R. v. C.H., 2011 NSPC 43

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. C.H., 2011 NSPC 43 Date: July 25, 2011 Docket: 2287572 Registry: Halifax Her Majesty the Queen v. C.H., a young person DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: July 5, 2011 Decision: July 25, 2011 Charge: cc 271(1)(

a) Counsel: Danielle Bastarache - Crown Attorney Chandra Gosine - Defence Counsel By the Court :

[ 1 ] C.H. is charged with the sexual assault of B.B.. Even though he is now 23 years old, the trial has taken place in Youth Court. The offence is alleged to have taken place between the years 2000 and 2003 when he was between 12 and 15 years old and B.B. was 4 or 5 years old. [ 2 ] There are a few legal principles that have to be stated up front.

They apply to all criminal cases but they are sometimes most difficult for people to accept in the context of the emotionally charged atmosphere of a sexual assault allegation. [ 3 ] The accused person is presumed to be innocent unless his or her guilt is proven beyond a reasonable doubt. This means that he or she doesn’t have to prove or disprove anything. The Crown, as the prosecution is called, has to prove the case against the accused beyond a reasonable doubt. [ 4 ] In ordinary circumstances people say that something is true when it is more likely than not that it is true.

We weigh the evidence for and against and decide which is more likely. The more likely thing is what we believe. Criminal trials aren’t like that. Whether the judge believes that the accused person committed the crime just isn’t enough. There must be no reasonable doubt that he committed the crime. [ 5 ] That doesn’t mean that the Crown has to prove the case to the point of certainty. There is always some doubt.

The question is whether the doubt is reasonable. [ 6 ] The only real evidence of what is supposed to have taken place was what B.B. said happened and C.H.’s statement that nothing at all inappropriate happened. The law doesn’t allow me to weigh their evidence and just decide based on which one is more believable. Everyone else can do that. Judges can’t. [ 7 ] The other principles, that have to be stated up front, deal with the nature of this case. B.B. was about 5 years old when these events are alleged to have happened.

Some people may say that if things happened to her as she claims, she would have told someone before she was in junior high school and not waited all these years. They would believe that her recovery of the memory now is more consistent with it just being made up than with it being real. It has been shown time and time again that the victims of sexual assault do not necessarily report incidents right away. Sometimes it takes years for them to be able to do so.

The law is now forcefully clear that the time between the alleged incident and the reporting of the incident is not in itself relevant. [ 8 ] The allegation is that when these incidents took place B.B. had just started Grade Primary. She had just turned 5 years old. She was far from the age at which consent could even be an issue. That of course was not argued. There was however some suggestion made that the allegations are less credible because they took place in an area where an adult was in fairly close proximity and there was no evidence of B.B. having said anything.

The idea that a person who was being assaulted would cry out in those circumstances is often a valid one. When the person is 5 years old it isn’t. At 5 years of age children simply do not fully understand what is or is not appropriate despite the best efforts of parents and others. [ 9 ] That is related to another issue. When assessing the evidence in a case of this kind a judge must consider that what is being recalled by a 14 year old is what she recalls from when she was 5. The perceptions of a 5 year old are being filtered through the recollections of a 14 year old.

The kind of detail and the level of detail that can be expected are not the same as they might be for an adult recalling what happened more recently. That does not make the evidence less reliable. That being said, the case must still be proven beyond a reasonable doubt. [ 10 ] In this case, both C.H. and B.B. testified.

[11] C.H. denied ever touching B.B. in any kind of sexual way. His mother was her babysitter as she said, and she did spend time in hisfamily’s home but he had no recollection of ever touching her in the sexual ways she described. As is often the case for a denial therereally isn’t much more that he can say.

It is hard for anyone to say words to the effect of “I specifically recall not doing that.” The bestthat can be said by the accused is that he does not remember doing anything like what was claimed, that he would not have done suchthings or that he would not have had the opportunity to have done them. [12] Remembering what happened, or didn’t happen that long ago can be a challenge. Often, there just isn’t much more that can be said. [13] In this case, C.H. went beyond the simple denial and gave evidence to the effect that he didn’t really have much of an opportunityto have done what was alleged.

As he recalled it, not only did he not touch her, but the two were rarely together because he was so rarelyhome. He says that during the years when these events are alleged to have taken place, he was staying out with friends, roaming thestreets and getting into trouble until the wee hours of the morning, pretty much every day. He didn’t deny having any contact with herbut that any such contact was with his mother fairly close by. [14] S.B. is C.H.’s mother. She was B.B.’s babysitter.

Significantly though, she said that she had babysat B.B. when she was only lessthan a year old, on and off, but stopped when B.B. started school in Grade Primary. While she was given as the emergency contactperson for the school she never actually babysat B.B. when she was in school. That evidence contradicts the evidence of N.C., who isB.B.’s mother. N.C. said that S.B. started babysitting for her when B.B. was about 10 ½ months old.

She specifically remembered taking her daughter to S.B.’s house at the time B.B. started Grade Primary on birthday, September 5th,2001 and that the babysittingcontinued until B.B. turned 6 in 2002. [15] S.B.’s evidence also contradicts that of her son in one respect. While he says that he was out most nights and wouldn’t be seen athome until one or two in the morning, she recalled only one night when he was out until 1:40 am. She said that he would come home forsupper and then be out until 9 or 10pm. [16] S.B. has a criminal record. That in itself does not make her testimony less reliable.

Having a criminal record in itself does not meanthat a person is any less honest. Some kinds of criminal records can suggest that a person is less likely to be committed to telling thetruth. Fraud, for example, is an offence that can speak to a person’s integrity. S.B. has a recent conviction for, of all things, fabricatingevidence. It should be acknowledged that there are not multiple convictions, there is not a long history of proven dishonesty and theremay be mitigating circumstances.

But, when N.C.’s evidence is contrasted with that of S.B., N.C.’s is considerably more likely to be areliable representation of what happened. That is not only because of S.B.’s record. It would not be fair at all to discount her evidencesimply and only because of that. N.C.’s evidence was tied to very specific recollections such as the day and date her daughter startedschool. It was both B.B.’s birthday and her first day of school. It is not likely that two such significant dates coinciding as they did wouldbe confused. [17] At this point then, C.H. has denied the allegations.

There was nothing unusual about the way in which he did that. He simply saidthat he never touched her in any kind of sexual way. He then added some detail which was intended to reduce the possibility that he evencould have done what was alleged.

First, he said he just wasn’t around that much when she was there, second, when he was there hismother was always close and third, B.B. wasn’t in their house being babysat during the years when she alleges these assaults took place.That additional detail evidence is very difficult to accept. [18] As to the first issue, B.B. did have to be there with him every day or even frequently for these events to have taken place. As to thesecond issue, there was no evidence that S.B. was in the room with B.B. and C.H. at every moment.

As to the third issue, I accept asmore reliable N.C’s evidence that S.B. was babysitting B.B. after she started Grade Primary. [19] The issue is then whether the difficulty in accepting the added detail should go to the credibility of the denial itself. The SupremeCourt of Canada in R. v. WD (SCC), [1991] 1 S.C.R. 742 confirmed that a person must be found not guilty if areasonable doubt as to his or her guilt is raised in his evidence even if some or all of that evidence is not believed. (R. v.

J.H.S. 2008SCC 30) A judge must be alert to the potential that a person who is not guilty and is left only with a simple denial, may well look forways to support or bolster that denial. The weakness of that evidence can mean that the denial again stands alone. In somecircumstances, when the supporting evidence is clearly a fabrication, it can weaken the credibility of the simple denial itself. The attemptto guild the lily can have dire consequences when the attempt goes directly to the credibility of the person making it.

[ 20 ] The supporting evidence in this case is not of that kind in my view. The incidents are alleged to have happened when C.H. was a very young teenager. It is unlikely that he would have any independent recollection of exactly when his mother babysat B.B.. His mother’s evidence and its lack of reliability cannot be used against him. C.H.’s comments about how often he was around the house are what might be described as a “stretch” or an exaggeration but are not fabricated from whole cloth.

That evidence does not substantially undermine the denial itself. [ 21 ] B.B. gave her evidence very much in the manner one would expect of an articulate 14 year old recalling incidents from when she was about 5 years old. She was careful to say what she remembered and did not say that she was filling in the blanks with guesses. She was quick to say when she couldn’t remember something. [ 22 ] She described how she was sexually assaulted as a young child in S.B.’s home, by her son. She said that he would put his hands inside her clothes and rub her vagina and on occasions he would put his penis in her mouth.

She could not recall the exact number of times that these things are supposed to have happened. Given her age at the time, that would be hardly surprising. She said that at the time she really didn’t know that there was anything wrong with what was happening to her. [ 23 ] These incidents were disclosed after a session in Grade 8 dealing with sexual abuse. What she described as a “test” question was whether a person should go to the guidance counselor if she had been sexually abused. That prompted her to recall the incidents. She went to her school guidance counselor.

The police were contacted and her parents were then told. [ 24 ] There are a number of things about B.B.’s evidence that support it’s being reliable. She has no known motive to concoct something about C.H.. The two have not seen each other in years. They have not and do not have any kind of relationship. The report here was to the guidance counselor and then to the RCMP. There is nothing to suggest that this was a story that was told for some other purpose and then took on a momentum of its own. It was not for example, first disclosed on Facebook then became too big to retract.

It was not made to a friend, who repeated it and made it public in some limited sense. When the report was made to the guidance counselor B.B. was visibly upset. That is not consistent with a fabrication. B.B. gave her evidence in court in a way that was confident and careful. She did not appear to embellish. In other words, when asked if she had been asked to touch him in any other way, she said no. When she could not remember something she said so. [ 25 ] What she said under oath was difficult for young woman to say in a public place.

She did not appear to take any pleasure at all in it. [ 26 ] As I said at the beginning, this isn’t about deciding which of these people is more believable. It is about the presence or absence of reasonable doubt. That is particularly challenging in a case of sexual assault. A clearly well motivated, truthful complainant says that she was sexually assaulted. Perhaps more so than in most other kinds of cases, the victim has an emotional stake in the outcome. She has been required to tell a number of people what happened to her when she was a little girl.

It involves things that children should never have to think about much less experience. She has been interviewed and cross examined about it. It is often, as it was here, an emotionally draining experience for a young woman and her parents. B.B. clearly did not enjoy being in the forensic spotlight. [ 27 ] In light of that, a judge must be careful not to unconsciously allow the burden of proof to shift.

Having heard the evidence of a young woman such as B.B., whose version of events was given in such a straightforward and frank way, it is almost impossible not to harbour the thought that a not guilty finding would mean that all of this had been for naught for her. There is evidence that she was abused and she has told people about it just as someone is supposed to do. Telling her now of a not guilty finding would seem almost unfair, especially when I believe that what she said was true. [ 28 ] Sexual assault cases always have unhappy endings. [ 29 ] They are not about finding out what happened.

They are about deciding whether there is reasonable doubt. In sexual assault cases, as in others, that does not always mean that the truth wins out. That means that discipline has to be exercised to make sure that a sense of what is somehow “fair” does not overtake the legal requirement to decide whether reasonable doubt is present.

[ 30 ] That reasonable doubt can come from unlikely places. This case is an example of that. [ 31 ] B.B. was asked how she remembered who it was. She hadn’t known C.H. for a number of years. She used a process of elimination. She said that M. was the oldest of the sons and he was gone. T. was the youngest and was always at a friend’s place. C. is the middle son. She essentially used a process of elimination her mind. There was no independent recollection that the person who abused her was C.H.. That lack of clear identification, leaves open that it might not have been C.H. after all. It seems likely that it was.

That process of elimination seems to make some sense. But B.B. has not seen C.H. since she was 5 years old. She didn’t say that she recalled C.H. assaulting her. She recalled an assault and by the process of elimination decided that he was the one who had done it. [ 32 ] He has denied doing anything. While his corroborating evidence was hardly strong, his denial in and of itself was not diminished by cross examination. His denial must be considered in the context of the rest of the evidence. It does not simply stand on its own.

To see whether it raises a reasonable doubt it has to be considered in light of B.B.’s evidence. B.B.’s evidence would have to have been so convincing that it would be capable of removing or negating any reasonable doubt that his denial would otherwise have raised. C.H.’s simple denial, when considered in light of B.B.’s identification of him by process of elimination, is sufficient raise a reasonable doubt. [ 33 ] I find him not guilty of the charges. [ 34 ] What is unusual here is that C.H. is not being found not guilty because I don’t believe B.B. or think that she has made something up.

Her evidence was quite simply more reliable than his. She was being honest in saying what she could remember. She could easily have said that she knew it was C.H. because she had known him since she was less than a year old. Instead she was forthright in saying that she used a process of deduction to figure out that it must have been him. In most places that would be enough. In a criminal court it is not.