R. v. K. W. Date:, 2011 BCPC 125

Citation: R. v. K. W. Date: 20110517 2011 BCPC 0125 File No: 208798-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K. W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. F. PALMER BAN ON DISCLOSURE S. 486.4(2) Counsel for the Crown: L. Ashton Counsel for the Defendant: M. Klein Place of Hearing: Vancouver, B.C. Dates of Hearing: 13 December 2010, March 25 and April 18, 2011 Date of Judgment: May 17, 2011 Introduction [ 1 ] K.W. stands charged on Information 208798 with two offences contrary to

section 151 of the Criminal Code . Count 1 is a charge that on July 13, 2009 he did for a sexual purpose touch, directly or indirectly, with a part of his body or with an object, the body of Y. L. Z., a person under the age of sixteen years. Count 2 charges the same offence between July 4 and July 13, 2009 but specifies a different municipality as the location in which the offence is alleged to have occurred. [ 2 ] Y. L. Z. is the daughter of C.W. who was employed by the defendant for a number of years prior to and after these allegations were brought to the attention of the police.

C.W. immigrated to Canada alone in 2006. The complainant was born outside of Canada and did not move to Canada to be with her mother until April 2007, shortly before her fifth birthday. [ 3 ] The accused and C.W. were in a sexual relationship between 2006 and 2009. C. W. terminated that aspect of their relationship when the accused’s wife became aware of their affair.

The accused, who had a key to C.W.’s apartment, continued to assist C.W. with various aspects of daily life: transporting the complainant to and from school, grocery shopping, cooking dinners, and driving C.W. to and from work during the week and on weekends. [ 4 ] This trial commenced on December 13, 2010 was scheduled to continue on a date in February, 2011 which had to be adjourned. The evidence was completed on March 25, and submissions were heard on April 18, 2011.

The Evidence [ 5 ] The evidence in the Crown’s case is that of the complainant, by way of her adoption of the videotaped statement made to the police on July 14, 2009 and her cross-examination by defence counsel; the evidence of the police officer who interviewed the complainant on July 14, 2009 and that of C.W., the complainant’s mother. [ 6 ] Corporal Dosanjh has been a member of the RCMP for 11 years. At the time of her interview with the complainant she had been attached to the Child Sexual Assault Unit for 20 months.

She acknowledged on cross-examination that as a component of her training in sexual assault investigations she took a course on interviewing children and understood that it was important not to try and shape responses with the questions she was asking. A transcript of the taped interview was entered as an exhibit. [ 7 ] A review of the transcript discloses an unfortunate aspect of the officer’s interviewing style. Frequently, after pursuing a line of questioning and getting an answer that moves the interview forward the officer says to the complainant “Okay” before moving on to the next question.

Occasionally the officer corrected the complainant’s language or used a leading question to clarify some aspect of the complainant’s narrative. [ 8 ] The complainant came to Canada shortly before her fifth birthday. English was not her first language. She and her mother continue to speak their mother tongue when they are alone together. Approximately 27 months elapsed between her arrival in Canada and the disclosure of these allegations. During that time the accused was a constant in the complainant’s life.

Near the end of the interview Corporal Dosanjh had the following exchange with the complainant, page 14 line 56: KD: Okay. So are you, do you like K or are you afraid of him? How do you feel about him? LZ: Um I feel happy about him because he’s always very good. KD: Um hmm. LZ: And he always laughs at me. KD: Um hmm. LZ: And that’s all. KD: Okay. So why did you think, why did you tell your mom what happened? LZ: Because my mom said to. KD: Your mom said to? LZ: Yeah. KD: Okay but what do you mean your mom said to? LZ: My mom said if anything happened to, anything you have to tell me.

Like anything he touch your private part you have to tell me. KD: Okay. So your mom told you that? When did she tell you that? LZ: Um, when he touched my private part. KD: Okay. LZ: After he touched it. [ 9 ] Not surprisingly, given the complainant’s age and perhaps some issues with language, the interview of the complainant was in no way a smooth progression. When invited to ask the officer any questions she might like to about the officer’s job the only question the complainant had was about the officer’s car and why it wasn’t like a police car.

Apparently the complainant had been hoping to have a ride in a police car with the lights. When asked by the officer about how she got a black eye the complainant had considerable difficulty explaining the crocodile game she had been playing with her friend Sheila the previous Friday and how and by whom she had been bumped causing the black eye. [ 10 ] When asked to say whatever she thought she should tell the officer the complainant said, page 3 line 114: LZ: Okay. First, first my, my mom’s friend just opened the door and then um, I forgot that part. KD: Okay.

LZ: And then I think she asked me where my mom is and I said, it’s in the , I, then I said it’s, it’s learning how to do car and , and then I, and then I think he went to the couch and then I was watch a movie and then I just came to the couch. And I think I came to the couch and K. just grabbed me and he touched my private part. [ 11 ] Throughout the balance of the interview the complainant consistently uses the same language although it becomes very clear that

she has no real understanding of what the language means or of her own anatomy. The complainant’s response, when asked by the officer to explain, is revealing - page 5 line 172: KD: what, like why do you call it your private parts? Is there a reason why you call it that? LZ: Because it’s something you can’t touch or see. It’s a secret thing. [ 12 ] The complainant was not consistent throughout the interview with respect to her location, the accused’s location, how they came to be together and the number of times the accused touched her.

What was consistent and somewhat incongruous was the complainant’s statement that she had wanted the accused to stay and watch the movie with her after he had touched her. [ 13 ] The complainant was left alone in the apartment at approximately 6:40 p.m. on the evening of July 13, 2009, while her mother went to take a driving lesson. The complainant was still sitting in her chair in the living room watching the television when her mother returned. The complainant was supposed to clean up her room and hang up all the wet shirts while her mother was out.

In the interview the complainant did not want to talk about what occurred when her mother returned to the apartment. When asked by the officer to explain the complainant’s response was unintelligible page 10 – line 394: KD: No? so what happened then? LZ: And then I tell my mom all about it I think. KD: Oh, okay. LZ: And… KD: All about what?

LZ: Actually my mom saw it and she wants me to say thank you and I said thank you and she told me what actually I, yeah the, that’s yeah that’s after that I said K. was here and I told her all about it. [ 14 ] Before leaving for her driving lesson C.W. had done a load of laundry and instructed the complainant to hang the laundry up to dry. When C.W. returned from her lesson at approximately 8:00 p.m. she entered the apartment, walked past the bedroom and noted the wet laundry lying on the bed. C.W. was very upset and angry when she went into the living room and confronted the complainant.

In her direct evidence C.W. said the complainant was already seven and should know better. On cross-examination C.W. denied any confrontation over the laundry before her daughter’s disclosure. [ 15 ] The evidence of C.W. with respect to the events of July 13, 2009 and the allegation of an earlier assault at the office was internally inconsistent and inconsistent with the evidence of the complainant. On direct examination C.W. testified that the complainant told her about the earlier incident some time after the complaint to the police and the interview of her daughter.

In the interview the complainant had, in response to a direct question by the officer, disclosed an incident at the office on a weekend and had said her mother confronted the accused. [ 16 ] On her direct examination C.W. was asked if she ever had concerns at the office and she stated that it had been about two weeks before her daughter’s disclosure, near the end of June. They were all at the shop and she was in the back cutting. When she turned the machine off she heard her daughter making a loud laughing/crying sound. She asked her why and her daughter replied that K had made her feel not very good.

She thought maybe he had tickled her daughter. [ 17 ] She then volunteered that she knew K. was a very sexual person, that he liked women but he could not treat her daughter like he treated her. When asked by Crown counsel what she had done C.W. testified that she had told K. “You cannot do anything to my daughter”. C.W. further testified that she did not think he was very bad at that time so she was thinking she could forgive him.

She stated her responsibility was to protect her daughter. [ 18 ] On cross-examination it was suggested to C.W. that in early July 2009 she thought the accused’s wife had left him but she had learned on the morning of July 13, 2009 that this was not true. C.W.’s answer was very evasive. She talked about how she had spent five years with the accused, had tried to help his company and had believed him when he told her he did not have a sexual relationship with his wife.

The complainant had testified that her mother was already mad at K. before she made the disclosures on the night of July 13, 2009. [ 19 ] K.W. testified that on the evening of July 13, 2009 he had gone to C.W.’s apartment to have some dinner before he carried on with an appointment he had scheduled for 7:00 p.m. When he arrived at the apartment the complainant was there, eating her dinner, and watching television. He testified that the complainant had come and given him a hug when he came in. He had not stayed more than ten or fifteen minutes.

He went home, picked up his wife and went to the appointment. [ 20 ] The accused testified that while he was at the appointment he received calls from C.W. who was very mad and out of control. He told her he was with people and couldn’t talk. When she kept calling he turned his phone off. The next morning he went to C.W.’s apartment to pick her up for work. She asked him if he had touched her daughter and he said he had not. C.W. said she did not want to go to work so he returned her key and went to the office. He did not learn of the allegations until he was informed by the police.

He denied ever touching the complainant improperly. He denied ever putting his hand in the complainant’s underwear. He denied ever touching the complainant for a sexual purpose. [ 21 ] On cross-examination the accused was asked about the time he spent at C.W.’s with the complainant on July 13, 2009. He repeated what he had said on direct, that he was there for a brief time, that the complainant was sitting in her chair eating noodles

possibly and watching television. They watched television together for a few minutes, it was some children’s show and then he had toleave. The complainant had asked him if he could stay and watch television with her but he had to go to his appointment. When thecomplainant had come to give him a hug it was “just like normal when you hug a kid – pat her back and say “Oh what a good girl”.

Hisarms were on her arms at shoulder height and he did not touch her legs or her bottom. [22] It was put to the accused that when he was interviewed by the police he had suggested that if he had touched the complainant onthe vagina it was only accidental contact during a hug. The accused demonstrated a hugging motion from a seated position where histhigh might be in a position to bump the complainant accidentally.

The accused consistently denied all suggestions from Crown counselwith respect to the allegations made in the complainant’s videotaped interview. [23] K.W. was quite candid on cross-examination that he had told C.W. many times to find another job because she was carelessabout her work, going too fast and never double-checking anything which led to mistakes. He continued to hire her over the ensuingyears out of friendship. Submissions [24] The submissions on behalf of K.W. commenced with reference to the decision of the Supreme Court of Canada in R. v.

W. (D.)which prescribed a process for trial judges to utilize when assessing the evidence of an accused. The process is a three step process. Firstthe trial judge must consider the evidence of the accused and decide whether the evidence is believed. If the evidence is believed and isexculpatory the accused is entitled to an acquittal. If the evidence is not believed the trial judge must determine whether the evidenceraises a reasonable doubt as to one of the essential elements of the Crown’s case against the accused. If the evidence raises a reasonabledoubt the accused is entitled to an acquittal.

If the evidence is neither believed nor found to raise a reasonable doubt the trial judge mustthen determine whether the evidence in the Crown’s case proves the guilt of the accused beyond a reasonable doubt. [25] Mr. Klein submitted that the evidence of his client, a consistent denial of ever having sexually touched the complainant, was notcontroverted on cross-examination, is capable of belief and should, if not believed, raise a reasonable doubt.

Counsel mademany submissions on the evidence of the complainant, noting her age at the time of disclosure, lack of detail in the initial disclosure,internal inconsistencies in the initial statement, lack of recall and lack of detail in her evidence at trial and the sheer improbability ofevents having occurred in the manner described. [26] Defence counsel also questioned the reliability of the evidence of the complainant’s mother, suggesting a significant area ofconcern being the convoluted relationship between the accused and the complainant’s mother.

CW continued to work with the accusedafter her daughter’s disclosure. CW did not terminate her relationship or her employment with the accused until February 2011. Whilecharacterizing her sexual relationship with the accused as sexual harassment the witness also admitted that she had wanted the accused toleave his wife and marry her.

CW also admitted that even though she believed the accused molested her daughter she would go back tohim if he were to leave his wife. [27] The Crown’s submission with respect to the complainant’s evidence was that the defence objections to her evidence all went tothose abstract concepts such as time where a child’s evidence must be treated with flexibility. The Crown submitted that thecomplainant’s level of detail with respect to the touching went beyond what a child of seven would be capable of fabricating.

The Crown pointed specifically to the complainant’s differentiation between the first assault and the second assault on July 13th as one with the righthand and one with the left hand. That was an unusual aspect of her evidence as many children at the age of 7 are still uncertain as to theirhandedness. [28] The Crown also submitted that C.W. was angry with the accused because he had turned his attention from her to her daughter.The Crown suggested that the situation with the accused’s wife was one of long-standing and not the basis for C.W.’s anger at theaccused on July 13, 2009.

This overlooks the complainant’s perception that her mother was angry with K. even before her disclosure.Further it flies in the face of C.W.’s evidence that she would still be prepared to resume a relationship with the accused if he were toleave is wife. Case Law [29] Defence counsel provided the Court with two decisions of the Supreme Court of Canada, which the Crown acknowledged,properly set out the law with respect to the acceptance and assessment of the evidence of young children: R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; and R. v. Marquard, (SCC), [1993] 4 S.C.R. 223. [30] R. v.

W. (R.) was an appeal from a decision of the Ontario Court of Appeal overturning convictions for indecent assault, grossindecency and sexual assault. The complainants in the case were the accused’s step-daughters and his niece. The step-daughters wereboth pre-pubescent when the assaults occurred, the older girl was ten when she was assaulted and the younger girl was between nine andten when she was assaulted. The niece was between two and four years of age when she was assaulted.

There was a delay of two to threeyears before the assaults were reported and another delay before the charges went to trial. [31] At trial the importance of corroborative evidence was considered and the trial judge was mindful that corroboration was nolonger required by law.

The trial judge assessed “each complainant’s intelligence, memory, power of observation, interest in the outcomeand demeanor in the witness box… considered the inconsistencies in the girls’ evidence which I have referred to, as minor andattributable to their youth and the passage of time” and found that the evidence supported a conviction on each count. [32] The Ontario Court of Appeal was found to have erred in its approach to the complainants’ evidence, inconsistencies therein andwhether there was corroborative evidence.

Justice McLachlin, writing for the majority, referenced the decision of Justice Wilson in R. v.B. (G.), (SCC), [1990] 2 S.C.R. 30, in paragraphs 25 and 26 of her decision stating:

…these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject tothe same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding againstthe injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adultor a child.

What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but onwhat Wilson, J. called a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offeredin the particular case.

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 recent developmentsin the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate. But I would add this.

In general, where an adult is testifying to events which occurred whenshe was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to herevidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such astime and location, should be considered in the context of the age of the witness at the time of the events to which she was testifying. [33] R. v.

Marquard was also an appeal from a decision of the Ontario Court of Appeal and Justice McLachlin again wrote thedecision for the majority. The complainant in Marquard was the three and a half year old granddaughter of the accused, who was also herlegal guardian. On appeal there were a number of issues, apart from the testimonial competence of the complainant and the reliability ofthe evidence given, which do not relate to the case at bar. [34] On the first issue Justice McLachlin wrote in paragraph 12: Testimonial competence comprehends: (1) the capacity to observe (including

interpretation); (2) the capacity to recollect; and (3) thecapacity to communicate: … Is the witness capable of observing what was happening? Is he or she capable of remembering what he orshe observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only toassure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, notwhether the witness actually perceived, recollects and can communicate about the events in question.

Generally speaking, the best gaugeof capacity is the witness’s performance at the time of trial. The procedure at common law has generally been to allow a witness whodemonstrates capacity to testify at trial to testify.

Defects in ability to perceive or recollect the particular events at issue are left to beexplored in the course of giving the evidence, notably by cross-examination. [35] On the issue of reliability Justice McLachlin continued in paragraph 14: The test I have expounded is not based on presumptions about the incompetency of children to be witnesses nor is it intended as a testwhich would make it difficult for children to testify. Rather, the test outlines the basic abilities that individuals need to possess if theyare to testify. The threshold is not a high one.

What is required is the basic ability to perceive, remember and communicate. Thisestablished, deficiencies of perception, recollection of the events at issue may be dealt with as matters going to the weight of theevidence. [36] Later at paragraph 20, referring to the majority decision in R. v. W. (R.), Justice McLachlin reiterated the importance of the trierof fact assessing the evidence for any weaknesses. In the next paragraph Justice McLachlin quoted from the reasons of Justice Wood, as he then was, in the decision of the British Columbia Court of Appeal in R. v.

K. (V.) (1991), (BC CA), 4 C.R. (4th)338, at page 351: The focus of the new discretion, which has replaced the old common law rules of practice, is the potential for the witness’ evidence to beunreliable. No automatic assumptions of unreliability arise because of age, or the nature of the complaint. There must be an evidentiarybasis upon which it would be reasonable to infer that the witness’ evidence is, or may be, unreliable. Analysis [37] The Crown cross-examined the accused at length with respect to his attendance at C.W.’s home in the early evening of July 13,2009.

It was suggested that he knew C.W. would not be home and he would have an opportunity to touch the complainant sexuallywithout fear of interruption or discovery. The accused denied any intention other than to have some dinner before he attended theappointment he had scheduled to go look at a boat with his wife. The accused frequently had dinner with C.W. and the complainant.According to C.W.’s evidence he was there almost daily and had dinner with them twice a week. No evidence was lead to suggest that it was always the same days of the week and the 13th was not one of those days.

The accused’s lifestyle choices, in terms of his lengthyaffair with C.W., might be seen as lacking in moral fibre but I found him to be a forthright witness about that issue. [38] When the accused was interviewed by the police and cross-examined about that interview he did not evade the difficult questionsabout his contact with the complainant. Where the accused’s evidence became less clear was around when he learned of the allegationsand his communication with C.W. after he and his wife finished their appointment over the boat. I am unable to find that uncertainty anissue of his credibility.

In the first conversation with C.W. he was asked a question. There is no evidence to suggest he was given specific details. On the morning of the 14th he attended at C.W.’s as usual and found her on the street declining a ride to work. Given herevidence that she did not wan to hear details from the complainant in a public place it is highly unlikely she would have been having adetailed conversation with the accused outside her residence when he was still sitting in his vehicle.

Full disclosure would be expected ina police interview. [39] On the complainant’s statement she had told her mother prior to July 13, 2009 that she had been touched inappropriately by theaccused while they were all at the office and C.W. had confronted the accused in the presence of the complainant. C.W.’s evidence onthat issue was so inconsistent as to be unreliable. If each allegation was of the same kind of touching, as stated by the complainant, there

is no explanation as to why C.W. would not have contacted the police after the first disclosure. It is incomprehensible why a mother, who acknowledges her responsibility is to protect her daughter, would leave the child home alone for more than an hour knowing the accused has a key to her home if there has already been disclosure of inappropriate touching [ 40 ] The Crown argued that C.W. was angry with the accused because he turned his attention to her daughter.

C.W. was very frank and pragmatic about her sexual needs, the accused’s ability to meet them and her interest in having a faithful husband to take care of her and grow old with her. It is far more likely that the reason for C.W.’s anger at the accused on July 13, 2009 was based on the realization that the accused had no intention of disrupting his family life or assets.

Recalling C.W.’s evidence that she knew the accused was a very sexual person, who liked women and was not having sex with his wife, it is a reasonable inference to draw that C.W. was angry with the accused when she learned that he was having sex with his wife and had no intention of leaving her to marry C.W. [ 41 ] When C.W. returned home from her driving lesson on July 13, 2009 the first thing she noticed coming into the apartment was that the complainant had not hung up the wet laundry but had left it on the bed. C.W. was very angry and upset with the complainant when she went into the living room.

The complainant was watching television and did not appear upset. It was only after talking to her mother that the complainant began to cry. The complainant did not volunteer disclosure. She was, as in her police interview, responding to questions. Those questions would not likely be as carefully considered as the questions posed by a trained police officer. In the circumstances very leading questions may have been asked of this child. [ 42 ] The complainant was not in my view well equipped to observe, recall and communicate what she has claimed as her experience.

Her frequent use of “I think” in her evidence coupled with “I forgot that part” evoked trying to remember how things were supposed to go rather than how they went. I am mindful of the issues of language. The complainant and her mother speak their native tongue when they are together. It is highly unlikely that the term “private parts” entered into any conversation they may have had. If the complainant was introduced to the concept at school it must have been done in language she did not know or understand.

At 7 years of age the complainant had no word for female genitalia and misapprehended the word for male genitalia as penix. Furthermore she had no concept that “private parts” was a functional, accessible bit of anatomy that could both been seen and touched. In the context of her mother’s unraveling relationship with the accused the complainant’s evidence cannot be viewed as reliable. Decision [ 43 ] Keeping in mind the process set out by the Supreme Court of Canada in R. v. W. (D) , I ask first whether the evidence of the accused is believed.

He is a man comfortable with a great deal of deception in his personal life. He has a great deal at stake in this defence. I cannot say that I believe the accused. [ 44 ] Does the evidence of the accused raise a reasonable doubt? It does and on that basis he is entitled to an acquittal on both counts. Reasonable doubt arises around the allegations of sexual interference at the work place, that being an incident that occurred a day or weeks before July 13, 2009. The allegations of touching are indistinguishable one from the other in terms of the complainant’s ability to articulate the nature of the touching.

Reasonable doubt also arises given the argument between the accused and C.W. the morning of July 13, 2009 over his relationship with his wife. [ 45 ] I found the complainant to be a charming girl who has remained very innocent in the middle of her mother’s chaotic life. Given all of the foregoing, even if I did not have a reasonable doubt based on the accused’s evidence, I would not have found the complainant’s evidence sufficiently reliable to safely found a conviction. The accused is acquitted on Count 1 and Count 2 of this Information. _______________________________ The Honourable Judge J. F.

Palmer Provincial Court of British Columbia