R. v. Chapman Date:, 2013 BCPC 232

Citation: R. v. Chapman Date: 20130828 2013 BCPC 0232 File No: 24935-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID CHARLES CHAPMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN (corrected August 29,2013) Counsel for the Crown: J. Johnston Counsel for the Defendant: D. Jenkins Q.C. Place of Hearing: Quesnel , B.C. Date of Hearing: January 25, 2013 and May 27, 2013

July 25, 2013 (submissions) Date of Judgment: August 28, 2013 [ 1 ] Mr. Chapman is charged with assaulting child L. M. The assault is alleged to have occurred on May 18, 2011 when L.M. was approximately 3 1/2 years old. The assault is alleged to consist of a slap on the child’s lower back just above the buttocks that left a partial outline of a hand on the child’s skin. Mr. Chapman testified and denies ever hitting the child. This is a circumstantial evidence case. Facts: [ 2 ] The accused's wife was at all relevant times running a daycare in her and the accused's home. The child L.

M. attended the accused's wife's daycare as did, previously, the child's older siblings. On May 18, 2011, the child's mother had a migraine headache. Consequently, she asked the child's older sibling J., who was approximately 11 years old at the time, to walk the child from the mother's car to the door of the daycare.

It was the mother's opinion that the child L.M. was upset because the child knew the mother was not going to work given she was still in her pyjamas, and consequently the child wanted to stay home with her rather than go to the daycare. [ 3 ] The child was having a temper tantrum and the mother observed her older child, J., having difficulty holding L. M., who was squirming and flailing. She noticed J. nearly drop L.M. at the daycare doorstep and demonstrated in court how J. was attempting to hang on to L.M.

Her demonstration indicated that L.M. was being held facing toward J. and then, as a result of L.M.'s flailing and squirming, began to slip out of J.'s grasp whose arms were wrapped around L.M. one arm higher than the other by approximately 12 inches, with his hands on the child’s lower back. [ 4 ] Witness Renee Myers had just dropped her child off and was waiting in her car facing the doorway. She was blocked in by the child's mother's car. She saw J. almost drop L.M. due to the child's flailing. She said J. was carrying the child cradle style, when she saw him partially drop and then catch the child.

Her demonstration indicated a quick bending of her knees. She said J., after catching L.M., then raised him back up using his hands and his knee on the child's lower back. The child continued to flail, and J. took him to the door then put him down. [ 5 ] L.M. continued in his crying and yelling to the point where the mother got out of the car and came to the doorway in an attempt to calm him down. She was not achieving any success and so decided to leave thinking that once out of sight the child may settle. [ 6 ] L.M. continued to act up in the doorway of the daycare.

The accused's teenage son took over the handling of L. M. to make way for another parent who was dropping off his child. L.M. continued to cry and act out of control. Amy Chapman took L.M. to what is referred to as the 'timeout' room, in hopes that the child would calm down. L.M. came back out of the timeout room. [ 7 ] The accused, Mr. Chapman, was walking down the stairs carrying some garbage to take outside before driving his son to school. He took L.M. back into the timeout room, and told him to calm down.

The accused's son closed the door so the noise of the other children would not further aggravate L.M. [ 8 ] The accused's son heard what he described as a 'big sound' coming from the timeout room and asked his father as he exited the room what the sound was. The accused said that he had hit the playpen. The accused's son noted that after the sound the child L.M. had stopped crying, as a result, he believed, of being startled. The accused told his wife the child had a wet himself.

Amy Chapman went into the timeout room and noted the child had stopped crying and was, in her words, "Okay then." She gave the child a pull-up diaper and LM went into the bathroom and changed himself, and according to Amy Chapman, was happy after that, and went to play with the other children.

The accused left to drive his son to school. [ 9 ] When asked whether anything occurred during the remainder of the day the child spent at the daycare that could account for the marks that were later seen on the child's back, Amy Chapman said in her testimony "Not that I saw." She said that when the child's mother came to pick him up in the afternoon, he was napping and had been napping for about an hour to an hour and a half, which was his usual routine. [ 10 ] The child's mother woke the child up at the daycare in order to take him out to the car.

The first thing the child told her was that he had 'peed his pants'. Apparently the child had been having a problem as of late, and wanted to forewarn his mother. She put L. M. into his car seat and drove to pick up her other children and then to the child’s aunt, G.M.'s residence. G.M. drove the children in the mother's vehicle, first to allow one child to deliver papers for his route, then to 'Granma's" residence, where the marks on the child's back were discovered. [ 11 ] The marks were taken by those who saw them to resemble a hand print. The police were called. Cst. Collins interviewed the child at 8. p.m.

Although concerned about interviewing the child given the late hour and the fact that the child was tired and, in Cst. Collin's words "antzy", she nevertheless tried because she also had a concern that the adults in the child's life may talk to the child, implying that the child's evidence may become tainted as a result of being influenced. [ 12 ] Cst. Collins, testified that the marks looked to her like the outline of three fingers, but admitted she could not say which three fingers they resembled, or even if the marks were in fact caused from fingers. Cst.

Collins also confirmed she had been told by the child's grandmother that the child had at first said the marks were caused by his brother J., then later also said they were caused by the family dog. [ 13 ] The child's paternal grandmother, J.P., testified. She said her daughter, G.M., arrived at her residence and brought L.M. into the dining room and placed him on the table to be changed. He had wet himself again. J.P. noticed a marked on L. M.'s back and said

"What's that on his back?" She said her daughter G.M. had apparently not noticed the mark, and turned L. M. around. J.P. said the marks looked like prints from fingers and a hand and were just above L.M.'s buttocks on his lower back. [ 14 ] Grandmother J.P. then said one of the adults present asked "What happened [L.M.]? Did something happen at daycare?" In her direct testimony J.P. said the child answered "Dave spanked me". She then testified she asked "Why did Dave spank you?" and that L.M. said "Because I wet my pants." [ 15 ] J.P. then testified that L.M. also said that his brother, J., did it.

She asked the child "What do you mean [J.] did it?" and also said that J. came in from the living room and said "You know I did not do it [L.M.]" J.P. then clarified that L.M. had first said J. did it, and later said that it was Dave who did it and that she had gotten the order mixed up. On cross-examination when asked whether it was true L.M. had also said the family dog, Cooper, had did it, she hesitated, then answered "It was there", implying that something consistent with defence counsel's reference to the child having said the dog was the culprit was in her memory. [ 16 ] The child's aunt G.M. testified.

She said when the apparent hand print was discovered on the child's back everyone in the room was acting very chaotic trying to figure things out and that she knew the best thing she could do was to remove the child from the room. She said she picked the child up and took him into a bedroom and, in the absence of anyone else, asked the child what happened. Although I note the hearsay nature of the following testimony it is nevertheless important to refer to it.

The Aunt testified, and I quote “He said very clearly to me Dave spanked me I asked why and he said because I peed my pants and then he said Auntie I do not want to go back there.” [ 17 ] When she was asked whether there had been a conversation in the kitchen or dining room prior to her taking the child away from the other people in the house she answered “It was too chaotic. My mind was set. I was not listening.

Honestly… no.” [ 18 ] On cross-examination when she was asked more pointedly whether there had been a conversation about the family dog or the child's brother J. having caused the marks she answered “No because I was in a frame of mind that all the energy in the room was chaotic and so I knew I had to remove the child from the room and so did not hear any of the conversation.” She also denied seeing J. having come into the dining room to look at the marks on the child. [ 19 ] The child, L.M. testified. He is now 5 years old, and was only 3 1/2 at the time.

Understandably, he does not have a reliable recollection of what occurred on the day the marks on his back were discovered. For example he does not recall having a tantrum before going to the timeout room, does not recall his brother carrying him to the door of the daycare, or being taken into the timeout room by Amy Chapman. He believes he was awake when his mother arrived at the daycare and that he immediately told his mother he had been spanked by Dave.

He said at one point there is no playpen in the timeout room, but also later said that Dave hit the playpen with his hand. [ 20 ] There is evidence that the adults in L.M.'s life have been talking to him, or talking to others in his presence, about the alleged incident.

For example, he said "[J.] never put a mark on my back, only Dave's fingers were on my back." When asked "Did your mom, dad and aunt talk about this lots of times?" L.M. said "Well...yes." When asked "Has your mommy told you what to say here today?" L.M. said "In the car she did." When asked again whether his mother told him what to say L.M. said "Well yes, before we went to school." [ 21 ] Although I was greatly impressed by five year old L.M.'s poise, confidence and politeness, and understand why his family would be very proud of him, I can put no weight on his testimony.

It would be an error to cherry pick and put weight on some statements, whether they be inculpatory or exculpatory, in isolation of the overall contradictory nature of his testimony. During his testimony I observed an intelligent five-year-old struggling to remember something that occurred when he was only 3 1/2 years old. I believe his testimony was a synthesis of partial memory and third-party comments and suggestions that he has either been told or overheard. [ 22 ] The accused testified. He is 57 years old, married to Amy Chapman and has two adult children.

He is employed as a senior guard for the Quesnel RCMP detachment where he has worked for 29 years. He is a three term Quesnel School Board trustee. [ 23 ] He says he was taking his son to school and leaving earlier than usual on the day in question. He came downstairs with a bag of garbage in his hand and saw L.M. having a temper tantrum.

He put the garbage down and picked L.M. up under his arms from the front and took him into the timeout room, sat him down, and asked him "[L.M.] what is wrong?" He said L.M. was 'flipping and flopping' and that the accused did not know what to do, so he slapped the top corner of the playpen to make a sound.

He said the sound scared L.M. and that he "stopped dead ... calmed right down." He says his wife and walked into the room and he told her L.M. had peed himself and he gave L.M. to her and that was his total involvement. [ 24 ] He denies ever hitting or slapping L.M. and says he has never even hit his own children. He received a call from his wife that evening when he was at a school trustee meeting. His wife told him the RCMP were investigating the allegation he had hit LM. Mr. Chapman went immediately to the RCMP detachment and was told he would have to wait to give his statement to Cpl. Kinloch in the morning.

Mr. Chapman went back to the RCMP detachment in the morning and gave his statement. He was asked to provide a diagram of his hand and complied by putting his hand on paper and allowing it to be traced. In short, he fully cooperated with the RCMP in their investigation. On cross-examination, Mr. Chapman readily admitted he was aware of his wife's frustration with L.M. and L.M.’s family, and that he, although to a lesser degree, shared that frustration.

He testified the source of the frustration stemmed primarily from the parents, and was specifically: poor quality lunches, no changes of clothes even though L.M. was wetting himself, and late pickups resulting in L.M. having to eat with Mr. and Mrs. Chapman and their family. He said it had been the same when his wife looked after L.M.'s sister in her daycare. [ 25 ] Although Crown counsel Jennifer Johnston did an admirable job on cross-examination in highlighting the accused’s and his wife's frustration with L.M. and L.M.’s family, I note Mr. Chapman did not try to minimize or water down his answer.

He simply answered forthrightly notwithstanding his answers were somewhat consistent with the Crown's theory. However, he adamantly maintained that any frustrations he felt did not result in him striking L.M. He points out that if he had slapped L.M. one would expect L.M. "would be raising pure hell… LM did not."

Analysis and Decision: [26] The Supreme Court of Canada directs in the case of R. v. W.(D.) that where an accused testifies in his owndefence trial judges are to instruct themselves as follows: "First, if you believe the evidence of the accused, obviously you must acquit. "Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

"Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused." [27] In the present case, I have noted the high level of concern and involvement of L.M.’s immediate and extended family, most ofwhom have attended during the several days of trial. It is clear to me that emotions are high. My previously referenced observationsabout family member's testimony makes clear to me the family have made up their mind Mr.

Chapman is guilty and that they want toprocure a conviction. That emotions are high is very understandable when a loving family believes one of their young and vulnerablehas been victimized by an adult. It is this type of emotional backdrop that can lead people to have what is referred to as ‘tunnel vision’. [28] Tunnel vision is when people convince themselves a theory is true, and then focus only on consistent evidence, and disregardevidence that is inconsistent with the theory.

Tunnel vision can happen not only to concerned and emotionally involved family members,but there have been several regrettable high profile cases in Canada where it has been later established the accused were wrongfullyconvicted as a result of the tunnel vision of the justice system professionals. I hasten to add that there is no evidence of tunnel vision onthe part of the police or Crown in this case, and that this was a case properly brought to trial.

My above discourse is for the benefit of thefamily, and to emphasize that it is the responsibility of a trial judge to take into consideration all of the admissible evidence indetermining whether the evidence establishes guilt beyond a reasonable doubt. [29] In this case, the Crown's theory is based on the following basic facts: L.M. had a temper tantrum, and the accused, who issympathetic with, and consequently shares, his wife's frustration with L.M.'s family and, even to a lesser extent, with L.M. himself, takesL.M. into a timeout room. Emanating from the room is heard a loud noise.

There is evidence L.M.'s behaviour abruptly changes for thebetter. Later that evening family members discover marks on L.M.'s lower back that clearly resemble a partial hand print. Finally, thechild made statements that included a statement that the accused spanked him. [30] Standing alone this would be a strong circumstantial case. However, after the benefit of a trial I find there is much otherevidence that greatly weakens the circumstantial case against the accused.

In a circumstantial case, not only must the factualcircumstances be consistent with the accused having committed the act, but before a finding of guilt beyond a reasonable doubt will beestablished, the guilt of the accused must be the only reasonable inference to be drawn from those facts.

The additional evidence in thiscase, and accompanying analysis, includes the following: • The 3 1/2-year-old child's abrupt change of behaviour from crying, to not crying and calming down, after the ‘loud noise’that emanates from the timeout room, strikes me as more consistent with being startled by a loud noise than it does with having beenslapped hard enough to leave a mark; • There is no evidence describing the ‘big sound’; • The accused provided an alternative and not implausible explanation for the ‘big sound’ emanating from the time outroom.

He told his son at the time that he had slapped the playpen, and he testified to the same at trial; • Assuming, as I do, that the red mark on the child's back is a partial hand print, there is evidence of an alternative and notimplausible explanation for the hand mark. It is possible the hand mark may have resulted from when the child was squirming in hisbrother J.'s arms to the extent that he almost fell and was caught by J. This event was significant enough for both the child's mother andwitness Renée Myers to recall.

That this event is a possible cause of the hand mark is consistent with the witnesses description of whereJ.'s hands were on the child's body during the child's struggling and near drop; • The possible explanation of the hand mark resulting from J.’s near drop and catch of the child is also consistent with thechild's first answer when asked who caused the marks on his back. He said it was his brother J. It wasn't until that answer was rejectedby family members that the child apparently came up with another of perhaps the usual suspects, that being his dog Cooper.

It ispossible, given the child's mother's testimony, that the child mentioned Cooper first, then J. • There was evidence from the grandmother that the child was asked at some point whether something happened to him “atthe daycare”. This suggestive question obviously preceded the child's third answer when the child said it was Dave who caused themarks. The child's aunt sequestered the child away from the other adults and allegedly received full information from the child.

However, even without regard to its hearsay nature, I find I cannot rely on the aunt's evidence, given she reports to remember clearly words that would support a conviction but can't remember anything at all about what the child said that would be inconsistent with the Crown’s theory; • The opportunity, from the intervening period between approximately 8 AM when Mr.

Chapman took L.M. into the timeout room and the early evening when the marks were discovered, for several other persons to have caused the marks; • Finally, I note, but do not overly ascribe weight to, the fact of the accused's cooperative post offence conduct which included immediately attending at the RCMP station before being asked to, volunteering a statement, and agreeing to have his hand traced. [ 31 ] I also find that the accused's testimony was forthright and consistent. There's no reason why I should not believe the accused, especially given the other possible explanation for the partial hand print.

Consequently, Mr. Chapman is acquitted of this charge. ________________________________ R. D. Morgan Provincial Court Judge