she said that she thinks there was a rock holding the door open. [18] The Complainant and her cousin went up to the second floor where the Accused’s apartment was.

There was a difference in theevidence of the Crown witnesses and the Accused as to where on the second floor his apartment was located and whether one turned leftor right upon reaching the top of the stairs to get to that apartment.

I don’t believe that much turns on this, as I think it would be unfair todemand perfect recall of a detail such as this by a sixteen or seventeen year old who is trying to remember something that happened whenshe was seven or eight. [19] The Complainant and her cousin testified that when they got to the apartment, the Accused told them that he was out of Freezies,but he asked them to stay and take a tour of the apartment. The Accused was not a total stranger to these children.

He is described byeveryone, including himself, as being a “drinking buddy” of the Complainant’s father. [20] The Complainant and her cousin say that the Accused led them into the living room of his apartment. One of the pieces offurniture in the living room was a reclining chair, and the Accused admits that such a piece of furniture was present. The Complainantrecalls that she sat in the recliner and her cousin sat on the couch. She says that the Accused pulled a lever on the reclining chair. Thismade the Complainant jump off the chair and go to sit with her cousin.

Her cousin remembers this as well. [21] The Complainant says that the Accused walked over to her and whispered in her ear that he had something to show her in hisbedroom. She asked her cousin to come with her, but the Accused said, “Little Bug stays here.” This was a nickname that the Accusedhad for the Complainant’s cousin. He admitted in his evidence that this was so. The cousin remained on the couch while the Accusedand the Complainant went to the Accused’s bedroom.

The Complainant’s cousin also said that she recalls the Accused telling her to stayon the couch while he and the Complainant went to his bedroom. [22] Once they got to the bedroom, the Complainant says that the Accused closed the door part way, and told her to sit on the bed.She did as he said. She says that he told her that she was pretty and that he told her to lay down. Once again, she did as she was told. Shesays that the Accused paced back and forth at first, looking at her, and then sat next to her on the bed. She says that he ran the pinkie

finger of one of his hands along her leg. He then put his thumb over top of her shorts on her vagina. She recalls that she was wearing a purple dress with hearts on it, and a pair of shorts underneath that also had hearts on them. She says that the Accused was touching her by putting his pinkie finger on her vaginal area, and began rubbing it over top of her shorts.

She says that he then pulled her shorts down close to her knees, and says that she “froze.” [ 23 ] It was at this point that he cousin entered the room, and said to her “our mom is calling us to dinner, we have to go.” The Complainant got up, pulling up her shorts, and left the apartment with her cousin. When she got home, she did not tell her parents what had happened, although her father testified that it was apparent to him that something was upsetting his daughter.

The Complainant says that she “kept her secret” for a number of years. [ 24 ] The Complainant’s cousin recalls that while she was in the living room, she “had a bad feeling” and she “thought he was gonna do something to her.” She says that she got up and walked to the bedroom where she could see the Accused, through the half-open door, touching the Complainant.

She also recalls saying to the Complainant that “our moms are calling us for dinner.” [ 25 ] In cross-examination, the Complainant’s cousin was asked about the time period from when she was sitting on the couch, and when she had gone to check on her cousin. At one point, she had said that she followed “a second behind” while in an earlier statement she had said that she was told to wait “for five minutes.” From her description of events, it is clear that neither of these time estimates could be accurate. This witness presented as someone who was very nervous, and at times seemed open to suggestion.

Any inaccuracy in her time estimate should not be afforded too much significance, given that it is the recollection by a sixteen year old of an incident that occurred when she was seven, and it is unlikely that any of us would be able to recall time spans with precision under those circumstances. [ 26 ] In cross-examination, the Complainant acknowledged that it would make her upset when her father went to the Accused’s place to drink. She denied the suggestion in cross-examination that this incident was something that she had made up in order to stop her father from going to the Accused’s house to drink.

This sounds logical because if that indeed had been her motive, it would have made more sense to make the accusation when the two men were still living close to one another and drinking together, and not years later. [ 27 ] In the years that followed, the relationship between the Complainant and her father became strained and she stopped talking to him. Her father says that this lasted for eight years and that it was only recently that they began talking again. The Complainant’s family moved out of Cranbrook the year following the alleged incident and they moved to a different town.

The Complainant says that she didn’t see her cousin very much in the intervening years, but the two of them remain close. [ 28 ] Both of the main Crown witnesses were asked if they had discussed the incident with one another. The Complainant said that they had not, while her cousin also said that they had not, but later said that they might have talked about it in her cousin’s room, though she said she really couldn’t remember.

She was clear that she and the Complainant never discussed what they were going to say in court. [ 29 ] The Complainant’s father testified that he knew the Accused as a neighbour and as someone he would go to drink with. He agreed that the Complainant was upset that he would go to the Accused’s apartment so often to drink with him.

He also recalled that the Complainant told him that the Accused made her uncomfortable, but would not specifically say why. [ 30 ] According to the Complainant’s father, years later, when he learned about the allegations that his daughter had made against the Accused, he went to confront the Accused about it. He says that he asked the Accused what the two girls were doing in his apartment, and that the Accused told him that he had called the Complainant into his bedroom to give her some sheet music for a guitar that he had previously given to her, but that nothing inappropriate had happened.

The Complainant’s father says that he told the Accused that it was not appropriate for him to have the children in his apartment without a parent present, and he says that the Accused agreed with this. [ 31 ] The Accused is 63 years old and is still living in the same apartment where the offences before the court are said to have occurred. In his evidence, he agrees that he would often give these and other children Freezies when they were playing in the courtyard below his balcony.

He says it is something he done “lots.” He is adamant that the Complainant has never been inside of his apartment and that her cousin was only there on one occasion, with her mother, to look at a television set that he was trying to sell. He said, near the end of his evidence, “after thinking about it,” he is certain that the Complainant has never been inside of his apartment.

He gave a detailed description of his apartment, including the furniture inside it, and he acknowledges that he has a reclining chair similar to the one described by the Complainant and her cousin. [ 32 ] The Accused admits that he gave the Complainant’s father a guitar, but says that he did not have any sheet music for the guitar. He denies the events of and leading up to the sexual interference alleged by the Complainant and her cousin, and says that nothing like this ever happened. He denies telling the Complainant’s father that the children had been in his apartment.

He admits that he and the Complainant’s father had once been drinking buddies, stating, “we used to drink a lot, ten beers each.” He also admits that he referred to the Complainant’s cousin as “Bug.” [ 33 ] The Accused says that when he was charged with these offences, he offered to submit to a polygraph examination, but that this could not be scheduled due to a conflict with some medication he was taking. There is no way of knowing what the result of the polygraph examination might have been if it had been taken, and so it is difficult to determine what use, if any, can be made of this evidence.

Analysis [ 34 ] As has been stated previously, the burden of proving the offences that the Accused is charged with, beyond a reasonable doubt, rests with the Crown. The Crown must establish guilt on this standard. The Accused is not required to prove his innocence. He is presumed to be innocent until proven guilty on the requisite standard. [ 35 ] In determining whether the Crown has met this burden, the evidence in this case must be looked at in totality and then a conclusion can be reached as to whether or not the burden placed on the Crown has been met.

I will begin with the denial of the offence given by the Accused, and address a number of difficulties that arise from this denial.

[ 36 ] Firstly, the Accused’s statement that the Complainant was never in his apartment conflicts with the evidence of the Complainant’s father. He testified that the Accused admitted to him that the two children had been inside of the Accused’s apartment. This is at odds with the Accused stating that he is certain that the Complainant has never been inside of his home.

The admission made to the Complainant’s father and its conflict with the Accused’s subsequent insistence that the Children were ever in his home, gives reason to believe that the Accused is not above changing his story to serve his own purposes. [ 37 ] Secondly, if the Accused’s claim that the Complainant was never in his home is true, it fails to explain how the Complainant would know that the Accused had a reclining chair in his living room. While these types of chairs can be found in many homes, it is not something that can be assumed to be found in every home.

It is a unique detail that the Complainant should not have known about, unless she had been inside the apartment. As Crown Counsel points out, it is also likely that it would be one detail that she would remember because of how it features in her narrative. It is also unclear how the Complainant might know of the Accused’s nickname for her cousin, if she had not been present when she heard him use it. [ 38 ] The Crown states that the Accused’s denial is suspicious because it comes out in such a manner as to appear to close the door on every possibility of the offence occurring.

For example, the Accused says that the children could not have entered his apartment by means of a rock in the door because that never happened. Yet he acknowledges that his landlord complained about this very thing being a problem and sent a notice to the tenants of the building about this.

He also claims that there were few times that he would have been in his apartment when his daughter would also have been present, suggesting that there would have been no opportunity for him to commit this offence. [ 39 ] These things call into question the reliability of the denial, as being a credible one, or one supporting a reasonable doubt in and of itself. This is not determinative of this matter however, as the burden still rests with the Crown to prove the offences beyond a reasonable doubt.

To do so the Crown relies on the evidence of the Complainant and her cousin in describing events that clearly constitute the offences of sexual assault and sexual touching. [ 40 ] Counsel for the Accused argues that the evidence of the children is unreliable. Counsel points out a number of areas in which the children appear to be confused on collateral details such as how they got into the Accused’s apartment, the number of bedrooms in the apartment and the positioning of furniture. Respectfully, I disagree with this conclusion.

It is reasonable for someone to retain a memory of being touched in an invasive manner, while failing to recall what pictures were on the wall or how the furniture in a room was arranged at the time. A firm recollection of the most striking aspect of an event, without recall of some of the less relevant details is not unusual, especially for a child.

It certainly does not support the conclusion that the failure to remember those collateral details must mean that the entire memory is a false one. [ 41 ] In order to have a doubt as to the accuracy of the children’s evidence as far as the commission of the offence goes, one or more of three things would have to occur. Either the children would have imagined what happened, they would have been mistaken about what happened, or they would have to be lying about what happened. [ 42 ] There is nothing in the evidence to suggest that what has occurred is the product of a dream, or a false memory.

It is the independent recollection of two children who are now teenagers and who have the maturity and mental capacity to describe what they saw and heard. It is not something they each imagined. [ 43 ] This is not a case of the children mistaking some sort of innocent touch for a criminal one. The Accused denies touching the Complainant in some accidental manner or for some innocent purpose. Even as an eight year old, the Complainant would have the mental capacity to appreciate the significance of an adult male placing his hand and fingers on her vagina and would not mistake this for some sort of innocent act.

It is also not a case of these witnesses mistaking the Accused for some other person. The Accused is someone who was not a stranger to them. [ 44 ] The remaining possibility is that the children as well as their father colluded in a scheme to deliberately lie about the Accused. The Accused himself is not required to prove that this is the case, but the trier of fact may explore this possibility to determine if this might form the basis of reasonable doubt. In this case, the evidence does not present this to be a reasonable possibility.

It is unlikely that an eight year old and a seven year old would concoct a plan to lie about something like this and hold off for many years before putting that plan into effect. It is also highly unlikely that the cousins would form such a plan years later, when they were living apart and rarely seeing one another and when the Accused was no longer a part of their lives.

It is also highly unlikely that they would enlist the Complainant’s father in the scheme when the Complainant was not on speaking terms with him. [ 45 ] If the Accused had not harmed the Complainant in any way, there would be no reason for her, years later, to make up such a story, because she was still upset with him for encouraging her father to drink so much.

At that point in time her father was no longer spending time with the Accused and after 2014, the two men were living in different communities. [ 46 ] Complainants in sexual assault trials must undergo considerable scrutiny from police officers, Crown Counsel and from members of their own family. It cannot be a pleasant experience for a sixteen year old to present herself in a public forum, in front of family and in front of strangers, and talk about very personal matters such as having a stranger touch her vagina in the manner that this Complainant has described.

To suggest that this Complainant might participate in a scheme to lie about such a thing and undergo such scrutiny in order to get even with someone, many years later, for causing her father to drink so much, not only fails to support a reasonable doubt, it tortures the definition of “reasonable doubt.” [ 47 ] On my review of the evidence, I reject the denial of the Accused for the reasons previously stated.

I accept the evidence of the Complainant and of her cousin and her father, and find, beyond a reasonable doubt, that during the time-period set out in the Information, the Accused W.A.H. committed the offences of sexual interference and sexual assault against the Complainant D.B. I find him guilty on both counts.

_____________________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia