R v DR, 2023 MBPC 59

CITATION: R v DR , 2023 MBPC 59 THE PROVINCIAL COURT OF MANITOBA Stonewall Centre BETWEEN His Majesty the King ) ) T. Boult for the Crown – and – ) ) D. R. (Young person) ) ) C. Sutherland and B.

Friesen for the Accused ) ) ) ) Judgment delivered: November 20, 2023 RESTRICTION ON PUBLICATION Pursuant to section 110(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act ; and, Pursuant to subsections 486.4(1) and (2.2) of the Criminal Code , any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. C.A.

DEVINE, P.J. [ 1 ] The young person DR was charged with the sexual assault and sexual interference of his younger sister P, that occurred between June 1 and July 31, 2022 when DR was 17 years old and P was 12 years old. The Crown proceeded by way of indictment. The allegation is that on an overnight family camping trip, P and her three brothers slept in a large tent, with P sharing a double air mattress with DR and their two brothers sharing the other air mattress. On two instances, once late at night and once in the morning, DR was masturbating and pressed his penis against P’s buttocks.

She was fully clothed. [ 2 ] The surrounding circumstances are that P and all three of her brothers were in the care of a child protection authority. P had been living in foster mother T’s home and her three brothers lived in a different foster home. P wanted to be with her siblings, so moved to that foster home. P was 12, the next two brothers (“D” and “C”) were 13 and 14, and DR was 17. P agreed that she found the foster parents at the home with the boys strict, with a lot of rules that she did not enjoy. After her disclosure of the offence by her brother she was moved back to T’s foster home.

She was there for about two weeks prior to the videotaped interview, which took place September 12, 2022. [ 3 ] The defence alleges that the sexual abuse complaint by P was triggered by her desire to move out of the strict foster home and get into one with less strict foster parents and fewer rules. [ 4 ] The only witness in the trial was P. There was a videotaped interview of her statement to police, which she adopted and which formed the main part of her direct evidence. THE ALLEGATIONS [ 5 ] P and her brothers were on an overnight camping trip with their land workers and the land workers’ daughter.

P told police that she had been star gazing and watching shooting stars with her brother C on the picnic table and then it was getting late, probably after midnight, and they went to the tent to go to bed. C and D shared one air mattress and she and DR had one air mattress. The air mattresses were double-bed sized, and the sleeping bags were unzippered and used like blankets. [ 6 ] C put on headphones to listen to music to go to sleep. [ 7 ] Everyone was then asleep, so P believed. [ 8 ] P thought DR was asleep when she came into the tent. But then she heard him masturbating. She felt him lift her blanket,

then felt some weird stuff, but dismissed it because she sometimes has the feeling of bugs crawling on her back. She moved further awayfrom her brother, but he kept getting closer again, and then was touching her with his “boy’s part” which she clarified later in theinterview was his penis. She kept moving away and he kept moving closer to her and putting his penis against her. She was not sure ifhe had his sleeping bag over him. She turned over so that she was facing him, in hopes it would stop, putting her sleeping bag over herface. He started again though.

In the morning she woke up and felt him trying to do it again so she got up really fast, went on her iPadand he pretended to get something out of his bag. She went to the bathroom. She saw white spots on her pants, which she washed offwith paper towel and water. She saw the spots on both the front and back of her pants. She washed her hands after because she did notknow what it was. Then she went back to the camper and waited until the land workers got out so she could go inside and change herpants.

She thought the white spots were dry; “guess it dried overnight.” [9] She did not tell anyone because she was scared of what was going to happen. She kept quiet about it for two months. Shefinally told B, the 12-year-old daughter of her foster mother T. ISSUE [10] The main issue raised by the defence in this case is whether, if DR touched his sister, it was intentional. The defence arguedthere is insufficient evidence of DR’s intent to apply force intentionally to P to constitute the offence of sexual assault.

Similarly, thedefence argues that there is insufficient evidence that DR, if he touched his sister, did so for a sexual purpose, to constitute the offence ofsexual interference. [11] The defence also alleged that the child fabricated this allegation to move to a more favourable foster placement. THE LAW WITH RESPECT TO CHILDREN’S EVIDENCE and CHILD SEXUAL ABUSE ALLEGATIONS [12] The law of evidence has shifted in the past three decades with respect to the admission and consideration of children’s andyoung peoples’ evidence.

Justice McLachlin stated in R v W(R), (SCC), [1992] 2 SCR 122 (at para 24): [I]t may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiarperspectives of children.

Since children may experience the world differently from adults, it is hardly surprising that details important toadults, like time and place, may be missing from their recollection. (Emphasis added; and see R v DD, 2000 SCC 43.) [13] Justice McLachlin went on to state (at para 26): In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of theage of the witness at the time of the events to which she is testifying. (Emphasis added.

Also see R v Storheim (24 January 2014), Winnipeg CR 12-01-31687 (Man QB) at para 24.) [14] In R v B(G), (SCC), [1990] 2 SCR 30, Justice Wilson stated at paragraph 48: [A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult.I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details andcommunicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to themand who did it.

In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards ofoath-taking and corroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before thecourts must, of course, be carefully assessed, but the standard of the “reasonable adult” is not necessarily appropriate in assessing thecredibility of young children. [15] It is well-settled law that there can be significant delays in disclosure by children who have been sexually abused (see R vL(DO), (SCC), [1993] 4 SCR 419 at paras 29 and 77; R v PS, 2019 ONCA 637 at para 21; R v WEB, 2012 MBCA 23 atpara 20).

As Justice L’Heureux-Dubé stated in L(DO), the reasons for this are several, but it is often out of fear of reprisal or of what theconsequences will be, the power imbalance between the child and the abuser, especially when the abuser is a trusted and beloved familymember (at para 75). [16] As Justice McLachlin noted in W(

R) and the Supreme Court later noted in DD, 2000 SCC 43, many children never disclose theabuse that has been perpetrated against them. In DD, the Supreme Court was dealing with the issue of whether expert evidence wasadmissible to rebut the presumption that a late disclosure of sexual abuse by a child supported an inference that she was not telling thetruth.

The majority determined it was not necessary, because the law had abolished the doctrine of recent complaint, and the law ofevidence had encompassed the knowledge behind its abrogation, namely, that (at para 65): [T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediatecomplaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at leastinclude embarrassment, fear, guilt, or a lack of understanding and knowledge.

In assessing the credibility of a complainant, the timing ofthe complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will

never give rise to an adverse inference against the credibility of the complainant. [17] In this case, P delayed telling anyone, until she finally told her peer B (daughter of her foster mother) because she was scaredabout what might happen.

THE PRESUMPTION OF INNOCENCE AND CREDIBILITY ANALYSIS OF TESTIMONY [18] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [19] The standard of reasonable doubt is linked inextricably to the presumption of innocence, so articulately stated in R v Lifchus, (SCC), [1997] 3 SCR 320 (at para 27): [T]he standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which isfundamental to all criminal trials: the presumption of innocence. . .

If the presumption of innocence is the golden thread of criminaljustice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. [20] The standard for conviction of “beyond a reasonable doubt” means that where I am left with a doubt, based on reason andcommon sense that is logically connected to the evidence or lack of evidence in the case, then I must acquit.

It does not go beyondreason; the Crown is not required to prove its case to an absolute certainty (see Lifchus at paras 30-31). [21] In this case, the defence challenged P’s credibility and reliability. The fact that P is a child does not change the rigorousanalysis of evidence with respect to credibility and reliability that is necessary to ensure that an innocent person is not convicted. Thesame standard of proof applies, whether the complainant is a child or an adult (see W(

R) at para 25). [22] A judge must assess a witness’ evidence in terms of its credibility, consistency, inherent reliability and the likelihood that theevents happened as they testified to the events happening. ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT [23] P was a shy witness, who demonstrated throughout that testifying about this was extremely difficult and mortifying for her. Her evidence was clear. She was not argumentative. She was not evasive. She did not exaggerate. Her answers to all questions wereresponsive and appropriate.

She also demonstrated that she was a bright young girl and was committed to telling the truth. In herinterview with police, she was careful to be accurate and precise. For example, she clarified early on in her police interview that she saidit happened on a Thursday, but after she talked to the police she remembered that they went camping on a Friday and this happened on aSaturday, because it was after midnight.

When she was drawing a diagram of the camping area for the police interviewer, she noticedshe had forgotten to draw a tent and did so. [24] She demonstrated good attention to detail, as the above demonstrates. She remembered that she was wearing the same sweateras she was wearing for the police interview, and green, baggy cargo pants made of thin fabric. [25] It was very difficult for P to discuss these matters and watch her video in court. She was embarrassed and uncomfortable. Shewas obviously not sexually experienced or knowledgeable.

For example, she did not know the word for seminal fluid and even foundusing the words “masturbation” and “penis” difficult. At trial, she was looking down and her leg was bouncing as she watched theportion of the interview where the officer was asking her about masturbation.

Similarly, when watching the part of the video where shedescribed what happened next, that she felt her brother lifting her blanket and then felt weird stuff, she covered her face and then waslooking down. [26] The police interviewer wanted to make sure she was correctly using the word “masturbating”, asking her to describe it tosomebody who doesn’t know what it means. At first she said she didn’t know because she does not really like that word, then told himthat it involved DR touching his penis with his hand.

When asked by the interviewer to describe the sound she heard, she did so in acompelling manner: like something wet, like washing or spreading hand sanitizer on one’s hands. [27] That portion of the interview also showed P to be very careful not to jump to conclusions and think her brother was doinganything wrong.

For example, she told the police interviewer that when she felt something on her behind, she doubted that anything badwas going on, because she sometimes had the feeling of bugs crawling on her skin. [28] This was not a girl who demonstrated that she was willing to accuse her brother of a sexual offence so she could move to adifferent foster home. She was also scared, too scared to say anything to her brother when he was putting his penis against her bum.

Shebarely spoke to him after this happened, only answering any questions he asked her, as required. [29] Her answers about how she felt about her brother and the offence were compelling. The interviewer asked her how she feltabout DR now. She answered, “Um, I feel like, like I don’t care about him I have like, in a little feelings that I do care about him andstuff. I don’t know if you get what I mean.” [30] The equivocal feelings about her big brother are believable and lend to her credibility. [31] The officer asked her what she thought should happen to somebody who did something like that. Her answer was, “Oh.

Um, Idon’t know. I really – I never really thought of that.” [32] This answer again lends credibility to the complaint. It is the opposite of a person who is making up a story or seeking somekind of vengeance.

[33] The answer to the interviewer’s next question was clear and unequivocal: Q. Do you feel safe around [DR]? A. No. When asked why, she told the interviewer that she was afraid it would happen again. [34] Her evidence was largely unchanged during cross-examination. When it was suggested that she could not distinguish thiscamping trip from another camping trip that summer, she clarified that no, she was in a camper and in Ontario on the other camping trip. [35] It was suggested to her that this was an accident and was not intentional on DR’s part.

She shrugged and then stated, “but italso happened in the morning.” She was challenged on that answer by defence who stated that DR did not touch her in the morning, andP stated, “He did touch me”. She was told that she had not told the police interviewer that. [36] I infer from the totality of her evidence that DR did touch her in the morning.

It was perhaps the only oversight made by theotherwise skilled police interviewer. [37] By the time defence had made those suggestions, and then challenged P on how she knew it was DR’s penis and even if DRwas looking down, it would not mean he touched her with his penis, P was crying and closing the transcript. [38] I do not see this reaction by P as indicative of her being caught in a lie or unreliable. She was a serious and honest witness whowas being given a clear message by an adult that she was a liar or wrong.

She was humiliated. [39] She broke down when it was suggested to her that it could have been an elbow or something touching her. Her interview wasclear that it was his penis – he did not touch her with his hand or his face. [40] There were also suggestions that the white spots on her pants were from ash or marshmallows. However, P testified they didnot have marshmallows that night. They had sandwiches. And she was sure that it was not ash on her pants.

She did not want to touchthe spots with her hands. [41] I have considered whether there are other reasonable inferences to be given to the behaviour that P heard and felt, and the whitespots. I am not satisfied that there are other reasonable inferences, in considering the evidence in totality (see R v Villaroman, 2016 SCC33). [42] By the end of the cross-examination, the child was exhausted, humiliated, and worn out. [43] I have already outlined changes in evidence law to allow for the proper reception of children’s evidence in court.

The lawrequires that a child’s evidence is approached not from the perspective of rigid stereotypes, but on what Justice Wilson in B(

G) called “acommon sense” basis (at para 48). [44] There were no material inconsistencies going to the heart of the allegations in this case. Not only was the essence of P’scomplaint consistent, but the essential and even non-essential details of what occurred are consistent, despite cross-examination (see R vCCF, (SCC), [1997] 3 SCR 1183 at para 49). [45] P originally testified that she was facing DR “about five minutes”. When challenge on cross-examination, she adjusted heranswer to, “It was more like seconds”. I accept that the second answer is more accurate.

Most adult witnesses cannot accurate measurethe passage of seconds or minutes. I cannot place higher expectations on this child. [46] It is clear that this girl was traumatized by this very upsetting event. [47] I find as a fact that DR was masturbating shortly after P went to bed and then moved his penis against her bum, as she tried tomove away from him. This continued when she turned around and covered her head in the hopes of making it stop.

I find it was hispenis that touched her and not his hand, because of the entire context of the incident: she described the sound of masturbation in detail,he was looking down, which I infer means his head was tilted down in the direction of his penis. Even if it was his hand that touched herbum however, it would have been in the context of masturbating, which would still constitute touching for a sexual purpose. [48] I believe that the white spots on her pants were from seminal fluid.

P was clearly grossed out by the spots and immediatelytried to wash them out with a paper towel and water at the campground. [49] I do not believe that this was an accident or that DR was asleep. As P pointed out, he did it again in the morning, includingtouching her, which I accept. I do not accept that the air mattress partially deflated during the night, causing P and DR to roll into eachother. There was no factual foundation for that. As the Crown pointed out in argument, the facts would have emerged differently if thiswas a matter of DR fumbling around and accidentally touching his sister.

Everyone would have been embarrassed and mortified, but itwould not likely have resulted in criminal proceedings. TIMING OF THE DISCLOSURE [50] As I indicated, it is the defence theory that P concocted this allegation so that she could move back into T’s house. Thechronology of what happened and her demeanor and evidence throughout demonstrate how difficult this has been for her and that she hascertainly not taken it lightly. P answered that she did not really know in answer to the question on cross-examination that she knew shecould not move back into T’s home “unless something happened”.

Defence counsel emphasized the phrase that she would not beallowed to move “unless something happened” at the foster home with her brothers. There was no foundation led as to who said thoseexact words. But, more importantly, it makes little sense that a child who wanted to move in with her brothers but did not like the rulesof the foster parents, would let people know “something happened” involving one of her brothers, as opposed to the rule makers, that is,

one of the foster parents. [51] She told the interviewer that she did not tell anyone because she was scared of what was going to happen. So she kept quietabout it. That is consistent with her evidence in general. Her evidence generally demonstrated that she did not really want to believe herbrother would do this to her, that her feelings towards him were equivocal, other than that she did not feel safe around him, and that shehad never thought about what should happen to someone who does this.

Moreover, if her motivation was to get out of that foster home,that was accomplished over a year ago, and there would have been no need to come to trial to testify against her brother in what turnedout to be a gruelling day for her. [52] Moreover, it appears from the evidence before me that she disclosed the incident while she was already living at T’s. Thefoster home with the boys is in St. Norbert; T’s foster home is in Elmwood. These areas of the city are far away from each other. Thereis no evidence that they had any contact with each other before P moved back.

Moreover, P told the interviewer that she told B (T’sdaughter) and B asked if she could tell T, to which P agreed. [53] She did not present as a girl who was concocting a bad story about her brother to get a more favourable foster placement. Itobviously cost her significantly to make this allegation and to talk about the details. ELEMENTS OF THE OFFENCES [54]

Section 271 of the Criminal Code does not define sexual assault, but the definition from the Supreme Court of Canada in R vChase, (SCC), [1987] 2 SCR 293 is the working definition utilized for the several decades: A sexual assault in section270 of the Criminal Code “is an assault . . . which is committed in circumstances of a sexual nature such that the sexual integrity of thevictim is violated” (at para 11; emphasis added). [55] An assault is defined in section 265(1) of the Criminal Code as follows: A person commits an assault when (

a) without the consent of the other person, he applies force intentionally to that other person, directly or indirectly. [56] From my factual findings and my assessment of P’s truthfulness and her overall testimony, it should be clear that I have foundthat DR intentionally applied force to P when he touched her bum with his penis and then ejaculated on her pants. That application offorce was intentional, not accidental. It was a sexual assault because it occurred in the circumstances of a sexual nature, that is, he wasmasturbating and pressing his penis on his sister for his sexual satisfaction.

It is clear that this was without P’s consent. It is also clearher sexual integrity was violated. [57] The definition of sexual interference in

section 151 of the Criminal Code is: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of aperson under the age of 16 years. [58] On the same basis as the elements of a sexual assault are proven, the offence of sexual interference is also proven. DR touchedhis sister on the bum with his penis for a sexual purpose when she was 12 years of age. DECISION [59] I am satisfied beyond a reasonable doubt that DR sexually assaulted and sexually interfered with P. Original signed by Judge Devine C.A. DEVINE, P.J.