R. v. V.O.S., 2022 BCPC 182

Citation: R. v. V.O.S. 2022 BCPC 182 Date: 20220829 File No: 32587-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. V.O.S. BAN ON PUBLICATION:

SECTION 486.4(1) C.C.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: S. Meldrum Counsel for the Defendant: A. Turton, Q.C. Place of Hearing: Terrace , B.C. Date of Hearing: May 05-07, September 28, November 08, 2021, February 04, March 14-16, June 22, August 29, 2022 Date of Judgment: August 29, 2022 [ 1 ] Given the age of the matter - some 10 years have passed since the summer of 2012, the court information was sworn on

November 1, 2016, and the trial began on May 5, 2021 - I believe that the court owes it to the complainant and the accused to render adecision as quickly as possible. I have reached my decision and I am prepared to deliver my reasons for judgment now. I reserve the rightto order a transcript and edit these reasons for judgment to ensure the proper structure, grammar, and readability.

I also reserve the rightto add the full citations and quotes from any caselaw that I refer to in my decision, but the result and substance of my decision will notchange. [2] It is important that the court be explicit and blunt in order that everybody can understand how it is that the court has reached theverdict in this case.

Some of the details within my reasons for judgment will therefore be graphic and may be difficult to listen to, but bystating them in my reasons for judgment, I mean no disrespect in any way, shape, or form to the complainant or to the accused. [3] This case involves an allegation of sexual violence in a tent on two occasions by V.O.S. against K.D. when K.D. was eight yearsof age. V.O.S. is presently 65 years of age. He was 55 years of age at the time of the alleged offences.

K.D. is currently 18 years of age.K.D. and V.O.S. are both members of [omitted for publication] First Nations. [4] V.O.S. is charged with two counts in Terrace Court Information 32587-1: Count 1: V.O.S., from the 1st day of May, 2012 to the 1st day of October 2012, inclusive, at or near [omitted for publication], in the Province ofBritish Columbia, did sexually assaulted K.D., contrary to

Section 271 of the Criminal Code. Count 2: V.O.S., from the 1st day of May, 2012 to the 1st of October, 2012, inclusive, at or near [omitted for publication], in the Province ofBritish Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K.D., aperson under the age of sixteen years, contrary to

Section 151 of the Criminal Code. [5] The British Columbia Prosecution Service proceeded by indictment. On May 5, 2021, V.O.S. elected to be tried by a ProvincialCourt judge without a jury and he entered pleas of not guilty to both counts. BACKGROUND [6] On August 9, 2015, when K.D. was 11 years old, she gave a video-recorded statement to RCMP Constable Sedgman concerningthe alleged sexual violence.

At the start of the trial, the prosecution applied for what is often referred to as a s. 715.1 Criminal Code voirdire seeking to have the video-recorded description of the alleged offences entered into the trial proper. [7] In the video recording, K.D. tells of having had two sleepovers in tents during the summer of 2012 when she was eight years ofage. She did not know the exact dates of the sleepovers, but she did recall the incidents occurred at night. Neither sleepover, based on theevidence, would appear to have been at V.O.S.'s residence. [8] The first sleepover had five children in the tent, including K.D.

Some of the children were her younger cousins and some of thechildren's ages were not known to K.D. According to K.D., V.O.S. was the lone adult in the tent. During the course of the evening, K.D.says that V.O.S. pulled her pyjama bottoms down and rubbed his penis on her vagina. K.D. also said that V.O.S. did not speak to herduring the incident. [9] K.D. specifically denied later in cross-examination that it was her Uncle M. who slept in the tent with the children. She alsospecifically denied that it was her Uncle M. who rubbed his penis against her vagina. [10] The second sleepover, as pointed out by Ms.

Turton for the defence, is remarkably similar in facts to the first incident, but thatdoes not mean it did not happen. One has to dismiss the myth that an individual who has taken advantage of children would not use thesame methodology on more than one occasion. [11] Although K.D. was unclear who exactly was in the tent the second time, it appears as though she believes it was the samechildren and V.O.S.

According to K.D., V.O.S. specifically placed himself beside K.D., which would be consistent with an individualwho had previously had an interaction with a young person and not had any consequences as a result of that interaction. [12] On May 14, 2021, at the conclusion of the s. 715.1 Criminal Code voir dire, I ruled that: 1.

K.D.'s video-recorded description of the alleged offences and the events surrounding the alleged offences was consistent withK.D. having had an independent recollection of the alleged offences; 2. the video recording was created within a reasonable time after the alleged offences as required by s. 715.1; and 3. the admission at trial of the video recording would not interfere with the proper administration of justice and, as such, the videorecording was admissible at trial subject to my disabusing my mind at trial of that portion of the video recording that refers to aconversation between K.D. and her cousin in a school washroom prior to the making of the August 9, 2015, video recording.

ISSUE [13] In light of the totality of the evidence, has the B.C. Prosecution Service proved Counts 1 and/or 2 beyond a reasonable doubt? DISCUSSION [14] In considering the evidence, including the accused's testimony at trial, I have considered and applied the law and principles setout in the leading decision of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. As noted by Justice MacNaughton in

R. v. Chambers , 2021 BCSC 799 ( Chambers ), at paragraph 154 : [154] The W.(D.) framework should not be applied formulaically. As has been repeatedly said, the framework is not a magical incantation or something to be slavishly followed. Rather, it is the principles underlying the W.(D.) framework that are important. [155] In his article, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, David Paciocco, now Justice Paciocco, of the Ontario Court of Appeal, discussed those principles: 1.

Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred. 2. A criminal fact-finder who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused. 3. Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true, there is a reasonable doubt and an acquittal must follow. 4. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt. 5.

Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt. [ 15 ] I have reminded myself that the determination of guilt cannot become a credibility contest between the accused and the complainant. I have considered the accused's evidence in the context of the other admissible evidence presented to the court during the trial.

As such, I have not assessed the accused's or the other witnesses' evidence in isolation and I have been careful not to subject the accused's evidence to a stricter standard of scrutiny than the complainant's or other witnesses' evidence.

Moreover, I have reminded myself that an accused person is never required to prove their innocence or disprove any of the evidence led by the prosecution. [ 16 ] Because of the nature of the evidence in the present case, I have identified and kept in the forefront of my mind the two legal rules concerning impermissible reasoning related to the plausibility of human behaviour as discussed in R. v.

J.C. , 2021 ONCA 131 : 1. the rule against ungrounded common-sense assumptions; and 2. the rule against stereotypical inferences. [ 17 ] Similarly, I have instructed myself that I cannot use the complainant's lack of embellishment in her testimony to bolster her credibility, R. v. Gerrard , 2022 SCC 13 . [ 18 ] Based on the evidence I do accept, I have no difficulty finding that K.D. had two sleepovers in the summer of 2012 after her school year ended, but before her following school year began.

Likewise, I have no difficulty finding that her cousins and other children were present and that there was one adult male at each of the two sleepovers. It is clear to me from not only the evidence led by way of the video recording, but also the cross-examination that Ms. Turton performed, that K.D. holds an honest belief that V.O.S. was that man. [ 19 ] The difficulty for the court, of course, is that a decision must be based on the totality of the evidence I accept. Both V.O.S. and his wife testified that there were no sleepovers in tents and that V.O.S. was away for the majority of July and August of 2012.

V.O.S. was clear in his evidence. He explained his family; how he met his wife, S.S., in 1983, 39 years prior; how they lived in [omitted for publication] at the [omitted for publication] Apartments, moved there in March of 2012; and that it was not possible to have a tent outside of the [omitted for publication] Apartments in the backyard. The Crown called no evidence to the contrary, other than K.D.'s evidence. None of the other children who were present at the sleepovers were called as witnesses for the Crown.

The Crown did not call the parents of the other children as witnesses. [ 20 ] While not fatal to the Crown's case, what it does do is leave the court with some doubt as to where the tents were set up. Nonetheless, as pointed out by Ms. Meldrum for the B.C. Prosecution Service, at the end of the day, that is not what matters. What matters is what happened inside the tents on the two occasions complained of. If K.D. was assaulted in the manner that she testified by V.O.S., then it is clear that V.O.S. is guilty of both counts. [ 21 ] V.O.S. had the allegations as alleged by K.D. put to him.

He denied pulling down her pyjamas. He denied pulling down her underwear. He claimed he was not in [omitted for publication] at the relevant time. He provided some documentary evidence to support his evidence, that being Exhibit 5 and Exhibit 6. He denied sexually assaulting K.D. He denied touching K.D. He denied being in the tent with K.D. on either occasion. [ 22 ] Cross-examination by the prosecutor of V.O.S. was well done and it created some difficulties in his evidence.

Nevertheless, based on the totality of the evidence, I have no reason to disbelieve V.O.S. that he spent the majority of the summer of 2012, and by the summer, I mean the months of July and August, outside of the [omitted for publication] area. As pointed out by Ms. Meldrum, that does not mean V.O.S. did not have the opportunity.

It just means there was a shorter time period during which the opportunity would have been available to him. [ 23 ] S.S., who was 56 years of age when she testified, and suffering from a number of health issues, including seizures that affected her memory; memory lapses every now and then; and brain tumors; testified in her husband's defence. She told how in 2012 they were making frequent trips to Prince George because of her father being in medical distress. She also testified how, at the beginning of July, V.O.S. left the [omitted for publication] area and did not return until early in the fall.

She testified that that V.O.S. was in the [omitted for publication] area between a week and 10 days at either the end of June or beginning of July. DECISION

[ 24 ] When I consider the totality of the defence evidence versus K.D.'s evidence, it is not a question of whether I believe or disbelieve K.D.

I have no difficulty finding that something happened to K.D. in the summer of 2012 on two occasions while she was in a tent with cousins and other children and an adult male. [ 25 ] The difficulty for me today is that when I look at the W.(D.) analysis, I say to myself, “have I been left unsure whether the evidence led by the Crown is true or not?” I am sure that it is, except for the possibility of who the male in the tent was, and the evidence that V.O.S. gave affects that. Not only in his denial, but also in his timing of where he was in the summer of 2012 combined with his wife's evidence.

What that means is I am unsure if V.O.S. was the man inside the tent on those two occasions. [ 26 ] This case is not to be decided on a balance of probabilities. It is beyond a reasonable doubt. In no way, shape, or form, again using that terminology, does this mean that K.D. is wrong about what happened to her in the tent on the two occasions. It may have been V.O.S. I am just simply not sure of that. [ 27 ] I think something happened in the tent and I think it was an adult male. Therefore, I am not saying K.D. lied to the police officer in the video. I am not saying she lied to the court.

I think she probably honestly believes that it was V.O.S., but based on the totality of the evidence, I am unsure if it was V.O.S. On that basis alone, I have to, and I do, find him not guilty on Count 1 and not guilty on Count 2. [ 28 ] That is my judgment. Thank you.