R. v. Bachman, 2013 BCSC 1028

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bachman, 2013 BCSC 1028 Date: 20130501 Docket: 59437-2 Registry: Chilliwack Regina v. Timothy Gregg Bachman Before: The Honourable Mr. Justice N. Brown Oral Reasons for Judgment Counsel for the Crown: S.C. Domaradzki Counsel for Accused: G.J. Harris, Q.C. Place and Dates of Trial: Chilliwack, B.C. April 8, 9 and 10, 2013 Place and Date of Judgment: New Westminster, B.C. May 1, 2013 [ 1 ] The Crown charges Timothy Gregg Bachman with two counts of sexual touching of S.L.B. (“Ms. B.”). A third count charges he sexually assaulted her. [ 2 ] The age of Ms.

B. when the offences allegedly occurred and whether a relationship of trust, authority, or dependency was present at the time are what distinguish Counts 1 and 2. [ 3 ] Specifically, Count 1 alleges that between the 1st day of June, 2000 and the 12th day of June, 2002, at or near Abbotsford, British Columbia, Timothy Gregg Bachman did, for a sexual purpose, touch directly or indirectly with a part of his body or with an object, Ms. B.'s body, she being a person under the age of 14 years, contrary to s. 151 of the Criminal Code of Canada , R.S.C. 1985, c.

C-46 [ Criminal Code ]. [ 4 ] Count 2 encompasses a different age range and adds the element that Mr. Bachman was in a position of trust or authority and that Ms. B. was a person in a relationship of dependency towards him. Specifically, Count 2 charges that between the 14th day of June, 2002 and the 22nd day of April, 2004, at or near Abbotsford, British Columbia, Timothy Gregg Bachman, being a person in a position of trust or authority towards Ms. B. or a person with whom she was in a relationship of dependency did, for a sexual purpose, touch directly or indirectly with a part of his body with an object, Ms.

B.'s body, contrary to s. 153(1) (

a) of the Criminal Code . [ 5 ] Count 3 alleges that between the 1st day of June, 2000 and the 22nd day of April, 2004, at or near Abbotsford, British Columbia, Timothy Gregg Bachman sexually assaulted Ms. B., contrary to s. 271(1) of the Criminal Code . [ 6 ] For purposes of s. 153(1) (

a) of the Criminal Code , no one questions that Mr. Bachman was a person in a position of trust and authority towards Ms. B., and that Ms. B. was in a position of dependency towards him. [ 7 ] No challenging legal issues had to be decided in this case. Mr. Bachman exercised his right not to testify. Ms. B.'s credibility as a witness and especially the reliability of her testimony is the main issue in this case. [ 8 ] Besides Ms. B., the Crown called three other witnesses: Constable Lum and Constable Combo of the Abbotsford Police Department testified about two statements they took from Ms. B. Cst.

Combo, a female officer, took the first statement on March 28, 2009. The recording device did not work for part of the interview and concerns lingered in Cst. Combo’s mind after the interview ended. She felt this called for a further interview, but she went on leave and could not follow up on further investigations. Nine months later, on December 4, 2009, Constable Lum took the second statement, which lasted 1 hour and 40 minutes. [ 9 ] During cross-examination, defence counsel referred Ms.

B. to contradictory statements she had made during the interviews. [ 10 ] Irene Peterson, an experienced therapeutic counsellor, also testified. Ms. Peterson met Ms. B. for the first time in February 2002, after Mr. Bachman arranged for Ms. B. to meet her for counselling, which regularly ensued. Ms. Peterson had counselled Mr. Bachman previously and I understand continued to see him occasionally as well. [ 11 ] Ms. Peterson testified mostly about certain statements relevant to this case that Mr. Bachman and Ms. B. individually made to her in January 2006.

She also testified about her observations of the effects drug abuse on Ms. B.'s thought processes in and around the year 2007.

[ 12 ] Now, Ms. B. was born June 12, 1988. When the offences allegedly occurred, she was between 11 and 16 years old. She is now 24. Almost all of her childhood and adolescent years, Ms. B. lived in a succession of foster care homes. When Ms. B. was three, her older sister was abducted from the family home. Police never found out what happened to her. Ms. B. believes her mother's grieving precipitated a severe depression from which she never recovered. In turn, she surmised her mother's illness made it difficult for her to give her all the care and attention she needed. Over her childhood and adolescence, Ms.

B. recalls living in the range of between 10 to 15 foster care homes. She cannot recall when or for how long she might have lived in them. [ 13 ] In April, the actual day the evidence never settled on, but which Ms. B. recalls as a year after her May 2000 move to the Bachman residence, her mother took her own life by jumping off the Pattullo Bridge. [ 14 ] Ms. B. could not recall where she was last living when Mr. Bachman's family took her into foster care in May 2000.

In the long line of 10 to 15 foster care homes she believed the Ministry of Child and Family Development had placed her in, she thought that her move to the Bachman home fell in towards the end. Of these, the roughly four years Ms. B. lived in the Bachman home was the longest of these. There she stayed until 2004. She then stayed in a group home until she reached her 16th birthday. By then, she was old enough for the Ministry to place her in her own apartment, which it did. [ 15 ] Going back in time now, Ms.

B. recalled that the authorities wanted to move her away from Coquitlam, where her mother lived, to Abbotsford because she kept running away from foster care homes to her mother's home. Arriving at the Bachmans', Ms. B. describes a large, multilevel home with a basement and three living areas above. She recalled having her own bedroom on the top level of the home, where the Bachmans had kept their master bedroom. K., a teenage boy who the Bachmans also took into their foster care, had a separate room on that same level. Ms.

B. also recalled suites on the first level of the house, where the Bachman’s oldest daughter and grandparent kept separate suites. [ 16 ] Ms. B. offered conflicting times for when the various kinds of sexual touching she alleges began. In direct examination, she testified that everything seemed good at the beginning of her time living with the Bachmans. She thought the Bachmans were nice foster parents. Later in her testimony, she said the alleged sexual touching started shortly after her mother's death, which, as I mentioned, she thought was a year after her arrival, but the time was not made certain. Ms.

B. also gave evidence that placed the onset of what she called inappropriate touching at from the very first day she moved in with the Bachmans. She recalled what she described as a long deep look Mr. Bachman gave that first day, when Mr. and Mrs. Bachman first greeted her arrival at the door. She said the look made her uncomfortable; its significance, however, lost on her until she became an adult. [ 17 ] Starting with that look, she then recalled a gradual onset of what she called inappropriate touching.

This progressed from hugs, to hugs that lasted too long, to kisses, to inappropriate rubbing, and to touching of her back under her clothing. Sometimes this occurred when she watched television with Mr. Bachman. K. was sometimes present. Mrs. Bachman was never present at such times. [ 18 ] She described such an alleged touching incident happening at a Mission movie theatre. K. sat on one side of her. She recalled no one sat in the row behind them as Mr. Bachman allegedly slipped his hand under her clothing and upper back. [ 19 ] Ms. B. recalled what she described many inappropriate comments Mr.

Bachman allegedly made about the way her breasts were developing. Mr. Bachman's hands were on her breasts all the time, she said. [ 20 ] Ms. B. testified that various kinds of inappropriate touching occurred constantly, even at times when Mrs. Bachman or others were somewhere in the house and could have walked into the room. She felt, however, that Mr. Bachman was too careful to allow this to be discovered. Further, she noted Mrs. Bachman retired to the master bedroom early in the evening. Mr. Bachman, on the other hand, watched television downstairs, on the main level. [ 21 ] Ms.

B. described what she characterized as the worst of the incidents that occurred over the four years she lived with the Bachmans. She thought it occurred on an August 1st weekend, Mr. Bachman's birthday, she said. She recalled Mrs. Bachman had gone away. She described watching television with Mr. Bachman and K. While they were watching the movie, "Crouching Tiger, Hidden Dragon", K. fell asleep she recalled, and then some touching under her blouse occurred. [ 22 ] Ms. B. said that after K. went upstairs to bed, she followed Mr. Bachman upstairs to the master bedroom. They laid on the bed. There, she alleges Mr.

Bachman reached under her pyjamas and touched her vagina with his hand. [ 23 ] Before continuing with this part of the history, I will digress for a moment to discuss a detail of it that concerned the defence a great deal. [ 24 ] At trial, Ms. B. recanted the testimony she had given at the preliminary inquiry about how Mr. Bachman's fingers touched her vagina. There, she testified Mr. Bachman inserted his fingers into her vagina. Responding to defence counsel's questioning of why this Court was hearing for the first time that this had not occurred, Ms.

B. explained she had emailed Crown counsel before the trial to tell her that she wished to correct this part of her testimony at the preliminary inquiry. [ 25 ] This type of correction is important in a criminal case because Crown counsel was supposed to disclose to defence counsel well before trial any significant changes in testimony the Court might hear at trial compared to testimony given at the preliminary inquiry. As part of this process, Crown counsel had invited Ms. B. to note any significant changes she wished to make from her testimony at the preliminary inquiry.

Crown counsel advised defence counsel no changes would be forthcoming. [ 26 ] I find Crown did not receive an email from Ms. B., because as an officer of the Court, Crown counsel would have advised the Court if her office had erred and had failed to pass on the testimonial change Ms. B. said she had forwarded. [ 27 ] Defence counsel closely cross-examined Ms. B. on the change in her testimony on this point. In sum, Ms. B. testified she remembers fingers touching her vagina, but she cannot recall any finger penetration. [ 28 ] Ms. B. testified that she recalled seeing Mr.

Bachman making facial expressions, uttering both sounds and words which I will

touch on briefly, later on, in a part more pertinent to the point. [ 29 ] Ms. B. described another incident that did not involve any touching. She recalls being 13 years of age at the time. If correct, this would place the year at 2001. She recalls riding in a Dodge Caravan. She said Mr. Bachman was driving her to visit her grandmother. On the way there, she recalls Mr. Bachman talking to her about sex and about losing her virginity. At that point, Ms. B. said she felt nothing remained for her and Mr. Bachman to do but to have sex. She recalled telling Mr.

Bachman that if she were to lose her virginity she would like it to be with him. Ms. B. pointed out to the Court that the fact she thought in such terms showed how “twisted “her thinking about the relationship had become. Ms. B. also recalls discussion about where she and Mr. Bachman would go for sexual intercourse. But she then changed her mind about that idea and used the excuse there was no time and that they would be late for the visit. Therefore, nothing occurred. [ 30 ] Moving ahead now about three years, Ms. B. said she began running away.

She credits this to a combination of a strained and difficult relationship with Mrs. Bachman and to her wanting to get away from what she described as Mr. Bachman's constant inappropriate touching. She said she ran away one last time and never returned. But cross-examination suggested a more complex set of circumstances: Ministry records showed the Bachmans had asked the Ministry to remove Ms. B. This occurred in 2004. As I mentioned earlier, the Ministry then placed Ms. B. Ms. B. remained in a group home, where she remained until she turned 16, by then old enough to live on her own. [ 31 ] Ms.

B. continued to see Ms. Peterson. She also remained in contact with Mr. Bachman after she left the Bachman home. She remained angry at Mr. Bachman. She treated him disrespectfully in front of others. Ms. B. supposed others must have noticed her behaviour. She saw him as largely responsible for her troubles, she said, and thought it was fitting that she demanded rides and other favours from him, reasoning this was only right given what she felt he had put her through. Sometimes Mr. Bachman drove her to Ms. Peterson's counselling sessions. [ 32 ] After being on her own for a while, Ms.

B. began associating with a bad crowd. She smoked marihuana and began heavily consuming other drugs. She recalled that in the year or so before Constable Combo had interviewed her, she had begun using crystal meth. [ 33 ] The evidence failed to produce a reliable timeline on when Ms. B. began to become a heavy user of drugs, including crystal meth. But considering the evidence of Ms. B. and Ms. Peterson, it is likely the timeline ranged between 2007 and 2008, possibly more or less wide-ranging than that. [ 34 ] Defence counsel mentioned literature on crystal meth to Ms. B.

The literature stated excessive use of crystal caused mental confusion. Ms. B. denied experiencing mental confusion for events she had experienced. She denied symptoms of anxiety, paranoia and hallucinations, all of these commonly associated with crystal meth addiction. She admitted to some violent behaviour. Her family doctor has never told her she might have suffered brain damage from her use of crystal meth. [ 35 ] Much to Ms. B.'s credit, she overcame her addiction to crystal meth and other drugs. She appears to be doing much better.

Whatever the portion crystal meth and heavy drug use might have contributed to it, Ms. B. describes her memory as horrible. She grants that using crystal meth and marihuana worsened it; marihuana, she believes, probably more so than did the crystal meth. [ 36 ] After she left the Bachman residence, Ms. B. continued to see Ms. Peterson for counselling. This gave Ms. Peterson a first-hand view of Ms. B.'s mental processes when she heavily consumed crystal meth and other drugs. [ 37 ] Apart from Ms. Peterson, Ms.

B. told no one that she had been subjected to sexual touching, not K., not her social worker, not a teacher or a school counsellor. She said nothing to Mr. Bachman's daughter, who Ms. B. liked, describing her as "sweet and kind". She did, however, complain to others about Mrs. Bachman's allegedly unfair treatment of her. On this point, it is worth mentioning that Ms. B. also granted that Mrs. Bachman's strict routines helped her to do well at school, taught her how to finish a task properly; and she agreed Mrs. Bachman treated her kindly when her mother died. [ 38 ] Ms. Peterson was the first person Ms.

B. said anything to about Mr. Bachman sexually touching her. This disclosure occurred in January 2006. I will turn to Ms. Peterson's evidence about that shortly. For now, I will just note that Ms. B. revealed no specific details of the nature of the sexual touching to Ms. Peterson. When Ms. B. made this first disclosure, she also warned Ms. Peterson that, should she inform the authorities, she would lie, and tell them nothing had happened between her and Mr. Bachman. Ms. B. explained her remark to Ms. Peterson by saying she was not yet ready to tell anyone else about it. [ 39 ] On March 28, 2009, however, Ms.

B. gave a statement to the police, urged to do so by her boyfriend, with whom she said she had had fallen in love. [ 40 ] Ms. B. explained that she and her boyfriend had a good relationship, one that made her feel comfortable enough to tell him about what had happened to her. He became angry, she said, about what he had heard and he encouraged her to report it to the police.

Thus encouraged, she recalls her boyfriend accompanied her to the police station, where she gave a statement. (The police evidence does not note his presence at the police station on March 28, 2009). [ 41 ] Cross-examination on the nature of Ms. B.'s relationship with her boyfriend revealed a more tangled thicket of events preceded the March 28, 2009 disclosure to the police than the sense of it Ms. B. conveyed on direct examination. I will discuss that briefly now. [ 42 ] Defence counsel challenged Ms. B.'s portrayal of a good relationship between her and her boyfriend. Ms.

B. rejected counsel's suggestion the relationship with her boyfriend had been bad and that whatever she told him about her experiences with Mr. Bachman she had said hoping that he would respond sympathetically. While that suggested motive remains in the sphere of counsel theories, what is not theoretical is that during Cst. Combo's March 28, 2009 interview of Ms. B., Cst. Combo had noticed some matters in the police record that, for her, raised credibility concerns. [ 43 ] One of these was a s. 810 Criminal Code application set against Ms. B. for March 30, 2009, the following Monday. The hearing

came about because Ms. B.'s boyfriend had applied for a peace bond. In turn, this arose out of an incident involving Ms. B. and her boyfriend on January 9, 2009. Asked about it, at first, Ms. B. could recall nothing. She did not know what the peace bond was about or the nature of the allegations entailed in it, not until defence counsel put to Ms. B. the transcript of the peace bond proceedings to read out portions of it. Even then, Ms. B. disagreed with some of the particulars the peace bond prosecutor had read out to the Court at the hearing.

These were what in the first place had led her boyfriend to request an order that would prohibit her from going to his family home. [ 44 ] The need for a peace bond rested on the boyfriend’s stated concern that Ms. B. could cause him or his brother personal injury. I will not detail the precipitating incident much, except to say that Ms. B. had become angry, lost control, and ended up assaulting her boyfriend's brother. She also broke a glass on the pavement. The police attended and arrested her. As an aside, I should note that the peace bond prosecutor explained to the judge that Ms.

B. continued to have a relationship with her boyfriend and that the object of the peace bond was to prevent her attendance on the family home, not to stay away from him. Therefore, Ms. B’s testimony that her boyfriend encouraged her disclosure to the police does not stand flatly contradicted. [ 45 ] Ms. B. acknowledged at the peace bond hearing that she needed counselling for anger management. At trial, Ms.

B. explained, in sum, that her relationship with her boyfriend had its ups and downs and suggested that when she went to the police on March 28, it must have been in a good phase. [ 46 ] But the greater concern here stems not from that element so much as it does from Ms. B.'s poor recall of the incident and her refusal at this trial to accept portions of what the prosecutor had read into the record and defence counsel had pointed out to her. Ms.

B. posited a version different from parts of those that the prosecutor had told the judge, but when the judge asked if the prosecutor’s facts were correct, she told the judge they were true. [ 47 ] When asked about this admission to the judge who heard the peace bond, Ms. B. she had said what she had to say to get out of the situation. [ 48 ] Now, back to Ms. Peterson's evidence. [ 49 ] As I mentioned, Ms. Peterson first met with Ms. B. in February 2002. Mr. Bachman accompanied and introduced her. At first, Ms. Peterson saw Ms. B. on a weekly basis. The frequency of the sessions gradually decreased. [ 50 ] Ms.

Peterson knew the Bachman family through her counselling of them. Mr. Bachman accompanied Ms. B. to some meetings. [ 51 ] On January 5, 2006, Ms. B., by then age 17, told Ms. Peterson that she had something to tell her but she could not tell anyone else. She said Mr. Bachman had touched her on her crotch and breasts. Ms. B. told her that if she told anyone else she would lie about it, and if asked, say it did not happen. Ms. Peterson asked her to tell her social worker. Ms. B. never did. Ms. Peterson explained she did not report it herself because she worried Ms. B. might run away or harm herself if she did.

She saw that as too great a harm to chance. [ 52 ] Ms. Peterson did not recall Ms. B. presenting with drug related symptoms then, although she thought she had been using marihuana. After hearing Ms. B.'s statement, Ms. Peterson told Ms. B. she was not to have further contact with Mr. Bachman. [ 53 ] After the meeting, and later on that same afternoon, Ms. B. telephoned Ms. Peterson and told her she had told Mr. Bachman that she had disclosed to her what had happened. Towards the end of that same afternoon, Ms. Peterson's receptionist advised Ms. Peterson that Mr. Bachman was coming to the office.

He had no appointment. [ 54 ] Ms. Peterson said Mr. Bachman looked distressed when he came in. This is how Ms. Peterson put it: He came into my office and blurted out, "I touched her, but did not have sex with her". Ms. Peterson wrote those words in quotations in her notes. She described Mr. Bachman as apologetic and tearful. She did not converse with Mr. Bachman about any details, however, she just listened. Further, she did not ask what Mr. Bachman meant by "touched". Mr. Bachman said nothing about the matter in any counselling session in the years that followed. [ 55 ] Ms.

Peterson also continued to counsel Ms. B. In succeeding sessions, Ms. B. mentioned to her that “it had happened" more than once, but Ms. Peterson did not get details of "what had happened". [ 56 ] In cross-examination, Ms. B. insisted she was present in Ms. Peterson's office when Mr. Bachman saw her on January 5, 2006 and “confessed” which is as Ms. B. saw it. Asked several times about this by defence counsel, she said she was positive about that. She can clearly see Mr. Bachman slumped in his chair, crying, she said. But Ms. Peterson does not remember Mr.

Bachman having been present on any occasion when a discussion about touching occurred with Ms. B. present. She granted a chance of it, given it was seven years ago now, but said she had no recollection of it. [ 57 ] I find Ms. B. was not present during any such discussion between Ms. Peterson and Mr. Bachman. I doubt Ms. Peterson would have allowed such a significant meeting without careful preparation, precautions and detailed notes of what occurred. She surely would recall such a significant meeting, had it occurred. [ 58 ] Although Ms. Peterson cautioned both Ms. B. and Mr.

Bachman against further contact, it continued. [ 59 ] I will briefly digress to another topic raised during both Mr. Bachman's and Ms. B.'s sessions with Ms. Peterson. Its relevance just lies in the fact that Mr. Bachman corroborated to some extent Ms. B.'s complaints that Mrs. Bachman favoured K., the other foster child, over Ms. B., that she required her to complete what seemed undue amounts of house and yard work, and that at times she excluded her from the family table. The significance of this evidence lies in the corroboration it gives to that portion of Mrs. B.’s testimony. [ 60 ] Counsel questioned Ms.

Peterson on her knowledge of Ms. B.'s use of crystal meth and other drugs. As I mentioned, she did not have concerns about that in January 2006, and I cannot confidently confirm a drug use timeline, but I find Ms. B. most likely used crystal meth in 2007. The exact dates are not as important as are the effects of using such a powerful and effective drug over a prolonged period.

[ 61 ] By October 2011, around the time of the preliminary inquiry, Ms. Peterson said that although Ms. B. still required counselling, she had come a long ways. She was attending school and doing much better. But at the peak of Ms. B.'s drug use, she was an absolute mess, as Ms. Peterson put it. [ 62 ] On cross-examination, Ms. Peterson confirmed observations she made at preliminary inquiry regarding the effects of crystal meth on Ms. B.

There, she said at p. 19, slightly redacted to make it easier to follow: Q Now, during the time when she was heavily encumbered by crystal meth was her speaking to you and -- and you speaking to her, could you tell whether her thought process was ... being interrupted by drugs? A Oh, definitely. Q How was it manifested? What was she – how was she speaking? Was it in -- A Well, cognitive distortions for sure. Q And give me an example of that. I -- I know those words, but I don’t have an example. A Well, her thought processes were so disrupted. She – she didn’t think clearly at all.

And she wasn’t eating properly, she wasn’t taking care of herself. All she was doing – she wasn’t sleeping. No self-care at all. Just all – all it was is drugs, drugs, and more drugs. And not making decisions about her life. ... Q So her ability to --- to recall events and describe them accurately would be compromised, would it? A Yeah, it could be, for sure. Q And you know what it is that finally got her off the drugs? A Oh, the other thing I did, I threatened her that I was not going to see her anymore. I said "I’m not having you in my office like this." ...

And I think my shrieking voice, yelling at her and telling her that this is it, and threatening that I am going to have the police come here, and I -- I think she finally realized I meant business -- and that this would be the end. Q Okay. As I understand it, she wanted control of her life from a very early age. A Yes. Q She got control of her of life and mismanaged it to the point where she was in denial, drug addiction, and abuse, correct? A Correct. [ 63 ] At the lowest point of Ms. B.'s crystal meth addiction, Ms. Peterson describes Ms. B. as looking like she was living on the street.

She had picked away so much flesh on her arm that she had opened a hole deep enough to expose bone. Picking at flesh is not uncommon with crystal meth addiction. Ms. Peterson recalls telling Ms. B. she was worried that her next call about her would be one informing that she was dead. [ 64 ] Asked by Crown counsel on redirect examination how crystal meth use could compromise Ms. B.'s thinking, Ms. Peterson explained that when Ms. B. was under its influence she experienced cognitive distortions and was not thinking clearly.

She would be definitely all over the map, she said, could not concentrate or keep commitments, and she could not focus. Her world was “topsy-turvy” and her thinking was impaired. She agreed that it takes a while for crystal meth to get out of the system. [ 65 ] Constable Combo was asked about two police incidents involving Ms. B. Defence counsel submits these are relevant as they tend to show Ms. B. is capable of making false accusations to those in authority to achieve ends she desires. [ 66 ] A 2006 incident saw Abbotsford Police attend a scene following a call they received from a girlfriend of Ms. B. Ms.

B. gave a statement to police stating the boyfriend had assaulted the girlfriend. She, that is, the girlfriend, and her boyfriend said Ms. B. had said wrongly, and that no assault occurred. Police never followed up on the matter after that. Ms. B. denied at the present trial that she had given a false statement. [ 67 ] Constable Combo could not confirm what had actually occurred and I could not make sense enough of this incident, especially given Constable Combo's somewhat equivocal comments to conclude Ms.

B. intentionally gave false witness on that occasion. [ 68 ] Another incident occurred in January 2007, when Ms. B. did give the police a false statement about an incident. She called police and alleged Mr. Bachman had assaulted her at the Shell station on Mt. Lehman Road in Abbotsford. Officers investigated and concluded it was the other way around. Ms. B. had assaulted Mr. Bachman. It was noted Ms. B. had changed her story. Constable Combo did not know how the investigating officer had coded the incident, but whichever way they did, they took no further action. [ 69 ] Ms.

Peterson also testified about a physical altercation that occurred between Mr. Bachman and Ms. B. Mr. Bachman was injured and required several surgeries on his arm. I understand this to be a different episode from the other one I just referred to. In any case, in September 2007, Ms. B. discussed this last altercation with Mr. Bachman and Ms. B. in her office as it had so concerned her. Ms. Peterson told the Court that she saw the relationship between Mr. Bachman and Ms. B. as a toxic one.

She regarded them as both to blame and asked both of them to stop seeing one another. [ 70 ] I will not canvass the rest of the evidence heard at trial. I have reviewed and considered it.

Crown’s burden of proof [71] I now turn to a brief discussion of the Crown's burden of proof and the principle of reasonable doubt. Then, I will brieflysummarize the submissions of both counsel followed then by reasons for the decision I reach. I will keep references to case names andcitations to a minimum for now and add them after I receive a copy of the transcript. [72] I sit as a judge alone in this case.

That means I have to instruct myself on the law, reminding myself, in other words, of what Iwould say to a jury if I were sitting with one. [73] Some criminal cases are taken up with challenging legal questions, but this is not one of them. The question in this case iswhether the Crown has proven the essential elements of the three counts against Mr. Bachman beyond a reasonable doubt. [74] Reasonable doubt is a term constantly heard in criminal cases, but it does not become any less important for being so shopworn.It is talked about so much because it is so important.

In fact, the Crown's duty to prove its case beyond a reasonable doubt is not just acornerstone of the criminal law, but also one of the pillars of Canadian democracy. Reasonable doubt is inextricably linked with thepresumption of innocence enshrined in the Canadian constitution. They go hand in hand. Without the safeguarding principle ofreasonable doubt, the presumption of innocence would not count for very much. [75] Reasonable doubt is not an invention of philosophy.

It is the hard won product of centuries of the trials and errors of humanexperience, which includes wrongful convictions that have led to the executions of people later found innocent of any wrongdoing. [76] Reasonable doubt imposes a burden on the Crown that never shifts throughout the trial. [77] The accused does not have to prove anything. A person accused of a crime has the right to sit in silence and rely on thepresumption of their innocence and the Crown's duty to discharge the burden it alone carries. [78] Sympathy for the complainant cannot be a basis for establishing guilt.

Reasonable doubt must connect logically to the evidence,based on reason and on common sense. A reasonable doubt cannot be frivolous or unduly speculative. The burden of proof the Crowncarries applies to the evidence as a whole, not to individual items of evidence. [79] In the range of levels of doubt that lie between probable guilt and absolute certainty of guilt, reasonable doubt lies much closerto absolute certainty of guilt than it does to probable guilt. Therefore, if I were to conclude after considering all the evidence in its totalityonly that Mr.

Bachman is more likely than not guilty of these charges, I must find him not guilty. [80] I said at the start that Ms. B.'s credibility as a witness, especially the reliability of her testimony, is a central issue in this case.Deciding upon a witness's credibility involves more than coming to a decision on whether a witness is trying to be honest and notdeliberately deceitful. Even if satisfied that a witness is doing their best to be honest, the factual content of their evidence has to be testedto see if it is reliable.

Once satisfied that the witness is trying to be truthful and that their account is reliable, a judge can safely concludethat their evidence is credible. [McWilliams' Canadian Criminal Evidence, vol. 2, 4th ed., loose-leaf (updated June 2012), (Aurora:Canada Law Book) at 27:10.] [81] As Justice Estey explained in R. v. White, (SCC), [1947] S.C.R. 268, credibility is a question of fact; it is notbased on a set of rules. Justice Estey said, slightly altered for neutral language: ... It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.

The generalintegrity and intelligence of the witness, [their] powers to observe, [their] capacity to remember and [their] accuracy in statement areimportant. It is also important to determine whether [they] are honestly endeavouring to tell the truth, whether [they] are sincere andfrank or whether [they] are biased, reticent and evasive. All these questions and others must be answered from the observation of thewitness's general conduct and demeanour in determining the question of credibility. [82] A witness's demeanour is relevant, but credibility does not rest on demeanour alone.

Nor does a witness's expressions ofconfidence in their belief about their testimony strengthen it, especially when its reliability is questionable. The totality of all theevidence must be examined in a cumulative way to determine if a witness's evidence is reliable and whether there is a reasonable doubt,notwithstanding the apparent credibility of the victim.

An assessment of credibility turns on a broader assessment of the witness'stestimony, whether it is consistent, whether it makes sense or is inherently hard to credit and how it ties in to all the evidence in the case. [83] Defence counsel pointed to a considerable number of inconsistencies between Ms. B’s various ‘testimonies’: ones betweenstatements she had made to the police and her testimony at trial; and as also compared to what she said at the preliminary inquiry; and toinconsistencies between different portions of her own testimony given at trial.

He also referred to what he characterized asimprobabilities in her testimony. [84] In R. v. R.W.B., [1993] B.C.J. No. 758 (C.A.), the Court of Appeal reminds us (at para. 29) that where the Crown's case dependswholly on the testimony of the complainant, the credibility and the reliability of their evidence has to be tested in the light of all the otherevidence presented, and, that: [29] ...

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies maybecome quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness' evidence. There is norule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of theinconsistencies in order to assess whether the witness' evidence is reliable. This is particularly so when there is no supporting evidenceon the central issue. [85] As also noted in R. v.

R.W.B., supra, if the evidence shows a witness has no reason to lie, it does not logically follow that thewitness must be telling the truth. A motive to lie, or not, is but one factor a judge may consider when assessing a witness's credibility; but

it is not the only factor to be considered. [86] The Crown alleged a range of dates for the three counts: While it is obviously important to provide an accused with sufficient information to enable him or her to identify the transaction andprepare a defence, particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose. It goeswithout saying, of course, that there may be cases where it is. [R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30 at para. 28.] [87] I am getting near the end now of my review of legal principles. [88] But turning now to the testimony of young children, the Supreme Court of Canada has made it clear that judges should take acommon sense approach when dealing with their testimony. The courts must carefully assess the credibility of child witnesses and thestandard of proof must not be lowered.

But flaws in a child's testimony: ... such as a contradiction ... should not be given the same effect as a similar flaw in the testimony of an adult. ... [And] the standard of the“reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30 at para. 48.] When an adult testifies on childhood events, their credibility should be assessed based on criteria applicable to them as an adult witness.But when an adult testifies about childhood events, particularly on "peripheral matters such as time and location, should be considered inthe context of the age of the witness at the time of the events to which [they are] testifying.” [R. v. W.(R.), (SCC), [1992]2 S.C.R. 122 at para 26.] Positions of the parties The Crown [89] Now I will discuss the basic positions of counsel. [90] Crown counsel submits that given Ms.

B.'s difficult life experiences, it is not surprising she has such a poor memory, especiallyon peripheral matters. Counsel submits that while testimony Ms. B. gave could be construed as lying – for example, some of hertestimony about the peace bond hearing on March 20, 2009 – it could also be attributed to very poor memory for events. [91] Crown counsel referred the Court to R. v. Francois, [1992] O.J. No. 866 (Ont. C.A.) and submitted that the notion thatdiscussions about past events can revive repressed memories is not inherently unreasonable. She submits that the lack of coherence andcontinuity in Ms.

B.'s life experience and her former drug use explains her poor memory for peripheral events. [92] I agree that is a consideration, but Ms. B. did live in the Bachman home for about four years and she has testified that a largenumber of her daily life's experiences still trigger memories of what occurred to her. Although Ms. B. explained she tries not to thinkabout those past events, this is not a case where significant memories have been long repressed and only recently recalled. [93] Crown counsel submits Ms. B.'s testimony is corroborated in at least two respects: first, by Mr. Bachman as regardsMrs.

Bachman's alleged mistreatment of Ms. B.; and second, in Mr. Bachman's statement to Ms. Peterson in January 2006. [94] Crown submits Mr. Bachman's statement to Ms. Peterson in January 2006 should be regarded as a confession. She submits theway Mr. Bachman structured his statement to Ms. Peterson, "I touched her, but there was no sex," with the immediate conjunction of thereference to sex and touching must mean he touched her sexually. In other words, no sexual intercourse, but sexual touching. She submitscommon sense compels that conclusion. [95] In sum, Crown submits that after the Court makes allowance for Ms.

B.'s life experiences, her age at the time of the offencesalleged, her strong memory of instances of sexual touching, the relative inconsequence of her poor memory on peripheral matters, andthe presence of strong corroborative evidence in the form of a confession, her testimony is worthy of belief and calls for a guilty verdicton all counts. Defence Counsel [96] Defence counsel submits this is not a case of a few inconsequential inconsistencies, but one filled with significantinconsistencies that ought to concern the Court and lead it to conclude Ms.

B.'s testimony is unreliable. [97] I will briefly touch on some of defence counsel submissions. Along the way, I will comment on a couple of them. [98] Defence counsel stressed the central importance of the presumption of innocence, which he characterized as the Crown's hugeevidentiary burden. He submitted Ms. B.'s description of events must reveal a degree of accuracy so that, as we hear them unfold, theyare believable. He submits that is far from the case here.

He points out that the dates and times of events in our lives and our memoriesof the circumstances that surround them, is what anchor life events in reality. Inconsistent or shifting evidence on dates and thesecondary characteristics of events or an absence of any memory about them undermines our confidence in the reliability of what awitness says about an alleged event.

[ 99 ] Defence counsel further submits that when the Crown offers just one witness to events, it is not enough, on the one hand, to concede they have a terrible memory – thus making it nearly impossible to test its accuracy – and then, on the other, to urge the Court to find the witness's evidence credible. [ 100 ] Counsel submits that what Ms. B. has in effect said is, "Don't criticize my recall of events or rely on it. I have a horrible memory". He submits if memory falls below a trustworthy level it becomes worthless. [ 101 ] Regarding the August 1 touching Ms. B. alleged, defence counsel points out Ms.

B. offered the Court four different years for when it occurred; yet this was the worst of the sexual touching Ms. B. said she experienced. [ 102 ] Defence counsel pointed out the Crown offered no evidence to show Mr. Bachman's actual birth date and Ms. B. could not recall any significant birthday related activities, such as a party or birthday dinner, that anchors the alleged experience in reality. He submits that Mrs. Bachman's purported absence on the day of Mr. Bachman's birthday and the fact that none of the dates Ms. B. offered fell on a weekend day leaves nothing except Ms.

B.'s free unanchored assertion of an event. [ 103 ] Defence counsel further points out Ms. B. testified the master bedroom where the alleged August 1 touching purportedly occurred was darkened, which makes it unlikely Ms. B. could see Mr. Bachman's expressions, as Ms. B. claims. In her previous day's testimony, Ms. B. had said the lights were out but there was enough light to see. She made no mention of the television being on. Counsel submits, however, that the Court should be concerned that the day following that testimony, Ms.

B. stated, for the first time, that the television was on in the room, thus shedding enough light for her to see Mr. Bachman's face, and his alleged facial expressions. He submits Ms. B. conveniently invented this evidence. [ 104 ] Counsel pointed to a number of other significant inconsistencies, or absence of evidence, on central questions, such as when the abuse began. On this point, Ms.

B.'s testimony on that ranged from the very first day she arrived to a time after her mother's death, which she thought was a year later of her having first arrived at the Bachman residence. [ 105 ] Counsel stressed that some of Ms. B.'s inconsistent statements related to the nature of what she had said was, in her mind, the worst of the sexual touching she experienced. He argues that Ms. B.'s preliminary inquiry evidence about Mr. Bachman inserting fingers into her vagina is not believable, that Ms. B. realized this and so wanted to recant at trial. He submits that given the way Ms.

B. recalled the August 1 event had unfolded that night, and based on her age then, she could not fail to remember the experience of digital penetration. [ 106 ] At trial, Ms. B. explained she felt unsure about whether it had occurred or not, so she therefore thought, given such uncertainty, she ought to correct her earlier evidence. Counsel submitted that if that was her true recollection, she should have said so in the first place. [ 107 ] Counsel pointed to Ms. B.'s period of heavy drug use and its damaging effects on her cognitive processes.

He submitted her testimony showed her memory was selective, leaving the court unsure as to when the individual counts of sexual touching had occurred. And, when asked for details, she offered few, if any. [ 108 ] Counsel submits that Ms. B. having waited so long to report her experiences makes no sense and brings the credibility of her complaints into question. Had she been a compliant child, he submits, such a failure might be reasonable, but the evidence shows, he submits, she was a rebellious child, who did what she wanted. He pointed out Ms. B. complained to others about the way Mrs.

Bachman treated her, yet she said nothing about Mr. Bachman to any of the people she had spoken to about that, including Ms. Peterson from February 2002 to January 2006 – and then, she forbade Ms. Peterson to say anything to the authorities. It was not for a further three years that she made her further disclosure to Cst. Combo, in March 2009. [ 109 ] Defence counsel's submission that the long time elapsed between Ms. B.'s disclosure to her therapist and her statement to Cst.

Combo brings her credibility as a witness into question and is not persuasive. [ 110 ] Lengthy delays in reporting a crime of sexual abuse may weaken, in some circumstances, the credibility of the complainants. But judges dealing with allegations of child sexual abuse should be cautious about drawing such conclusions. It is common knowledge incidents of sexual misconduct in general, and childhood incidents in particular, are under reported. Victims of childhood sexual abuse often experience conflicted feelings, including guilt. They often find themselves in a vulnerable position.

If the Court were quick to measure the credibility of a complainant based on the time elapsed between the incidents and the date they are reported to police, it could chill victims’ willingness to report their experiences. Of course, every case must be decided on its unique set of facts. [ 111 ] In this case, the point of defence counsel's submission has some merit, but when I weigh Ms. B’s testimonial honesty, I place little weight on the timing of Ms. B.'s reporting of the alleged misconduct. [ 112 ] What is most significant about Ms. B’s late disclosure is the fact that Ms. B. revealed to Ms.

Peterson so little of what she had experienced, and then refused to follow the strong recommendations of a trusted counsellor that she speak to her social worker about it. The practical consequence of this for the Crown is that Ms. B’s failure to disclose to Ms. Peterson dates and details of the alleged sexual touching left it with no written record of a past recollection. Ms. B. once was in a position before the effects of drug abuse came into play, to give such information.

Where the reliability of the complainant’s testimony is the only question and the complainant admits they have a horrible memory, the absence of such anchors become more important. [ 113 ] Counsel questioned Ms. B.'s motives for bringing her allegations forward. As mentioned, the absence or presence of motives is just one factor a judge may consider in a case like this. [ 114 ] Also relevant are statements Ms. B. made to Constable Combo about the anger and resentment she felt towards what she saw as the undeserved attention Mr.

Bachman had been receiving then of late due to his medical problems, her feelings compounded by her resentment over the benefit rock concert that was being planned to help him. When Ms. B. saw posters at school advertising the event, she torn them down.

[115] Counsel also referred to Ms. B.’s having waived her right privacy in this case and her confirmation that she saw herself as anexample to other victims and her hope it would give them the courage to come forward. I expect purely dispassionate witnesses allegingsexual childhood abuse are rare. While hatred might not necessarily lead a witness to lie, it could certainly make them more prone toexaggerate their experiences in hopes doing so will increase the chances of a conviction.

In the present case, some elements ofexaggerated language were present: a claim that sexual touching was happening constantly in a home with three other adults and ateenage boy present is one example. I accept Ms. B. did not intend those words to be taken in a literal sense; but such exaggerateddescriptions are present in portions of her testimony. [116] Counsel also emphasized the fact Ms. B. defied Ms. Peterson's January 2006 admonition that she should have no further contactwith Mr. Bachman.

Instead, for another year, or more, she continued to see him and call on him to meet various needs she had. [117] Purposefully acting in such an overtly disrespectful manner towards Mr. Bachman in front of others, while at other timesdemanding that he render aid is understandable, viewed from a certain perspective. But it also raises questions about Ms. B’s intentionsand objectives. [118] Regarding Mr. Bachman's January 2006 statement to Ms.

Peterson, counsel for the accused submitted that without knowing thequestion, and at such a distance as this from the event, one cannot make out the true meaning of the statement. [119] Ms. Peterson was the only person present able to ask the question "What do you mean by touching?" which should not be takenas a criticism – she is a therapist, not an investigating police officer or a lawyer.

In any case, counsel submits that touching can becharacterized in any number of ways; as innocent, disciplinary, accidental, and so on. [120] Counsel argued that, like everything else in the Crown's case, there is no context. [121] I have spent more time on defence submissions than those of the Crown because these represent Mr. Bachman’s answer to thecharges against him. I have considered all the evidence, including both counsel's able submissions. So I now turn to my decision. [122] Turning first to demeanour, which refers to a witness's bearing, the way they present themselves: Ms. B. presented well, asmature.

She was poised. She spoke well. She did not appear to lack for intelligence. She showed little emotion. She appeared undauntedby an aggressive cross-examination that on occasion raised objections from Crown counsel. The questioning was unsparing, but in myview, it did not cross over the line. Ms. B’s rhythms of speech did not display exaggerated or unnatural inflections, which judgessometimes encounter.

But as mentioned, some testimony bespoke exaggeration. [123] On the subject of demeanour, Justice O’Halloran commented that “the law does not cloth the trial Judge with a divine insightinto the hearts and minds of witnesses”. [Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152 (C.A.) at para.12.] [124] In sum, a witness’s demeanour may strengthen the testimony of a witness found to be reliable.

But it cannot rescue testimonyfound unreliable. [125] I will now discuss credibility and reliability. [126] A hard consequence of a childhood visited with a successive of setbacks and troubles is that those experiences can then generatea pattern of behavioural problems that then mark their childhood and adolescence. In turn, these become the building materials for apersonal history of behaviours that look bad and can lead people to question whether their owner is a credible person; especially shouldthey then have to testify about incidents that occurred in their childhood and adolescence.

Such children are often also among those mostsusceptible to abuse. I have made allowances for Ms. B. in this regard. [127] In this case, it appears Ms. B. has come a long ways, as Ms. Peterson put it. She has furthered her education and has shed badinfluences. She appears to lead a productive life now. Crystal meth is a highly addictive substance. It is one of the most difficultaddictions to overcome. It redounds to Ms. B.'s credit that she is among not a great many that have been able to overcome their addictionto crystal meth. I have considered that. [128] I did not find Ms.

B. was a deliberately dishonest witness. At times, she tended towards exaggeration, although she appeared tobelieve she was telling the truth to the best of her ability. But the evidence revealed too many instances that give pause for significantconcern. Instead of simply granting that she was mistaken, for example, or simply did not know, Ms. B. sometimes quibbled over factsthat she had no basis on which to contest them. [129] As touched on earlier, when Ms. B. testified about the facts that gave rise to the peace bond application, she disputed those facts,which at the hearing, she had accepted as correct.

She refused to acknowledge she had told the judge that her conduct had stemmed froma fear of abandonment. Ms. B. was 21 at that time. [130] Ms. B.'s widely incongruent accounts of when the sexual touching began do not relate to inconsequential peripheral matters. It isdifficult to accept that her

interpretation of the way Mr. Bachman looked at her 13 years after the event is a reliable retrospectiveinterpretation of a memory that an 11-year-old child would likely store in memory so many years. Ms. B.'s alternate testimony that sexualtouching did not begin until after her mother's death is difficult to anchor in reality when it is inconsistent with other evidence; and whenMs. B. cannot recall the year that occurred. [131] Another example of the inconsistencies found in Ms. B.'s testimony stems from her contrasting statements as to whether shewore undergarments when she wore pyjamas.

At first, she told Constable Combo that she did, suggesting to Cst. Combo that this was agood thing because it got in the way of touching. In her later statement, she said she never wore undergarments under her pyjamas. Attrial, she explained away the contradiction by saying sometimes she did, sometimes she did not. [132] This is emblematic of selective memories and a tendency to gloss over difficulties in the evidence with convenient patexplanations.

[ 133 ] Standing alone, the distorting effects of crystal meth and other drugs on Ms. B’s memory give cause for concern about the reliability of Ms. B.'s memory. [ 134 ] Similarly of concern is the way Ms. B. disregarded Ms. Peterson's admonition that she stop seeing Mr. Bachman. The explanation that she was using Mr. Bachman to meet her needs then does not reflect well on her intentions. It casts her refusal to report her allegations to her social worker, as her trusted counsellor had encouraged her to do and her continuing contact with Mr.

Bachman in an unfavourable light. [ 135 ] I agree with defence counsel that Ms. B. displayed selective memory. [ 136 ] At times, she did give some circumstantial details, for example, in her recalling that she, K. and Mr. Bachman watched "Crouching Tiger Hidden Dragon" the time she said Mr. Bachman had reached his hand under her blouse and sexually touched her. [ 137 ] For another positive example of decent circumstantial detail, Ms. B’s description of what occurred when age 13 on a drive to Maple Ridge to visit a grandmother had about it a ring of truth. Further, Ms.

B. never alleged sexual intercourse occurred between her and Mr. Bachman. Such an allegation would have been easy enough to make if Ms. B. was totally indifferent to the facts. This somewhat bolsters her reliability as witness. [ 138 ] Regarding the alleged confession, it is true that context is very important. Many classic stories, and not a few films, are driven by troubles that begin with words or deeds taken out of context. [ 139 ] The Court has no details of what Ms. B. told Mr. Bachman she had disclosed to Ms. Peterson in January 2006. Ms. Peterson did not question Mr.

Bachman about his remark when he came into her office. I agree Mr. Bachman's emotional response and the apologetic remarks Ms. Peterson mentioned could be construed as inculpatory. But the lack of contextual information calls for the exercise of caution. It is for good reasons that when police officers have to take unrecorded Charter -warned statements they go to the trouble of writing out the questions, not just the answers. Mr. Bachman's January 2006 statement to Ms. Peterson arguably corroborates Ms. B.'s testimony, but it is far from conclusive; and, in my view, cannot repair serious shortcomings in Ms.

B.'s testimony about her experiences. [ 140 ] I mentioned earlier the guidance the Supreme Court of Canada has given trial judges about how they should regard the testimony of adult witnesses when it relates to peripheral facts such as times and locations of a childhood experience. Of course, what constitutes a peripheral fact depends on the facts of a given case. Minor inconsistencies in a case do not diminish the credibility of a witness. But a series of inconsistencies become a significant concern.

This is especially so where, as I have mentioned before, the Crown’s chief witness testifies they have a horrible memory, and offer little in the way of secondary facts, to anchor their claimed memory of an event. Ms. B. was between 12 and 16 years of age. She was not a very young child.

Looking for context and secondary circumstances is something most people reflexively do when they want to question an unusual experience someone claims they have experienced. [ 141 ] A significant history of making false statements, albeit not a long one, is a factor that cannot be ignored. [ 142 ] When these and other such factors, as discussed in these Reasons accumulate, in their totality they can leave the trier of fact with a reasonable doubt about the reliability of the witness's evidence – even if that doubt is accompanied by a belief the witness is not deliberately lying.

There is no rule as to when, in the face of inconsistencies and other concerns, such doubt may arise. [ 143 ] I must consider the totality of Ms. B.'s evidence, not just inconsistencies and weaknesses in it, but strengths as well, and within the context of all the evidence presented in the trial, to decide whether Ms. B.'s evidence gives a sufficiently reliable basis upon which to found a conviction; and I have done so. [ 144 ] Considering Ms. B.'s evidence in its totality, whether in conjunction with Mr. Bachman's January 2006 statement or without it, I find her evidence is unreliable.

It lacks sufficient credibility to base a criminal conviction on it. This does not mean I find Ms. B. intentionally lied, but for the reasons discussed, I find Ms. B.'s testimony in support of the charges is unreliable and that it would be unsafe to rely on it for a criminal conviction. [ 145 ] Upon nothing less than guilt beyond a reasonable doubt can a judge say the Crown has met its burden. The evidence called by the Crown in this case falls short of meeting that burden, and considered in its totality, it leaves me in reasonable doubt. Accordingly, I find the accused not guilty. “N. Brown J.”