R. v. R.G.H., 2023 BCPC 93

Citation: R. v. R.G.H. 2023 BCPC 93 Date: 20230424 File No: 23282 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. R.G.H. BAN ON PUBLICATION Pursuant to s. 810.5 and s. 486.4(1) – (3) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. SICOTTE Counsel for the Crown: K. Schecter Counsel for the Defendant: D. White Place of Hearing: [omitted for publication] , B.C.

Dates of Hearing: March 13, 15, 2023 Date of Judgment: April 24, 2023 [ 1 ] R.G.H. (Mr. H.) is before the court on an Information sworn pursuant to s. 810.1 of the Criminal Code with the Crown seeking to have Mr. H. placed on a recognizance for a period of one year. [ 2 ] The Crown alleges that the application is justified based on a subjectively held and reasonable belief that Mr. H. will sexually touch or sexually assault a person under the age of 16. The Crown relies on the evidence of 3 teenaged females to support their position. [ 3 ] Mr.

H. for his part has admitted identification and that the police officer subjectively believes that Mr. H. will sexually touch a person under the age of 16. However, the defence submits that the Crown has not proven on a balance of probabilities that the officer’s belief is objectively reasonable. The Law [ 4 ] The principles for me to keep in mind as I consider an application under s. 810.1 are similar to the principles articulated in R. v. Evans , 2017 BCPC 18 and R. v. Soungie , 2003 ABPC 121 .

I will summarize those principles here with such modification as is necessary taking into account the differences between s. 810 and s. 810.1 .

a) Section 810.1 does not create a criminal offence; accordingly, the applicant need not establish a basis for the fear beyond a reasonable doubt.

b) Nevertheless, given the potential consequences for the respondent, such applications require careful scrutiny of the evidence presented.

c) Section 810.1 restrains the liberty of the defendant to live his or her life free from restraint of that liberty.

d) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant or others where grounds have demonstrated the need for the recognizance.

e) Section 810.1 clearly contemplates that there is both a subjective element and an objective element which must be established. The applicant must actually fear that the defendant will commit one of the listed offences in respect of someone under the age of 16. The Judge must find that the applicant's fears are reasonable, i.e., that an objective person armed with the same knowledge as the applicant would agree that the applicant's fears are reasonable. The reasonable fear must be triggered by some action of the defendant.

f) Evidence of the defendant's previous misconduct is admissible to determine the basis for the beliefs held by the applicant. This evidence can be used by the Judge in determining whether the applicant's fears are reasonable.

g) The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the grounds for the issuance of a recognizance.

h) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence of the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood. [ 5 ] For the reasons that follow, I find that on all the evidence, I am convinced on a balance of probabilities that Mr. H. should be bound by a recognizance to prevent the commission of an offence under s. 151 and 271 of the Criminal Code . The Evidence [ 6 ] The first witness for the Crown was S.

She is currently 15 years old and testified via MS Teams from another province. She was an older friend to the defendant’s 2 children and attended the defendant’s home in [omitted for publication] many times. She babysat the defendant’s children occasionally when she was a little older herself but prior to that, she played games and dolls with his children, watched TV with them and played on a computer. She ate dinner at the defendant’s residence at times and had sleepovers.

The bunkbed incident [ 7 ] S. testified that when she was wearing a training bra and was just beginning puberty, she went for a sleepover at the defendant’s residence. She described sleeping on the twin-sized bottom bunk of a bunk bed while the defendant’s older child, L. slept on the top bunk. S. testified that the defendant climbed into bed with her, in fact right over top of her, laid beside her and undid her pyjamas, playing with her nipples for a short period. She said he also put his penis near her face on this occasion. [ 8 ] In cross examination S.’s police statements were put to her.

In her lengthy first statement, nothing was said about this bunkbed incident. In her second statement S. mentioned it only when specifically asked about it by the interviewing police officer who, I presume heard about it from either B. or J., S.’s step-sisters. [ 9 ] The defendant denied this incident ever happened. He did testify about S. during one sleepover waking him up in the middle of the night and telling him she was having a nightmare and wanted to go home.

[ 10 ] L., the 12-year-old daughter of the defendant, testified that she remembers S. going home in the middle of a sleepover and being told by her father the next day that it was because S. had a nightmare. L. in direct said that the bottom bunk squeaks and wakes her up when anyone moves on it, so she remembers S. leaving. [ 11 ] B. testified that S. told her on one occasion about going for a sleepover at the defendant’s residence and the defendant shoving his dick in S.’s throat. B. had not known whether to take S. seriously as she lies constantly, perhaps to get attention.

J. testified about S. telling her the same thing. [ 12 ] I do not accept even on a balance of probabilities that this incident ever happened. The unlikeliness of the defendant climbing over S. into the far side of a twin bed, which may indeed have been squeaky, when his daughter is in the upper bunk, taken together with the different descriptions by S. of what the defendant did with his penis, and S.’s failure to describe it to police until specifically asked about it give me significant concerns about its veracity.

The evidence of L. [ 13 ] I place little weight on the evidence of L. where it corroborates the evidence of the defendant. Her memory was too perfect for a 12-year-old remembering innocuous incidents from when she was perhaps 7. Her language was suspiciously identical to her father’s at times describing these incidents and her testimony sounded coached. [ 14 ] For example, she was inordinately stubborn in maintaining that she was always, without exception, with S. the 10-15 times that S. went into the kitchen to get the defendant to refill the sour spray, a sour-flavoured drink the children were using.

The defendant testified that the children were together every time as well. This is an insignificant incident in the play time of children and unlikely to stand out in the mind of either the defendant or L. years later. [ 15 ] The defendant testified that on the one occasion he went into the bathroom where S. as well as his 2 children were naked, he was surprised to see S. in there, he avoided looking at her, he handed her a towel and said that she was old enough to dry herself. [ 16 ] L. testified that her dad was shocked because S. was naked and he tried not to look at her.

He handed her a towel and said she is big enough to dry herself off. L. said she remembered this incident herself despite telling the court that it was not a big deal at the time and admitting that her father told her afterwards that he was really shocked and did not really look at S. [ 17 ] L., like the defendant, also estimated the distance between her father on the chair and B. on the couch on a later occasion as being about 4 feet. [ 18 ] I conclude that it is unsafe to place much weight at all on the evidence of L.

The sour spray incident [ 19 ] S. testified about an incident when she went into the kitchen and asked the defendant to assist her with filling a toy with some sour spray. She described him putting his hand over her shoulder from behind her, touching her chest over her clothes, then putting his hand under her shirt and training bra and touching her chest for a brief time.

S. said that the defendant’s children were in living room at the time, close by but could not see this portion of the kitchen. [ 20 ] The defendant denied this incident happened and testified that L. was with S. every time S. was in the kitchen that day for a sour spray refill. L. closely corroborated the evidence of the defendant in this regard. As discussed earlier, I reject the evidence of L. on this point. [ 21 ] In a similar fashion, while the defendant claims to specifically remember this day from years ago, I have concerns about his evidence that not once was S. alone with him in the kitchen.

Such an insignificant detail when 3 children are playing in the house is unlikely to stick in someone’s memory for even a couple of days, let alone be a “crystal clear” memory years later. During that exact same time frame, the defendant was not sure of the whereabouts of his younger child or what she was doing. Even accepting the defendant’s evidence that he has trained his memory, I have doubts about this evidence. [ 22 ] Regarding the evidence of S., the fact that I do not accept her evidence regarding the bunkbed incident, also causes me to have some concern regarding her evidence of this incident.

Perhaps she was making these allegations to get attention or to excuse some bad behavior at some point. [ 23 ] The bottom line, however, is that the legal test here is whether an objective person hearing all the evidence would conclude that the applicant’s fears regarding the defendant are reasonable. [ 24 ] Overriding the defendant’s right to privacy and freedom of movement is not something to be taken lightly. A recognizance under s. 810.1 may carry with it a stigma significantly higher than a simple s. 810 recognizance.

However, the justification for protection of potential victims may be proportionally higher as well. [ 25 ] Considering all of the evidence regarding this incident alleged by S. to have taken place in the kitchen, I find that on balance, an objective person would conclude that the applicant’s fears are not only subjectively present but are also reasonably held. While that conclusion is sufficient to justify imposition of the s. 810.1 recognizance, I will deal briefly with the allegations involving B. as well.

The incident involving B. [ 26 ] B., a twin of J. is the step-sister to S. and also attended to the defendant’s home on occasion. She testified about an incident that happened when she was 10 or 11 years old and just starting into puberty. She said that she was at the defendant’s home with her twin sister, her step-sister and the defendant’s 2 children. All the other children were playing in a bedroom but B. was in the living room with the defendant watching a movie. She testified that the defendant told her to come and sit on his knee. She refused for a time but finally

capitulated. She described the defendant then putting his right hand into her pants and rubbing her vagina for approximately 30 seconds. B. was able to describe precisely what was happening in the movie at the time this happened. She described the defendant telling her “sshhh” to keep her quiet but she told him to stop, took his hand off her, squeezed it and got up moving away from him. She immediately went and told the other children that she was feeling sick and wanted to go home. [ 27 ] S. testified that she remembers B. coming into the bedroom and looking really uneasy or scared or very upset.

This was a change from how B. had looked earlier. B. asked that they go home. [ 28 ] The defendant denies this incident ever happened. While I do not reject the defendant’s evidence outright, I do have some concerns about its overall truthfulness based upon his unrealistic memory claims and my concerns regarding the possible coaching of his daughter. [ 29 ] S. and B. did not get along very well and I accept without hesitation that they did not collaborate in providing their evidence about these incidents.

While it is possible that B. made this all up due to some form of competition for attention with S., or just as an excuse to go home that day, I do not conclude on a balance of probabilities that such is the case. [ 30 ] With respect to this allegation by B., would an objective person hearing all the evidence conclude that the applicant’s fears regarding the defendant are reasonably held? I conclude that they would. _________________________ The Honourable C. Sicotte Provincial Court Judge