R. v. T.D., 2018 BCPC 394

Citation: R. v. T.D. 2018 BCPC 394 Date: 20180926 File No: 20218-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. T.D REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.A. JAHANI Ban on Publication Pursuant to s. 486.4 of the Criminal Code Counsel for the Crown: J. Henry Counsel for the Defendant: E. Warren Place of Hearing: Surrey , B.C. Date of Hearing: August 14-15, 2018 Date of Judgment: September 26, 2018 [ 1 ] Mr. T.D. (“D.” or “Mr. D.”) is charged with sexually assaulting and also touching the body of his cousin E.M. (“E.”) for a

[ 1 ] Mr. T.D. (“D.” or “Mr. D.”) is charged with sexually assaulting and also touching the body of his cousin E.M. (“E.”) for a sexual purpose. At the time of the offence which was July 2016, D. was 13 years of age (born in October 2002), and at the time of trial, he was 15. The young complainant E., born in August 2010, was five years old at the time of the offence and eight at the time of the trial. [ 2 ] It is alleged that on or about the July 1-3, 2016 long weekend, when E. was exercising parenting time with his dad, he was sexually assaulted by D.

It is alleged that D. sexually assaulted E. via anal penetration. [ 3 ] The Crown called six witnesses as part of its case: Two police officers, the complainant, the complainant’s parents and maternal grandmother. The accused D. testified on his own behalf. [ 4 ] The accused denies the allegations against him. This is essentially a credibility case. Identification is not an issue. BACKGROUND [ 5 ] The complainant and D. are cousins. The complainant’s parents, J.M. and E.V. are separated, and had been separated for about three years as at the date of the offence.

The complainant lives with his mother J.M., and his maternal grandmother A.W. is regularly involved in his daily care. [ 6 ] The accused D. lived with the complainant’s dad, E.V., and E.V.’s parents [the grandparents] in their home. The complainant refers to [his grandparents] as K. and M. respectively. [ 7 ] I should also note the layout of [the grandparents’] home. It is a two-level home located in Surrey. The ground level consists of the kitchen, dining and living room, D.’s bedroom, and bathroom. The upper level has two bedrooms: One occupied by [the grandparents], and the other by D.’s sister.

E.V. sleeps on the couch in the living room. [ 8 ] It was clear through the evidence that the complainant loves visiting his grandparents M. and K. It was also clear that he really missed the young accused D., because as a result of the charges, they have had no contact. EVIDENCE A. Complainant – Videotaped Statement [ 9 ] Two police officers testified for the Crown. Cst. Parnes from the Surrey RCMP briefly testified, essentially stating that the file was originally a VPD investigation, as the complainant lived in Vancouver, but the incident had occurred in Surrey.

The investigation was dispatched to him, and due to the nature of the file involving a child complainant, he requested that the SVU conduct the taking of the complainant’s statement as it is a specialized unit. [ 10 ] The videotaped statement was introduced through the testimony of Cpl. Ellis, who is a member of the Surrey RCMP and at the time of the offence, had been working in the Special Victims Unit of the RCMP.

In this unit, she deals with cases involving the sexual and/or physical assault of children, and she has been trained to receive disclosure from children without suggestive or leading questions that could potentially affect the integrity of the content of their disclosure. [ 11 ] The videotaped statement of the complainant, which was taken at Sophie’s Place (a division of the SVU of the RCMP for interviewing children) some 12 days after the period during which the offence is said to have occurred, was played in court. The complainant further testified by way of CCTV.

The complainant, in his testimony, adopted the videotaped statement, and based on the evidence, all the requirement of s. 715.1(1) of the Code were met. As such, the video statement formed part of the complainant’s evidence-in-chief. [ 12 ] Transcripts of the videotaped statement were also provided in court. During the video, the officer showed E. two diagrams, one of a boy’s anatomy and the other of a girl’s. [ 13 ] I was impressed with the way the interview was conducted. Indeed the open/general nature of the questions preserved the integrity of the complainant’s account of what he stated happened.

The conduct of the interview and questions were gentle and age appropriate. [ 14 ] The complainant presented as a bright, active little boy both in his videotaped statement and on CCTV during his evidence. Considering his very young age at the time of the videotaped interview, it was clear to me that the complainant understood the questions he was asked.

From time to time, he may have deviated from the topic or gone on tangents, but his answers were generally appropriately linked to the questions asked. [ 15 ] The complainant properly identified the different body parts for a boy and a girl, including “private parts”, on each diagram.

He clearly enunciated and knew that he was the only one who was allowed to touch his “private parts”. [ 16 ] He told the officer that D. “does the same thing he’ll always do, the bum.” When asked what does he do to the bum, the complainant made use of the diagram of the boy, pointed to the private part and stated that “he puts that in my bum”. Also, that before D. does this, he tells E. to “be quiet.” [ 17 ] The complainant stated that when D. put his private

part in his bum, it made him “feel sad” and “mad”, and when asked whether he said anything to D., the complainant’s response was “stop it”, but that [D.] “just keeps doing it”, “doing it again and again”… “and he didn’t even listen”. [ 18 ] When asked if this happened more than one time, the complainant stated “it happened a billion times.” In response to whether he had clothes on during the alleged act, the complainant stated, “No clothes…. He put down my pants”. [ 19 ] The complainant stated that the alleged act happened in D.’s room when no one else was there, and that it happened “a long

time ago”. He stated that he “told [his] nana and [his] mom” and then he said he’s “not going to M’s again”. B. Complainant – CCTV Evidence [ 20 ] At trial, E. provided evidence through CCTV. Clips of E.’s videotaped statement were replayed for him.

While I noted that, for the most part, E. was not paying attention to the video clips, he did pay attention during the segment which made reference to the alleged act. [ 21 ] In his in court testimony, E. adopted the videotaped statement and confirmed that he was telling the truth, and that nothing else happened outside of what he told the officer. [ 22 ] In cross-examination, he recalled the video being played earlier in trial and confirmed that even though he was looking around and not paying attention, he heard the video. [ 23 ] He stated that he liked going to M’s house, and had visited M’s house one or 15 times; that he would go to M’s and play with his toys or dad’s Xbox; and that he would be the only child there along with D. [ 24 ] He described the layout of M’s house: that the lower level has the living room, kitchen, dining and D.’s bedroom, and that the upper has K. and M.’s room, the bathtub, and “someone else’s room”; that when he would go to his dad’s house, he would be spending time in the living room; that his dad’s videogames were in the living room, and sometimes his dad would come and play, otherwise his dad would be upstairs. [ 25 ] E. further stated that D. would be mostly in the same floor as him; that sometimes D. would be in the living room (D. would not play much in the living room) and sometimes in his bedroom; that D. would not talk to him much; that sometimes he would stay in his room, go out or play with his own friends.

He recalled that only one time D. played with E. with his friends. He agreed that sometimes at dad’s house, he and D. would play fight and the adults would tell them to be quiet from upstairs. [ 26 ] With respect to the allegations, E. stated that he first told his mom about the incident about 10 weeks ago (from the date of his testimony at trial), and this was after the last time he saw D.; that his mom told him D. would not be going back there (which I took to mean to M’s house).

E. stated that his mom did not ask him any questions about D and did not make any suggestions to him about D., and that neither E. nor his mom asked about or told the other about the things E. and D. did together; that when he spoke to his mom, E. knew it was a “bad thing for someone to put his privates in his bum”. E. further stated that no one asked him if D. did anything bad to him and that he did not talk to anyone about it. E. testified that the alleged incident occurred 10-15 years ago. [ 27 ] To E., the discussion with his mom occurred 12 days ago (from the date of his testimony at trial).

E. stated the last time he saw D. he was five years old, even though he also said at one point that he was six. He further stated that D. left the house before he (E.) turned six. [ 28 ] E. maintained he did not tell his dad about the incident, nor his grandmother. He further maintained that he told his mom that D. did “bad things to him”, even though in cross-examination he did not want to say what he told his mom. C. A.W. – Complainant’s Maternal Grandmother [ 29 ] A.W. is the person to whom the initial disclosure of the incident was made.

She testified that E. had been enrolled in day camp in the summer of 2016, and that she would usually help him get ready in the morning. As she was helping him bathe in the shower and washing his “bum with a scrubby”, E. told her that his bum hurt, and that he “usually asks D. to stop but D. doesn’t because he’s a bully”.

She stated that the shower was on July 13, 2016, and prior to this disclosure, E. had been at his dad’s place on July 1 st weekend, and was dropped off on July 3 rd . [ 30 ] A.W. testified that she did not understand what E. meant, and upon asking, E. pointed to his genitals and said that “D. puts his penis in his (E.’

s) bum”. E. told her that this happened every time he would go to his dad’s. [ 31 ] A.W. testified that she lost her concentration after this disclosure, but continued with the day as planned, and dropped E. off at day camp. She did not ask him any further questions. [ 32 ] She called her daughter J.M. (E.’s mom) and told J.M. what E. had disclosed, and asked for her permission to report the matter to the police. When she got home from the police station she observed E. telling his mom what happened. [ 33 ] E. would generally be going to his dad’s every two weeks.

A.W. would pick him up from his dad’s in Surrey, because his dad would usually pick E. up from his day care or school at the commencement of his parenting time. However, A.W. testified that E. had not gone to his dad’s for about more than two months prior to the July long weekend, because he did not want to go. She stated that at times, and after D. and his sister moved in with E.V., when E. would be there, sometimes he would call and ask to be picked up sooner, and she did not know why. [ 34 ] E. had wanted to go on the July long weekend because he missed his [grandparents].

She testified that his dad picked him up at the commencement of his July long weekend parenting time. [ 35 ] A.W. did not know D. well, and based on the evidence, did not know his family. She had met him once at Metrotown mall once before the incident. There is no evidence and no foundation for any suggestions that A.W. may have coached E. as to what to say. D. J.M. – The Complainant’s Mother [ 36 ] J.M. and E.V. had been separated since 2013. Based on the evidence, she was living with E.V.’s parents when E. was born, and during that time, [D.’s parents] also lived with [the grandparents].

She described that she was close to [D.’s mom], and had a good

relationship with her, but after that J.M. moved out when E. was about six months old, and from the evidence, it appears that the relationship was not maintained.

She described no ill relationship with D.’s parents in the past, and further stated that up until the events of July 2016, she has had no issues with D. [ 37 ] The layout of [the grandparents’] home, as provided by E., was confirmed and J.M. added that the other upstairs bedroom is occupied by D.’s older sister S. [ 38 ] She stated that when E. would visit with his grandparents, D. would usually be there, but on some weekends he would be at his own parents’ home. [ 39 ] She confirmed that E.’s frequency of visits with his dad was on alternate weekends usually from Friday to Sunday.

However E. had stopped wanting to go over, telling her that he wanted to stay with her. She did not recall when E.’s last visit occurred prior to the July visit, but estimated it to be a month or so before the last visit. Based on her recollection, E. visited his Dad on the July 1 st long weekend because that was the weekend that she and her mom painted their home. [ 40 ] J.M. testified that upon first hearing from A.W. about E.’s disclosure, she contacted E.V. [E.’s dad], asking whether he had left E. alone with D. He stated that he did not know, and asked why.

It is at that time that she told E.V. what E. had disclosed. Based on her evidence, E.V. then contacted D.’s parents telling them about the disclosure, and they called J.M. [ 41 ] Later on that day when she returned home from work, she asked E. what he had disclosed to his grandma that day, and she stated that E. essentially told her that D. had touched him inappropriately, that he sang a song that had the words “it went all the way up” and pointed to his bum. She knows this song, as she used to play it in her car before, and E. would sing along with it.

Knowing the song, she understood what he meant: that D. put “his private

part in his bum and went all the way up.” She stated that E. did not tell her where the allegations happened, but she assumed in D.’s room. She told E. she will keep him safe, and confirmed that she told him he would never have to go back to his grandparents’ home. Since the incident, upon being told that D. no longer lives with [the grandparents], E. has been at their home once, three to four months ago. [ 42 ] She stated she never spoke to E. about the incident again because she did not want to hurt him anymore. E.

E.V. – The Complainant’s Dad [ 43 ] E.V. and been living with his parents since January 2014 to 2017. D. had been living with E.V.’s parents since 2011, and his parents were guardians to him and his sister S. [ 44 ] E.V. described limited interaction between the members of his household. E.V.’s mom had been ill for quite some time and usually bedridden. E.V.’s dad would generally be around, either upstairs or downstairs. S. would usually keep to herself in her bedroom. E.V. would be mainly in the living room, and when E. would visit, they would sleep together in the living room.

D. would be either in his room or in the living room. [ 45 ] E. had his toys in the living room and D. had his in his bedroom. D. had one video game that he shared with E.V. in the living room, otherwise D.’s games and Xbox were in his own room. [ 46 ] E.V.’s observation of D.’s interaction with E. was that they got along; they would play with toys, watch TV, roughhouse, and that E. had not complained to him about D. [ 47 ] E.V. testified that there were occasions where he would be out of the home and E. would be left with his parents when D. would also be present.

There would also be occasions where he and his dad would be out shopping, and E. would be left with his mom who was bedridden. He stated that on such occasions E. would go upstairs and talk to his mom or to S. He also stated that he had no concerns with E. being downstairs and his mom upstairs when he and his dad would be out. [ 48 ] Based on his evidence, there were times where E would have been alone with D.

E.V. also stated that there would be times when E.V. would be home upstairs smoking marijuana with his parents while E. would be downstairs, either alone or with D. [ 49 ] With respect to the July 1 st long weekend, E.V. and E. went over to [D.’s mom’s] residence in Langley for fireworks. He believed that when he picked up E. for his parenting time, D. was at his own mom’s house, and believes that D. came back, which I understand to mean back to E.V.’s house.

To the question of whether D. was there the Canada Day long weekend, E.V. stated that he was not sure, because it was long ago and D. may have stayed the weekend with his own mother. [ 50 ] E.V. agreed that in 2016, he and D. had a verbal argument during which E.V. hit D. While he did not recall the date of the argument, he stated that D. left the house as a result of that argument for about an hour and then came back. E.V. testified that D. eventually left [the grandparents’] home in November or December 2017, because of disagreements between him (D.) and E.V.’s parents as his guardians.

After the allegations, D. stayed with [the grandparents], because it was their home, and E.V., as a guest himself in his parents’ home, had no say essentially as to who could or could not stay there. [ 51 ] E.V.’s relationship with J.M. was strained based on his evidence, as he was not paying child support. He testified that in 2016, he was having parenting time with E. every other weekend, and that in the summer it was once per month. He confirmed that the last time E. stayed overnight with him was the July 1 st long weekend. Afterwards, it was very hard to have parenting time with E. after that weekend.

He wanted to talk to E. about the incident a few times, but decided against it, because he did not want to make the visits he had with him at the time about the incident, and furthermore, the investigation was still ongoing. F. Evidence of the Accused T.D. [ 52 ] D. testified on his own behalf. He was living with his grandparents since about 2010, and was living with them in July 2016. He stated that E. would be over to their house every other weekend for the full weekend.

[ 53 ] He described that E. would mostly hang out with him, that they would play fight and E. would scream at times because he would get beaten up, causing his dad to come down, telling them to quiet down.

At times they would engage in wrestling moves: having E. over his shoulder in a headlock (E. would jump on his back while D. sitting on the couch), and wrestling around. [ 54 ] D. denies the allegations: that he has never touched E., has never had any sexual activities with him, has never exposed himself to E. [ 55 ] With respect to the July 1 st long weekend, D. testified that he was at his mom’s home in Langley from Friday to Sunday, and that when E. came over to D’s mom’s on Saturday of that weekend in Langley, D. was already there.

He further testified that E. was there until Sunday, and did not stay for the whole weekend (which I take to mean Monday, since it was a long weekend); D. stated that he (D.) was not there on Sunday when E. left. Later on in his examination-in-chief, he stated that E. came to his parents’ home on Saturday and left on Saturday. When they parted that weekend, it was on good terms and he expected to see E. again. D. denied anything such as the allegations occurring that weekend. [ 56 ] D. testified that the first time he found out about the allegations was a year later.

He stated that he did not know why E. did not come over anymore. [ 57 ] D. stated that he spent the July 1 st weekend with his own parents as a result of a disagreement with his grandparents. A couple of months after, he had an argument with E.V. and left again. He denies staying at his grandparents until 2017. He believes he left their home right before October 2016. [ 58 ] It was his evidence that during those few months between July and October 2016, he had be in an out of his grandparents’ home: he’d be back a couple of weeks and then leave again.

During the time he would be away from his grandparents, he would be at his Aunties. [ 59 ] During the time he would be back at his grandparents, he testified that he technically was not there, and that he was at Surrey Central hanging out with bad kids, which led to further arguments with his grandparents. [ 60 ] Based on D.’s evidence, E. was also at [the grandparents’] home a week or two prior to the July 1 st long weekend, and denies anything happening that weekend either.

D. stated that E. had been over to [the grandparents’] on an alternating weekend basis consistently prior to the July long weekend; that when he would come over, they would play together. [ 61 ] D. could not recall how many times prior to the July long weekend E. had gone over, but stated that he had been coming over to his grandparents since D. was 11 or 12 years old. [ 62 ] He testified that when E. would come over to his grandparents, and come to D.’s room, he would usually kick him out because he does not like people in his room.

He denied letting E. play video games in his room, because he had an Xbox in his room and had saved his progress, which is why he would not let E. play with it. E. would play on the PlayStation in the living room. [ 63 ] He agreed that there were times he would be playing with E.; that there were times he would be alone with E.; and there were times he would be alone with E. in his bedroom. [ 64 ] He did not recall how long after the long weekend the argument with his grandparents occurred.

He stated that his argument with E.V. was over the computer, that he wanted D. to get off the computer, as it was late at night. The argument lasted 20 to 30 minutes, and resulted in him leaving for good.

Despite the significance of this argument, which resulted in him leaving, he did not recall the date, but agreed it was in 2017, around the same time as the charges came about. [ 65 ] He denied leaving his grandparents’ home because of the charges, and stated that his argument with E.V. occurred before he became aware of the charges. [ 66 ] Despite this argument causing him to leave his guardians’ home, he did not contact them to discuss the issue with them, and he just moved out to his dad’s home. [ 67 ] At the conclusion of the evidence at trial, after defence closed its case and prior to the closing submissions, Crown brought an application to amend the date of the offence on the Information, such as to cover the period from January 1, 2014 up to July 3, 2016, essentially seeking to add a period of two years.

Defence objected, stating that it would be prejudicial to the accused to make such an application after the defence has closed its case; that had this application been made at the outset of the trial, it would have been different.

Defence argued that the Information was laid in August 2017 for an offence occurring between July 1 to July 3, 2016, and that if defence was alerted to the fact that they would have to also deal with matters covering a two year period, the conduct of the trial would be different. [ 68 ] In response, Crown argued that the accused has presented something akin to an alibi evidence for the July long weekend, essentially that he was elsewhere during the July long weekend, without giving “alibi notice” to Crown. [ 69 ] Defence replied that his client testified that he did see E. that weekend, and that the location does not matter, because it is his evidence that he did not do the acts alleged, not that he did not see E. that weekend.

Defence further suggested that the Information, as it currently stands, reads “on or about” the dates stated, which does give some flexibility. On the basis of those submissions, Crown was content to proceed without amending the Information. THE LAW A. Credibility [ 70 ] As mentioned earlier, this is a case where the central issue is credibility.

[71] An accused is presumed innocent until proven guilty. It is not an accused’s obligation to prove his innocence. [72] The Crown has the obligation to prove the guilt of an accused beyond a reasonable doubt. The Crown must prove all elementsof the offence, including both the actus reus and mens rea, beyond a reasonable doubt. [73] Reasonable doubt is one that is based on reason and common sense. It must logically follow from the evidence or absence ofevidence. [74] The test of reasonable doubt when credibility is at issue, is set out in the Supreme Court of Canada decision of R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742: First, if [I] 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. [75] An accused's lack of credibility does not prove his or her guilt. I may accept some of an accused's testimony while disbelievingother parts.

I must consider all of the evidence in deciding whether there is any reasonable doubt, and any reasonable doubt must beresolved in favour of the accused. [76] I may accept some, all or none of a witness’ testimony.

The evidence of each witness must be considered in light of all of theother evidence. [77] It is not a credibility contest, such that I would have to determine who is telling the truth or which version I should choose. [78] Also, reasonable doubt could exist from the absence of evidence or from the failure of evidence to persuade the judge beyond areasonable doubt. [79] In assessing credibility, I have to distinguish between credibility (witness’ veracity) and reliability (the accuracy of the witness’testimony). Echoing the comments of Wolf J., as set out at paras. 17 to 19 of R. v.

T.O.H., 2016 BCPC 438, referred to at para. 71 of R. v.B.P. , 2017 BCPC 364: 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", from thefactual accuracy of his or her evidence, sometimes referred to as reliability or the potential for error. See R. v. Formales, 2011 BCPC 257 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, butwhen 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. B.

The Children’s Evidence [80] In R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30, Wilson J. of the Supreme Court of Canada at para. 56 stated: [56] Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses, it seems to me that he was simplysuggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose

the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess thecredibility of child witnesses, and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing withchildren, as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony shouldnot be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirelyappropriate.

While children may not be able to recount precise details and communicate the when and where of an event with exactitude,this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much morebenign attitude to children's evidence, lessening the strict standards of oath-taking and corroboration, and I believe that this is a desirabledevelopment.

The credibility of every witness who testifies before the courts must, of course, be carefully assessed, but the standard ofthe "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [81] In R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, McLaughlin J. at paragraphs 24, 25 and 27 stated: [24] Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidenceof young children. The law affecting the evidence of children has undergone two major changes in recent years.

The first is removal ofthe notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to betreated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of theCriminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifyingunsworn, was repealed by

An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1,1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, havealso been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent thejudge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case.

But it doesrevoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than theevidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of theparticular case, it will have fallen into an error. [25] The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like timeand place, may be missing from their recollection. [27] It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to"adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. [82] Children’s evidence should be therefore viewed with a common sense approach, credibility of the child should still be assessed,although not expecting the same exacting standards applied to adult testimony. [83] In R. v. R.E.M., 2002 BCSC 162, at para. 39, Mr. Justice Romilly stated: [39] In R. v.

F. (C.), supra, the court pointed out that when a judge rules that the statement has been adopted, the threshold degree ofreliability has been met and the videotaped statement is admissible as evidence. That evidence, together with the viva voce evidence attrial, could comprise all of the evidence-in-chief of the complainant. Matters dealing with the circumstances in which the video wasmade, the veracity of the witness' statements, and the overall reliability of the evidence are matters for the trier of fact to consider whenassessing the weight to be given to the videotaped statement.

Even if defence counsel, in cross-examination elicits evidence whichcontradicts any part of the video, this does not render those parts inadmissible; rather, inconsistencies go to weight. [84] In R. v. D.A.H., 2017 ABQB 193, at paras, 42 and 43, the Court makes reference to Professor Bala’s comments with respect tochildren as witnesses: [42] The Crown finally referred to Prof.

Nick Bala's comment "R.W.: More Sensitivity to Child Witnesses" 1993 13 CR (4th) 270 and inparticular Prof Bala's commentary that post-RW, "trial judges should now be able to take judicial notice [that victims of abuse often infact do not disclose it, or do not disclose it until a substantial length of time has passed] and instruct themselves or a jury that theevidence of a child should not be discounted because of the absence of timely disclosure". (at p. 2) [43] Prof.

Bala notes what he calls a growing body of psychological literature — as of the 1993 vintage of the piece — that: ...supports the view that children are more likely to have accurate memories of core elements" that directly involved them, as opposed todetails requiring observation or assessment, such as time, place, physical setting or distance.

Indeed, with younger children who haveundeveloped concepts of time, distance or even counting, questions requiring understanding of these concepts may not be meaningful. (Also, Bala et al, "Hearing the Voices of Children in Canada's criminal justice system: recognizing capacity and facilitating testimony"Child and Family Law Quarterly, Vol 22, No 1, 2010.) [85] At para. 32 of D.A.H., supra, the court made reference to R. v.

Barua, an Ontario Court of Appeal case in which the convictionwas upheld, and in which it was held that: [32] A review of the entirety of the evidence, however, shows that the core of the complainant's allegation against the appellantremained largely intact. We cannot say that no reasonable jury, properly instructed, could have convicted the appellant based on the

evidence of the complainant. [ 86 ] From the series of cases cited in D.A.H . , supra , it is clear that one has to assess whether or not the discrepancies or inconsistencies in the complainant’s evidence affect the credibility of the core story to which he or she has testified. Position of Defence [ 87 ] As mentioned earlier, Mr. D. categorically denies the substance of the allegations. [ 88 ] Defence submits that the Crown’s evidence or rather the witnesses’, contradicted each other.

As to the complainant’s evidence, it is the position of defence that the complainant’s evidence was contradictory; an example was to whom the complainant made the disclosure. Defence submits that the fact that the complainant misses the accused, or that he has no ill feelings towards Mr. D., should also give me some pause as to whether the allegations happened or not, especially when there is suggestions that he did not want to go over to his grandparents’.

I should not draw the inference that he did not want to go there because something bad happened. [ 89 ] Defence further submits that the manner in which the disclosure was made by the complainant to his mom, which was via the rap song, should be looked at carefully as to whether the complainant understands what he was talking about, whether he is conflating things he has heard about, rather than things that have actually happened. [ 90 ] It is the defence position that there are contradictions in dates regarding when some events happened, and how long ago they happened, which detract from the complainant’s reliability. [ 91 ] Defence submits that this case has frailties as we are dealing with a child who is not making clear present-day allegations and is adopting a video; that the adoption of the video is problematic (E. was hardly paying attention to the video while it was playing); that the evidence is not clear as to what happened.

Analysis [ 92 ] As mentioned previously, D. was 13 at the time of offence and 15 at the time of trial. E. was five at the time of offence, and eight at the time of trial. [ 93 ] D. denied ever sexually assaulting or touching E. for a sexual purpose. [ 94 ] The complainant’s videotaped evidence, which was recorded within three weeks or so after the allegations, formed part of his evidence in chief at trial, pursuant to s. 715.1 of the Code . The original disclosure to his grandmother was made within approximately two weeks after the date of the allegations.

Based on the evidence, the complainant’s disclosure to the grandmother occurred voluntarily, as a result of his reaction while his private area was being washed. I find no evidence that the disclosure was influenced or tainted by the grandmother, and there is no foundation for an ulterior motive for the grandmother to tell the complainant what to say in that regard. [ 95 ] Neither the grandmother nor the mother further spoke to the complainant about the substance of the allegations post the complainant’s initial disclosure to each of them, and I accept their evidence in that regard.

I also accept the evidence of E.’s father E.V., that since the allegations came about, he has not spoken to his son about what happened, even though he wanted to, because he did not want to make his visits with him about that. [ 96 ] The disclosure made to the grandmother was consistent with the complainant’s videotaped evidence. There is no foundation, nor do I find that the complainant was coached as to what to say during the video interview.

The questions asked by the officer were appropriate, non-leading, but directional enough that it left it still entirely up to the complainant as to the response he chose to give. The complainant was further able to properly show on the diagram the substance of the allegation. [ 97 ] Defence submits that the manner of the complainant’s disclosure to his mother, which was done through the singing of a rap song, should be viewed with caution, because he could be confused and conflate the content of the song with what actually happened.

I do take note of defence submission in this regard, but respectfully disagree that this is what has occurred. The original disclosure was the disclosure made to the grandmother.

That disclosure came about naturally in the sense that it was a response to his private area being washed. [ 98 ] While the court will never know why the complainant chose to sing a song when telling his mom what happened, I have to take into account that he was five years old at the time, and generally speaking, everyone will have their own way of talking about something that has happened to them. [ 99 ] The content or the core of the complainant’s disclosure was consistent throughout: to his grandmother, to his mother and in his video statement. [ 100 ]

Section 715.1 has built-in guarantees of reliability. As mentioned, the video interview was done within a short period of time of the date of the allegations, and I have observed the demeanour and intelligence of the child when he was giving his video statement. [ 101 ] I am further satisfied that he was telling the truth both in his video statement and in his in court testimony. In his in court testimony, I found him to be a bright child.

I did note that he was not paying attention at times, and playing about, however, I do note that it is difficult for an eight-year-old boy to be required to sit still and focus on court proceedings, which is clearly not as fun as activities he would be used to engaging in. [ 102 ] The complainant adopted his video statement in court. He stated that he was telling the truth, and when in cross-examination it was pointed out to him that he was not paying attention to the playback of his video statement, he did candidly mention that he was listening, even though he was not looking.

[ 103 ] The complainant was sad and upset that he had not seen D. since the allegations. He missed D., and was upset that he left. The fact that E. misses D. does not mean that allegations are made up. It was clear, based on the complainant’s evidence at trial, that he did not understand the significance of his disclosure or its consequences, in that it gave rise to the charges and, hence, the no contact. [ 104 ] While it is argued that there are inconsistencies with respect to his evidence, for example with respect to whom he made disclosures, these are not significant matters and are peripheral in nature.

To a five-year-old, he may not have remembered telling his maternal grandmother, or equated what he told his grandmother as the same as what he told his mother. [ 105 ] The complainant’s testimony with respect to timelines was problematic. However, I do not expect a five or eight-year-old to have the same concept of time as adults do. He had enough concept of time to be able to make reference to something in relation to his birthday, for example. What is important, and as confirmed by caselaw, is that the core of his evidence was the same throughout. [ 106 ] As to Mr. D.’s testimony.

In analysing his testimony it does not mean that the onus is reversed, such that Mr. D. has to prove his innocence. [ 107 ] He presented as a young man, coherent, able to articulate his thoughts age appropriately. [ 108 ] There were some difficulties with D.’s evidence. There were internal inconsistencies in his testimony. For example, in his examination-in-chief, his testimony was inconsistent with respect to some details relating to when he moved out and/or back in his grandparents’ home.

For example: D. stated that he had a disagreement with his grandparents and left their home on July 1 st and went back on Monday. At another point in his examination he said he went back to his grandparents that summer. Yet at another point, he stated he was there for a little while before he moved out again.

On another occasion he said he left his grandparents’ home on Friday of the July long weekend, and after that weekend “he didn’t go back at all”, and that he went to Surrey and stayed there for two months, until he was picked up by his aunt. [ 109 ] In cross-examination, in response to questions seeking to clarify the details of when he moved out of his grandparents’ home, D. stated that he did not know his months, that he did not recall the dates.

He eventually stated he was in and out of his grandparents’ home for about two months, being in and out: from July to October and believes he left a few days before October 2016. [ 110 ] I do not expect him to recall the dates of events, however, considering that an argument with his grandparents occurred causing him to leave and stay with his parents that July weekend, it would be reasonable to expect that he would remember with some degree of certainty and/or recollection the nature of the argument, and progression of events, meaning what occurred in terms of his residency after that weekend.

He was only 13 at the time and his grandparents were his guardians. I found his evidence on these points guarded, not easily forthcoming and his responses not always specific to the question asked and somewhat vague. [ 111 ] D. also was not clear about the subject of the argument between him and his grandparents.

He originally stated it was school related, that he was not doing well in school; but when confronted with the fact that school was finished back in the summer of 2016, his testimony changed to him hanging around bad friends, and that he was getting in trouble with his friends, both in summer and during school. [ 112 ] Another point of internal discrepancy involved the two month period he states he was not residing with his grandparents, that he was in and out. I found it inconsistent.

On the one hand, D.’s evidence was that when he was not at his grandparents, he would stay with his aunt or he would be mostly at the mall if he was with his grandparents. On the other hand, D. stating that his grandparents filed a missing person’s report because they did not know where he was for a month. [ 113 ] I found D.’s evidence externally inconsistent with the evidence of E.V. in relation to their argument. I should note that I found E.V.’s evidence and in general, the evidence of the civilian witnesses for the Crown credible.

Not much turns on external inconsistencies between the civilian witnesses, such as whether J.M. asked E.V. if he left E. alone with D. or not. The evidence of the mother, the grandmother and the father were generally consistent. [ 114 ] E.V. admitted that in 2016, he and D. had a verbal argument during which he hit D. While he did not recall the date of the argument, his recollection was that D. left his grandparents’ home as a result of the argument, for about an hour, and came back that same day.

D. however testified that because of the argument he had with E.V., he left his grandparents’ home for good and never returned to live there. He expressed that the argument with E.V. was over his overuse of the computer. When he left, his grandparents were out at the casino. D. testified that he did not call them or inform them about the argument or that he was leaving.

I find his evidence problematic in that it is externally inconsistent and furthermore, it does not make sense, especially considering that his grandparents are his guardians and in light of an argument so significant causing him to leave, he would not contact them. [ 115 ] I also found D.’s evidence to be also externally inconsistent with that of other witnesses on the issue of whether E. attended at his grandparents’ home prior to the July long weekend. By all accounts, E. had not attended at his grandparents’ home for about at a month prior to July long weekend.

Even if the period is less than a month, it certainly was not every other weekend consistently, as D. described it. [ 116 ] Considering the inconsistencies, I do have difficulties accepting the evidence of the accused and do not find his evidence credible. [ 117 ] The second prong of W. (D.) states that, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. The accused denies the allegations. But there is an issue with respect to where this incident occurred.

Based on the complainant’s testimony, the alleged act has occurred many times, and when asked where it would occur, the complainant stated that it occurred in D.’s room, but it was not clear from the evidence when the alleged act occurred in D.’s room. This is relevant considering that there is uncertainty as to whether D. was at his grandparents’ home during the July long weekend. D. denies being at his grandparents’ home that weekend and based on E.V.’s evidence, he was uncertain as to whether D. was at his own parents’ home or at E.V.’s residence.

E.V. believed that D. stayed at this own parents’ home during the July weekend. Also, based on the evidence of other Crown witnesses, E. had not visited his dad for at least a month prior to the July weekend. Therefore, it is difficult to determine the

timeline of the allegations as testified to by the complainant. There was no evidence with respect to anything occurring prior to the July long weekend or during the timeline period prior to the month of July, during which the complainant would have visited his dad.

And since there was no evidence offered on that time period, defence could not have tested that evidence in cross-examination. [ 118 ] As such, looking at the totality of the evidence, even though something may have happened, I am left with a reasonable doubt as to whether or not the incident occurred as alleged over that weekend or within a close time period of “on or about “ as set out on the date of the information. As a result, I do acquit the accused. ___________________________ The Honourable Judge D.A. Jahani Provincial Court of British Columbia