R. v. T.O.H. Date:, 2016 BCPC 438

Citation: R. v. T.O.H. Date: 20161216 2016 BCPC 438 File No: 19633-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Criminal Justice Act) REGINA v. T.O.H. PUBLICATION BAN PURSUANT TO S.486.4(2) REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: M. Stacey Counsel for the Defendant: M. Shapray

Place of Hearing: Surrey, B.C. Dates of Hearing: October 19 and 20, 2016; December 16, 2016 Date of Judgment: December 16, 2016 INTRODUCTION [1] Between 2008 and 2012, T.O.H. (“Ms. H.”) was a baby sitter to the complainant L.P. (“L.”) L.P. was between the ages of 7 to11 at the time. It is alleged that Ms. H. sexually assaulted L.P. during this time frame. [2] I will survey the evidence as it unfolded in the trial, then set out the law and my analysis and finally my conclusions. CHARGES [3] Information 19633 is an Information in the Youth Justice Court of British Columbia, as the accused, Ms.

H., was a youth at thetime of the allegations. The Information is being proceeded upon by way of indictment contains three charges. Each charge arises fromallegations of sexual touching that took place between August 7, 2008 and August 7, 2012. [4] The first count alleges that the accused, for a sexual purpose, touched the complainant, a person under the age of sixteen years,contrary to

Section 151 of the Criminal Code. [5] The second count alleges that the accused, for a sexual purpose, invited the complainant to touch her body, contrary to Section152 of the Criminal Code. [6] The third count alleges that the accused sexually assaulted the complainant, contrary to Section 271(1) of the Criminal Code. THE CROWN’S CASE [7] L.P.’s mother, father and L.P. were called as witnesses. THE DEFENCE CASE [8] Ms. H. took the stand and provided evidence.

THE LAW Burden of Proof and Standard of Proof [9] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus andmens rea. [10] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard ofproof applies to the evidence as a whole, but generally not to individual facts. [11] The test for reasonable doubt, which must be applied in every case, was stated by the Supreme Court of Canada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742: First, if [I do] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask myself whether, on the basis of the evidence which [I]do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [12] I recognize that I must understand a number of related but separate principles.

An accused’s lack of credibility does not provehis or her guilt. I may accept some of an accused’s testimony while disbelieving other parts. I must consider all of the evidence indeciding whether there is any reasonable doubt, and any reasonable doubt must be resolved in favour of the accused. [13] It is not a question of who is telling the truth. That is, I mean to say, it is not a credibility contest where I must choose betweentwo versions or different theories of what took place. [14] If I believe certain aspects of a person’s testimony, I should ask myself why I believe them on these points.

Equally, if I, forsome reason, do not believe them, I should ask myself why. As well, does the evidence make sense? Even if I believe certain aspects ofa person’s testimony, I still must be satisfied that the evidence is cogent and logical. [15] There can also be a reasonable doubt based on the absence of evidence or a simple failure of evidence to persuade the judgebeyond a reasonable doubt. [16] In this case, credibility is an important issue that I must consider. There are two competing and vastly different versions of whatthe truth is.

I believe it is fair to say that credibility is the central issue in this case. SINCERITY, CREDIBILITY AND RELIABILITY

[17] In my view, it is important to understand the difference between credibility and reliability. [18] As to the meaning of credibility, it is necessary to separate the truthfulness of a witness, sometimes referred to as “credit”, fromthe factual accuracy of his or her evidence, sometimes referred to as reliability or the potential for error. See R. v. Formales, 2011 BCPC257 at para. 99, Rideout J. [19] The credibility of a witness is not the same as the reliability of a witness. Credibility has to do with a person's veracity ortruthfulness, whereas reliability deals with the accuracy of the witness's testimony.

Accuracy involves consideration of the witness'sability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not creditable cannot givereliable evidence on the same point. On the other hand, a finding that a witness is credible does not translate automatically into a findingthat what that witness says about an event is accurate and reliable. That is, a credible witness may very well give unreliable evidence. See: Edwards (Litigation guardian of) v. Stroink, 2015 BCSC 1318 at para. 37, Gaul J. [20] In the criminal context, R. v.

H.C. 2009 ONCA 56 at para. 41, in deciphering differences between sincerity, credibility andreliability puts it this way: 41 Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of thewitness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: See R. v. Morrissey, (On. C.A.) [21] “Reliability” is a term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensic process,but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurateinformation. See: R. v. Fitzpatrick, 2015 ONCJ 612 at para. 41, Dechert J.P. [22] R. v. Parent, 2000 BCPC 11, I consider to be an excellent guiding authority with respect to credibility.

In that case, TheHonourable Judge Rounthwaite of the Provincial Court of British Columbia, writes at paragraphs 4 and 5 of that decision: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately; 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful; 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accusedperson to avoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive whenassessing an accused's testimony; 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. THE TRIAL [23] I will go through the evidence as it unfolded in the trial. The mother, father, complainant and accused testified.

Simply, todistinguish between mother and daughter, I will refer to T.P. (mother) as Ms. P. and L.P. by her first name (“L.”). I do this for clarity,and I mean no disrespect by using her first name. T.P. (Ms. P.) – The Complainant’s Mother [24] Ms. P. has been married for about 15 years and has three children. The eldest is her daughter L., who at the time of the trial was15 years old. She provided information to the court about the residence. [25] Specifically, the house was a two floor home. The upstairs of the house contained a master bedroom with ensuite bathroom,which included a shower.

Next to that was a separate bedroom where the complainant’s two younger brothers slept. Adjoining thatbedroom to the complainant’s bedroom was a ‘jack and jill’ bathroom, with doors on each side. [26] Ms. P. described how the family had come to use Ms. H. as the family babysitter. Ms. H. had lived a couple of houses awayand began babysitting when L. was in grade one when she was six years old. Ms. H. was approximately 13 years old. Essentially, Ms.

P.’s evidence was that the accused babysat the complainant and her brothers a couple of times per month from around 2007 to 2013. There were other babysitters, but very rarely. Disclosure to Ms. P. [ 27 ] Ms. P. recounted the events that took place on Saturday October 18, 2014, the day that her daughter disclosed to her that she had been sexually assaulted by her babysitter years earlier. [ 28 ] A disagreement between mother and daughter had occurred with respect to the use of a social media account. It was around the time period of this disagreement that Ms.

P. testified that her daughter said, “Mummy I have something to tell you. Do you remember when I used to tell you that I didn’t like it when T.O.H. came to my house? T.O.H. used to have sex with me.” The Investigation [ 29 ] Ms. P. contacted the police a number of days later and they attended her home to investigate. By her memory, she and her husband were present. She told the court that L. was ‘there the last ten minutes or so’ of the interview. Mr. P.’s recollection was different. He believes that L. was present for most of the interview.

She described having numerous communications with the police and some neighbours. [ 30 ] Ms. P. had provided a written document to the police written by L. She said she had not looked at it, was not present when it was prepared, and had no involvement with its preparation. Mr. P. also confirmed in cross-examination that he had no involvement with its preparation. Ms. P.’s Recollection of Complaints [ 31 ] She said that, generally, the kids were happy to see Ms. H., but she did recall when L. was about 7 years old that she was told that “I don’t like her. I don’t want her to come over”.

She did not recall her boys ever complaining about the accused. Reason why the Babysitting Stopped [ 32 ] Ms. P. thought that the babysitting eventually stopped because her daughter eventually was able to take over babysitting duties. Mr. P. recalls that eventually, after L. got her babysitting certificate, they ‘felt comfortable that she could stay with the kids for short periods.’ W.P. – The Complainant’s Father [ 33 ] W.P. (“Mr. P.”) was also able to confirm some of the details as to when the accused started babysitting and how old everyone was during this time period. Mr.

P.’s Recollection of Complaints [ 34 ] He said the boys were upset with the accused because they were often put to bed early and their pizzas were burnt. He recalls his daughter complaining that she ‘hated’ the accused, but never said why. By his memory, his son B. and L. were very vocal about their dislike since around 2008. [ 35 ] Counsel for the accused politely and respectfully submits that it does not make sense that parents would receive consistent complaints about being put to bed early and not act on them, at least by raising the issue with the babysitter. I am not so certain.

Children, for their own reasons, sometimes share information with one parent or another. I would think it quite common for a young child to complain about certain things such as bedtime. [ 36 ] To be clear, I do not think that Mr. or Ms. P. were in any way being deceptive by providing slightly different details of their memories to the court. Their evidence did not appear to be rehearsed or driven by anything other than trying to tell the court their answers to the best of their ability. L.P. – The Complainant [ 37 ] L. confirms timeframes and told the court about the usual routines that took place when Ms.

H. babysat. For example, she told the court that food was usually chicken McNuggets, grilled cheese, or pizza. [ 38 ] She said that she would usually watch the “Big Bang Theory” or “Two and a Half Men” and go to bed. Sexual Assault Details [ 39 ] Her recollection was exact and detailed. For the most part, once her brothers were in bed, each sexual encounter was exactly the same. [ 40 ] They began with giving her a shower in her parents’ bathroom shower, located off their bedroom. During this shower, L. testified that Ms.

H. would “help me wash my hair and body; and spent more time washing my butt and vaginal area with a loofa”. [ 41 ] She testified that: “she would ask what do I want to do, play Barbie’s or go to bed?” She came into my bed and every time “she got on top of me and started rubbing her vaginal area on mine.” She also testified that every time “I was wearing a pajama top and pants or a night gown. If I was wearing pajamas, they would be put down to my ankles. If I was wearing a nightgown, it would be lifted up.” [ 42 ] She was asked whether Ms. H. was clothed during the incidents.

She said that she was not because she had removed her clothes.

[ 43 ] With respect to the environment, she said that Ms. H. always closed the door to the bathroom when she came in. [ 44 ] The Crown asked her if she had a memory of a specific incident. L. said that she did not. However, she told the court that the events she described happened almost every time. [ 45 ] She described in great detail how she was touched inappropriately. L. told the court that Ms. H. rubbed her vagina on hers. She said that she was forced to touch Ms. H.’s buttocks and breasts. She told the court that Ms.

H. touched her vagina. [ 46 ] She told the court that each time the duration of the event lasted for a few minutes, then Ms. H. would get up, put her clothes on and go downstairs. [ 47 ] She testified that, “I never told my parents about the sexual touching because I was scared that they would hate me, blame me, be ashamed of me and wouldn’t want me in their house.” Her Disclosure to her Mother [ 48 ] L. testified that part of the reason that she told her mother when she did was because she had been acting out and wanted to give her mother an explanation as to why she was acting out.

Cross-Examination of L.P. [ 49 ] The cross-examination of this young teenager was not as confrontational as is often seen in these courts. In my view, the majority of the questions asked by counsel were fair and generously open and general. At points, the questions were so open ended as to invite any recollection from L., no matter what it was. [ 50 ] For example, in one line of questioning counsel asked if she could remember any specifics about any incident. The weather? Where her brothers were? Any

article of clothing? Whether it was light or dark? Whether she could even remember what season it was? L. was not able to provide any specifics with respect to all of these questions. [ 51 ] To be clear, it is human nature to forget certain details of our lives. Just because L. is unable to recall that it was summer, winter, or fall, or whether it was daytime or night-time, does not mean that she was not sexually assaulted.

I often put it this way in trials – ‘It is not a memory contest’. [ 52 ] In cross-examination, L. maintained that the events were “ always the same and never changed.” For example, she was clear that she was always asked if she wanted to play Barbies or go to bed. [ 53 ] Counsel elicited inconsistencies in cross-examination. In court, she said that Ms. H. never put her fingers inside her vagina. In her initial interview with the police, she had said no, then a few days later in the document she prepared for the police she said “yes” to this question.

She clarified the discrepancy and said that when she was younger she ‘didn’t understand the difference between the inside and outside.’ I take into account her age from the time of the incident to the time of trial, and accept her explanation as to the discrepancy. As a young person, the question may have been confusing. As she became older, her understanding may have changed. [ 54 ] She testified that Ms.

H. would say things like “you can put your hand on my butt and breast”, and that she would “breath heavy” and say other things like, “you can make noise if you like.” [ 55 ] In cross-examination, it was elicited that on November 12, 2014, the police took a statement from her and asked her “when she would come in and lie on top of you would she make any noise?” She told the police, “no. She kept quiet the whole time.” Her response to the discrepancy was I didn’t remember everything and I answered too quickly. [ 56 ] She was asked questions about the showering routine. At first she said it was every time.

Then she told the court that it was not every single time. She was asked very open ended questions on this topic. For example, she was asked was it all but one time? 50% of the time? 75% of the time? She was not able to provide any details as to how many times this took place. While she was clear that Ms. H. did not get into the shower with her, she was unclear to any other details as to how the shower routine began and ended. She had no memory of Ms. H. being wet, or whether a towel was ever used to dry off, or whether she walked from the shower to her bedroom clothed or not.

She was clear that the shower was an integral part of the routine she endured at the hands of Ms. H. It is equally clear that she did not tell the police about these showers. [ 57 ] Not mentioning the allegations of the shower before the day of trial bothers me. It seems to be an integral part of the events that supposedly took place ‘every time’ Ms. H. babysat. It strikes me as unusual that L. would not remember more about the shower events. [ 58 ] There were many details elicited as to how clothes were removed from either Ms. H. or herself.

In her statement to the police in November 2014, the police asked her a series of questions about the removal of her clothes, which I repeat below. Q: So okay, you are under covers, she is on top of you, take me through that. A: She would get on top of me and make me take my clothes off. Q: When you say she made you take off your clothes, can you tell me more? A: She just told me to take my clothes off. [ 59 ] This version of events is very different from her recollection that she shared with the court. [ 60 ] There were also differing memories as to how Ms. H. removed her own clothes.

L. told the police she removed them while in bed, but testified in court she removed them before getting in bed. She could not describe how Ms. H. removed her bra but told the

police it was the same way every time. [61] With respect to the duration of the incident, she had told the court each time it was a few minutes, but had stated to the police itwas about half an hour. EVIDENCE OF MS. H. [62] Ms. H. is now 21 years old. She provided information as to when she thought she started babysitting for the P. family. Shedescribed how Ms. P. would drop by and see if she was available to babysit. As Ms.

H. got a bit older, she had an LG slide phone thatshe received calls on. [63] On the topic of phones, the complainant told the court that after each incident, she would essentially peek at Ms. H., who wasalways on her BlackBerry. Ms. H. was clear that she never owned a BlackBerry. While she was not cross-examined on this topic, I haveno reason to disbelieve her. I do not believe much turns on what type of phone she had. While I certainly know what a BlackBerry is – Ido not have in evidence what L. believed a BlackBerry to be. For example, was she simply referring to a phone that had a built inkeyboard? [64] Ms.

H. described other details of her babysitting duties. Her description is often general. For example, she says she would go tothe house ‘generally’ around 5:30 p.m. or 6:00 p.m. It was ‘usually’ a bit chaotic. [65] She testified that there were no specific instructions or rules when she was to put the children to bed. But in the earlier years,she would put the youngest, O., down to bed about half an hour earlier than the eldest, L. and B. Shortly after, L. and B. would havetheir teeth brushed and jump into bed. At that point, Ms.

H. said she would go into their room and “pull their blankets on them and saytheir goodnights.” [66] As they got older, B. would help his younger brother, O., and occasionally she would read a book to them in the boys’ room. [67] She was asked the direct question: “Did you ever bathe or shower any of the children?” Her answer was unequivocal. Shesaid, “No I never did.” She testified that she had never even been in the parents’ bedroom as she would have no reasons to go there. This is in contrast to L.’s testimony that they were both in that room, because that is where the showers took place. [68] In short, Ms.

H. denied all of the allegations. Crown counsel made a submission that really, her denial was simply a blanketdenial. Defence counsel submits what else is a person supposed to do when they deny the allegations. [69] In fairness, it is my view Ms. H. provided some very specific information. She said she did not have a BlackBerry. She told thecourt she specifically denied watching “Two and a Half Men”, but could not recall whether the other program was ever watched with thechildren.

She simply did not remember ever asking L. if she wanted to play Barbies, but did not deny the possibility. [70] She remembered the lighting. She recalled “it was very light, that there was a light in the boys’ closet and that some lightwould come up the stairs.” She says she recalled this because “one time I closed the light off in the bathroom and they all got upset.” This, to me, is not a blanket denial but a specific memory, and Ms. H. was able to tell the court why she specifically remembered thispoint. [71] With respect to the actual allegations of sexual abuse. She denies all of the sexual acts.

Again, she also denied showering orbathing any of the children. She was clear in her denial about telling L. anything about having sex with two cute girls or twins. In fact,she denies even knowing any twins during this time period. There has been no evidence led to the contrary. [72] In closing submissions, counsel for Ms. H. made a very good point with respect to some common features of the complainant’sand accused’s testimony. Both of them were unable to remember certain basic points.

I have already addressed the issue that trials arenot a memory contest. [73] My attention has been drawn to a number of authorities. R. v. R.W., (SCC), [1992] S.C.J. No. 56 at paragraphs24 and 26 lays out the law as held by Justice McLachlin.

This Supreme Court of Canada case is, as Crown commented, a seminaldecision concerning the assessment of credibility with adult witnesses, testifying as to events that occurred when they were younger. [74] I agree with defence counsel’s submission that both individuals should benefit from what the case law refers to as “an emergingnew sensitivity to the peculiar perspectives of children” since, again, as Justice McLachlin wrote, “children may experience the worlddifferently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from theirrecollection.” Our British Columbia Court of Appeal in R. v.

Curtis, 2000 BCCA 618 at paragraph 9, adopts this principle and I cautionand remind myself that I cannot expect either the complainant or the accused to be perfect with respect to their memory. DEFENCE ARGUMENT [75] The defence argues that Ms. H. is innocent until proven guilty and that there is nothing in the evidence that dislodges thepresumption of innocence. [76] Counsel for Ms. H. submits that the W. (D.) analysis applies and asks me to conclude this case based on the first prong of thatcase. That is, specifically, if I believe the accused, then I must acquit. [77] It is submitted that Ms.

H.’s testimony was unequivocal, powerful, reliable and given in a credible manner. It is argued,amongst other things, that she was candid, forthright, straightforward and believable. To use a legal framework for this submission, itwas submitted that her testimony was internally and externally consistent. [78] To be clear, I agree with defence counsel’s submission and I do believe the accused. Technically speaking, that is the end of the

matter and a further analysis of the case is not required. [ 79 ] However, it is my view that the W. (D.) analysis need not commence with the testimony of the accused.

In order to lower the risk of an improper assessment, perhaps it is wise to do this, but in this case I see no harm in continuing with the analysis to briefly examine the remainder of the evidence. [ 80 ] If I did not believe the accused, or if I was not left in a doubt by the evidence of the accused, I would then ask myself whether, on the basis of the evidence I did accept, I was convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

CROWN ARGUMENT [ 81 ] The Crown has referred to a number of cases in their written submissions concerning what we in courts have come to understand as script memory. R. v. Guitierrez , [1998] O.J. No. 2032 (C.A.) , which has been cited in the Supreme Court Case of R. v. Hughes , [1998] B.C.J. No. 1699 (S.C.) , basically stands for the proposition that “It is well recognized that victims of repeated assaults, particularly children, will be unable to pinpoint or describe with detail each repeated act of sexual abuse. The events become blended.

It is called script memory.” [ 82 ] However, in considering the totality of the body of evidence I have come to the conclusion that the complainant has not just blended her memory of different events. Her recollection of certain aspects of this case have changed, at some points, dramatically. This is not a credibility issue. It is a question of reliability. Both R. v. Formales , supra , and R. v. H.C , supra, are right on point. [ 83 ] For example, I do not expect L. to remember with any exactness how many times the sexual assaults took place.

Her initial approximation was that these events occurred approximately ten times. Later, in her statement to the police, she said that they occurred approximately 15 to 30 times. At the trial, she estimated anywhere from 10 to 50 times. Defence argued that it could be up to one hundred times when one calculates how often the babysitting took place. The complainant really could not assist in the narrowing down some of this information. The reality is that the Crown need only prove that the incident happened once during the time frame caught in the indictment.

What is concerning is the lack of explanation as to how these numbers have become so varied. Statements on this issue are inconsistent and there are no satisfactory explanations for their inconsistency. [ 84 ] Less concerning is that she originally told the police the incidents lasted a few minutes; then later, 10 to 20 minutes; and in a letter, about half an hour. This to me is a good example of how her testimony must be given less scrutiny. Her answer as to why she changed these quantifications of time was, “I didn’t have a clock.” Her response was sarcastic and not helpful, but absolutely understandable.

She was a child during the time of the allegations. She of course would have little knowledge of how long these traumatic events would have taken place. [ 85 ] There were other inconsistencies. I have discussed some of these earlier in these reasons. I do not believe they are all worth going into in any great detail. To be clear, L. is not to be blamed for her changes in her testimony. It is quite true that as time goes on, victims of abuse might locate a clearer memory of these past traumatic events.

But there are aspects of her testimony that have changed to the point of being unrecognizable from her initial disclosures. She originally said that Ms. H. did not say anything throughout the incident. Now L. has clear memories of exact words used. It was unclear to me which version L. now adopted with reference to the removal of Ms. H.’s clothes. Did she disrobe before, during or after the assaults? At one point L. said that Ms. H. always took her clothes off while in bed, in contrast to other versions where she said she took off her clothes prior to getting in bed.

Without a clearer explanation as to these incomplete or inconsistent recollections, I find it would be dangerous to found a conviction on them. [ 86 ] I am not satisfied, based on the evidence that I do accept, that the Crown has proven the guilt of the accused beyond a reasonable doubt. CONCLUSION [ 87 ] The Crown, in his closing argument, submitted that L.’s testimony had a ring of truth and that she had no motive to lie. I believe her testimony did have a ring of truth to it. I might even say that I believe it is probable that L. has suffered abuse at the hands of someone such as a babysitter.

However, I have a reasonable doubt as to whether that babysitter was Ms. H. I believe it is my duty to give the benefit of a reasonable doubt to the accused. [ 88 ] The word “deceptive” has been used in reference to L.’s ‘erasing her search history’. Let me be clear. I do not consider L. to be a deceptive person. I do not think she has any reason to lie or motive to make up these allegations. [ 89 ] To the contrary, I know that it must have been one of the hardest decisions in life that she has ever made to come to this trial.

No doubt her motives to be here are driven by trying to do the right thing. [ 90 ] As I mentioned at the beginning of my reasons. Trials are not a credibility contest. It is not a question of who I believe more – or who I believe less. [ 91 ] The Law is clear. Ms. H. began this trial as an innocent person. She is presumed by our law to be innocent until the Crown has proven beyond a reasonable doubt that she is guilty of the offence that she is charged with. [ 92 ] The onus on the Crown is high.

Often, these historical sexual assault cases are difficult to prove. [ 93 ] In this case, I find that the Crown has not proven the case beyond a reasonable doubt that Ms. H. sexually assaulted L.P. during the time alleged in the charges. [ 94 ] As a result, I acquit Ms. H. of all the charges. [ 95 ] I wish to thank counsel for their detailed submissions and professional manner in which they have carried out their duties in the

case. The Honourable Judge A.M. Wolf Provincial Court of British Columbia