R. v. I.G.D. Date:, 2015 BCPC 153

Citation: R. v. I.G.D. Date: 20150529 2015 BCPC 0153 File No: 159616-2-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. I.G.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: P. Weir Counsel for the Defendant: H.D. Doehring Place of Hearing: Victoria , B.C. Date of Hearing: May 15, 2015 Date of Judgment: May 29, 2015

Background [ 1 ] Mr. D faces a three-count indictment, alleging offences under sections 151 , 152 and 271 of the Criminal Code . The first two counts carry a mandatory minimum jail sentence in the event of conviction. The third does not. [ 2 ] The information was sworn on March 19, 2013. Negotiations took place between Crown counsel and Mr. Schwartz, then retained as Mr. D’s counsel, between April and October, 2013. From Mr. D’s point of view, the objective was to persuade Crown counsel to stay counts #1 & #2 in exchange for a guilty plea to count #3.

Crown counsel were generally amenable to the proposal, but required, as a condition of their agreement, that Mr. D admit, for the purposes of sentencing, certain particulars of the allegations against him. Eventually: (

i) agreement was reached as to the particulars to be admitted; (ii) Mr. D instructed Mr. Schwartz to admit those particulars; and (iii) Mr. Schwartz entered a guilty plea to count #3 on behalf of Mr. D. [ 3 ] Mr. D subsequently discharged Mr. Schwartz and retained Mr. Doehring. Acting on Mr. D’s instructions, Mr. Doehring applied for leave to withdraw the guilty plea. I dismissed that application on August 26, 2014: R vs I.G.D. 2014 BCPC 196 ; [2014] BCJ No. 2324 . [ 4 ] On May 15, 2015, I heard evidence relevant to the determination of a fit sentence for Mr.

D’s offence and the submissions of counsel as to the findings of fact to be made on the basis of that evidence. As discussed below, many of the facts relevant to sentence are very much in dispute. Counsel asked me to inform them of my findings of fact before inviting them to make submissions as to the appropriate sentence. I acceded to that request. In these reasons, I set out my conclusions as to the relevant facts and the reasons for those conclusions.

The Evidence of the Complainant’s Mother [ 5 ] I summarize the evidence of the complainant’s mother (“the Mother”) in paragraphs 6 - 11, below. [ 6 ] In 2006 – 2007, the Mother was a single mother of two children, being the complainant, J.T. and J.T.’s younger sister (“the Sister”). The Mother was subsisting on disability benefits as she struggled with alcoholism, depression and liver disease. She met Mr. D at an Alcoholics Anonymous meeting. They became friends, but were not physically intimate. The friendship continued for 4 - 5 years, during which time Mr. D developed a relationship with the two children.

He frequently took the children on outings without the Mother. The children sometimes stayed overnight at Mr. D’s home. The Mother agreed with Mr. Doehring’s suggestion that Mr. D’s relationship with the children could be fairly described as “parent-like”. [ 7 ] In early 2007, J.T. told the Mother that J.T. feared that Mr. D would do harm to the Sister. At that time, J.T. did not tell the Mother that Mr. D had committed any impropriety with J.T. The Mother thereafter refused to allow Mr. D to see the children, and reported J.T.’s concern to the police.

The police interviewed J.T. and the Sister, but did not recommend that a charge be laid. The police told the Mother that, in their view, Mr. D’s conduct with the Sister had been “inappropriate, but not criminal”. [ 8 ] Later in 2007, the Mother, the Sister and J.T. were on a visit to Ontario. J.T. told the Mother that Mr. D “… made me take baths with him”. J.T. did not want to say anything more about the subject, and the Mother thought it unwise to press her for details.

The Mother offered to take J.T. to the police on their return to British Columbia, but J.T. declined that offer. [ 9 ] After 2007, J.T. appeared to be a child in severe emotional distress. She would punch herself in the head and fall to the floor. She often feared to leave her house. [ 10 ] In 2012, J.T. had an emotional conversation with the Mother, in the course of which J.T. said “I know that part of the reason I am like this is because of what [Mr. D] did to me”. The Mother arranged counselling services for J.T. [ 11 ] J.T. has never communicated to the Mother any details of Mr. D’s offending conduct.

The Mother’s impression is that J.T. did not wish to discuss it, at least with the Mother. The Evidence of the Complainant [ 12 ] I summarize J.T.’s evidence in paragraphs 13 - 18, below. [ 13 ] J.T. is now 17 years of age. When she was much younger, Mr. D was a close friend of J.T.’s mother. He was: … like an uncle, who would pay attention to us and have fun with us, not like other adults who didn’t have time for us. He would take us swimming, and ice skating, and to the movies. He gave us candy and played with us. J.T. and the Sister would sometimes stay overnight with Mr. D.

The Mother was not usually present during the children’s visits with Mr. D. [ 14 ] One morning, at breakfast, Mr. D put whipped cream in his mouth and invited J.T. to lick it out of his mouth. [ 15 ] He then told J.T. that the Mother had said that J.T had to have a bath or shower with him. That made J.T. uncomfortable. They both entered the shower naked. Mr. D’s penis was erect as he stood in the shower. J.T. did not like the shower, so they moved to the bathtub, where they sat facing each other, one at either end of the tub. Mr.

D told J.T. that sperm produces babies, and asked if J.T. would like to see him ejaculate. He asked her to touch his penis, then placed her hand on his penis. He said that she was not doing it

correctly and began to masturbate in front of her. He did not ejaculate. He then bundled her up in a towel and carried her into thebedroom. He laid her on the bed with her legs spread and began to kiss her inner thighs. When his lips approached her vagina, sheasked him to stop, and he did. They then got dressed, and carried on “… like it was a normal day”. [16] On many other occasions, Mr. D would insert his tongue into J.T.’s mouth when kissing her. She did not initiate thatbehaviour. She felt that it was wrong, and that she was bad because she was taking

part in it. As a result, she thought it was a secret. [17] On at least one occasion, Mr. D exposed himself to J.T. as Mr. D came out of the bathroom. He was wrapped in a towel andopened the towel in front of J.T. to expose his genitals. His penis was not erect on that occasion. [18] When J.T. was 8 or 9 years of age, she told the Mother that she did not want to visit with Mr. D any more. She told the Motherthat she felt that the Sister was unsafe in his care. The Mother took J.T. and the Sister to see the police. J.T. did not tell the police aboutMr.

D’s behaviour with J.T. because J.T. felt “disgusted and violated”. J.T. later saw a counsellor. She did not provide the Mother orthe counsellor with all of the details of Mr. D’s conduct because she finds it “humiliating and embarrassing”. The Evidence of Mr. D [19] I summarize the evidence of Mr. D in paragraphs 20 - 25, below. [20] Mr. D was 45 years of age when he met the Mother and her children. He was 48 – 49 years of age during the period referred toin the indictment. At that time, he was disabled by bipolar disorder (and was receiving disability benefits as a result), and was usingmarijuana daily.

He suffers from psychotic episodes and, during the time in question, was “… not far from going to the hospital”. [21] Mr. D found himself “… in the position of a surrogate father …” to J.T. and the Sister, and did his best to behave as one. [22] On one occasion, Mr. D took a shower with J.T. Both were naked during the shower. Mr. D washed J.T.’s back and hair, butdid not otherwise touch her. They did not enter the bathtub. Mr. D cannot sit in a bathtub because his right knee will not bend atgreater than a 45 degree angle. After the shower, Mr.

D wrapped J.T. in a towel, carried her into the bedroom and laid her on the bed. He towelled her off and kissed her on the belly and thighs as he did so. There was nothing sexual about those kisses. Rather, they wereaffectionate and intended to be amusing. He did not approach her vagina in any way. J.T. did not ask him to stop and did not appear tobe distressed in any way. Mr. D described it as a “… fun and joyous …” occasion. [23] Mr. D acknowledges that, in hindsight, it was an error of judgment for him to shower with a young girl, but says that, at thetime, he saw no harm in what he was doing.

He says that he is very hurt by the evidence given by J.T. at the sentencing hearing, andthat: I hope that [J.T.] feels guilty about what she said - that she has some remorse. [24] Mr. D denies that he ever asked J.T. to touch his penis, that he ever masturbated in front of her, or that he exposed himself toJ.T. on any other occasion. [25] On one other occasion, when Mr. D was kissing J.T. on the mouth, she put her tongue into his mouth. The act was initiated byJ.T. He considered it to be inappropriate, but did not inform the Mother. The incident was not repeated. The allegation that Mr.

Drepeatedly “French-kissed” J.T. is “absolutely false”. Legal Principles Governing the Credibility Issue [26] Where, as in this case, the particulars of the offence have not been admitted, the Crown bears the onus of proving, beyond areasonable doubt, each of the aggravating particulars on which the Crown relies: Criminal Code, section 724(3); R vs D.R.W. 2012BCCA 454; [2012] BCJ No. 2646 @ paragraph 3.

At paragraph 16 of D.R.W., Justice Saunders said that a sentencing judge who isfaced with conflicting evidence from the complainant and the accused must apply the method of analysis set out by Justice Cory in R vsW.(D.) (SCC), [1991] 1 SCR 742 @ paragraph 28: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Of course, in this case, the question of guilt or innocence is settled by Mr. D’s guilty plea. As I conceive it, the principle of W.(D.)applies in the following way at this sentencing hearing. a. If I believe the evidence of Mr. D, I must sentence him on the premise that events occurred as he described them, and not as J.T.described them. b.

If I do not believe the evidence of Mr. D, but, as a result of it, I have a reasonable doubt as to the accuracy or veracity of J.T.sevidence, I must sentence Mr. D on the premise that events occurred as he described them, and not as J.T. described them. c. Even if Mr. D’s evidence does not cause me to doubt the accuracy or veracity of J.T.’s evidence, I must consider whether anyother aspect of the evidence causes me to doubt the accuracy or veracity of J.T.’s evidence. I may sentence Mr. D on the premise that

J.T.’s evidence is accurate only if, after considering all of the evidence, I am satisfied beyond a reasonable doubt of its accuracy andveracity. Assessment of Mr. D’s Evidence [27] For the reasons given in paragraphs 28 - 39, below, I do not believe Mr. D’s evidence, and it does not cause me to have a doubtas to the accuracy or veracity of J.T.’s evidence. No one of those reasons is, alone, conclusive of the questions which I must decide. However, taken together, their aggregate effect is to render Mr.

D’s evidence insufficient to cause me to have a reasonable doubt as to thetruth and accuracy of J.T.’s evidence. [28] A guilty plea “… is an admission of the essential elements of the offence ..,”: Criminal Code, section 606(1.1)(b)(i). If Mr.D’s evidence on the present hearing (to the effect that he did not touch J.T. in a sexual way in the shower and did not “French-kiss” her atany time) is true, he did not commit a sexual assault. His present evidence therefore contradicts his earlier admission. [29] A guilty plea is an informal or evidentiary admission, and so may be contradicted by other evidence.

It is to be distinguishedfrom a formal admission, which binds the party who made it, and so may not be contradicted by other evidence: R vs Baksh (ON SC), [2005] OJ No. 2971; 199 CCC (3d) 201 @ paragraph 87; R vs Korski 2009 MBCA 37; [2009] MJ No. 111; [2009] 7 WWR 18; 244 CCC (3d) 452 @ paragraphs 121 – 124. For that reason, Mr. D is entitled to give evidence to contradict hisearlier admission, but the admission is relevant to the assessment of the credibility of his later evidence. [30] Mr. D swore an affidavit in support of his application to set aside his guilty plea.

In that affidavit, he deposed that: At the time of the guilty plea I (sic) the extent of the aggravating allegations, and facts being put forward against me were not known, nordid I appreciate that if I testified at trial and if my testimony was believed a judge would conclude that a reasonable observer aware of allthe circumstances could conclude my actions were not sexual …. [31] Mr. D was cross-examined on that assertion on May 27, 2014, during his application for leave to withdraw his guilty plea.

During that cross-examination, he was referred to the transcript of his police interview on February 21, 2013, which he acknowledged tobe an accurate transcription. Mr. D acknowledged that the interviewing officer had confronted him with the particulars of J.T.’s mostserious allegations, as summarized in paragraph 15, above. His assertion in his affidavit that, in October, 2013, he did not know thedetails of the allegations against him was simply false. [32] Mr. Schwartz swore an affidavit in response to Mr. D’s affidavit. In that affidavit, Mr.

Schwartz deposed that: … I received full disclosure from the Crown, but [Mr. D] did not receive his own copies. I reviewed the nature of the allegations withMr. D and the salient points but did not review the entirety of the disclosure in fine detail. * * * [Mr. D] met with me in person on October 16, 2013, and agreed that he would plead guilty to count three … and admit that he did, for asexual purpose, have a shower with [J.T.], kiss her on the inner thighs, have a bath with her, masturbate in her presence and have anerection in her presence.

He specifically denied “French-kissing” her …. [33] When cross-examined on his affidavit, Mr. D denied that Mr. Schwartz ever discussed with him the particulars alleged by theCrown. [34] During argument of the application for leave to withdraw the guilty plea, Mr. Doehring conceded that Mr. Schwartz’ evidencewas accurate and truthful, and that Mr. D’s evidence was inaccurate in so far as it contradicted the evidence of Mr. Schwartz. [35] In paragraphs 27 – 48 of my reasons for judgment on the application (cited above), I explained why I would have accepted theevidence of Mr. Schwartz, in preference to that of Mr.

D, even in the absence of Mr. Doehring’s concession. [36] I am mindful that: a. on the application for leave to withdraw the guilty plea, Mr. D carried the onus, and the standard of proof demanded of him wason a balance of probabilities; b. on the present issue, the onus of proof is on the Crown, and the standard of proof demanded of the Crown is proof beyond areasonable doubt. However, I do consider the following points to be material in assessing Mr. D’s credibility: a. Mr. D’s evidence as to the instructions which he provided to Mr. Schwartz is flatly contradicted by Mr. Schwartz. b.

Through his present counsel, Mr. Doehring, Mr. D has conceded that Mr. Schwartz’ evidence is accurate and his is not. c. The point in question is not one which could plausibly be the subject of a mistaken recollection on the part of Mr. D. At thetime when Mr. D gave instructions to Mr. Schwartz, the issue must have fully occupied Mr. D’s attention. I am sure that the decision toinstruct Mr. Schwartz to admit the more serious allegations was not an easy one, and was not made lightly. I do not believe that Mr.

Dcould have forgotten those instructions in the few months which elapsed between the time when the instructions were given and the timewhen Mr. D swore his affidavit in support of the application to set aside the guilty plea. [37] There are two questions: (

i) did Mr. D give revised instructions to Mr. Schwartz, as Mr. Schwartz says he did? (ii) if so, did

the revised instructions accurately reflect what actually occurred between Mr. D and J.T.? If the first is answered in the affirmative, it isestablished that Mr. D gave false evidence in support of his application to set aside the guilty plea. If the second is answered in theaffirmative, J.T.’s evidence (except for the “French-kissing”) is substantially correct, and Mr. D should be sentenced accordingly. Thesecond question is the ultimate issue presently before me, and I will answer it at the end of these reasons, after considering all of theevidence.

At this stage in the reasoning process, it is sufficient for me to conclude, as I do, that Mr. D deliberately gave false evidenceabout the instructions which he gave to Mr. Schwartz, whether or not those instructions accurately reflected the actual events. [38] Mr. D has a criminal record. While it is not extensive, it includes two convictions for theft of goods valued at less than $5000and one conviction for fraud. Mr.

D explained that the first theft conviction, in 1976, was a “gas & dash”, that the second theftconviction, in 2008, was for shoplifting, and that the fraud conviction, in 1995, was for fraudulently failing to disclose employmentincome when applying for social assistance benefits. All of those are offences of conscious dishonesty, and so relevant to theassessment of his credibility. Mr. D was also convicted, in 1985, of impersonating a police officer, another offence of dishonesty.

Heexplains that he found an official police shirt in a dryer at a laundromat, that he took it for his own, and was arrested for wearing it inpublic. He denies any intention to deceive anyone by presenting himself as a police officer. If that were so, he ought not to have beenconvicted. However, I observe that he received an absolute discharge for the offence, so that the circumstances, whatever they maytruly have been, cannot have been very serious. [39] Mr. D is articulate, self-possessed, intelligent and well-educated. He is adept at providing plausible explanations for apparentcontradictions in his evidence.

For example, he admits that he was interviewed for the preparation of a presentence report, and that,when asked by the interviewer: What grooming behaviour went on prior to the offence? he replied: baths, rubs, kissing, food, fun Mr. D explains that he thought that, in this context, “grooming” meant “personal hygiene”, and that he responded accordingly. Hedenies that he understood the question to refer to activities calculated to gain the trust of the intended victim of a sexual assault. Twoaspects of this part of his evidence are worthy of comment. First, Mr. D is a smooth talker.

This aspect of his personality reflectspoorly on his credibility. Second, while baths and rubs might be examples of personal hygiene, kissing, food and fun are not. Iconclude that Mr. D knew perfectly well what the interviewer was asking about, answered the question in the spirit in which it wasasked, and deliberately sought to deceive me about that answer when he gave evidence on May 15, 2015. Assessment of the Complainant’s Evidence [40] My conclusion that Mr. D is not to be believed does not end the inquiry.

It remains to determine whether J.T.’s evidenceestablishes beyond a reasonable doubt the facts alleged by the Crown. [41] Mr. Doehring advances three reasons to doubt the evidence of J.T.: a. It is contradicted by the evidence of Mr. D. b. J.T. had several opportunities to complain of Mr. D’s conduct before she took her complaint to the police early in 2013. Thoseopportunities were: (

i) when she warned the Mother of the risk to the Sister in 2007; (ii) when she and the Sister were interviewed bythe police in 2007; (iii) at any time when in the company of the Mother between 2007 and 2012; (iv) during sessions with her counsellorafter 2012; (

v) at any time when in the company of the Mother after 2012. c. J.T. admits that she did not disclose to the Mother or to her counsellors all of the details which she described during herevidence at the sentencing hearing. [42] I have already explained why Mr. D’s evidence does not lead me to doubt the accuracy or veracity of J.T.’s evidence. I am notpersuaded by Mr. Doehring’s first point. [43] Mr. Doehring’s second and third points raise an evidentiary issue. I am aware that there is a body of scholarly literature,discussing: (

i) circumstances in which genuine victims of child abuse delay or avoid disclosure of the abuse; and (ii) the psychologicalreasons for such delay or avoidance. I am also aware that there are divergences of opinion among scholars on that subject (as there areon most questions of behavioural science). During submissions in this case, I asked for the views of counsel as to whether it would beappropriate for me to consult the scholarly literature in my consideration of J.T.’s evidence in this case. Mr. Doehring and Mr. Weirboth said that they would consider it appropriate for me to do that.

However, after consideration of the authorities, I do not believe that Iam entitled to do so: R vs P.(S.D.) (ON CA), [1995] OJ No. 965 @ paragraph 33; R vs A.K. (ONCA), [1999] OJ No. 3280 @ paragraph 76. I must therefore assess the credibility of J.T.’s evidence by considering the inherentreasonableness or unreasonableness of the delay in advancing her complaint against Mr. D.

In so doing, I must apply my ownunderstanding of human nature, without expert assistance. [44] J.T. explained that the memory of the events in issue is extremely distressing to her and that she is extremely reluctant to discussthose events with anyone. That explanation is perfectly consistent with her presentation in the witness box. I can well understand whyshe would not wish to discuss the details with the Mother, with her counsellor, or with anyone else.

I would not find it surprising to betold that a victim of a sexual assault (of any age) might be unable or unwilling to come forward for some years after the event. Giventhat J.T. was 8 or 9 years of age at the time of the assault, and is now only 17, her delay in advancing her complaint is readilyunderstandable. It does not cause me to doubt her veracity or the accuracy of her evidence. [45] I am satisfied beyond a reasonable doubt that J.T.’s evidence is accurate and truthful, and I accept it in its entirety.

Findings of Fact [ 46 ] I am persuaded beyond a reasonable doubt of the following facts: a. Mr. D was in a position of trust or authority in relation to J.T. The most apt analogy would be that of an uncle who frequently cares for a child. b. Mr. D told J.T. that the Mother required J.T. to bathe with Mr. D. That was a lie. c. Mr. D showered with J.T. Both were naked. Mr. D’s penis was erect. d. Mr. D instructed or persuaded J.T. to move to the bathtub, where they bathed together. Both were naked. e. Mr. D instructed J.T. to touch his erect penis, and she did so. f. Mr. D then masturbated in front of J.T.

He did not ejaculate. g. Mr. D then wrapped J.T. in a towel, carried her into the bedroom, laid her on the bed with her legs spread, and kissed her on the inner thighs. His motive was sexual gratification. As he approached her vagina, J.T. asked him to stop, and he did so. h. On several other occasion, Mr. D inserted his tongue in J.T.’s mouth while kissing her. His motive was sexual gratification. i. On one other occasion, Mr. D deliberately exposed his penis to J.T.s view by opening his bathrobe as he left the bathroom. His penis was not erect on that occasion. May 29, 2015 _____________________________ T.

Gouge, PCJ