R. v. E.T.K. Date:, 2016 BCPC 346

Citation: R. v. E.T.K. Date: 20160920 2016 BCPC 346 File No: 23769 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.T.K. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: S. Meldrum Counsel for the Defendant: J. McCarthy Place of Hearing: Hazelton , B.C. Date of Hearing: April 19 & 20, September 7, 2016 Date of Judgment: September 20, 2016 Background

[ 1 ] E.T.K. is charged with three counts.

These allege: 1) sexual assault on V.M.P.D. contrary to s. 271 of the Criminal Code from June 28 th , 2008 to August 8 th , 2012; 2) sexual assault on V.M.P.D. contrary to s. 271 of the Criminal Code from August 9 th , 2012 to July 16 th , 2014; 3) sexual touching on V.M.P.D. a person under the age of 16 contrary to s. 151 of the Criminal Code from June 28 th , 2008 to July 16 th , 2014. [ 2 ] The dates from June of 2008 until 2014 cover one continuous allegation and the first two counts were bifurcated because the minimum sentences changed in August 2012. [ 3 ] The trial commenced on April 19 th and 20 th , 2016 and continued to completion on September 7 th , 2016. [ 4 ] At commencement of the trial, the defence indicated that identification was not in issue.

Evidence J.K. [ 5 ] The first Crown witness was J.K. who testified that she married the accused in 2004. She brought a child V.M.P.D. to the marriage. V.M.P.D. was born [omitted for publication].

She and the accused had three sons: J. age eleven, Z. age eight, and M. age seven. [ 6 ] J.K. also testified that the accused had suffered a brain injury and had mood swings. [ 7 ] She testified that the entire family including herself, the accused, the complainant and three younger sons of herself and the accused had resided in the [omitted for publication] area since the end of the complainant’s first grade in school. [ 8 ] She testified that when the complainant was eight or nine she had come into the adults’ bedroom and said words to the effect “Dad had sex with me.” She added that an argument then occurred between her and the accused.

She testified that the accused had called a friend from their church, J.M., to come over to help settle things down. J.M. had told them that he believed nothing had happened and nothing further was done about the child’s complaint. [ 9 ] She testified of one incident when she had entered the complainant’s room when the family lived on [omitted for publication] in the [omitted for publication]. She said the complainant would have been somewhere between the ages of eight and eleven. [ 10 ] During that incident, she said she saw the complainant lying on her bed with her legs up in the air.

She testified that the child had no underwear on and the accused was standing approximately two feet from the child and was doing what looked like pelvic thrusting movements. [ 11 ] She testified that as a result of what she saw, she asked the accused “What the hell is going on?” He denied anything happened and an argument started. She added that during the argument the accused went downstairs, started up a chain-saw and took it into the living room. [ 12 ] She testified that the accused had a vasectomy in December 2011.

While they had discussed a vasectomy earlier, the accused had changed his mind and had the vasectomy without telling her in advance. [ 13 ] She testified that the complainant started to menstruate in November 2011. [ 14 ] She testified that the accused had told her that he had found the complainant’s I-pod broken in early June 2014 and subsequently replaced it for the complainant’s birthday at the end of that month. [ 15 ] She testified that in the summer of 2014 before the complainant moved out there was another accusation of sexual abuse.

She stated that she and the accused were lying in bed when the complainant entered. V.M.P.D. said, “You don’t know what’s going on!” J.K. responded with the following series of questions. Are you being physically abused? Are you being mentally abused? Are you being emotionally abused? Are you being sexually abused? The complainant answered no to first three questions and yes to the last question about sexual abuse. The accused responded by saying “Oh, Fuck off!” [ 16 ] She testified that the accused had given her a letter in December 2014 to give to the complainant. She delivered it after reading it.

She described the letter as an apology from the accused to the complainant. He apologized for embarrassing her at the movies and for being a bad dad and not treating her nicely. [ 17 ] She testified that since their separation, in the week or two before the start of this trial, she had a conversation with the accused about the incident where she walked in on him and the complainant in the complainant’s bedroom. She described his explanation as being, “I was just giving her a hug”. She added that he then changed it to “he had asked her if you want to know what moms and dads do”.

She stated that then he changed it back to “I was just giving her a hug.” She took the remark about “what moms and dads do” as a reference to a “Focus on the Family” book that they had used in parenting. [ 18 ] J.K. testified that there was a lot of tension between herself, the complainant and the accused concerning his restrictions on the complainant. The Complainant

[ 19 ] Pursuant to s. 715.1 a video statement of the complainant, taken July 16 th , 2014, was admitted as Exhibit 2. The transcript of the video statement was admitted as Exhibit 3. [ 20 ] The complainant in her testimony adopted the video statement and transcript. [ 21 ] In the video statement the complainant stated that her maternal grandmother had taken her to the hospital on July 15 th , 2014 and it was confirmed that her hymen was ruptured. [ 22 ] She indicated that the accused had been sexually abusing her since she was aged eight. [ 23 ] She described some of the sexual abuse as the following pattern.

The accused would come into her bedroom, take down her pants and underwear and put his penis into her vagina. She added that this normally occurred between six and ten in the evening while her mother was at work. [ 24 ] She described the first incident when she was aged eight and lying on the couch in the living room. The accused was lying behind her and put his penis into her.

She stated that “It weirded her out.” She explained that her three younger brothers were at home but were either sleeping, playing outside or “watching Mind Craft videos with headphones on.” [ 25 ] She stated that after his vasectomy the accused would put his sperm into her. Before the vasectomy, he would clean up his sperm with towels or underwear and then wash them in the laundry. [ 26 ] She stated that the last incident was a few days before the statement after they had returned from a Gospel Music Festival. She gave details that the accused made her kneel on the floor and entered her from behind.

She added that he was going back and forth and grunting. She stated that she had her shirt on and that he took off her pants and underwear.

She described him as having his shirt on and his pants and underwear off. [ 27 ] She described his penis as looking “like a mushroom top” and that sometimes he had shaved his pubic hair and it was “like stubble”. [ 28 ] She also described some of the sexual contact as touching his penis with her hand and demonstrated on the video an up and down motion with her hand formed into a circle. [ 29 ] She described that sometimes he would kiss her on the mouth and in further questioning by the police officer added that he put his mouth on her chest and her vagina. [ 30 ] She also described that he would sometimes make her use her mouth to suck on his penis and that he would ejaculate into her mouth and she would spit it into the toilet. [ 31 ] At line 1158 of Exhibit 3 she described the rupture of her hymen as follows. “[T]here was when it broke and it, it hurted (sic) and then there was some blood.” [ 32 ] She testified that a friend from Brazil had suggested that she use her I-pod to record the abuse and she did by secreting the device behind the curtain on her bedroom window sill.

She testified that after a couple of weeks the accused had taken her I-pod from her housecoat when she was away and then he rendered it useless by breaking the screen and removing a wire that connected the battery to the mechanism. [ 33 ] She also testified that sexual contact occurred at public pools, movies, hot-tubs, cars and a tent in the backyard. She provided some detail concerning the hot-tub by describing her touching his privates under the water. [ 34 ] She testified that the accused would place his foot between her legs by her crotch (Transcript 3 page 27 line 16).

She described this as happening when he sat at the head of the table and she would sit immediately to his left or right. [ 35 ] She testified that she did not initially disclose to her mother because her mother couldn’t afford to live by herself with the children.

As well, when she did disclose her parents met with J.M. and didn’t believe her. [ 36 ] She testified that there was sexual contact every day and sexual intercourse two or three times a week starting when she was ten or eleven and less often when she was eight or nine. [ 37 ] She testified that the accused told her it was his job to teach her about things and when she said no to him, he would say, “I thought you liked doing stuff with me”. [ 38 ] She testified that by age eleven or twelve she knew it was wrong and when she told the accused, he would say, “No one will believe you” and “Think about the feelings of your brothers if they found out.” [ 39 ] Concerning the incident when her mother walked into the bedroom, she testified that she had her legs up and the accused was thrusting his penis into her.

She added that his pants were up but his zipper was down. This occurred when she was ten years old. [ 40 ] She added that after an argument broke out between her mother and the accused during which he started the chain-saw and brought it upstairs as well as hung by his hands off the stairs railing. [ 41 ] In cross-examination, she testified that she did not record the sexual contact on her replacement I-pod as she was not home the whole time and because the accused had the password (Transcript 3 page 11 line 35).

She stated the I-pod was cracked on the body and the crack extended a bit onto the screen (Transcript 3 page 6 line 46). She added that the I-pod was replaced in approximately one month for her birthday.

[ 42 ] In cross-examination she stated that there was not sexual abuse every day (Transcript 3 page 10 line 44). [ 43 ] In cross-examination she testified that there was an incident the summer she turned fourteen, that the accused had cut his shirt with a knife.

E.T.K. [ 44 ] The accused testified that he suffers from ADHD and a head injury. [ 45 ] He categorically denied ever having sexual intercourse with the complainant. [ 46 ] He categorically denied ever having sexual activity with the complainant. [ 47 ] He categorically denied ever having any activity with the complainant that could be misconstrued as sexual activity with the complainant. [ 48 ] He testified that he remembers the incident when his wife entered the bedroom while he and the complainant were there although he “cannot explain why he remembers”.

He did remember that the complainant was being hyper-active and making noise. [ 49 ] He testified that he and the complainant only went camping once and it was with the entire family. [ 50 ] He testified that the apology letter was with reference to his being too strict. [ 51 ] He testified concerning the chain-saw incident that he never started the chain-saw. Rather he only used the starter a couple of times but he didn’t have it running. He added that he only had the chain-saw in the woodroom/furnace room and not in either the living room or upstairs.

He explained that he used the chain-saw because he was not on his medication and was overly angry. [ 52 ] He testified that he had no memory of cutting up his shirt. [ 53 ] He testified that he broke the complainant’s I-pod by just pushing on the screen twice to activate it.

The screen was already cracked and he added it was so cracked that you couldn’t turn it on anymore. [ 54 ] He testified that the I-pod was an area of contention as the complainant was on it all the time. [ 55 ] He testified that he didn’t know the password for the I-pod so he would ask the complainant to give him the I-pod when it was activated so he could monitor it. [ 56 ] He testified that he had a poor relationship with the complainant over his Christian values and her manner of dress, language and music. [ 57 ] He testified that he would take all the children to the movies or just J. and the complainant if the topic was not suitable for the younger two.

He stated that he never took the complainant to the movies by herself. [ 58 ] He testified that he never put his foot between the complainant’s legs when they were sitting at the dining room table. [ 59 ] In cross-examination he testified that he would often put the complainant to bed from age five or six until the incident when his wife came into the room when the complainant was around age thirteen.

Then he corrected himself by saying that he could not remember the age of the complainant at the time of the incident. [ 60 ] In cross-examination he testified that the subsequent argument downstairs was because his wife said that she never got to put the complainant to bed and he wanted to take control. [ 61 ] In cross-examination, he testified that he and his wife argued over the same topic many times but this time he was so upset that he sat on the floor and cried. [ 62 ] In cross-examination he testified that he did not remember the chain-saw incident until his wife talked to him about it.

He agreed that his wife and children were scared. [ 63 ] In cross-examination he testified that when his wife entered the bedroom and asked what was going on that he explained that he was not doing anything wrong. Then his wife started the argument. [ 64 ] In cross-examination he testified that during that incident he was three feet from the bed and that he did not know if the complainant had underwear on.

He added that he didn’t look at his daughter that way and that it was “gross” to suggest it. [ 65 ] In cross-examination he testified that the complainant never lay on the top of the covers but would either sit on the bed with her legs drawn up or jump up and down. [ 66 ] In cross-examination he testified that he had never asked for the password to the I-pod. Then he stated that once he had the password but the complainant changed it. [ 67 ] In cross-examination he testified when he retrieved the I-pod from the housecoat that it was not locked so he pushed on the screen to monitor the content.

He pressed it twice and it broke. He clarified that he didn’t initially admit breaking the I-pod as he didn’t want to be labelled as a person who breaks things. [ 68 ] In cross-examination he testified that he had a vasectomy approximately eleven or twelve years ago so he wouldn’t have any

more children. I note the age of his sons in paragraph five above. [69] In cross-examination he testified that only once had he discussed with his wife the possibility of camping alone with thecomplainant and that it never happened. [70] In re-examination he testified that he had tried to start the chain-saw on a different day than when his wife had come into thecomplainant’s bedroom. Submissions By the Defence [71] The defence reminded the court of the case of R v. W.(D.) (SCC), [1991] 1 S.C.R. 742.

He went on to submitthat there should be a reasonable doubt left by the Crown’s evidence and that the accused’s testimony, while there were internalcontradictions on collateral issues, was unshaken that no sexual contact took place. [72] It was further submitted that the accused’s vasectomy occurring in the same timeframe as the commencement of thecomplainant’s menstruation was mere coincidental and not corroborative of the crown’s case. [73] It was also submitted that the accused’s letter of apology was ambiguous and referred to his rigid, controlling and hypocriticalparenting style and not to the criminal allegations. [74] It was submitted that the testimony of the complainant’s mother that the accused had stated that he was just giving a hug andthen that he was trying to explain to the complainant what fathers and mothers do and then back to that he was just giving a hug isambiguous and not corroborative of the crown’s case. [75] It was submitted that there were several inconsistencies in the crown’s case as follows:

a) That the complainant testified that the accused had asked her mother to let him take the complainant camping five times and thetestimony of the accused and the complainant’s mother that he only asked once.

b) That concerning the chain-saw the complainant testified that he had it upstairs, the accused testified that he only had it in the woodroom on a different day and the complainant’s mother testified that he had it in the living room on the main floor.

c) That it would be physically impossible for the accused to place his foot between the legs of the complainant hear her crotch whilethey were seated at the corner of the table.

d) That the number of incidents alleged by the complainant is suspect because someone should have eventually “caught” them.

e) That the complainant and her mother discussed the evidence a couple of weeks before they testified.

f) That the complainant on the stand said that she didn’t record the contact on her second I-pod because the accused had the passwordbut in her video statement had said that he never asked about the second I-pod.

g) That the complainant was “impeached” in cross-examination and said she didn’t know that she was lying when confronted with thetranscript of the video statement concerning why she didn’t record with the second I-pod. [76] The theory of the defence is that the accused is a volatile and difficult person to live with; that he made the complainant’s lifealmost unbearable and that she fabricated these allegations in order to escape the home. By the Crown [77] The Crown submitted that the accused’s evidence should be rejected for its internal contradictions such as:

a) His having testified in chief that the chain-saw incident and his wife entering the bedroom incident occurred on the same day and inre-examination testifying that these incidents occurred on different days.

b) His testimony that he did not have the password to the first I-pod but that he accidentally broke it trying to open it. [78] It was submitted that complainant’s mother partly corroborated the complainant’s testimony concerning the incident when themother entered the complainant’s bedroom while the accused was there. [79] It was further submitted that the timing of the accused’s vasectomy was suspicious as he had discussed it earlier with his wife asa form of birth control but had the procedure without any further discussion or notice to his wife. [80] It was also submitted that it was suspicious that he would apologize to the complainant for his parenting style when he felt thathe had a parental right and moral obligation to raise his step-daughter in an appropriate Christian way. [81] It was submitted that the complainant’s testimony was credible because of its many details of sexual activities that should nothave been known to a 13 year old raised in a strict religious household. [82] It was submitted that there was not an “impeachment” of the complainant in cross-examination on the question by the officerwhy there was no recording with the second I-pod because the transcript used in the cross-examination was inaccurate.

The transcriptrecords “no” as the answer to the question, “why did you not record with the second I-pod because you were scared of the accused?” However, as confirmed by a viewing by this court, the video itself showed the complainant quietly nodding “yes”. The Crown thus

argues that explains the complainant’s confusion during that portion of the cross-examination. [83] It was submitted that the complainant’s delay in disclosure is not illogical as she had not been believed on her first report at ageeight. [84] It was submitted that it was equally logical for the complainant to want out of that home because she was being sexuallyabused. Decision [85] In order for the court to convict it must be satisfied beyond a reasonable doubt that all the elements of the offence have beenproven against the accused by the Crown. R. v.

W.(D) (SCC), 1991 1 SCR 742 is often cited as the proper procedure. While it is dangerous to use that case as a formula it can be of assistance. [86] Several of the elements of the offence are not in issue. These are the identity of the accused, jurisdiction, the time frame ofopportunity as stated in the three counts of the Information. [87] In the case at hand, if the court accepts the evidence of the accused it must acquit as he denied any sexual touching betweenhimself and the complainant. [88] This court rejects his evidence whenever it conflicts with that of the Crown witnesses.

His testimony was internallyinconsistent. He testified that he had a vasectomy eleven or twelve years ago. That would have been 2004 or 2005.

His sons, Z. and M.are eight and seven years old. [89] He testified that he never asked for the password to the complainant’s I-pod then changed his testimony to that he had onepassword but it was changed. [90] Also this court finds it incredible that he would accidentally break an I-pod by pushing on the screen twice even if it wascracked. [91] In chief he testified, as did the Crown witnesses, that the incident when his wife came into the bedroom was the same day as thechain-saw incident.

In re-examination he testified those were two separate days. [92] He vacillated between having no independent memory of the incident when his wife entered the bedroom and then testified thathe did remember her asking “what’s going on?” [93] In cross-examination he stated, “I don’t know how to answer your question.” His responses were not spontaneous and appearedto be considered and calculated to deflect the question. [94] As per R. v. W.(D.) cited above, the court must then determine if it accepts the inculpatory testimony.

This court does acceptthe testimony of the complainant and her mother. [95] The complainant provided a great deal of detail on the nature of the sexual contact. This included details of:

a) The rupture of her hymen.

b) The positioning of her and the accused’s bodies.

c) The cleaning up of his semen with underwear or towels.

d) Other forms of sexual contact.

e) Her spitting of his semen into the toilet.

f) Her masturbation of the accused.

g) Her disclosure at age eight.

h) The incident in her bedroom when the sexual contact was interrupted by her mother. [96] The latter two points (g and

h) are corroborated at least in part by her mother although neither was acted upon by her mother. [97] That leaves the final step under R. v. W.(D.) supra. That is the traditional test in Criminal law.

That is whether on aconsideration of all the evidence the court is satisfied that the Crown has proven the offence beyond a reasonable doubt. [98] Concerning the defence submission, the court finds that the apology letter is equally consistent with admission of criminal ornon-criminal matters. [99] The conversation between the accused and his wife about giving the complainant a hug or teaching her about what father andmothers do is not corroborative of the allegations but does support the court’s finding that E.T.K. is not a credible witness. [100] The other defence submissions go to the credibility of the crown witnesses because of inconsistences.

Such inconsistencies thatexist only deal with collateral issues and thus only go to their weight as evidence. [101] Concerning the “impeachment”, the court has reviewed the video and it is clear that the complainant was nodding her head in

agreement with the suggestion that she was afraid to use the second I-pod to record sexual contact with the accused. Accordingly, theconfusion of the complainant when she was confronted with an apparent contradiction between her testimony on the stand and thetranscript is understandable. [102] In conclusion there is more than sufficient evidence of sexual touching and sexual assault in the complainant’s evidence. Thatevidence is corroborated in part on two specific incidents by her mother.

Accordingly, I am satisfied beyond a reasonable doubt that theCrown has proven the three counts as charged. [103] The three charges as laid do raise the issue of multiple convictions for the same continuous delict over a long period which isusually referred to by reference to R. v. Kienapple (SCC), [1975] 1 SCR 729. The court shall require submission fromcounsel on that before proceeding to sentencing. _____________________ W. F. M. Jackson Provincial Court Judge