R. v. B.P. Date:, 2017 BCPC 364

Citation: R. v. B.P. Date: 20170720 2017 BCPC 364 File No: 19853-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Criminal Justice Act) REGINA v. B.P. PUBLICATION BAN PURSUANT TO S.486.4(2) REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: A. Lee Counsel for the Defendant: A. Burns

Place of Hearing: Surrey, B.C. Date of Hearing: June 19-21, 2017 Date of Judgment: July 20, 2017 1. INTRODUCTION [1] Mr. B.P. (“B.”) is charged with sexually interfering with his two cousins. He was fifteen at the time of the allegation. Theywere eight. At the time of the trial, the accused was seventeen and the two young complainants were ten. [2] There were five people that provided evidence. For the Crown, the two complainants O. and K., and their mother K.B.testified. For the defence, the accused and his mother testified. 2.

WHAT IS AGREED UPON BY ALL WITNESSES [3] By all accounts, these two little girls loved to go visit their aunt, K.P., (“Aunty K.”) who only lived a few houses away. By thetime they were five or six years old they would be over at their aunt’s house at least four or five times a week. Sometimes it was just tosay a quick hello and sometimes it was for a snack. Sometimes on the weekends Aunty K. would get some chips and all three of themwould watch a Netflix movie. As time went on, they would stay over for a night on the weekend.

At first, they would sleep in AuntyK.’s bed. [4] At some point in time, on occasion, either O. or K. would go into the accused’s bedroom. Both O. and K. liked to play gameson the accused’s phone and this was the main reason that they liked to go into the accused’s room. The accused would give him hisphone to play with, and sometimes they would simply stay in his room to sleep. 3. THE ALLEGATIONS AND EVIDENCE [5] There were two video statements played. Once adopted by the two young complainants, these two statements became thesubstance of the Crown’s case.

Counsel took no issue with the videotaped statements being admitted into evidence. Such a practice isbecoming more popular; perhaps some of the rationale for this approach can be understood by referring to the Supreme Court of Canadacase R. v. F.(C.), (SCC), [1997] 3 S.C.R. 1183, where at paragraph 23, in referring to

Section 715.1 of the CriminalCode, a

section dealing with video recorded evidence of witnesses under the age of 18, also quoting from “Accommodating the Criminal Process to Child Witnesses: L. (D.O.) and Levogiannis”, (1994) 25 C.R. (4th), at p. 343, written by Nicholas Bala and HilaryMcCormack, Justice Cory stated: One of the main purposes of this provision is to ensure that the courts have access to the best description possible of the events, as a childis more likely to have an accurate and complete memory of the events when the videotape is made, than several months later at the timeof the trial.

Children are also more likely to fully remember and relate often painful memories in a relatively relaxed interview than inthe strange, stressful, and formal court environment. A. The First Statement of O. – May 5, 2015 [6] O. was eight years old when the statement was recorded. It was taken by a police officer who did a very good job elicitinginformation without leading questions. [7] In her statement, referring to the accused, O. said “two months ago he touched me here and here”. On the video I could seethat she pointed to her bum and vagina.

The admissions filed also confirm that counsel take no issue with this observation. [8] She was asked by the officer “How many times?” She said, “Every time I stayed in his room.” [9] She told the officer that the accused touched her with his hand while she had clothes on and that she was wearing pajamas atthe time. [10] She was asked some questions as to whether other people touched her inappropriately. Here are some excerpts. I have used ‘Q’to signify a question from the officer and ‘A’ to represent the answers from O. Q: Has anyone else ever touched your private parts? A: No. Q: No?

Has anyone ever asked you to touch their private parts? A: No. Q: So, …has anyone else ever done anything to you that made you feel uncomfortable? No, okay. B. The Second Statement of O. – May 14, 2015 [11] Nine days later, O. provided a second statement. In that statement O. said: A: So, I came here because I needed to tell you, cause I didn’t tell you the rest of what my cousin did, so what he does he pulls down mypants and he touches my private parts that’s what I really needed to tell you …

Q: Okay so your cousin pulls down your pants and touches your private parts? Okay. A: And my underwear. [ 12 ] Later in her statement, she provides more information about being touched by the accused. She told the officer that just before being touched she is playing video games. She also said they ‘watch a movie’ or ‘Netflix’ then go to bed. She said that he uses his pointing finger and puts it inside her vagina and bum. [ 13 ] She also identifies another person named S. as an individual who touched her inappropriately.

A: So when I said, oh I forgot to say something, so and I also came here because my, my dad’s work friend did something wrong too, he touched the same way as my cousin did. Q: Mm-Hmm. A: Um so whenever I stay home alone with um [S.], when, when I was home sick and my dad’s picking up the kids he does the same thing. … Q: Okay and do you want to tell me what he does? A: So what he does, he um, he pulls down my pants and my underwear too and does the same thing. Q: Okay and when you say he does the same thing what is it that that he does O.?

A: He touches my same private parts like what my cousin does. … Q: And he touches your private parts okay so when he touches your bum are your clothes on or what’s happening? A: My clothes are on. Q: But sometimes no. … Q: You have your clothes on, okay so tell me about a time when you didn’t have your clothes on and [S.] touched your bum? A: When nobody’s there. Q: When nobody’s there?

A: Like when my dad’s not there and M. and K. are at school and then my dad goes pick up the kids and then, and then he does it when nobody’s there. [ 14 ] Just prior to being cross-examined O. adopted her statement and then said the accused probably touched her 50 times. Cross-Examination of O. [ 15 ] O. was professionally, but gently cross-examined by counsel. [ 16 ] She confirmed that the amount of times being touched was ‘fifty’.

She also confirmed that she had spoken to her sister, K., the other complainant, about these events for a number of nights before telling her mom. [ 17 ] She was asked “When [S.] touched you, did he ever see your vagina?” And she said, “Yes.

K. was not home, she was at school, he does it to the other when one is left alone with him; over the last three years, at different days but not as many times as B. [the accused] did. [ 18 ] In response to the question “How many times were you left alone with [S.]?”, she said, “More than twenty, more than thirty, more than forty, but less than fifty.” Finally, and without prompting, she said “about 45 times.” [ 19 ] O. said that the accused had two controllers for his games and she could sometimes play games together or watch Netflix. C.

Statement of K. – May 5, 2015 [ 20 ] In relation to the accused, K. constantly referred to events as happening to “us”.

Here are some examples: “he touched our private parts”, B. touch us ; when we always sleep in his room, he touch us in our private part; when we first sleepover; he’s touch us in our private part; the first time when we were 6; when we sleep in his room the first time; he touches our private part; when we all get ready for bed; when we were tired; when we play video games; when we were trying to fall asleep”. [ 21 ] She does briefly say, “[B.] touching my private part and I um…and when I sleep…” She also says that he puts his finger in “ my ViGi” [which was the word used to describe vagina in the interview]. [ 22 ] With respect to S., unprompted, K. says, “My dad’s friend [S.], um does that too.” She said he touches her ‘there’ almost every

day sometimes. [ 23 ] At this point of the interview the officer asks: Q: Has [S.] ever seen your vigigi? A: (Silent) Q: No. Um but [B.] has. (Pause) Q: Yeah? Um has [B.] has seen you with no clothes on, right? Um… A: Is there a bathroom here? Q: There is. If you hold on just a second. We’ll uh…we’ll get you, we’ll get you out of here quick, m’kay? Um…now has [S.] ever touched your vigigi mmm…yea? Has um…has [S.] ever seen your vigigi though? No? And what did [S.] touch your vigigi with?

A: His finger. [ 24 ] In my respectful view, there was no foundation upon which to suggest that the accused had either seen her vigigi or seen her without clothes. These questions were not carefully designed and were poorly crafted. [ 25 ] She told the officer that S. had “pulled O.’s and underwear thing... saw her vigi.” When asked whether S. had ever babysat them, she said “if my mom and dad have a lot of stuff to do around the house, [S.] can babysit us then.” Cross-Examination of K. [ 26 ] K. also testified with the aid of closed circuit television.

I wish to note again that the cross-examination of K. was done very professionally, but also very gently. [ 27 ] When asked if she talked to her sister about the accused, she said, “I think, I don’t know”, “I don’t remember”, “I don’t know” and “it is possible we talked about it every night”. [ 28 ] K. was able to explain that she liked to play games on the accused’s phone and would knock on his door and ask to use it. She said the first time it (referring to the alleged touching) happened was on her eighth birthday.

Counsel asked her if she had been over to the accused’s house since the time she told her parents the allegations. She said “Never” eight times. [ 29 ] With respect to S., when asked about how many times S. touched her she said, “30 times almost every time he saw her.” She said since she told her parents about the touching, S. had only come around the house once to pack some boxes for a move they were doing. D. Evidence of K.B. (Mother to O. and K.) [ 30 ] K.B. was able to describe the community they lived in. She and her daughters lived in a town home that was in a coop.

Her sister, Aunty K., also lived in that coop. [ 31 ] She recalled that at first, her daughters would stay over at their aunt’s a couple of times per month. At the beginning they always stayed there together. With respect to her daughter K., she testified that she stayed over at her aunt’s maybe once a month and only one time alone. She told the court that her other daughter, O., stayed there about twice per month. [ 32 ] K.B. described the evening when the disclosures were made to her. In her words, she was “stunned”. She “couldn’t even fathom it”.

She told her husband when he came home from work and it was decided to take the girls to their doctor. She said the reason for her decision was because “I needed this to be taken care of appropriately”. She expected the doctor would call the police. [ 33 ] While she tried to have a meeting or discussion with her sister about the allegations, it did not go well and after a few minutes everyone stopped their discussions. [ 34 ] With respect to the allegations of S., K.B. told the court that he was not a close family friend but he regularly drove her husband to work.

He had been over to their house maybe a half a dozen times for a barbeque. She was clear in her testimony that neither of her daughters were ever left alone with him. I took her evidence to mean that S. had never baby sat the girls. She adamantly denied that O. had been left alone with him 45 times. [ 35 ] With respect to the allegations and the accused, in cross-examination, she confirmed that both her daughters had said that the accused did not put his finger inside them.

Counsel elicited this point in order to contrast this information with the information elicited in the police interview, which was that the accused did commit this particular act. [ 36 ] She was cross-examined as to how many times the girls stayed over at the aunt’s. She agrees the visits were regular at first, but as time went on the overnight visits became less frequent. E. Testimony of the Accused – B.P. [ 37 ] Defence counsel in his written argument accurately describes his client when he writes:

“[B.] at the time of the allegations was a young teenager between 13 years of age and 15 years of age. He was in high school. He was an involved kid, who has embraced his First Nations heritage as a member of the Ojibwe and attended a week long camp to learn about his heritage. He had a girlfriend for 11 months in Grade 8. But he was most passionate about video gaming. Indeed, he spent most nights after dinner, if his chores and his homework was completed, playing video games on his playstation 3. He would play games like Call of Duty.

He also had an Xbox 360 and played Halo sometimes. [B.] would eat dinner and excuse himself for the rest of the evening and play video games into the night. He did not exit his room much except to say hello. He was lost in his world of being a teenager and playing video games. He did not pay much attention to his two cousins who began frequenting his home many days a week and one to two sleepovers per month up until November 2, 2014.” [ 38 ] B. said the girls started to come over to his house when they were around six. He was in grade 8 at this time. [ 39 ] He recalls that in 2013 they never slept in his room.

They would have been five years old at that time. [ 40 ] In 2014, when K. was six, she stayed in his room for the first time. He thinks she stayed there two or three times. He recalls that K. always would knock on his door and ask if she could play games on his phone. He remembers that she usually fell asleep in his room around midnight or 1:00 a.m. B. said that she always fell asleep before him and that somewhere around 3:30 a.m. or 4:30 a.m. he would shut his games off and go to bed and fall asleep.

K. would usually wake up and go home early as she needed medication that was at home. [ 41 ] As far as touching, he told the court that sometimes their shoulders would be touching and occasionally K. would put her head on his shoulder. However, he adamantly denies all the allegations of sexual touching. [ 42 ] He told the court that O. stayed in his room three or four times. O. would knock on the door, or just open the door, and ask to play with his phone. He said “depending on the night I was having I would say yes or no”. Sometimes she would play on the phone while lying on the bed.

Somewhere around 3:30 a.m. he would go to bed, and unlike K., O. was occasionally still awake. In the morning, O. would wake him up to get his phone again.

He would give it to her and fall back asleep until 11:00 a.m. [ 43 ] Once more, B. adamantly denied all the allegations of sexual touching. [ 44 ] B. was asked “How do you feel about these allegations?” He said: “I’ve been angry, felt betrayed, felt sad that they think I am an evil person, but it’s happened so I am just trying to move on.” Cross-Examination of B.P. [ 45 ] He confirmed that he played a number of different games on his computer and all of the games were too difficult for the girls to play. This was also confirmed by the evidence of his mother.

He also said that he only had one controller and so only one person could play at a time. He also testified that he did not have Netflix, so he never watched movies in his room. This is in contrast to the evidence of O. when she testified that she and B. would watch Netflix together sometimes. [ 46 ] He did not recall any specifics about the times the girls slept in his room. He said that “I just recall the same general routine.” [ 47 ] He confirmed his belief that he thought O. stayed in his room only three or four times and K. only two or three times.

By his calculation that was about half a dozen times, which accords with his mother’s recollection. [ 48 ] As far as timing, he thinks the last time they were in his room was sometime before November 2014. F. Evidence of K.P. (Accused’s Mother) [ 49 ] She testified that in 2013 the girls started coming over when they were about six. They would be at the house at least four or five times per week. [ 50 ] In 2013 she estimated that maybe they slept over three times between October and December. [ 51 ] In 2014 she remembers the girls sometimes slept in B.’s room.

By her recollection, the girls may have stayed in his room half a dozen times. [ 52 ] Between November 2, 2014 and April 30, 2015, O. slept over once and on that occasion stayed with her in her room. During this same time period K. never slept at the house. Cross-Examination of K.P. [ 53 ] At one point K.P. said, “sometimes they would both sleep in B.’s room”. This was new information, and contrary to the evidence of the complaints and the accused. I note that this testimony was given at the end of a long day and during a very thorough cross-examination. She appeared frustrated with the examination process.

It was my impression that she did not really have an independent recollection that they both stayed in his room at the same time, and only provided this answer as a result of being frustrated and tired. One way or the other, this point was not corroborated by any of the other witnesses. 4. THE CROWN THEORY [ 54 ] The Crown argues that the two young girls provided simple and straightforward evidence upon which the court can find the accused guilty. The Crown agrees that there were some inconsistencies in their evidence, but submits that is not surprising, as the two young girls are only 10 years old. 5.

THE DEFENCE THEORY

[55] Counsel for the accused says that the evidence of the two young girls is unreliable. First, it is argued that the allegations simplyjust did not take place. I am asked to rely on the evidence of the accused and acquit him. Secondly, it is argued that the two girls havedeveloped false memories. Specifically, they created some version of a fantasy and have now come to believe it to be true. 6. THE LAW [56] First and foremost it is important and essential to instruct myself that B. benefits from the presumption of innocence.

Theaccused is innocent of these charges until the Crown proves beyond a reasonable doubt that he is guilty of the elements of the offence. A. The Elements of the Offence [57] B.P. is charged with two charges. [58] First, that between October 2, 2012 and April 30, 2015 he did for a sexual purpose touch K.B. (“K.”), a person under the age ofsixteen years contrary to

Section 151 of the Criminal Code. [59] Second, that between December 1, 2014 and March 5, 2015 he did for a sexual purpose touch O.B. (“O.”), a person under theage of sixteen years contrary to

Section 151 of the Criminal Code. B. What Elements are Not in Issue [60] If these acts took place, then it is agreed that they were done in [omitted for publication]. Thus jurisdiction is not in question. As well, identity is not in issue. It is also obviously agreed that both the complainants are under the age of sixteen. As they are underthe age of 16 they have no capacity to consent to being touched in a sexual manner and it has not been suggested that they invited anytouching at all. [61] To be clear, the touching of the vaginal area of the girls is denied.

However, if I find that it took place, I believe it would beclearly for a sexual purpose. [62] Defence has submitted that the timeframe alleged in the information may be in issue. I will address this issue later in thesereasons. C. What is in Issue? [63] The sole issue in this trial is whether either or both of the girls were touched for a sexual purpose. In other words, did B. touchthe girls like they described? As the accused has denied the allegations, the real issue in this case is credibility. Defence counsel hasmade a submission that his defence is not an outright flat denial.

For example, by his own testimony, he admits all the factors that leadup to the alleged touching. He lived in the house. They sometimes stayed over in the house and sometimes the children would sleep inhis bed. However, in my view, the defence is still simply a denial that the offence took place. [64] As the Honourable B.C. Provincial Court Judge Blake wrote at paragraphs 41 and 42 in the 2012 decision of R. v. E.H.S.,156155-1, dealing with the same issue: [41] The essential issue in this case is, of course, credibility.

Pared down to its essentials the case involves a complainant testifyingthat she was inappropriately touched by the accused, while the accused denies that he did any such thing… [42] The assessment of credibility in such circumstances must be decided on the basis of proof beyond reasonable doubt, inaccordance with the fundamental principle which underlies the criminal law. The Supreme Court of Canada decision in R. v. W(D)(1991), (SCC), 63 CCC (3d) 397 (SCC) sets out a helpful framework by which to approach the issue. D.

Children’s Evidence and Credibility [65] I can say it no better than Madam Justice Kirkpatrick in R. v. R. (J.W.), 2003 BCSC 1694, where at paragraphs 18 to 20 shewrites: [18] Trials involving charges of sexual and physical abuse of children are always difficult. As the court noted in R. v. J.(F.E.) (1989), (ON CA), 74 C.R. (3d) 269 (Ont. C.A.) at 271-72: While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, itwould be horrible for an innocent person to be convicted of it.

For that reason, I think the courts must be vigilant to ensure that the zealto punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction ofthe innocent. [19] Finlayson J.A. expressed a similar sentiment in R. v. P. (M.B.) (1992), (ON CA), 9 O.R. (3d) 424 at 433(C.A.), aff'd (SCC), [1994] 1 S.C.R. 555, where he stated that courts "must not neglect [their] traditional role asprotectors of the rights of the accused to a fair trial" while trying to protect those most deserving of protection. As Wood J.A. stated in R.v.

K.(V.)(1991), (BC CA), 68 C.C.C. (3d) 18 at 35 (B.C.C.A.), there is a risk that inappropriate stereotypicalassumptions as to the credibility of complainants will be replaced by "an equally pernicious set of assumptions about the believability ofcomplainants which would have the effect of shifting the burden of proof to those accused of such crimes". [20] Those remarks underscore the fundamental principle of the presumption of innocence. The twin to that fundamental principle inevery criminal trial is the Crown's burden to prove its case beyond a reasonable doubt.

As the trier of fact, I must be satisfied beyond areasonable doubt that the accused committed the crimes alleged before I can convict. If I am not so satisfied, I must acquit. I need sayno more than that I have instructed myself in accordance with R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320.

[21] I am also mindful that reasonable doubt applies to the issue of credibility, which, as I have noted, is the central issue in this case. In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, Cory J. suggested the following charge to the jury on the issue ofcredibility at 758: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] In R. v.

H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) Wood J.A., speaking for the court,recommended a fourth instruction at 155 in addition to those recommended by Cory J.: I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful considerationof all of the evidence, you are unable to decide whom to believe, you must acquit." [23] In this trial, all of the complainants testified about events that occurred when they were children. In this regard, the SupremeCourt of Canada held in R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122 at 134 that: Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by referenceto criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where anadult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable toher as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies,particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time ofthe events to which she is testifying. E. Assessment of Credibility [66] In assessing credibility I am always mindful that I must not make a criminal trial a credibility contest. It is not a question of ‘whodo I believe more?’ I may accept some, all, or none of what any witness says.

When I do accept a certain part of a witness’s testimony, Ishould ask myself why. Equally, if I do not accept parts of a witness’s testimony I should also ask myself why. [67] The Honourable Judge Skilnick in R. v. C.J.C.A., [2017] B.C.J. No. 1019, provides an extremely useful guide when consideringthe credibility of child witnesses. At paragraph 59, he refers to the work of Nicholas Bala and Karuma Ramakrishon, called “JudicialAssessment of the Credibility of Child Witnesses”, (2005) 42 Alta, L.R.

Rev. 995-1017: 59 …The authors … point out some of the developmental differences which must be considered in evaluation of the evidence of childwitnesses. While children can be reliable witnesses, their memories are less well developed than adults… 60 A major concern with child witnesses is their potential for suggestibility. As a result of repeated or misleading questions, thememory of a child witness may become distorted. The authors write that it is possible for a child who has been subjected to repeated,suggestive questioning to develop “memories” of events that did not in fact occur.

Children, especially young children, are moresuggestible than adults. [68] In R. v. C.J.C.A., at paragraph 62, Judge Skilnick set out a number of possibilities applicable to his case. First, the child isintentionally not telling the truth. Second, the child is misperceiving something innocent that actually occurred.

Third, the child has afalse memory, that is, that the child legitimately believes something to be true that is not true because her recollection has been subjectedto outside influences. [69] In further considering the evidence of children in a credibility assessment, Justice McLachlin delivers our Supreme Court ofCanada guidance found in R. v. W.(R. ), 1992 2 S.C.R. (headnote), referring to paragraphs 24 and 25 of the judgement wherein shewrites: The law affecting the evidence of children has undergone two major changes in recent years.

The first is removal of the notion found atcommon law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with specialcaution… The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it maybe wrong to apply adult tests for credibility to the evidence of children. A new sensitivity to the peculiar perspectives of children isemerging.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, liketime and place, may be missing from their recollection. These changes in the way the courts look at the evidence of children do notmean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminalcases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solidfoundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach theevidence of children not from the perspective of rigid stereotypes, but rather, taking into account the strengths and weaknesses whichcharacterize the evidence offered in the particular case. [70] Similar comments can also be traced to and found in R. v. B.(G.), (SCC), 2 S.C.R. 30, where Madam JusticeWilson writes at paragraph 48: …the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the sameexacting standard on them as it does on adults.

However, this is not to say that the courts should not carefully assess the credibility ofchild witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as theappellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given thesame effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does notmean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much more benign attitudeto children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development.The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonableadult" is not necessarily appropriate in assessing the credibility of young children. F. The Difference Between Sincerity, Credibility and Reliability [71] R. v. T.O.H., 2016 BCPC 438 , is a case that I decided in 2016.

That case involved allegations of sexual touching by ababy sitter. The complainants in that case were also under the age of sixteen. At paragraph 17, I briefly touch on these concepts. 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 the witness'stestimony. 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 CA), (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 and reliability.

Inthat case, The Honourable 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. [72] The

article on “Judicial Assessments of the Credibility of Child Witnesses” mentioned above words some of these concepts insimple terms. At paragraph 6, found under note 5: • Honesty: Is the witness making a good faith effort to fully and accurately give evidence, or conversely is the witness deliberately

lying or at least not disclosing certain information? • Memory: How accurate and complete is the memory of the witness? • Suggestibility: Has the memory of the witness been distorted as a result of conversations or questions with others? • Communication Ability: How well does the witness understand the questions and how well is the witness able to communicate about the matters at issue? [ 73 ] Also found in notes 6, 7, 8 and 9, are other related concepts of credibility assessment: • The demeanour of the witness while giving testimony, including such matters as the manner of speech, pauses, physical demeanour and apparent confidence of the witness. • Whether the witness tells a consistent story, or conversely, becomes self-contradictory. • Whether the testimony “makes sense” – that is, how consistent is the testimony with the understandings of the trier of fact about what happens in the world and how people act in different situations. • Whether or not the witness has a general reputation for honesty or dishonesty. 7.

ANALYSIS [ 74 ] Sometimes people forget things when they are asked to remember some incident from their past. Sometimes those forgotten parts are small details. Sometimes we as humans can have huge gaps in our memories. No doubt inconsistencies will almost always arise in our memories. For example, it might have been a rainy day, but we remember it as cloudy. It might have been a Thursday, but it was really a Tuesday. [ 75 ] One person’s recollection of an event may be different from another person’s memory of the same event. Imagine a car going by two people.

An hour later they are asked to remember the colour of the car. One says it was white. The other says it was black. These recollections are inconsistent with each other. The inconsistency itself does not mean that one or the other is lying or intentionally trying to deceive anyone as to the colour of the car. However, while the answers are inconsistent with each other, there is no doubt that one fact has been established. By both accounts, a car went by. If the inquiry is to find beyond a reasonable doubt what colour that car was, then the task at hand would be more difficult. A.

Ability of Complainants to Observe and Recount Events [ 76 ] The complainants were young at the time of the allegations. They were eight years old. Upon commencing the evidence of K., I was told that she had a few medical issues. I made an inquiry as to whether she knew the difference between telling the truth and a lie. At first there was some confusion, perhaps brought on by the stress of the venue. Upon Crown tenderly probing this topic, it became immediately apparent that both she and O. had no difficulties in recounting their best recollection of the events.

Even though they had the assistance of a support worker and were testifying through CCTV, I thought they were still a bit nervous. It is not surprising that these two young ten year olds would be nervous. Under the circumstances, I thought they did very well answering questions from both Crown and defence counsel. While they appeared to communicate in a somewhat bashful manner, often appearing younger than they were, with respect to their attitude and demeanour I thought both the young children were trying their best to tell the court what they remembered. B.

Internal/External Consistency [ 77 ] O. was adamant that she disclosed about B. before she disclosed about S. This does not seem to be the case, according to her mother. [ 78 ] O. said that “I told my Dad and then my Dad told my mom what [S.] did.” It appears that O. may have told her mother directly. [ 79 ] O. had said that she had played on B.’s computer games. But when cross-examined she remembered that he only had one controller and had no real explanation as to how she could have played.

There was also evidence that the games B. played were far above the abilities of the two young girls. [ 80 ] K. said she never went over to Aunty Kim’s after the disclosures were made. She said ‘never’ eight times in a row. This may be true, but there was some evidence that suggested that she may have gone over there for some baked goods. Certainly, it does seem to be the case that she never saw the accused there. [ 81 ] K.’s memory was that S. had been over to her house packing boxes. This event was to have taken place after the disclosures to her parents about S.

By her mother’s recollection, S. had never been over to the house to pack boxes. However, he may have been there while they were moving. I accept K. may have been confused on this point. [ 82 ] K. tells a story of how O. had her underwear pulled down by S., who then saw her vigigi. This is contrary to the evidence of K.B. who testified that S. had never taken care of O. [ 83 ] There was a huge external inconsistency. O. estimates that the accused touched her 50 times. Her Aunt estimates at most O. may have stayed over in the accused’s room half a dozen times.

In my view this vastly different accounting of ‘how many times’ she was touched needs to be considered in the above legal context that I set out concerning the evidence of children. It is highly possible that O. was not being literal in her estimate of ‘fifty’. At first, I thought it could just be the highest number that she can imagine. On this issue, in his closing submission, defence counsel made an excellent point. The witness was now ten and should know the difference between a few times versus fifty times. In my view, this topic could have been covered more thoroughly on cross-examination. I am not

in a position to know whether this witness really did know the difference between half a dozen or fifty. [ 84 ] One thing is certain. If we take the numbers that the girls allege, then by their accounting these two girls were touched inappropriately by S. or B. approximately 155 times, or as counsel pointed out with respect to our time frame, approximately every two days. We know that this cannot be true. [ 85 ] To be clear, it is my view that whether the accused touched O. six or fifty times is not the issue that needs to be decided.

I would think whether the touching was fleeting on one occasion, or dozens and dozens of times over a prolonged time period, would be an appropriate sentencing factor to consider. However, the issue in this trial is much simpler. I only need to be satisfied that the Crown has proven beyond a reasonable doubt that the touching took place on one occasion during the alleged timeframe. [ 86 ] More problematic, however, is the evidence from O. and K. regarding the family acquaintance known as S. I will repeat a part of her evidence that I have already mentioned above.

In response to the question “How many times were you left alone with [S.]?” she said, “More than twenty, more than thirty, more than forty, but less than fifty.” Finally, and without prompting, she said “about 45 times.” [ 87 ] In her statement, K. told the officer that S. had “pulled O.’s and underwear thing... saw her vigi.” When asked whether S. had ever babysat them, she said, “if my mom and dad have a lot of stuff to do around the house, [S.] can babysit us then.” In cross- examination, with respect to S., when asked about how many times S. touched her, she said, “30 times almost every time he saw her.” [ 88 ] It is essential to note that the idea S. touched either of the girls 30 to 45 times is in stark contrast to the evidence of the girls’ mother K.B. who was clear that S. had never been alone with either of the girls.

K.B. was very clear on this point. Specifically, she said there was no way S. had been left alone with O. 45 times. And there was no way that he ever babysat the girls. [ 89 ] Once more, it is not a question of being able to determine if someone named S. inappropriately touched the complainants. ‘S. is not an accused. This is not a case of similar fact evidence. However, how can I reconcile these two versions of events? These two young children both allege that they were touched by someone who their own mother says was not in a position to ever touch them in the manner described. C.

Prior Inconsistent Statements [ 90 ] O. was very professionally interviewed by a police officer who clearly gave every opportunity to disclose whether anyone other than the accused touched her inappropriately. Even with gentle prompting and reassurances, she denied that any one else had touched her. I note that O. was interviewed separate from K. In contrast to O., K. did disclose the allegations to do with S. It was only after a period of time once those interviews were completed did O. come back with this ‘new’ information.

When asked why she did not tell the officer the first time, she simply said that she forgot. I think this is a reasonable explanation. It was her first time being interviewed by a police officer. The whole experience must have been quite unsettling. She was away from her parents, in an interview room, being tape- recorded and asked very personal questions by a police officer. My question would be this: What prompted her, after the interview, to ‘remember’ these allegations? Had she spoken to her sister about it? This issue of post-interview recollection was not covered on cross- examination.

On the face of it, it seems quite remarkable that she would not remember such a life changing concept and tell the officer on the first opportunity. But reluctantly, and erring on the side of her youthfulness, I accept that she may have forgotten. [ 91 ] One or both of the children had told her mother that the accused did not put his finger ‘inside’ of them. In her first statement to the police officer, O. specifically said that she was touched over her pajamas. In her second statement, she says that her clothes were taken off by both S. and the accused. This second statement is inconsistent with her first one.

I do not have an explanation as to why these versions of events changed. To me there is a big difference between being touched on clothing versus underneath the clothing. I would think this difference would be the same to an eight-year-old child. [ 92 ] Regarding the ‘inside versus outside’: I must consider the age of these two young complainants. They are physically and emotionally young. Their knowledge of their private parts is limited. I think taking into account their age, I can easily deal with this insignificant inconsistency.

Yes, they may have told their mother that the accused did not put his finger inside them. This could be for any number of reasons. They may have been embarrassed by the question. More likely, they may be confused as to the inside versus outside of their own private parts. I recall K. being walked through an exercise in the video that was hoping to gain an understanding of K.’s ability to tell the difference between ‘on top’, ‘below’, and ‘inside’. The officer was using a tissue box and a pen to try and illustrate the differences.

It was a confusing exercise showing that sometimes these ideas for children are hard for them to explain. I readily accept that a young child may have difficulties in communicating these concepts in an exact manner when dealing with the additional feature of a human being’s complicated anatomy. [ 93 ] O. said it happened two months ago, then three months ago, then finally she said she must have been mistaken and said three years ago. Once more, as the case law suggest, children often see time differently than adults. I do not make much of the time frame inconsistencies by either of the children. D.

Previous Occasions of Being Untruthful and Motive to Lie [ 94 ] Counsel for the defence submits the allegations against S. are manifestly false. It is further submitted that because of this outright falsehood it would be dangerous to found a conviction on the evidence of the two girls. [ 95 ] Defence also submits that the act of creating this fantasy is an attempt for the girls to lash out at their family. They once loved going over to their aunt’s, partially to avoid the alleged stressful home they were in, and partially to go over to their Aunty K’s, whom they loved.

There does seem to be a foundation that would show that these two young girls loved going over to their aunt’s house. As time went on, they were not able to spend as much time there as they wanted. They had lice, an elderly parent had come into the home, and another family member took up some time from their Aunty K. It appears to be true that it was around the time the visits ceased that the disclosures came about. However, this concept seems far-fetched to me. To me, this could be a simple coincidence.

[96] It may be true that O. had every now and then been grounded for lying; her mother said it was over little things ‘like taking acookie’. It is also true that in her statement to the police, O. said,“I lie all the time.” However, she did tell the Crown that her statementwas the truth. She did impress me as a witness who knew the difference between telling the truth and telling a lie.

One way or the other,I think it would be the rare case where a court could consider a minor unrelated childlike fib – like stealing a cookie – and distort that fibinto a reasonable inference that they are lying about being sexually abused. Such inferential reasoning in my view would be fraught withdifficulties and inappropriate. [97] One theory of the defence is that the girls made a similar disclosure to their parents about S., and right after that conversationthey were getting grounded less and their parents were a bit easier on them.

Implicitly, it is argued that this ‘give and take’ pattern leavesroom for one to argue that they made up these allegations to have their parents go a little easier on them. I find this argument to beflawed and a bit fanciful. It is hard to imagine an eight year old creating such an elaborate ruse. [98] I find the pursuit of examining ‘motivation to lie’ is often fruitless and maybe even dangerous. In some unusual cases, I can seethat certain individuals might have some hidden agenda to make up allegations.

I do not think such an agenda would easily be hidden bya child complainant who has to go through the rigours of cross-examination. On the other hand, what motivates a child to do or not dosomething is often a mystery to adults. E. Does the Evidence Make Sense? [99] Defence argues that it does not make sense that two girls who were inappropriately touched would continue to go back into theaccused’s room.

At one point, when one of the girls was asked “Why did you go back there if he did this to you?” In response, she said,“To see if he would do it again.” I agree with defence counsel that this answer does not make sense. However, respectfully, the fact thatthe girls went back into the room does not assist me. All humans are different. Some might do things that do not make sense in thecircumstances. I believe relying on this ‘act of returning’ is not helpful.

To rely on it smacks of drawing on old stereotypes of whatvictims should or should not do. [100] In the end, I emphasize that I always expect there to be inconsistencies in a trial of this kind. Children often have a differentconcept of time. Whether they remember if they had head lice is neither here nor there. Whether they know if they stayed over once ortwice per month hardly seems to be important. These details can often be elicited from other sources, such as adults. 8. CONCLUSIONS [101] I agree with counsel’s submission that the allegations of S. are of fundamental importance to this trial.

The similarities ofallegations between S. and B. are intricately interwoven with threads of such similarity, it is often difficult to pull them apart. The timeperiod, quantity of allegations and type of allegations are more than strikingly similar. [102] We know that the allegations as described by O. and K. with respect to S. cannot be true. [103] While I believe the girls did their best to provide evidence, I cannot rely on their evidence.

I believe counsel for B. said itproperly, “But for [S.] having an alibi, he could be charged with these offences.” [104] It has been argued that I need to consider the possibility of ‘false memories’. In my view, I do not need to decide this issue. Thecreation of false memories is simply a theory of the defence. I have not had the benefit of any expert evidence, and I do not considermyself able to try and decipher how or why these allegations against S. came about. Did he somehow touch the girls? Did the girls talkabout it before they went to sleep and somehow develop a false memory which they superimposed on B.?

This is possible. [105] It is equally possible that B. did commit the acts that he is charged with.

However, in criminal law, we do not find people guiltybecause it is possible they committed a crime. [106] In his closing submission, defence counsel argues that: In the present case, there are reasons that emerge from the evidence that make it dangerous to found a conviction on this evidence.Foremost among these are the potential for inaccuracy in memories from such an early age, the history of these children makingdemonstrably false claims against their family friend… [107] I agree with this submission. [108] I can say it no better than the Honourable Judge Skilnick in R. v.

C.J.C.A., cited above, [64] When a child of this age makes a report of this nature, everyone is right to be concerned. It is abnormal for little children to bringup these kinds of subjects. An accusation of this nature is well outside the realm of normal childhood imagination.

Because of thevulnerability of young children, it is necessary to fully investigate such reports and to prevent the potential for any further abuse and tostop those who abuse children from further harm. [65] A criminal conviction for acts of this nature will typically attract a penitentiary term for the offender and will imprint the label of“sex offender” to that person and place the offender in the Sexual Offender Registry for most of all of the rest of that person’s life.

Thelaw requires the absence of any reasonable doubt before affixing such consequences. [66] In the present case, there is reason to feel great sympathy for this complainant… A criminal conviction cannot be founded onsympathy alone. In the present case, there are reasons that emerge from the evidence that make it dangerous to found a conviction on thisevidence. … It is impossible to say that the Child’s disclosure is inaccurate, but that is a reasonable possibility in this case. It would bedangerous to convict the Accused under these circumstances. [67] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Mr. Justice Wood said of assessing

credibility: If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [68] This is such a case. Under these circumstances, reasonable doubt exists and accordingly, the Accused is acquitted of all counts on the information. [ 109 ] I also, in this case, find that the Crown has not proven beyond a reasonable doubt that the accused touched these two girls in the manner alleged. Therefore, I acquit the accused of all the charges. [ 110 ] In acquitting B., I wish to be clear.

I am not satisfied on the basis of the evidence of the two girls that their evidence is reliable enough to find beyond a reasonable doubt the guilt of the accused. I do not believe they are intentionally lying. But the “S.” issue cannot be resolved to my satisfaction. Had B. not taken the stand, I expect I would have come to the same conclusion. [ 111 ] Further, with respect to B.’s evidence, I found his evidence to be very compelling. He is older and perhaps while not surprising, considering the defence was simply a denial of the allegations, his evidence was not shaken.

While I would put his testimony in the category of ‘believable’, and possibly acquit him under the first prong of W.(D.) , I was certainly left in reasonable doubt by it. As such, but for my findings above, I would have acquitted him under the second prong of the W.(D.) case. [ 112 ] I wish to conclude with this final thought. This family has been torn apart by these allegations. You now have a legal conclusion to this matter. But your family’s future is in your hands. [ 113 ] If the allegations are true, then certainly B. knows this and he needs to get counselling.

He can talk to his mother privately and seek her guidance. [ 114 ] Whether these allegations are true or not, there are also two little ten-year-old girls that need the love of their family. They need their family to let them know that no matter what, they are loved. They need their Aunty K. [ 115 ] Trials are traumatic experiences for everyone. You have all suffered great anxiety and stress as a result of this trial. You all need to heal.

Whether the healing is facilitated through a healing circle, family counselling, a reconciliation conference, or some other mechanism, today is the beginning to the rest of your journey through life as a family. The Honourable Judge A. Wolf Provincial Court of British Columbia