R. v. D.J.N., 2018 BCSC 2277

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.J.N., 2018 BCSC 2277 Date: 20180615 Docket: 41477-2 Registry: Campbell River Regina v. D.J.N. Restriction on Publication: Pursuant to 486.4(2.2) & 486(4.1) C.C.C. Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment Counsel for the Crown: A.J. Taylor Counsel for the Accused: S.J. Runyon Place and Date of Hearing: Campbell River, B.C. June 12-14, 2018 Place and Date of Judgment: Campbell River, B.C.

June 15, 2018 INTRODUCTION [ 1 ] The accused, D.J.N., has been charged with four counts of sexual offending, all in relation to the same complainant, C.L., who is the natural daughter of his common law spouse, J.L. The counts are as follows: Count 1 : D.J.N., from the 1 st day of April, 2013, to the 31 st day of March, 2016, inclusive, at or near Port McNeill, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of C.L. (DOB: June 20, 2001), a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . Count 2: D.J.N., from the 1 st day of April, 2013, to the 31 st day of March, 2016, inclusive, at or near Port McNeill, in the Province of British Columbia, did, for a sexual purpose, invite, counsel or incite C.L. (DOB: June 20, 2001), a person under the age of sixteen years, to touch directly, with a part of his body, the genitals of D.J.N., contrary to

Section 152 of the Criminal Code . Count 3: D.J.N., from the 1 st day of April, 2013, to the 31 st day of March, 2016, inclusive, at or near Port McNeill, in the Province of British Columbia, being a person in a position of trust or authority towards a young person, C.L. (DOB: June 20, 2001), or a person with whom that young person is in a relationship of dependency, did, for a sexual purpose, touch, directly or indirectly, with a part of his body, the body of that young person, contrary to

Section 153 of the Criminal Code . Count 4: D.J.N., from the 1 st day of April, 2013, to the 31 st day of March, 2016, inclusive, at or near Port McNeill, in the Province of British Columbia, did sexually assault, C.L. (DOB: June 20, 2001), contrary to

Section 271 of the Criminal Code . [ 2 ] The evidence establishes that, between the dates referred to in the four counts of the indictment, the complainant C.L. ranged in age from 12 to 15 years. BACKGROUND [ 3 ] The allegations came to light in the following way. On May 4, 2016, at approximately 8:00 p.m., Port McNeill RCMP received a complaint of a domestic disturbance at 2453 Cardena Crescent, where a male caller claimed to have been assaulted by a female.

Port McNeill is a small town on the east coast of Vancouver Island, a couple of hundred kilometres north of Campbell River. [ 4 ] Two police officers responded to this call. The first to arrive was Constable Shemilt. As he approached the residence in his cruiser, he came across J.L., whom he had met on prior occasions, walking down the street away from the residence. He stopped and spoke with her. She was intoxicated.

She admitted that she struck the accused but said that she had done so because he was having a sexual relationship with her daughter, C.L. [ 5 ] Constable MacKinnon arrived separately and dealt with the accused, who appeared to be sober. Constable MacKinnon knew

the accused, J.L., and all of the children who lived with them, including C.L. He had had multiple dealings with this family in the past. He lives five doors up from them on Cardena Crescent. [ 6 ] The accused was in the midst of making a statement to Constable MacKinnon about J.L.'s alleged assault upon him when Constable Shemilt approached and arrested him for sexual interference against C.L. The accused was told that he could contact a lawyer once they arrived at the police detachment. [ 7 ] At the detachment, it was Constable MacKinnon who dealt with the accused.

From an RCMP issue card, he rearrested D.J.N. for sexual interference, advised him of his right to retain and instruct counsel without delay, advised him that he could call any lawyer he liked, and that if he could not afford a lawyer, legal aid was available. The accused was advised that he was not obliged to say anything, but that anything he did say may be given in evidence. The accused indicated that he understood each aspect of this advice. He asserted his right to counsel and specified that he would speak to a legal aid duty lawyer.

Constable MacKinnon facilitated access and the accused had a private consultation with counsel. [ 8 ] No attempt was made to elicit evidence from the accused before this. When he had finished taking legal advice, he was lodged in a cell. Thereafter, Constable Shemilt ensured that proper care arrangements were made for the children left at the residence, and he took a statement from the complainant, a task which was completed later the same evening and finished just after midnight. [ 9 ] The accused was kept in custody overnight.

Just before 9:00 a.m. on May 5, 2016, approximately 11.5 hours after his consultation with counsel, Constable MacKinnon took him into an interview room at the detachment. He told the accused that he wanted to talk to him and advised him that their interaction was being audio and video recorded. Constable MacKinnon told the accused once again that he was under arrest for sexual interference.

The accused indicated that he understood what that meant and said, "It's a pretty serious thing." He expressed a clear understanding of why he had been arrested, namely, "Sleeping or being involved with a minor." [ 10 ] The accused went on to make a confession to Constable MacKinnon, which I ruled to be voluntary and admissible after a voir dire, and which I ordered into evidence on the trial proper. I will refer to the details of that confession presently. The only other evidence called was the testimony of C.L.’s natural father, R.L..

He and the child's mother, J.L., lived together as a couple for 17 years, including 15 years of marriage. He testified that he and J.L. have five children together, including C.L., whose date of birth is June 20, 2001. [ 11 ] R.L. testified that he has known the accused for many years, but particularly in the last six years or so when they began fishing together. According to R.L., the accused and J.L. became involved in an extramarital affair that came to light when R.L. saw a text message from the accused on J.L.’s cell phone.

Eventually this affair caused the breakdown of their marriage and J.L. went off to live with the accused. [ 12 ] R.L. testified that he and J.L. have a co-parenting arrangement enshrined in a Provincial Court order. This arrangement includes C.L., but she prefers to live mostly with her mother and did so continuously during the period of time covered by the counts in the indictment, throughout which her mother was living common-law with the accused in a series of residences in Port McNeill.

R.L. said that he was aware of the allegations against the accused and that the Ministry of Children and Families had been involved. [ 13 ] Neither the complainant nor her mother J.L. attended court to testify at trial, although both had been duly served with subpoenas. There was no explanation for their absence. Crown counsel advised me that both witnesses attended the preliminary inquiry in September, 2017, but they were not cooperative. R.L. testified that he thought C.L. was planning to attend this trial to give evidence.

He was proud of her resolve to do so, and he did not know why she hadn’t followed through. He testified, in fact, that he saw C.L. and J.L. at the Walmart store here in Campbell River on Tuesday afternoon, June 12, 2018, the first day of the trial. [ 14 ] I issued arrest warrants for both witnesses, but neither had been located by noon on Thursday, June 14, 2018, by which time I had made my ruling on the admissibility of the confession, and the Crown opted to call R.L. and then close its case. I cancelled the arrest warrants. The defence elected to call no evidence.

The Crown now seeks a conviction on each of the four counts in the indictment on the basis of the accused's confession alone. THE CONFESSION [ 15 ] At the outset of the audio-video recorded interview leading to the confession, there was a preliminary exchange between Constable MacKinnon and the accused concerning his rights to counsel and to remain silent. This was confirmation of warnings that he had been given the previous evening.

The accused indicated once again that he understood this information. [ 16 ] The accused also confirmed that he was aware of the allegation made against him, namely that he had conducted a sexual relationship with C.L.. Constable MacKinnon proceeded promptly to ask the accused the simple and direct question whether it was true. The accused nodded in the affirmative and Constable MacKinnon asked him how many times. The accused answered 10 times over the preceding two years. The last incident, the accused went on to say, was in September of 2015.

Most of the incidents took place, he said, when the family was living with the accused's father, but occasionally elsewhere, including on his fishing boat and in the residence on Cardena Crescent. [ 17 ] Immediately after the initial confession of a sexual relationship with C.L., Constable MacKinnon asked, "So did you know what you did was wrong?" And the accused replied, "Yeah, and I let it happen." Constable MacKinnon asked, "What do you mean, you let it happen?" The accused answered, "Well, I'm supposed to be the adult." He said that J.L. and C.L., often together, used to rub his feet, legs, and back.

Later on, this progressed to sexual contact with C.L. when J.L. was not around. Constable MacKinnon asked, "What would lead you to have sex with a minor, like somebody 12 years old?" And the accused responded, "I don't know." He agreed that C.L. was an attractive girl, but said that it had more to do with the way she touched him, looked at him, and talked to him. [ 18 ] The accused said that he and J.L. had been fighting recently because of his illicit liaison with C.L. He said that J.L. had known about it more or less from the beginning. The Ministry of Children and Families had been notified, he said.

The accused confirmed a

couple of times that the sexual activity with C.L. had started approximately two years before. It happened, he said, when J.L. was out ofthe house or was drinking heavily. It was mostly a matter of opportunity, he said, seldom prearranged, although he remembered oneoccasion where he sent C.L. a text to come and join him. [19] Matters progressed from sexual touching to sexual intercourse. The accused confirmed that this latter form of sexual contactoccurred 10 or 11 times. Mostly, he said, the complainant would come down to his bedroom and matters would proceed from there.

Headmitted that he used to be a drinker himself. He said that occasionally, J.L. allowed C.L. to drink alcohol. The accused said that C.L.became "really friendly, extra friendly" when this happened. [20] The final incident with C.L. took place at home in September, 2015. They had sexual intercourse in one of the bathrooms. Theaccused could not be particular about the dates upon which the other incidents occurred, only that they had been spaced out over twoyears or so. He said he felt guilty about the whole thing. He was tired of holding it in. He agreed that it was eating him up inside.

Heconsidered turning himself in to the police, but had not gone through with it. REMARKS [21] I do not propose to delve too deeply into the accused's arguments based on the principle of corpus delicti, described by counselas constituting a prohibition on the introduction of an extrajudicial confession in the absence of independent confirmatory evidence of thecrime to which the confession relates. I am aware of no such prohibition in Canadian law.

The prosecution may lead evidence of aconfession to advance its case and it may go to prove some or all of the essential ingredients of the offence or offences charged. [22] Once a confession is ruled admissible, it is for the trier of fact to determine whether to accept it in whole or part, and to evaluatewhether it is sufficiently reliable to sustain a conviction. It seems that an accused may be convicted of a crime on the basis alone of anextrajudicial confession without any corroborative evidence: see Kelsey v. The Queen, (SCC), [1953] 1 S.C.R. 220 perFauteux J. at page 227.

This proposition was recently repeated in R. v. Randle, [2016] B.C.J. No. 256 at paragraph 80, where our Courtof Appeal affirmed in the context of a confession elicited after a Mr. Big investigation that confirmatory evidence was not crucial toadmissibility, although naturally the presence of such evidence may enhance the reliability of the confession. [23] The question here is whether the accused's confession on its own is sufficiently reliable to constitute proof beyond a reasonabledoubt that he committed the sexual offences alleged. As the Supreme Court re-emphasised in R. v.

Hart, 2014 SCC 52 at paragraph 102: Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normally confess tocrimes they have not committed . . . [However] the circumstances in which . . . confessions are elicited can undermine that supposition.

The surrounding circumstances of a confession, in other words, must be evaluated with a trenchantly critical eye to avoid a wrongfulconviction, but in the absence of any suspicions concerning reliability, a confession can constitute powerful evidence, either on its ownor in combination with other elements of proof, that a crime has been committed. [24] In this connection, I will repeat some of the observations that I made in my recent voir dire ruling concerning the accused'sconfession and the manner of its elicitation: The audio-visual recording of Constable MacKinnon's interview with the accused was played in court.

It is obvious from the recording,supplemented by Constable MacKinnon's testimony on the voir dire, that he was reasonably well acquainted with the accused and hadmet him on a number of previous occasions in the course of unrelated police duties. It seems clear to me, from viewing and listening tothe interview, that they were on cordial terms. The discussion between them was a low key and friendly affair. Apart from the occasionalbenign appeal to the accused to own up to what he had done and to spare his family unnecessary hurt and anguish, he was not put underany pressure at all.

To the contrary, the accused, in my assessment, spoke freely and unhesitatingly. The interview was not terribly long. He confessed to asexual relationship with C.L.as soon as he was asked about it. There was not a hint of oppression. He was not denied food, water, sleep,or anything of that nature. In my view, it is clear that he was aware of his right to remain silent and that this right was not overborne by repetitive, lengthy, orabusive questioning. The accused furthermore appeared to be completely sane and sober. He answered questions responsively,intelligibly, and coherently.

He showed not the smallest sign of mental illness or cognitive frailty. He was obviously well aware that hewas in trouble, that he was being asked specifically if he had had an illicit sexual relationship with an underage female family member. Inhis own words, he was in a "big" and "bad" situation. He knew that everything he said was being recorded. He was told repeatedly thatwhat he said could, indeed would, be given in evidence. He spoke against interest, nonetheless, and in my view he did so freely and voluntarily.

I am persuaded, not to put too fine a point on it,that the accused knew full well the extent of the jeopardy he was in, he knew that he was speaking to Constable MacKinnon in hiscapacity as a police investigator, and was not, as intimated by counsel, gulled into confiding in him based on their previous friendlydealings The accused was clearly in possession of an operating mind. He was not tricked, misinformed, coerced, or subjected to underhandedinterrogation techniques. He was not threatened, made promises, or offered inducements.

In my view, he made a meaningful choice ofhis own free will to confess. [25] There was, in other words, nothing at all in the manner of Constable MacKinnon's elicitation of the accused's confession thatundermined the supposition referred to in Hart; namely, that he would not have confessed to a sexual relationship with C.L. if it were nottrue. There was nothing about his demeanour or behaviour during the interview that could call into question the reliability of what hesaid. I detected nothing in the evidence to suggest that the confession might be unreliable or false, in whole or part, and indeed counsel

advanced no argument to that effect. [ 26 ] With all due respect, as well, to counsel's submission to the contrary, there is no doubt at all in my mind that the accused was talking about C.L. when he confessed to the sexual acts in question. There is no basis upon which it could be concluded that he was speaking about somebody else.

C.L.’s age, furthermore, was conclusively established by the uncontested evidence of R.L., and the accused admitted to Constable MacKinnon in plain terms during the interview that he knew C.L. was under the age of consent. [ 27 ] There is quite simply no rational basis for rejecting the accused's confession that he had repeated sexual intercourse with C.L., a child with whom he was living in a family relationship, or that he invited her to touch him sexually in the manner and with the frequency that he voluntarily described to Constable MacKinnon in the course of the interview.

Throughout the period referred to in the counts of the indictment, the accused occupied a position of trust towards C.L., and the law is clear that a person of C.L.’s tender years is incapable of consenting to the sexual activity to which the accused admitted engaging with her. [ 28 ] In short, I am satisfied beyond a reasonable doubt that, over the time-frame alleged, the accused sexually touched C.L., invited C.L. to sexually touch himself, that he sexually touched C.L. while in a position of trust towards her, and that because of her age and legal incapacity to consent, he sexually assaulted C.L. [ 29 ] Convictions will be recorded on each of the four counts. “Baird J.”