R. v. S.K., 2017 BCSC 366

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. S.K., 2017 BCSC 366 Date: 20170215 Docket: 62878-2 Registry: Chilliwack Regina v. S.K. Restriction on Publication: A publication ban has been imposed under s. 486.4(1) (2) and 486.5(1) of the Criminal Code there shall be no publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer. This publication ban applies indefinitely unless otherwise ordered. These reasons for judgment comply with the publication ban. Before: The Honourable Mr.

Justice Grist Oral Reasons for Judgment Counsel for the Crown: L.J. Kenworthy Counsel for the Accused: D. Petri Place and Date of Trial/Hearing: Chilliwack, B.C. April 11-15, 2016 April 18-20, 22, 2016 April 25-28, 2016 May 19-20, 2016 November 28-30, 2016 December 2 and 9, 2016 June 3, 2016 Place and Date of Judgment: Chilliwack, B.C. February 15, 2017 [ 1 ] THE COURT: The accused, S.K., is charged with sexual assault of her daughter, M.D., and failing to provide the young girl with the necessaries of life. The charges refer to a period of time from October 2011 to October 4, 2012.

M.D.'s date of birth was in August 2009. She had, therefore, turned three years of age in August, 2012, approximately seven weeks before the last date referred to in the indictment. [ 2 ] During the evening of October 4, 2012, the accused phoned a Chilliwack 9-1-1 operator to report that she thought her boyfriend, K.C., was raping her daughter. When the police attended the home from where the call was placed, they found the accused apparently asleep on an outdoor patio. On entry to the home, they found K.C. in an upstairs bedroom with the child.

He was arrested and the child taken to hospital. [ 3 ] K.C. remained in custody and, in March 2013, pled guilty to sexual assault and possession of child pornography in relation to the sexual abuse of M.D. Following his guilty plea, K.C. provided information to the police implicating the accused in the ongoing sexual abuse of her daughter. The accused was arrested on two occasions following this report. The first arrest was on April 11, 2013, on charges of sexual assault and criminal negligence. She was released on that day after giving a statement to police.

She was again arrested on August 22, 2014, on the present charges and again provided a statement to police. THE EVIDENCE OF K.C. [ 4 ] K.C. gave evidence for the Crown. He said he first met S.K. in the summer of 2011. By September, he was living at the residence she occupied with her daughter. Soon after, S.K. became pregnant with K.C.'s child, a son born in July, 2012. K.C.'s evidence was that soon after he moved into the residence, he told the accused he was sexually attracted to M.D. who had then just turned two

years of age. He said he began to ask to have the child with him in circumstances that indicated he wanted to use her for sexual stimulation. He said that S.K. allowed him to have the young child for this purpose. This first included sexual touching and oral acts performed on the child.

After one of these incidents, he admitted to S.K. that he had entered the child anally. [ 5 ] The Ministry of Child and Family Development (“the Ministry”) became involved with the family after this incident, following up on a report that K.C. had downloaded child pornography onto his phone while living in Prince George, where he lived with his wife and young daughter before he met S.K. The Ministry was concerned he might be a risk to sexually assault M.D. The social worker assigned to the case set up a plan that was to assure K.C. had no unsupervised contact with the child until the investigation was complete.

There were a number of visits following, the intention being to counsel the couple and observe the home. This ended with a final meeting, on January 13, 2012, that included K.C., S.K., and S.K.'s parents. K.C.'s evidence was that he discontinued sexual assaults on the child during the Ministry investigation, but soon resumed his sexual contact with her thereafter. [ 6 ] Still photographs of the child's genitals found on his phone were dated from January 27, 2012.

K.C. said that in total he had about 300 sexual encounters with the child over the months until his arrest and that incidents of intercourse proceeded from the first incident of anal intercourse from before the Ministry investigation to vaginal penetration. Many of these sexual assaults were recorded on his cellphone. He said the incidents of vaginal intercourse began in February 2012. He said he was intoxicated on that occasion and thought he was having anal sex with the child, but then determined he had entered her vagina. He said the child bled and he cleaned it up.

He said he reported this to S.K. and described her as not too distraught and said she told him she was glad he had told her. [ 7 ] K.C.'s evidence was that he would typically ask S.K. to have the child before his acts of sexual abuse, pleading at times until S.K. agreed he could have her. He said on a few occasions, S.K. was actually present during the incident to calm the child during the encounter. He also said she actually participated in three-way sexual acts with the child on perhaps three occasions. K.C. said the sexual assaults increased in frequency until shortly before his arrest on October 4, 2012.

He said he and S.K. had agreed that the sexual encounters with the child should stop because she was getting older and might begin to remember the abuse. THE VIDEO-RECORDING AND MEDICAL EVIDENCE [ 8 ] The videos recorded on K.C.'s phone showed 26 recordings of him having intercourse with the child. None of the videos were dated. Sixteen still photographs of the naked or semi-naked girl were dated, however, the first taken on January 27, 2012, and the last on September 7, 2012. [ 9 ] The medical evidence introduced by the Crown related findings made on October 5, 2012.

There was evidence of recent injury to her hymen and vagina, and some scar tissue in the same area dating from at least three months' prior to this date. The scar tissue indicated a significant earlier injury consistent with vaginal intercourse with an adult male. At the time, the earlier injury would have been a raw open area with a tendency to bleed. Urination would have been painful and diaper-changing uncomfortable. There was no apparent injury to the child's rectum.

MINISTRY OF CHILD AND FAMILY DEVELOPMENT INVOLVEMENT [ 10 ] The social worker who was assigned the file by the Ministry of Child and Family Development after the Ministry became involved on November 10, 2011, gave evidence that the Ministry concern was that K.C. might present a risk to sexually assault M.D. based on his downloading of child pornography onto the phone found in Prince George.

He said that S.K. appeared to be shocked by the allegation of K.C. having downloaded child pornography and that she gave no indication that K.C. had told her that he was sexually attracted to the child and, in fact, had already committed sexual assaults on her. The social worker proceeded on the basis of K.C. presenting a risk of sexual assault, but in circumstances where there was no indication such an assault had actually occurred. [ 11 ] The accused and K.C. agreed to a safety plan during the time that the Ministry would take to complete their investigation.

K.C. was never to be alone with M.D. during this period of time. There were several visits to the home following the first interaction with the couple. The final meeting was held on January 13, 2012, with K.C., the accused, and the accused's parents being present. The social worker dealing with the file said he told the accused that M.D.'s safety was her responsibility and referred to local programs and supports that might assist her. The next contact with the Ministry came on June 17, 2012, when another Ministry social worker detected signs that M.D. was under stress.

This social worker spoke with S.K. about this, but again, there was no expression of concern from S.K. or any indication from her there were ongoing sexual assaults. THE ACCUSED'S STATEMENTS [ 12 ] The accused's statements establish that she knew from soon after K.C. moved into her home that he had downloaded child pornography and was sexually attracted to her then two-year-old daughter. Soon after, he admitted to her that he had sexually touched and anally penetrated M.D.

Both of these incidents occurred prior to the Ministry investigation triggered by the child pornography found on K.C.'s phone while he lived in Prince George. The accused can give no account as to why she did not inform the Ministry social worker of these events and it seems most likely she chose to keep the situation hidden to preserve her relationship with K.C. [August 22, 2014 statement, Exhibit 2, tab 4, at page 87.] [ 13 ] Following the January 13, 2012, meeting, K.C. again began to sexually assault the child.

As previously noted, the first photographs recorded on his phone were from January 27, 2012, which is consistent with his evidence of when the sexual assaults next occurred. K.C.'s evidence was that, on many occasions, he would ask the accused if he could have M.D. and that, during one of the earlier assaults, she was present when he anally penetrated M.D. in order to comfort her during the assault. The accused denied she was

ever present, but admitted K.C. would often ask, “maybe a couple of times per month”, for permission to have sex with the child. [April11, 2013, statement, Exhibit 1, tab 7, page 254.] She said he would ask if he could “have M.D. tonight” or, "can I do this, can I do that".[April 11, 2013, statement, Exhibit 1, tab 7, page 248.] S.K.'s evidence was that she refused his requests, but also that she knew thesexual assaults were continuing. [April 11, 2013, statement, Exhibit 1, tab 7, page 278.] [14] Her statements reveal that for approximately one year until the 9-1-1 call of October 4, 2012, she knew there were ongoingsexual assaults on the child by K.C.; further, that she did not take any steps to protect M.D. or report K.C.'s behaviour.

Her admissions,however, do not go so far as to confirm K.C.'s evidence that she was actually present during or participated in the assaults. ANALYSIS [15] The evidence of K.C. requires the cautious scrutiny required when considering evidence from a disreputable source. K.C. cameto police attention as a result of S.K.'s 9-1-1 call and he has been subsequently sentenced to a significant penitentiary term ofincarceration.

In the circumstances, incriminating evidence given by him should only be accepted if it finds confirmation in other reliableevidence that supports what K.C. has given in his testimony. [16] Here, the severity of the sexual assaults on M.D. as related by K.C. is confirmed by the medical evidence of the damage to thechild's vaginal area.

Confirmation of his account of sexual assaults on the child beginning about October 2011, interrupted for a timeduring the Ministry investigation and continuing from the end of January until K.C.'s arrest on October 4, 2012, is also found in theaccused's admissions that he had told her of his sexual interest in the child on an occasion in October 2011, followed by an admission ofanal intercourse with the child prior to the Ministry investigation, and K.C.'s repeated requests for sex with the child from the end ofJanuary 2012 until the last incident. [17] K.C.'s account of the frequency of these assaults suggests they were much more frequent than S.K. accounts for.

Further, hisestimate of the number of video-recordings of the assaults was approximately double the number found on his phone. Nonetheless, theaccused admits that K.C. made requests, maybe a couple of times per month; and that from January 2012 she knew the sexual assaultswere continuing.

The evidence found on K.C.'s phone and the evidence from the accused through her statements does not fully supporthis account of the frequency of the assaults, but does support the more general statement that the assaults were numerous and ongoingfrom January 2012 until the date of his arrest. [18] There is no confirmation, however, that S.K. was present during the assaults or took

part in three-way sexual encounters withthe child. I do not find K.C.'s evidence alone to be compelling in this regard. Accordingly, the Crown's case relating to the charge ofsexual assault rests upon the accused being a party to the offence by virtue of the fact she acknowledged she knew her child wassuffering the abuse perpetrated by K.C. and took no steps to assure the child's safety. [19] In R. v. Popen (1981), 60 C.C.C. 2(d) 232 (Ont. C.A.), the case involved the death of a child being physically abused by theaccused's wife.

At para. 18 of the decision, the court set out the positive duty a parent is under to see to his or her child’s safety: [18] … [A] parent is under a legal duty at common law to take reasonable steps to protect his or her child from illegal violence usedby the other parent or by a third person towards the child which the parent foresees or ought to foresee. [20] Failure by the accused to do anything to protect the child in that case founded a conviction on a charge of criminal negligencethrough the failure to take any reasonable steps to protect the child from continuing abuse. [21] Failure to provide for a child's safety can also establish the basis for an accused being found a party to the substantive offence.In R. v.

Dooley, 2009 ONCA 910, one of the jointly charged accused struck their seven-year-old child causing the child's death. Thechild had been subject to ongoing physical abuse by both parents. Both parents were charged with the second degree murder of the child.It was clear one of the two had administered the blow, but it was not known with certainty which of the two had done it. In analyzing theculpability of the parent who had not struck the child, Doherty J.A. said at para. 119: [119] The conduct component that must accompany the culpable mental state is captured by the words "aids" and "abets".

Conduct caninclude omissions. A failure to act where there is a legal duty to do so, what V. Gordon Rose calls "culpable acquiescence", canconstitute

an act of aiding or abetting: see V. Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at pp. 18-19;Richard Card, Card, Cross and Jones Criminal Law, 18th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 760; David Ormerod,Smith and Hogan Criminal Law, 12th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 190; Brent Fisse, Howard's CriminalLaw, 5th ed. (North Ryde, Austl.: Law Book Company, 1990), at pp. 326-27; R. v. Nixon (1990), (BC CA), 57C.C.C. (3d) 97 (B.C.C.A.), at p. 114, leave to appeal to S.C.C. refused, [1990] S.C.C.A.

No. 316, [1991] 1 S.C.R. xii. [22] In review of the trial judge's jury instructions, he said at paras. 127 to 129: [127] The trial judge also told the jury that the Crown’s case for aiding and abetting rested on the contention that the non-perpetratingparent had failed to perform his or her parental duty to protect Randal from further abuse, and that the failure had helped or encouragedthe other parent to continue the abuse, which included the fatal assault.

He explained how a failure to act could constitute aiding orabetting in the following passages: I should add that aiding includes an omission to do something where the accused had a legal duty to act in the particular circumstances.As for legal duty, a parent owes his or her child a legal duty to prevent the infliction of harm to the child by the other parent where theinfliction of harm is reasonably foreseeable. The failure to take reasonable steps to protect the child may be viewed as a form of aid tothe other parent to harm the child. ...

I should again add that a parent owes his or her child a legal duty to prevent the infliction of harm to the child by the other parents where the infliction of the harm is reasonably foreseeable. The failure to take reasonable steps to protect the child from harm may be viewed as a positive encouragement to the other parent to harm the child. [128] The trial judge put the Crown’s case in these terms: That spouse [the non-perpetrator] owed Randal Dooley a legal duty to have protected him from physical harm.

That spouse’s failure to protect the helpless and vulnerable child, in light of his or her knowledge that the beatings were escalating and worsening, constituted a positive encouragement to the other spouse to beat Randal for the purpose that the other spouse caused Randal bodily harm that he or she knew was likely to cause his death. [129] In some cases, the alleged connection between the alleged act of aiding or abetting and the commission of the crime by the perpetrator may be strained or indirect, raising difficult questions concerning the reach of accessorial liability. This is not one of those cases.

If, as the Crown urged, the non-perpetrator failed in his or her legal duty by doing nothing to protect Randal from further assaults, while aware of the ongoing assaults, that failure inevitably had the effect of facilitating or encouraging continued assaults by the perpetrator, including the assault that caused Randal’s death. As my colleague, Justice Simmons, put it to counsel in oral argument, the non-perpetrating parent’s failure to intervene was not only causally linked to Randal’s death, but was, in the strictest sense, a “but for” cause of his death.

The perpetrator would not have been able to commit the fatal assault “but for” the non-perpetrator’s failure to do his or her legal duty and protect Randal. On this evidence, there was simply no issue as to whether the omission relied on by the Crown “had the effect” of aiding or abetting the perpetrator.

Once the jury determined that the non-perpetrator failed in his or her legal duty to protect Randal from further assaults, its deliberations would logically and properly turn to whether the non-perpetrator was guilty of murder or manslaughter. [ 23 ] Here, there was a period of almost a year during which the accused knew of K.C.'s abuse of the child. She already knew of his sexual attraction to the child and an incident of sexual touching and anal penetration before the November 2011 child pornography investigation, but she took no steps to inform of the abuse.

Ultimately, the Ministry closed its investigation but after making it clear to S.K. that the child's safety was her responsibility. Shortly after, K.C. again began to sexually abuse the child. This was often preceded by K.C. asking to have M.D., essentially asking for permission for what he wanted to do. The incidents of abuse were numerous. The number of incidents of intercourse with the child could be no less than the 26 incidents recorded as videos on K.C.'s phone. The video record also included many other incidents of oral sex and sexual touching.

The medical examination of the child showed the three months' old vaginal injury, that would have bled for a number of hours and taken 10 to 14 days to heal, during which urination would have been painful and diaper-changing uncomfortable for the child. [ 24 ] When asked the question during the April 11, 2013, statement, "So how do you know he was having sex with her then?

S.K.'s response was, "Doesn't it seem pretty obvious when he is asking me?" [April 11, 2013, Exhibit 1, tab 7, page 278.] [ 25 ] The evidence supports the fact it was obvious and I find that the accused's failure to take steps to assure her child's safety was an omission that aided in the commission of the offence and that she is guilty of being a party to a large number of the sexual assaults over the time period referred to in the indictment. [ 26 ] The second count is a charge of failing to provide the necessaries of life to M.D. contrary to s. 215(2) (

a) of the Criminal Code , R.S.C. 1985, c. C-46. The elements of this offence include proof by the Crown that: 215(2)(a)(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently. [ 27 ] The Crown admits that the physical injuries to the child have in large part healed and are not likely to cause the health of M.D. to be endangered permanently. The concern is that the incidents of abuse are likely to have permanently affected the child's psychological well-being. [ 28 ] In R. v.

A.S. , [2016] O.J. No. 2500 (Ont. S.C.J.) , the child victim of the sexual assault was eight years of age. She gave evidence of the assaults and it is clear that she retained an indelible memory of the abuse perpetrated on her. In that case, the court appears to have taken judicial notice of the likely long-term effects of the victimization of the child in concluding that this element was beyond doubt.

In the present case, the child was only two years of age during most of the abuse and it is not clear to me that a child of that age would retain memories of the abuse or psychological effects of a permanent nature. The Crown had the opportunity to present evidence relating to these matters and did not do so. [ 29 ] In the circumstances, I am not prepared to take judicial notice of longstanding danger to the child's health and find this second charge to be unproven. “W.G. Grist J.”