R v. Mountain Chief, 2019 BCPC 332

Citation: R v. Mountain Chief 2019 BCPC 332 Date: 20191209 File No: 104405-1 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MONTANA JOHN MOUNTAIN CHIEF PUBLICATION BAN Pursuant to s. 486.4(2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: F. Caputo Counsel for the Accused: G. Kay Place of Hearing: Merritt , B.C. Date of Hearing: November 6, 2019 Date of Judgment: December 9, 2019 [ 1 ] Montana John Mountain Chief is charged with the sexual assault of K.E. Mr. Mountain Chief denies the allegation.

[2] Despite its obvious frailties, R. v. W.D., (1991), (SCC), 3 C.R. (4th) 302 (S.C.C.) continues to be theappropriate framework for assessing credibility. If I believe the evidence of Mr. Mountain Chief, I must acquit. If do not believe thetestimony of Mr. Mountain Chief but am left in a reasonable doubt by it, I must acquit. Even if I am not left in a doubt by the evidence ofMr. Mountain Chief, but I am not convinced beyond a reasonable doubt of the guilt of Mr. Mountain Chief by the evidence I do accept Imust acquit.

Finally, if I am unable, after consideration of all of the evidence, to decide whom to believe, I must also acquit. [3] K.E. was a foster child of C.U. and viewed C.U. as her mother figure. On August 19, 2016, K.E. was living with C.U. C.U. wasmoving her household to a new residence. C.U. is a friend of Vivian Narcisse. Knowing that Ms. Narcisse has a bigger family than C.U.,C.U. asked Ms. Narcisse for some help with that move. K.E. was also involved in the move. C.U. had rented a U-Haul which they loadedwith furniture and boxes.

Boxes were also loaded into private vehicles. [4] Once the vehicles arrived at the new home and people were unloading the items, K.E. said that Mr. Mountain Chief touchedher on the buttocks while she was walking down the hall of the new home to get more boxes. He repeated this several times includingwhile she was taking boxes from the U-Haul. On those occasions, he grabbed her buttocks or her hips. On one occasion, he handed a boxto her and touched her breast for a prolonged period of time. [5] Mr. Mountain Chief said that he was tasked with moving heavy furniture with his brother in law, Tommy Ritchie.

There wasnever any opportunity where he could have touched K.E. in the manner she alleges. [6] There were two other defence witness who testified at trial. All of the witnesses labour under the challenges presented by thepassage of time. I take that into consideration in assessing the credibility and reliability of their evidence. The move occurred on August19, 2016. The Information was sworn on August 29, 2017 and the trial was heard on November 6, 2019. [7] K.E. was able to identify that among the helpers were members of the Mountain Chief family: Ms.

Narcisse, a person she didnot know but whose name she believed was Tony (this would turn out to be Tommy Ritchie), Gail Mountain Chief, and SusanThompson. Despite the number of people assisting, K.E. said there was not really anyone around when the events occurred. K.E. wasunable to recall whether Ms. Thompson’s baby was there with her. Mr. Mountain Chief said that Ms. Thompson and her baby werepresent for the move, as well as Tommy Ritchie. He also said that Ms. Thompson’s ex-partner showed up to assist in the move. Hebelieves the ex-partner showed up for the unloading part at the new home. Mr.

Ritchie was unable to recall who, apart from C.U., Ms.Narcisse and Mr. Mountain Chief were present. To the list of people present, Ms. Narcisse also added another foster child, X. In short,there were a number of people assisting at both the old home and the new one. [8] K.E. said that she did not know Mr. Mountain Chief well before that day. She knew that he was a part of the Lower Nicolacommunity as is she. However, K.E. had not lived in that community for about six or seven years. She had no contact with Mr. MountainChief when she was living there.

Apart from knowing him from the community, she only knew of him through his mother, Ms. Narcisse.She could put a face to the name but had never socialized with Mr. Mountain Chief. [9] Mr. Mountain Chief agrees that he had never met K.E. before the moving day. He knew of her but never had direct contactwith her. Both of their evidence accords with that of Ms. Narcisse. She knew K.E. for a brief time. K.E. had started pow wow dancingand one of Ms. Narcisse’s twins made her a fancy dance outfit. She recalled that her other twin had made the other foster child, X., ajingle dress.

Pow wow nights were on Thursdays at the Shulus Hall. Ms. Narcisse said that her son did not participate in these nights andshe cannot recall whether he was present when K.E. participated in the pow wows. [10] The reliability of the various witnesses’ memories was tested on a number of points. For instance, K.E. testified that the movestarted around noon. Mr. Mountain Chief believed he arrived at the old home to start helping with the move closer to 10:00 in themorning. He said that he had been getting ready to go hunting when his mother asked him that morning for his help.

He said he recalledthey arrived before lunch but after breakfast. Ms. Narcisse does not know what time they arrived. She brought Mr. Mountain Chief withher. She also took Mr. Ritchie but he cannot remember what time of day they arrived either. He guessed it was probably late morning orearly afternoon. Nothing turns on this evidence. [11] K.E. was not asked about the state of the house when the helpers arrived. However, Mr. Mountain Chief offered that he had theimpression everything would be packed and ready to load.

On arriving, he saw that nothing was packed so they had to sort through all ofthe heavy stuff and light stuff. He said they had to throw stuff into boxes and so the vehicle took a few hours to load. [12] Ms. Narcisse also said that she had to help with some of the packing, particularly in the kitchen. The freezer was also full and soits contents had to be moved into boxes. She said that C.U. was typically very clean and organized but on this occasion everything wasdisorganized and “everywhere”. She agreed that it looked like C.U. was moving out and a lot of “stuff” had to be packed up.

Ms.Narcisse could not recall if there were boxes packed in the house. [13] There is also a dispute about the number of trips that were taken. K.E. said initially that there were at least two or three trips inthe U-Haul. About this she was certain. Ms. Thompson’s clothing, bedding and furniture was moved on the second trip. Subsequently inher testimony, K.E. confirmed there were only two trips that she could recall. Mr. Mountain Chief said there was only one trip. He saidthat C.U. had rented a large U-Haul because she wanted as few trips as possible.

The U-Haul was like a cube truck that was about 20 feetlong and about 10 feet wide. He agreed that there were two floors to the old house with three adults residing in it. Ms. Thompson had herown suite in the old house and had all of the belongings of a whole household. [14] Mr. Mountain Chief said that one has to know how to pack the U-Haul correctly and was 100% certain that they did not makemore than one trip. He said the family was going to do all the lighter stuff in the days after and so they just took care of the heavy stuff.The heavy items took all day to move and so he is certain there was only one trip.

Ms. Narcisse said she would not know if there wasmore than one trip because she was in the kitchen at the old house, which was more closed off. She could not say if they left and cameback with the U-Haul. K.E. said it took about four hours to move out of the old house. They would do loads in the U-Haul, moving fullloads and then re-loading it.

[ 15 ] In the end, whether there was one trip or two cannot be resolved. If there was one trip, then K.E. is confusing a second trip the next day to remove the final, lighter items or there was a move before Mr. Mountain Chief arrived. It does not impair the reliability of the evidence of any of these three witnesses. [ 16 ] K.E. said the first incident happened about one and a half hours into the move. However, she also subsequently said that she could not remember what happened on the occasion that they unloaded the first load.

She said it took about an hour to load the U-Haul for that first move and then an hour for everyone to unload it at the new house. The trip between the houses is only about three to four minutes. The second load took a bit longer than an hour, perhaps 20 minutes longer. Even combined, this timing seems unlikely given the work that had to be done. Mr. Mountain Chief said it took two to three hours to load Ms. Thompson’s stuff upstairs into the U-Haul. He said that they moved Ms. Thompson’s items first. Then, he said it took another three hours to load the upstairs items. This was because nothing was packed.

I find Mr. Mountain Chief’s evidence about the length of time it took to load the U-Haul to be reliable given the amount of work that had to be done. [ 17 ] Mr. Mountain Chief said they arrived at the new house around 5:00 or 6:00 p.m. with the only load that they moved. This would make the move approximately seven or eight hours long. The unloading was completed by dark which he guesstimated was around 10:00 p.m., given that it was summertime. With the hour that he estimated they took to go to a restaurant for dinner, this would be another four or five hours to unload the U-Haul.

It seems unlikely that a cumbersome job took two to three hours to load but four or five to unload with more people and no packing involved. [ 18 ] Mr. Mountain Chief said in the three hours that they were at the old house he packed things from Ms. Thompson’s place. He described the process they went through to do the packing. In the end, her items only took about a quarter to a third of the U-Haul. Three hours does not accord with his original description of the time it took and the hours that they occupied. Nor does it accord with his estimate of the time to unload. Mr.

Ritchie was unable to give any idea of how much time it took to load the U-Haul. Nor does he know how long it took to unload the U-Haul. However, he does recall that it was closer to the evening by the time he got home. I find Mr. Mountain Chief’s timing is inaccurate with respect to the overall timing. However, the length of the move clearly occupied late morning to at least early evening not just the two and a half hours estimated by K.E. [ 19 ] There is also disagreement about what the U-Haul contained. K.E. said there was heavy furniture and heavy boxes in the U- Haul.

However, K.E. was also loading smaller boxes and totes and clothing. Some of these went into the U-Haul and some went into the truck. Mr. Mountain Chief said that anything personal the family wanted they took in the other cars. Ms. Narcisse said that C.U. already had the U-Haul quite full of boxes as well as her own truck when Ms. Narcisse, Mr. Mountain Chief and Mr. Ritchie arrived. It was expected C.U. would have to go back the next day to do more moving but she wanted all of the large items moved out by Mr. Mountain Chief and Mr. Ritchie. She said that the U-Haul was pretty full before Mr.

Mountain Chief and Mr. Ritchie moved the larger items into it, but she believed they got everything into it. [ 20 ] Mr. Mountain Chief described not only the order of the move but the order of the contents in the U-Haul in considerable detail. It would turn out that he was able to describe these contents not because he specifically remembered them but because it was not the first time he had packed a U-Haul of similar size. He based his memory on how he laid out the U-Haul for his auntie and others.

It is not a true recollection of the events of that day and so it cannot lend strength to the reliability of his memory. [ 21 ] K.E. said that C.U. had two vehicles, Ms. Narcisse had one vehicle and there was the U-Haul. She said one vehicle would stay at the house, while everyone else would either go in the U-Haul, Ms. Thompson’s car or Ms. Narcisse’s car. She said everyone arrived together and left together. K.E. said that she and Ms. Thompson went into the U-Haul, C.U. took her truck and everyone else went in Ms. Narcisse’s car.

She modified this to say that she knew that C.U.’s truck got to the new house somehow. Mr. Mountain Chief agreed that he got to the new house in his mother’s car but believes that Ms. Thompson and her ex-partner went in the U-Haul, while he believes that K.E. would have gone with C.U. He is certain of this because there are only three seats in the U-Haul and they have a baby. However, he is not 100% sure. Ms. Narcisse agreed that she drove her own vehicle and that she took her son and Mr. Ritchie. Everyone else went in either C.U.’s truck or the U-Haul, but she does not know who drove the U-Haul.

I find that this evidence demonstrates not only the unimportance of this detail but how minutiae unconnected to a more distinct event can be so easily lost in the mists of time. [ 22 ] K.E. described a train-like process where people were continuously unloading and moving the boxes into the new house, including Mr. Mountain Chief. She said there was enough room in the hall that people were not bumping into each other but said that it was hard for everyone to pass. She does not remember Mr. Ritchie and Mr. Mountain Chief moving heavy furniture but does remember them moving boxes.

The boxes had to be moved for them to get at the furniture. [ 23 ] K.E. agreed that eventually Mr. Mountain Chief and Mr. Ritchie were moving furniture. On the second trip, K.E. she said she grabbed totes from the U-Haul while they moved heavy furniture into the new house. [ 24 ] C.U. stood on the landing and directed traffic to take items either upstairs or downstairs to specific rooms. Mr. Mountain Chief said that he was there to move heavy items only. He said they moved mattresses, the mattress box, couches and boxes of books. He said Mr. Ritchie helped him.

There were also deep freezers and filing cabinets that had to be moved. He also agreed that they move the boxes and the cabinets, and they had to use a dolly to do that. Again, he described in some considerable detail the order the items were moved. [ 25 ] Eventually Mr. Mountain Chief said that he mainly carried heavy stuff which certainly allowed for the likelihood that he was moving lighter boxes at the same time that K.E. was doing so. Ms. Narcisse said that there was a lot of lifting and a lot of muscle for Mr. Ritchie and Mr. Mountain Chief to do. Some items were packed from her vehicle into the kitchen.

Ms. Narcisse did not help with the lifting and carrying because she could not do the stairs. She did see K.E. carrying boxes and that everyone was doing something. Ms. Narcisse described a busy scene of people carrying boxes upstairs and downstairs with C.U. directing. She also described a group of people including Mr. Mountain Chief putting a couch together. She believed the only person who did not carry boxes was herself. Mr. Ritchie only recalls that it was his task to move the heavier furniture with Mr. Mountain Chief. He agreed that there were also boxes that they moved.

He was only paying attention to what he was moving and cannot recall if he was doing anything with anyone else other than Mr. Mountain Chief. He described something similar to the train that K.E. described. He did not recall being apart from Mr. Mountain Chief.

[ 26 ] During this move, the scene was quite busy. K.E. described the hallways as being like single-lane traffic. People were almost always in the hallway, although no one was in the hall when she and Mr. Mountain Chief were there. She said the stairs could be seen from the hall and C.U. was at the top of those stairs while directing where items should go. Mr. Mountain Chief said that people were going in and out of the house and that there always witnesses there. Ms. Narcisse said that she was in the kitchen putting away soups and other kitchen items.

From the doorway of the house, she could see the living area and the kitchen. From the kitchen she could see the hallway and down the stairs. However, once in the kitchen, she could see all of these areas if she stood at the island. From other parts of the kitchen, she could not see the hallway. When asked if she could see Mr. Mountain Chief and K.E. together carrying boxes, her response was “that was everybody”. Ms. Narcisse also agreed that while she was busy unloading the boxes, she would not necessarily be watching the hallway, even from the island. [ 27 ] I find that Mr.

Mountain Chief’s denial that he carried any lighter boxes not only lacked the air of reality but was changeable through his testimony. It was both internally inconsistent and inconsistent with the evidence of every other witness. His evidence in this regard is unreliable. [ 28 ] K.E. said that when the second load of the U-Haul was unloaded everyone visited for a while. She does not believe she left the house and cannot remember if everyone stayed and had supper together. Mr. Mountain Chief said he, Mr. Ritchie, Ms. Mountain Chief, C.U., Ms. Thompson’s ex-partner, Ms.

Thompson and K.E. went to the Golden Chopsticks. He said this was after they finished loading the U-Haul and before they unloaded it. Dinner started around 5:00 and they were finished around 6:00. He said they did not eat at C.U.’s home and that everything had wrapped up around 10:00. Ms. Narcisse said they did not eat until all of the moving was done. They had pizza at C.U.’s dining room table in the new house. She said everyone was laughing and interacting and C.U. was thanking everyone for the move. When asked how confident she was that it was pizza they enjoyed, Ms.

Narcisse replied that she would say it was pizza because C.U. was just moving into the new place and they would not yet have plates to feed everyone. However, she agreed that pizza was a “stab in the dark”. Mr. Ritchie also thought they had pizza at the house after the move was finished. I am satisfied that whatever they ate, they ate it at C.U.’s new home. [ 29 ] The meal was not the only payment that C.U. made to those who assisted. Mr. Mountain Chief said that C.U. also offered them some food out of the freezer. Ms. Narcisse could not recall if this was an occasion that she received a gift of food from C.U.

She said it was habit for them to share in the past and so it was possible. Mr. Mountain Chief did not recall any other gifts or payment being received from C.U. by anyone. Ms. Narcisse recalled C.U. gave her an air conditioning unit she was no longer going to need in the new home. It is possible that Ms. Narcisse received food as thanks. It is equally possible she did not. [ 30 ] K.E. also gave Mr. Mountain Chief a hat that she no longer wanted while they were moving out of the old house. A few hours after the move, he sent a message to K.E. thanking her for the hat.

Given the events that K.E. said transpired, she responded with her allegations. Mr. Mountain Chief agreed that K.E. had given him a hat and that he texted her to thank her. He said when he received her accusations by response, he did nothing with them. In fact, he did not respond to her until she sent a second message some days after. Mr. Mountain Chief said he did not respond in the first instance because he did not want to engage with her in the accusation about something he said that he did not do. He simply deleted the message.

He felt this was a normal reaction. [ 31 ] This brings me to the allegations that K.E. says happened during the move into the new home. She says she does not recall what happened on the first trip to the house but she does know that something did happen. On the second trip, she was unloading items from the U-Haul when he came up to her and touched her buttocks. She said it was not a brush up against her but something deliberate. She said he grabbed her. She did not believe Mr. Ritchie was present when this happened and she felt alone with no one to talk to or say anything to. On another instance while Mr.

Mountain Chief was passing a box to her, his hand cupped her breast. She said it was deliberate and felt like forever. It was not an incidental grazing while passing the box to her. She said Mr. Mountain Chief also grabbed her buttocks and her hips several times while she was grabbing boxes from the U-Haul. [ 32 ] Mr. Mountain Chief said they had no interaction at the new house other than passing each other as they went in and out. He would also ask where to place the bed and other belongings. He denied that he handed boxes to her - that he was aware of - and denied that K.E. handed any boxes to him.

I note that Mr. Mountain Chief did not respond to these questions directly in the first instance. He subsequently agreed that there may have been physical contact when they were passing in the halls or passing at the U-Haul. When he was asked if he touched any part of K.E.’s body, Mr. Mountain Chief said the only contact he had would be when he was going in and out of the U-Haul and bumping into each other, as well as in the hallways of the house. He said there was no other contact than this bumping; and it is how she interpreted that bumping.

In cross-examination he said he was assuming nothing had happened, but if anything did happen it was bumping. When asked if he remembered accidentally brushing against K.E., Mr. Mountain Chief said it was not like he was going to try to remember everything. When Mr. Mountain Chief was asked if he touched K.E.’s breast, he said it was not his fault if he accidentally brushed up against her without him being aware of it. In other words, his evidence expanded from moving only heavy items and not encountering K.E. to a much broader possibility of bumping into her on these various occasions.

His changing testimony was internally inconsistent here as well. [ 33 ] K.E. conceded that there are gaps in her memory because it has been awhile and she is trying to forget the incident. However, she asserted that her memory is clear on the incidents involving the touching. She remained firm in her testimony and was unshaken under cross examination. [ 34 ] Mr. Mountain Chief can mainly remember the day but not fully. He claimed that his memory is “good enough”.

However, his memory regarding the contents of the U-Haul, how it was packed, and the order that everything was done is tied to past experience of doing similar sort of work. It is not a clear and independent memory of that day. When asked if he had gaps in his memory after all of the time that had passed, he said it was not like he was going to remember the whole thing and was only just giving a rough timeline. He agreed that there are fragments of that day that are not clear, which he felt was like any normal person. [ 35 ] I agree.

The problem with his testimony is not what he concedes is forgotten but what he claims to remember, his contrived memories, and his inconsistent testimony. His defiant, almost belligerent responses also cast doubt on this testimony, but I must factor in that he is accused of a serious crime. Ms. Narcisse agreed that her memory is not “100%” intact. That would be surprising after 38 months if it were entirely intact. She agrees that the details are less crisp than “the big stuff”. Mr. Ritchie had the least helpful memory

through no fault of his own. He did not recall interactions between anybody or what anybody was doing. He only remembers clearly that he helped move from an old house to a new one and that he helped Mr. Mountain Chief move heavy furniture. Apart from that, he agreed that he cannot really remember anything. [ 36 ] I observed K.E. to be quiet and shy. She was occasionally tearful but was otherwise a stoic, careful witness. She was honest about the failings of her memory. The stress of giving testimony was exhibited by her continuous drumming of her leg throughout her direct and cross-examinations.

Her evidence was, however, consistent and reliable both internally and in the context of the evidence of others. [ 37 ] In assessing credibility and reliability of each witness, I can accept some, none or all of their evidence. I found Ms. Narcisse to be an honest witness trying her best to be helpful without embellishing her memory. In the end result, while some of her evidence may assist in resolving some of the events that differed between recollections, she was in no position to say whether the touching had occurred or not. Mr.

Ritchie offers very little to assist in resolving those discrepancies and recollection. This is because he recalls very little of the day at all. [ 38 ] Mr. Mountain Chief presented with credibility challenges. He asserted firmly evidence which he was basing on past experience rather than actual memory. He resiled from asserting that he only carried furniture and other heavy items with Mr. Ritchie to conceding that he carried boxes as well. His tone was markedly different when responding to questions regarding events that are not in issue, from his tone when addressing the allegations.

In part, as I have said, this must be credited to the defensive reaction of a person charged with a sexual offence regardless of whether he committed the offence or not. [ 39 ] Mr. Mountain Chief’s response to why he did not react to K.E.’s accusation in her text message defies credulity. Additionally, Mr. Mountain Chief brought his own character into issue when he asserted in cross examination that this is not the sort of thing that he would do. In fact, in 2009, he was convicted of sexual assault. The prior conviction, of course, cannot be a determinative factor in whether he committed this offence.

It goes only to his credibility. Even so, it is a small factor. [ 40 ] I find that Ms. Narcisse and Mr. Ritchie had no real ability to observe the events in question, did not in any way record them in their memory and could not recall and describe them very accurately. Ms. Narcisse’s recollection is limited to what her engagement was in the move which does not assist in determining what everyone else was doing. K.E. and Mr. Mountain Chief are the only ones who were in any position to observe the events alleged. K.E. has a clear recollection of them which she was able to relate. Mr.

Mountain Chief’s memory is, as I have said, largely based upon past experiences rather than actual recalls. He was also an unreliable witness whom I find not credible. [ 41 ] I am satisfied that the crown has proved beyond a reasonable doubt that Mr. Mountain Chief sexually assaulted K.E. and I convict him of that charge. ___________________________ S.D. Frame Provincial Court Judge