R. v. Dignard, 2019 BCPC 397

Citation: R. v. Dignard 2019 BCPC 397 Date: 20191211 File No: 33580-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARWIN JAMES DIGNARD BAN ON PUBLICATION 486.4(1) of the CRIMINAL CODE of CANADA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.A. STRUYK Counsel for the Crown: M. Mullins Counsel for the Defendant: T. Klaassen Place of Hearing: Terrace , B.C. Dates of Hearing: April 24, 25, 29, 30; May 9; and August 19, 2019 Date of Judgment: December 11, 2019 [ 1 ] THE COURT: This matter is for decision this morning. The accused, Darwin Dignard, is charged indictably on four counts on

[ 1 ] THE COURT: This matter is for decision this morning. The accused, Darwin Dignard, is charged indictably on four counts on Information 33580. The Court confirmed the accused's election and not-guilty pleas were entered on June 5, 2018. Those charges are summarily as follows: 1. That from October 18, 2011, to April 6, 2018, did sexually assault K.B. contrary to s. 271 of the Criminal Code ; 2.

That from October 18, 2011, to October 17, 2016, did for a sexual purpose touch directly or indirectly with a part of his body the body of K.B., a person under the age of 16 years, contrary to s. 151 of the Criminal Code ; 3. That from October 18, 2011, to October 17, 2016, did for a sexual purpose invite, counsel, or incite K.B., a person under the age of 16 years, to touch directly or indirectly with a part of her body the body of D.J. Dignard contrary -- or body of D. Dignard contrary to s. 152 of the Criminal Code ; 4.

That from October 18, 2016, to April 6, 2018, being a person in a position of trust or authority towards a young person, K.B., or a person with whom the young person is in a relationship of dependency, did for a sexual purpose invite, counsel, or incite said young person, K.B., to touch with a part of her body the body of D. Dignard contrary to s. 153 of the Criminal Code . Witnesses and Evidence J.B. [ 2 ] J.B. is the mother of the complainant, K.B. who was born [omitted for publication], 2000. The accused started living with them in September 2011.

In September 2011, J.B. was living at a residence on [omitted for publication] in Terrace, British Columbia, “the complex”. The three of them moved to another residence on [omitted for publication] and, while living there, J.B. and Mr. Dignard broke up. K.B. and J.B. moved into a [omitted for publication] on [omitted for publication] and Mr. Dignard did live with them for a period despite the relationship with J.B. being over. Mr. Dignard eventually found his own residence in an area near Terrace referred to as [omitted for publication].

J.B. and K.B. could not afford rent in Terrace and moved out to [omitted for publication] with Mr. Dignard in his one-bedroom basement suite for a period of about six months. [ 3 ] From 2011 to 2014, J.B. was not working, but would go out at times to socialize, take parenting courses, or meet with a worker from Terrace & [omitted for publication]. When J.B. was absent from the home, Mr. Dignard normally took care of K.B. [ 4 ] Starting in July 2014, J.B. started working as a cashier at the local [omitted for publication]. She estimated she worked between 36 and 40 hours a week. J.B.'s

schedule was not predictable and days off or shifts were constantly varied. She became a full-time employee in 2015 and always worked eight-hour shifts. Her shifts could start as early as 7:45 a.m. and end as late as 10:15 p.m. Her schedules usually came out two weeks in advance. [ 5 ] Mr. Dignard was K.B.'s caregiver when she was at home and J.B. was at work. Sometimes K.B. would go to her grandparents' in town or respite care. J.B. described K.B. as having ADHD, is on the autism spectrum, and has sensory stimulation issues. K.B. has been on Ritalin to address the autism and ADHD.

K.B.'s local pediatrician continued the prescription after K.B.'s time at Children's Hospital. K.B. has received regular help with workers through [omitted for publication]. Though she attends high school, her schooling program was modified and not academic. [ 6 ] While Mr. Dignard lived with the family, he usually handled discipline issues with K.B. J.B. found K.B. generally responsive to Mr. Dignard's discipline or direction. Mr. Dignard did not leave the home a great deal, though he has family in Terrace and at least one friend he would spend time with. There was alcohol in the home and both J.B. and Mr.

Dignard drank. J.B. described him as a regular drinker of Budweiser beer and whiskey. They also both used marihuana and Mr. Dignard used it daily. [ 7 ] At the first residence on [omitted for publication], there were three bedrooms upstairs. At the [omitted for publication] home, there were three bedrooms, but the third bedroom was for storage. Mr. Dignard mostly slept on the couch at that location. At the [omitted for publication] on [omitted for publication], there were three bedrooms and, again, Mr. Dignard slept mostly on the couch.

At the [omitted for publication] residence, there was only one bedroom and when J.B. and K.B. moved in there, K.B. took the bedroom. [ 8 ] Shortly after a break-up with Mr. Dignard in April 2018, K.B. disclosed alleged inappropriate behaviour by Mr. Dignard. The police were contacted and an officer attended at K.B.'s grandmother's house. As I understood, that is where the initial activity occurred. The next day, K.B. was brought to the police station where she provided a statement. J.B. identified Mr. Dignard in court. [ 9 ] Under cross-examination, she recalled that Mr.

Dignard did, to her knowledge, have an accident in June 2011. At the time, he was living in a different residence and not with J.B. Mr. Dignard moved in with them when K.B. was 10. She agreed that, while living with them, Mr. Dignard would go to Vancouver for medical appointments and sometimes she went along. She recalled going along for a surgery, but was unsure of the dates. When K.B. was in respite, it started at eight days a month and went on to 10 days a month once they were living in [omitted for publication].

During those periods, K.B. did not come home. [ 10 ] There was an incident on March 20, 2014, where Mr. Dignard left the house until sometime in July of 2014. J.B. agreed that he would not have had any personal contact with K.B. at all during that period. At times, in the summer of 2012 and 2013, they would take K.B. places, camp, and once she went to Vancouver for a four-day weekend autism camp. [ 11 ] During the period J.B. and Mr. Dignard lived at [omitted for publication] and [omitted for publication], they were still a couple, but estranged. When Mr.

Dignard moved out to [omitted for publication], K.B. and J.B. would go out to visit. While living apart, J.B. would still obtain assistance from Mr. Dignard on discipline issues with K.B. J.B. and Mr. Dignard did argue when he became intoxicated. [ 12 ] Over the course of the relationship with Mr. Dignard, J.B. did not have issues with interactions between K.B. and Mr. Dignard. K.B. likes to give hugs and gave Mr. Dignard hugs. She did not observe anything overtly sexual between them. She was present when Mr.

Dignard made comments to K.B. about the size of her breasts, compared them to J.B.'s, and that he made comments in this vein

frequently. She was surprised by the disclosure by K.B. of sexual offence allegations against Mr. Dignard. After dealings with the police at the local station, K.B. did make derogatory comments about Mr. Dignard. C. P. [ 13 ] C.P. lived on the top floor of the residence in [omitted for publication] where Mr. Dignard lived. She recalled Mr. Dignard living there before J.B. and K.B. moved in. Mr. Dignard was there for about 18 months. The noise barrier between her residence and Mr. Dignard's is minimal. There were noise issues including music, Mr. Dignard and K.B. yelling, and the police being called.

She also interacted with K.B. She observed her board a bus for school. [ 14 ] Sometimes K.B. was outside and, if she did not respond to Mr. Dignard's request to return to the residence, he would yell sometimes using rough language. She described the yelling at K.B. as occurring daily. J.B. would often leave for work and she knew Mr. Dignard and K.B. were there on their own. Eventually, her contact with K.B. was limited. [ 15 ] Mr. Dignard drank both frequently and heavily and used marihuana. She knew that K.B. was around at times Mr. Dignard was drinking or smoking marihuana.

Her concerns were sufficient that she contacted the Ministry of Children and Families. Before J.B. moved into [omitted for publication], she brought K.B. there to be babysat. She estimated Mr. Dignard lived in the residence about 18 months and J.B. and K.B. about seven to eight months. [ 16 ] On cross-examination, she agreed that Mr. Dignard moved in about May of 2016 and K.B. and J.B. may have moved in about June of 2017. There were also dogs in the apartment which was estimated at 600 square feet. She agreed that she did socialize and chat with Mr. Dignard approximately six to seven times.

She also smoked marihuana with him a couple of times. Mr. Dignard did occasionally have other visitors he would go into town with. [ 17 ] C.P. was strong in her evidence that over time K.B. was prevented by Mr. Dignard to have interaction with her. K.B. would approach her and Mr. Dignard would direct her to come to his apartment despite C.P. stating it was okay for K.B. to interact with her. K.B. [ 18 ] K.B. was 17 years old when she provided the audio-video statement to the police on April 11, 2018, and 18 when she testified in court.

By way of a s. 715 Criminal Code voir dire , the video-audio statement she provided was adopted and admitted into the trial process. In that statement, she alleged that Mr. Dignard participated in sexual activity with her from the age of 11. [ 19 ] In the recorded statement, K.B. alleges that Mr. Dignard was trying to teach her about sexual matters. As a result, she performed oral sex on Mr. Dignard. She stated this would only occur when she was alone with him or when her mother was asleep in the middle of the night when he would wake her up.

K.B. did not decline participating as she did not know to say no and she was scared. She stated Mr. Dignard liked to touch her breasts and sucked on them. He touched her vagina. In the statement, she spoke about being embarrassed discussing these matters. She described carrying out oral sex with him frequently. She did not keep track of how often he touched her vagina or sucked on her breasts. [ 20 ] There were times where her description of acts had elements that were viscerally graphic with respect to the oral sex, the genital touching, and other odd references that seemed remarkably personal or unique like Mr.

Dignard referring to semen as "Indian medicine." She stated frequently in the audio-video statement that she loved him, did not want him to go to jail, and felt significant remorse at telling people about these incidents. She also mentioned that she had smoked marihuana with him. [ 21 ] In cross-examination, she stated that she had promised Mr. Dignard she would take the secret to her grave and she was supposed to keep her promises. K.B. was cross-examined extensively. Of the four different places the family lived, she recalled the sexual acts described occurred in three of four locations.

She described herself as often being restricted to her room while under the care of Mr. Dignard. [ 22 ] At one point, she stated when Mr. Dignard sucked on her breasts, she reacted as follows, and I should say that I am referring to my own notes as I made them during the trial. So they may not be perfectly verbatim, but I am quite confident they are close.

The comment was as follows, "I don't understand why my body liked it, but, but, but my brain didn't like it." Another phrase that relayed candour and childlike observation in her cross-examination, "I think I was afraid getting caught doing it with him and I was afraid if my mom caught me I might go to jail, too, 'cause isn't that a crime?" He told her, "I'm trying to teach you things of what to expect in your relationship." She was asked, "Is it fair to say you didn't think Mr. Dignard was hurting you?" "Yeah, because he did not punch me or hit me or anything." [ 23 ] She believed she was 13 when Mr.

Dignard started touching her in the vaginal area. She believed the first time she performed oral sex on Mr. Dignard was when she was 11. She thought it was in the summer and her mother was not home. It happened in her room at what has been referred to in the evidence as the complex. [ 24 ] She was pressed on her relationship with the stuffed sock monkey that was connected with her deceased grandfather. She would ask her Grandpa George to help her, but that it did not help.

She stated words to the effect of, "I wanted to make him stop, but it never happened." When asked why, if she wanted to stop, she never told someone, she responded by stating, "'Cause he told me not to tell anyone. He told me to take it to my grave with me and I don't understand what that meant." When asked, then, "If getting Grandpa to help you would mean breaking a secret," she responded with, "I don't know.

I think he didn't want me to tell anyone that was still alive." [ 25 ] The Court also heard from two police officers about the commencement of the investigation and the taking of the audio-video statement from K.B. Their evidence spoke to the unfolding of the investigation and steps taken to obtain evidence regarding the allegations. The Defence

[26] Darwin Dignard testified in his own defence. At the time of his evidence, he was 51 years old. In 2010, he met J.B. and theystarted living together at her residence in 2011 or 2012 at the location referred to in the evidence as the complex. He lived there withJ.B. and K.B. Each person had their own bedroom. It was established in the evidence with the assistance of documents that Mr. Dignardleft for Vancouver in 2012 for various surgical or rehabilitative procedures due to serious injuries he suffered in an accident prior to therelationship with J.B. There were six trips to Vancouver in 2012 and one in 2013.

In the spring of 2014, there were a number of monthswhere he lived in Haida Gwaii, formerly known as the Queen Charlotte Islands. [27] In 2012, he lived with J.B. and K.B. at the complex on [omitted for publication], Terrace, B.C. K.B. would go for respite care togroup homes usually for four-day visits a couple of times a month. K.B. would also visit with her grandparents at another residence. Hetestified K.B. was not left alone with him frequently and, if she was, it was for short periods of time. Mr. Dignard denied attending atK.B.'s bedroom. Mr.

Dignard said it was difficult to deal with K.B. sometimes due to her autism, physical antics, and frequent demandfor hugs. Mr. Dignard denied engaging in any sexual acts with K.B. Mr. Dignard testified he was on a no-contact condition with J.B.from sometime in March 2014 to a time in June 2014 and, during that period, he moved to Haida Gwaii and would not have hadopportunity for physical contact with K.B. [28] From the [omitted for publication] complex, they moved to a residence on [omitted for publication] in late 2014 or early 2015. K.B. regularly worked with personnel from a local social agency.

During the school year, K.B. would attend school. While at [omittedfor publication], J.B. worked regularly at [omitted for publication]. There was a break-up and J.B. found another residence in [omittedfor publication] while he waited for his residence at [omitted for publication]. Mr. Dignard ended up staying with J.B. and K.B. at[omitted for publication] while his residence was prepared in [omitted for publication]. Once he moved out to [omitted for publication],K.B. would come out and visit. On one occasion when K.B. was out of Melatonin, he let her have a puff off of a marihuana joint to helpher fall asleep.

Mr. Dignard generally denied going into the bedroom of K.B. Mr. Dignard testified that K.B. could have observed himand J.B. engage in sexual acts as the residence was small. Position of Counsel [29] The Crown argues the Court should accept the evidence of K.B. and reject the evidence of Mr. Dignard and convict him. Thiscase, obviously, turns on the issue of credibility. Defence encourages the Court to apply, understandably, R. v. W.(D.), [1991] 1 S.C.R.,and R. v.

C.W.H., 68 C.C.C. (3d), a British Columbia Court of Appeal decision authored by Justice Wood, as he then was, articulating afourth step in what is commonly referred to as the W.(D.) analysis. [30] Mr. Dignard's evidence is a denial of the acts described by K.B. There is no issue that Mr. Dignard had opportunity andsignificant periods of time alone with K.B. to engage in the activity described. I also accept there were times Mr. Dignard was awayfrom the residence for personal medical reasons and during a court-imposed separation between J.B. and himself. [31] The evidence of Mr.

Dignard fits into the type of cases considered by the courts in fact scenarios such as R. v. E.H.S., 2012BCPC 450, or HMTQ v. R.D., 2016 ONCA 574, where the Court is faced with compelling prosecution evidence and what is referred toas a flat denial by the defendant. I have reviewed the decision of Judge Blake of the Provincial Court of British Columbia in R. v. E.H.S.,2012 BCPC 450, and found some of his comments germane to the matter before the Court as they are germane to the W.(D.) analysis orconsiderations. Paragraphs 45 to 48 are reproduced below.

Bear with me. [45] In the present case, the defence amounts to what is sometimes called a “flat denial”. E.H.S. takes the very straightforwardposition that he simply did not commit the alleged act or acts of wrongdoing. It is important for a court not treat such a defence assomehow illegitimate or as somehow less worthy of the W(

D) form of analysis than other, more complicated types of defence. As theAlberta Court of Appeal said in R. v. McIntosh, 2010 ABCA 352 … [2010] AJ 1331 (CA),at paragraph 12, there are no doubt plenty ofsituations in which one might fairly ask “what more can an accused do” than offer a denial under oath and open himself up to cross-examination. That sort of question may be particularly appropriate, it seems to me, when a historical sexual assault is alleged. [46] The “flat denial” raises particular issues related to the W(

D) analysis, however. It seems to me that in a case where that sort ofdefence is put forward, it is singularly unhelpful to begin with an analysis of the defence position. Anderson, PCJ considered the effectof the flat denial on the method of analysis in R. v. Rana [2010] AJ 697 (PC). At paragraph 14 of that decision His Honour stated: The accused's denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracityof a denial without more. The strength of a denial depends entirely on context. [47] Similarly, in R. v.

JWA, 2010 ABCA 406 … [2010] AJ 1469, the Alberta Court of Appeal said this at paragraph 22: [T]he law has not elevated the requirements of W(

D) to include a mandatory statement as to the precise reasons for rejecting theaccused's testimony in isolation before considering the testimony in the context of all the other testimony. This argument was advancedto the trial judge and properly rejected. Relying on R. v. JJRD (2006) [and there are some other cites there] … (ONCA), 215 CCC (3d) 252, she concluded that the evidence of the accused must be considered, not in isolation but rather in the context ofthe evidence as a whole. She stated as follows: Here there is a simple denial.

There are admittedly no facts in the descriptions of the events given by the girls so that the denial isnecessarily simple. However, to say that all I can consider at Steps 1 and 2 of the W(

D) analysis is the evidence of the accused and otherdefence evidence is essentially to give the defence a veto or put up an impenetrable roadblock to consider the evidence in the trial as awhole. We agree. [48] In this particular case, I do find it helpful to begin by considering the strengths and weaknesses of the prosecution case. Theimportant qualification, though, is not to reach any final conclusions until all of the evidence has been considered. As Lambert, JA statedin R. v. PW, [2003] BCJ 2447 (CA) at paragraph 19:

It is not the function of the trial judge to decide whether she believes the complainant and, having reached a conclusion in that, to go on and only then consider what the evidence of the appellant was on his own behalf. The consideration of both must be deferred until they can be looked at together and an overall conclusion reached on the basis of the whole of the evidence. [ 32 ] Now, back to my reasons. The Court must consider the evidence of K.B. as a whole. It is obvious she has certain cognitive challenges.

Having said that, the nature of her evidence was unusually straightforward and strikingly sharp in certain details of recall, experiences, and presentation. When the Court deals with witnesses of or similar to K.B.'s age or demographic, they are often understandably inhibited and reluctant to testify due to the nature of the topic and being asked questions about such personal matters in such a formalized setting.

K.B. often expressed reluctance to talk about the matters, not because she could not articulate them, but because she expressed anxiety about the consequences of doing so for the defendant and a misplaced fear for herself. [ 33 ] I found the evidence of K.B. wholly believable. I accept her evidence without hesitation with respect to the acts described. At no time was her evidence significantly eroded in substance, though she did have difficulty recalling with exactitude dates and what exactly happened where.

The Court noted there were some discrepancies with respect to tangential matters between her evidence and the evidence of her mother, J.B., such as whether she ever took a taxi to school. There was also a point advanced about K.B.'s evidence regarding dating when the incidents started and, at one point in the cross-examination, stated she thought she was 11 or 13 years old.

In the Court's view, these differences did not erode her credibility as they were peripheral to the allegations generally and K.B. weathered a lengthy direct and cross-examination. [ 34 ] The Court had opportunity to hear about the investigatory process from the beginning including the taking of the audio-video statement and the initial disclosure.

The time between the initial disclosure by K.B. to J.B., the reporting to the police, and the audio- video statement being taken quickly appeared to have been done efficiently and appropriately. [ 35 ] The Court is aware that reviewing the evidence of the complainant and the accused is not an exercise in choosing one version or another, but rather whether the offences have been proven beyond reasonable doubt.

The defence takes the position these allegations are false and there is no burden on the accused to demonstrate a motive to fabricate. [ 36 ] I am going to say and I want to speak now about the defendant's evidence. The defendant's evidence is not readily characterized as contradictory or problematic on its face as presented. The evidence largely fits with the evidence of K.B., J.B., and C.P. on contextual assertions of fact. There are admissions with respect to regular marihuana use and alcohol use which I find differed from the evidence of J.B. and C.P. as to quantity and frequency of intoxication. [ 37 ] Mr.

Dignard denied the sexual offences. That denial was not eroded in cross-examination. I note it is very difficult in most circumstances to prove something did not occur. I accept his evidence about the accident, the trips, the brief move to Haida Gwaii, different residences, stories about the dogs, and other matters which were largely confirmed by the other witnesses. C.P.’s evidence as an independent witness does confirm further opportunity and somewhat coarse control of K.B. when she stayed with the defendant at the [omitted for publication] residence. [ 38 ] In assessing Mr.

Dignard's evidence overall, I adopt the approach of Judge Blake in E.H.S. at paragraph 79 where he discusses the evidence of the defendant there. That paragraph and the reference to R. v. Rana , [2010] A.J. No. 697 (P.C.) is reproduced here: [79] It is undoubtedly correct to say that, unlike R.J.’s testimony, E.H.S.'s evidence does not fall apart for utter implausibility. Nor can it be said that E.H.S. seriously contradicted himself during the course of his testimony.

In the course of a bare denial, of course, it is somewhat less likely that an accused person would do so than in the case of a more complicated defence. The truth is, though, that in making a credibility assessment with respect to E.H.S.'s evidence the court must not only consider that evidence in isolation, but must also consider it in the context of the evidence in the trial as a whole.

In that respect, I refer once more to the decision of Anderson, PCJ in R. v Rana (referred to above) at paragraph 15: [I]t seems that for all intents and purposes the assessment of a bare denial without more is much the same as the analysis under the third leg of W(D) . Does all of the evidence, including the denial and the complainant's testimony leave a reasonable doubt? A court must be careful to not simply balance one version against the other.

However, where the only context is the testimony of the complainant, the strength of the complainant's testimony necessarily becomes a significant consideration in assessing the credibility of a denial. [ 39 ] As indicated earlier, I found the evidence of K.B. wholly believable. I accept her evidence without hesitation with respect to the acts described. At no time was her evidence significantly eroded in substance. However, because I accept K.B.'s evidence, and that included the directions from Mr. Dignard to keep matters secret, I find he was manipulative of K.B. who was a very vulnerable person.

I reject his evidence of denial with respect to the sexual acts described by K.B. His denial does not raise a reasonable doubt. I find him guilty of acts of sucking K.B.'s breasts, touching her vaginal region, and inviting her to perform fellatio which she did on numerous occasions as alleged and all sexual acts described by K.B. [ 40 ] At no time did K.B. consent to these activities in a fully informed fashion. She participated because she was scared, has reduced cognitive abilities, and was manipulated by Mr. Dignard to participate and perform sexual acts.

Further, the Court finds K.B. felt compelled to participate and was in no position to genuinely consent in any way given the relationship with Mr. Dignard as a caregiver and a person in a position of trust. The Court finds that Mr. Dignard was in a position of trust and authority to K.B. as he frequently cared for her and on the evidence participated regularly in disciplining her. The Court also finds that K.B. was in a relationship of dependency with Mr. Dignard as he provided for her needs when she lived in the same residence with him as caregiver and provider.

He essentially acted as stepfather to her for a number of years. [ 41 ] The Court finds Mr. Dignard guilty of the charges as laid. (REASONS CONCLUDED)