2019 MBPC 13, 2019 MBPC 13

Citation: 2019 MBPC 13 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Michelle Bright, for the Crown ) - and - ) ) K.I. ) ) Kevin Minuk and Caitlin MacDonald, for the Accused ) ) Judgment delivered: ) February 8, 2019 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. CORRIN, P.J. [ 1 ] The accused is charged with sexual assault and sexual interference.

At the time the alleged incidents were reported to police the complainant was eight years old. At the time she testified at trial she was nine years old. The allegations involved a number of incidents occurring between the summer of 2016 and January 30 th , 2017. The alleged last incident date was January 30 th , 2017. The complainant’s trial testimony was received on October 15 th , 2018, the first day of a three day trial. The final trial day was January 9 th , 2019.

THE EVIDENCE BEFORE THE COURT [ 2 ] On February 9 th , 2017, just a week and a half after the last alleged incident date, the complainant provided a video statement to Winnipeg Police Service Officer Theresa Pickering. This statement was presented at trial pursuant to

section 715.1 of the Criminal Code of Canada . Before questioning the complainant, Officer Pickering emphasized the importance of telling the truth. The complainant, S.F., promised to do so. [ 3 ] The complainant told Officer Pickering that the accused had touched her private parts on a number of occasions. That he had often done this in the living room of her foster grandparents residence when she had been visiting there, something she did most weekdays.

She explained that she had disclosed the last incident to her mother while they drove home from her grandparents residence because she “couldn’t stand it because he has been doing that for a very long time” (see lines 19-20, page 15 of interview transcript). S.F. related that the accused always engaged in tickling her prior to touching her private parts. [ 4 ] S.F. further related that on January 30 th she had been assaulted in the morning, prior to her going to school.

She disclosed that her grandparents were sleeping at the time of this incident as it was “really early in the morning” (see pages 19 and 20, lines 25 and 1). S.F. elaborated that the accused had touched her “bum” and/or her “tootie” on these occasions, that he had digitally penetrated her vagina with two fingers on the last occasion and this had caused her pain.

S.F. told Pickering that the inappropriate touching had made her feel “uncomfortable.” When asked to describe what that meant S.F. stated that she didn’t actually know what the word “uncomfortable” means (see page 34, lines 6-13 of the interview transcript). She also observed that she had reported the incident to her mother because the accused had “been doing that too much” and she didn’t “want him to do it anymore” (see page 35, lines 1-2). [ 5 ] Towards the end of the interview Officer Pickering asked S.F. if she could recollect an incident where the scenario differed.

The complainant nodded her head affirmatively and then said “But I don’t remember. I don’t remember anything a lot,” “I can’t really think of a lot unless I brought my momma.” [ 6 ] The Crown called two other witnesses, S.F.’s mother and her foster grandfather, G.B. The former told court that S.F. had disclosed the incident to her when they were driving home on the late afternoon of January 30 th , 2017. She testified that such disclosure had taken place within five minutes after they had departed. Court was told that she shared the disclosure with her foster parents and police later that night.

She also related that she had taken S.F. to the Child Protection Centre (CPC) at the Health Sciences Centre for a

medical examination. It was ‘agreed’ evidence that S.F. had been seen by Dr. Lindsay at such a time and place and that Dr. Lindsay’sphysical examination found no indicia of physical injury attributable to digital penetration. [7] S.F.’s mother also testified on cross-examination that S.F. had subsequently, after an unspecified length of time, told her that there had only been one incident, being the January 30th allegation.

She also confirmed that the complainant had subsequently told her that the January 30th incident had occurred after school, in the afternoon, and not in the morning before school, as initially disclosed. [8] During defence questioning, the mother also acknowledged that she regarded the defendant as a “freeloader” who hadexploited her foster parents during the many years he had lived with them.

In this respect the court was told that the accused had “almostnever paid a month’s rent” to her parents. [9] G.B., the foster father, testified that the accused had lived with him and his wife for 15 or 16 years prior to the incident, thatMr. K.I. had slept in the garage and had usually spent three to six hours daily inside the small bungalow, which he described as beingless than 1000 square feet. He went on to relate that the defendant had a forty percent interest in his home based motorcycle repairbusiness and spent a lot of his time servicing G.B.’s clientele in such respect.

He also elaborated that the accused had done all the snowclearing and landscape work around the house as well as a lot of the cooking in lieu of paying rent. It was his evidence that S.F. wouldoften hug the accused before leaving for school in the morning, that S.F. was usually dropped off at his residence early in the morningwhen her mother was on her way to work. G.B. also recollected that he had been working outside the home from noon to eight p.m. at the time of the January 30th incident and was at home that morning. [10] Defence called no evidence.

THE LAW RESPECTING CHILDRENS’ EVIDENCE [11] In embarking upon an examination of the evidence in this case, regard must be had to the dicta imparted in R. v. P.(L.A.), 2000MBCA 109, paragraph 5, which references numerous decisions. In such respect: R. v. B. (G.), (SCC), [1990] 2 S.C.R.30 (S.C.C.) at 55, R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 (S.C.C.) at 132-34, R. v. R. (D.), (SCC),[1996] 2 S.C.R. 291 (S.C.C.), and R. v. F.(C.), (SCC), [1997] 3 S.C.R. 1183 (S.C.C.). [12] Philp J., speaking for the court, also cites paras. 47 and 48 of R. v.

F. (C.) as follows: “the standard which would be applied toan adult’s evidence is not always appropriate in assessing the credibility of young children” (per Cory J. in R. v. F. (C.), at para. 48).Nevertheless, “[t]he credibility of every witness who testifies before the courts must, of course, be carefully assessed” (per Wilson J. inR. v. B. (G.)); and “these changes in the way the courts look at the evidence of children do not mean that the evidence of children shouldnot be subject to the same standard of proof as the evidence of adult witnesses in criminal cases” (per McLachlin J. (as she then was) inR. v.

W. (R.), at p. 134).” ANALYSIS OF THE EVIDENCE [13] S.F.’s direct examination evidence was not limited, as is often the case, to simply viewing and adopting the February 9th, 2017videotape. She also testified that what she had told police was inaccurate, that the alleged assault had occurred in the late afternoon after school, and not in the early morning before she went to school.

She also disclosed that she had initially, just prior to the January 30th assault, “went up to him (the accused) and wanted to get tickled,” and that the accused had obliged her by tickling her before engaging inthe alleged inappropriate touching. [14] When asked by the Crown what made her remember the revised ‘version’ of the incident S.F. replied “I remember my Papa(her grandfather Mr. G.B.) wasn’t...asleep. So I would know that’s after school and I remember it was after school.

I don’t know how, Ijust remember” (see page 27 of the trial transcript 1, lines 16-20). [15] Later, during cross-examination, S.F. further clarified that her grandfather had been at work that morning (see page 65, lines29-38). When asked why she now remembered this additional detail the complainant responded “Because my mom picked me up andshe called Papa and that’s when Papa was coming home from work. And that’s what my Papa said before.

That’s what he said to me andmy mom.” When asked when such information had been imparted to her, S.F. replied that it had been on the weekend prior to the trialwhen she, her mother and grandfather had met at her grandparents’ home. Mr. G.B. told court that he couldn’t “recall” such meetinghaving occurred at such time. [16] Another significant allegation revision also occurred during cross-examination.

When asked by Defence whether she had toldOfficer Pickering the truth, S.F. replied in the negative and then revealed that she had lied with respect to two disclosures: “Well, thething about my Nana and Papa’s that was a lie because I don’t... was it? The place where my Nana and Papa were, that was, sort of, kindof... yeah, that was a lie. And K.I. had only done it to me once” (see page 79, lines 6-19).

She then acknowledged that her allegationsabout suffering repeated incidents occurring since the summer of 2016 were false (see page 79, lines 21-29). [17] The Crown submitted that the Court should perceive the complainant’s admission of lying only as an acknowledgment that shehad been mistaken with respect to the subject matter, that the Court should be aware that children will call a ‘mistake’ a ‘lie’. The Courtobserves that a close examination of the police video interview suggests that such is not likely the case with S.F.

Officer Pickeringengaged the complainant in a thorough discussion of the importance of her telling only the truth and not filling in the blanks withspeculation. She made it very clear that S.F. should only tell her what she knew for sure and that it was wrong to speculate or lie. Shethen ensured that S.F. understood what she was telling her and obtained confirmation that the complainant would only relate the truthand not tell lies.

The Court is therefore satisfied that S.F. was fully aware what the term ‘to lie’ or ‘lying’ means from the exchangeaforementioned (see pages 4-5 of the interview transcript). [18] There were also other significant discrepancies and inconsistencies in her evidence. For example, during her interviewstatement S.F. declared that all the assaults occurred early in the morning (see page 20, line 8-11), yet on direct examination she now toldthe court, as previously mentioned, that a single assault occurred after school, in the afternoon. There was also the conflicting evidence,

again previously mentioned, respecting the alleged meeting and discussion between herself, her mother and her grandfather. Hersuggestion during cross-examination that she never watched television when her grandmother was sleeping (see trial transcript page 55,lines 4-14) was also contradicted by her testimony that the January assault occurred when she and the accused were watching TV and hergrandmother was sleeping in a nearby bedroom. [19] The Court also shares Defence’s concern respecting discrepancies between the complainant’s and Mr. G.B.’s testimony.

Thesediscrepancies certainly suggest the possibility that her general recollection of events and experiences may not be very good, that thereforeher testimony should be generally perceived as only marginally reliable. Some examples are the weekend meeting that G.B. said nevertook place as well as contradictory evidence respecting his changing channels when programs were thought to be inappropriate for her towatch, something related by S.F. and denied by G.B.

In a similar vein S.F. testified about watching Netflix (see trial transcript page 57,lines 8 and 9), and G.B. told court that he didn’t even subscribe to that particular media option in January of 2017. [20] The complainant also frankly acknowledged to the Court that she was having trouble remembering what was and what was nottrue (see page 83, lines 40-41 and line 1 on page 84).

Of course, this might be the reason why she alleged that the accused touched her “bum” on a number of occasions prior to the January 30th incident, something she definitively repudiated during cross-examination (seepage 93, lines 7-41 and page 94, lines 1-3). [21] The concept of reasonable doubt was explained by the Supreme Court of Canada in the R. v. Lifchus case (1997) (SCC), 3 S.C.R. 320: “A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt.” [22] Justice Cory, speaking for the court, then continued with these words: “On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short, if based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt.” (paragraph 39) [23] This is a case where I feel it appropriate to give the accused the benefit of the doubt because even if I were satisfied that theaccused was probably guilty of the alleged offences, I cannot say that I know with certainty that such was the actual case. The evidencedisclosed far too many major as well as less significant inconsistencies and discrepancies.

It is the Court’s opinion that the overall poorquality of the complainant’s evidence does not lend itself to a finding of guilt. Accordingly I acquit the accused with respect to all thecounts before the Court. “Original signed by:” CORRIN, P.J.