R. v. N.J.B.M., 2020 BCPC 260

Citation: R. v. N.J.B.M. 2020 BCPC 260 Date: 20201222 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. N.J.B.M. BAN ON PUBLICATION – SECTION 517(1), 486.4(1) AND 486.4(2.2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Appearing for the Crown: E. Bonner Counsel for the Accused: D. Mellville Place of Hearing: [Omitted for publication], B.C. Dates of Hearing: December 11, 14 and 15, 2020 Date of Judgment: December 22, 2020

A Corrigendum was released by the Court on January 26, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Procedurally, there was a trial. What does that mean? It means that the Crown is able to bring to the court witnesses to try and prove what they say happened. The defence is given a chance to cross-examine witnesses by asking those witnesses questions. They also have the ability to have their own witnesses take the stand and tell what they know.

I'll talk more about this trial procedure in a moment. [ 2 ] When we talk about the “criminal law” we are talking about the idea that we, as society, are bound by certain laws that restrict our behaviour. When we break these laws, we are breaking our promise to the community to abide by the same rules. And when we break the law, we are hurting and injuring not only the individual victim, but the whole community. [ 3 ] In this case, there is a ban on the publication of any information that may lead to the name of the complainant.

For our purposes today, I will be referring to names of individuals, and names of First Nations communities in this region. If these reasons are published, I will be using anonymous initials to help ensure that the identity of individuals and communities are kept confidential. THE CHARGES/ALLEGATIONS COUNT 1 [ 4 ] N.J.B.M., on or about the 2 nd day of February, 2018, at or near [omitted for publication] , 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 V. , a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . COUNT 2 [ 5 ] N.J.B.M., on or about the 2 nd day of February, 2018, at or near [omitted for publication] , in the Province of British Columbia, did sexually assault V., contrary to

section 271 of the Criminal Code . [ 6 ] Why do we say "allegations"? We use this word because an accused comes before the court on a charge that has not yet been proven. The ‘onus’, and the burden of proof, is on the Crown to prove the 'elements of the offence' beyond a reasonable doubt. [ 7 ] What is the ‘presumption of innocence?’ There is a presumption that you, as a human being, are not the one that committed these crimes. [ 8 ] What are the elements of the offence? The Crown must prove a number of things beyond a reasonable doubt.

I list some of them here. [ 9 ] In order to prove the first charge, that on Feb ruary 2, 2018: • V. was under the age of 16; • That she was touched for a sexual purpose; and • There is another element that I will discuss in a moment. [ 10 ] While the second charge is somewhat similar, it is important to know that it is a totally different charge. [ 11 ] The second charge is that of a sexual assault, and the Crown must prove that on February 2, 2018: • V. was touched for a sexual purpose, without her consent; • And there is one more element that I will discuss in a moment. [ 12 ] On the topic of consent, it is important to know that she was “under age”, as a number of witnesses have said.

That means that she did not have the ability to consent to have any sort of sexual relations with a person the age of the accused. It is also important to know that she was extremely intoxicated, and even if the law provided her the ability to give her consent, her state of intoxication invalidated that consent. [ 13 ] To be clear, this is not a case where she ever invited, or wanted, any sort of sexual advances. To the contrary, it is a case where a young, vulnerable girl was sexually violated by a male.

Even defence counsel concedes that all the elements of the offence have been proven beyond a reasonable doubt, with the exception of one element. What does this concession mean? It means that it is accepted that the evidence proves that on February 2, 2018, V. was sexually assaulted by a male, that she was underage and not able to consent to any sexual activity with an adult. [ 14 ] The additional element of these offences is what we call identification of the accused. What does this mean? It does not mean that we need to know that this accused person is N.M.

We all know that already, but the question put simply is: am I satisfied that the Crown has proven, beyond a reasonable doubt, that it was N.M. who touched V. for a sexual purpose? BURDEN OF PROOF AND STANDARD OF PROOF [ 15 ] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus and mens rea . I instruct myself that at no time does an accused person have to prove, or disprove, anything.

[16] On this point, the accused has not taken the stand and provided evidence for me to consider. This is a strange concept for peoplewho often pose the question, well if he did not do this, why wouldn't he just take the stand and tell us? But a fair trial, presumption ofinnocence, burden of proof and proof beyond a reasonable doubt are all concepts that are behind this decision. While I appreciate he maynot have taken the stand for any number of reasons, I remind myself an innocent or guilty person bears no burden.

This means that theydo not have to prove anything. [17] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard ofproof applies to the evidence as a whole, but generally not to individual facts. [18] The test for reasonable doubt, is that I must ask myself whether, on the basis of the evidence which I accept, am I convincedbeyond a reasonable doubt by that evidence of the guilt of the accused? [19] I recognize that I must consider a number of related, but separate, principles.

Even when an accused takes the stand and I don’tbelieve them, that would not prove his or her guilt. [20] With all witnesses, I may accept some of their testimony while disbelieving other parts. [21] I must consider all of the evidence in deciding whether there is any reasonable doubt, and any reasonable doubt must be resolvedin favour of the accused. [22] If I believe certain aspects of a person’s testimony, I should ask myself why I believe them on these points. Equally, if I, for somereason, do not believe them, I should also ask myself, why? As well, does the evidence make sense?

Even if I believe certain aspects of aperson’s testimony, I still must be satisfied that the evidence is cogent and logical. [23] There can also be a reasonable doubt based on the absence of evidence, or a simple failure of evidence, to persuade me beyond areasonable doubt. [24] In this case, credibility and reliability are important issues that I must consider. I believe it is fair to say that reliability is thecentral issue in this case. SINCERITY, CREDIBILITY AND RELIABILITY [25] I provide these points for V. and her family. In law, the credibility of a witness is not the same as the reliability of a witness.

Oneis about telling the truth; the other is about the ability to ‘rely’ on certain things or recollections that a witness remembers. [26] To put it another way, credibility has to do with a person's veracity or truthfulness, whereas reliability deals with the accuracy ofthe witness's testimony. Accuracy involves consideration of the witness's ability to accurately observe, recall and recount events in issue.See: R. v. H.C. 2009 ONCA 56. [27] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

What this means is, ifyou lied, then the information cannot be reliable. [28] I find that all the witnesses, including, and perhaps most importantly, V., were truthful. This means I conclude they were tryingtheir best to sincerely tell the truth to the best of their ability. [29] On the other hand, a finding that a witness is credible does not translate automatically into a finding that what the witness saysabout an event is accurate and reliable. That is, a credible witness may very well give unreliable evidence. See: Edwards v.

Stroink, 2015BCSC 1318 at para. 37, Gaul J. [30] As I said, “reliability” is a term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensicprocess, but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provideinaccurate information. See: R. v. Fitzpatrick, 2015 ONCJ 612 at para. 41, Dechert J.P. [31] R. v. Parent, 2000 BCPC 11 , is an excellent guiding authority with respect to analytical approaches when consideringtestimony. Judges do not just guess who to believe or what to believe.

When I consider the testimony of a witness, I need to assess anumber of factors. These include: 1. The witness' ability to observe the events, record them in memory, recall and describe them accurately; 2. The external consistency of the evidence. Is the testimony consistent with other, independent, evidence? Which is accepted? 3. Its internal consistency. Does the witness' evidence change during direct examination and cross-examination? 4. The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful; 5. The "sense" of the evidence.

When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. Motives to lie or mislead the court: bias, prejudice, or advantage; 7. The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. CAUTIONS

[32] I know that trials are not memory contests. He, or she, that remembers the smallest detail is not the winner. As human beings wedo not remember everything and even when we sometimes remember events one way, sometimes we are mistaken. With time, memoriesoften fade. As V. said, this crime took place a long time ago. [33] I also acknowledge that when a person is victimized, they do not all react the same. There is no right or wrong way to act whenyou are a victim.

In shallower intellectual times, the law would raise questions such as, ‘why didn’t she scream or call for help?’ Therewere many irrelevant and improper approaches that we took in law. We now know better than to ‘expect’ certain behaviours fromvictims. [34] I also acknowledge that a youthful witness may remember things differently than an adult. For example, time might have adifferent feel to it. THE TRIAL: What is it, and what happened? [35] The Crown called the investigating officer, the complainant, and her sister and friend who were with her that day.

V. : The complainant [36] Since V. is obviously the victim, it would be a fair question for one to ask: why do we use this word ‘complainant’? Thechoosing of this word is because she is the one who has brought this complaint to the attention of the police. As well, since the accusedis presumed innocent, until proven otherwise, he has not ‘victimized’ the complainant. This is the usual language we use, and why. [37] However, for our purposes today, I will break free from the traditional use of the word ‘complainant’ and I will use the word'victim', because I conclude that she is a victim of a crime.

This is not one of those far-fetched defences, or stories, that 'she just made itup.' There is little doubt that a man sexually assaulted her. [38] It does not matter that she had been drinking alcohol. She is not guilty of anything. None of this was her fault. It is not her sister’sfault. It is not her mother’s fault. It is the fault of the man who did this to her and, perhaps, of his parents, who apparently did not teachthe obvious point that, as a decent human being, we do not sexually abuse children.

WHAT IS NOT IN ISSUE: WHAT WE KNOW TO BE TRUE BEYOND A REASONABLE DOUBT [39] I notice that when witnesses are asked questions such as “The City of [omitted for publication] is in British Columbia, right?”there is some confusion. This is a good example of how the Crown must prove certain things. Within this question is the idea of‘jurisdiction’. That is, we cannot assume where [omitted for publication] is. The Crown needs to prove that “at, or near, [omitted forpublication], in the Province of British Columbia”, certain things happened.

If they did not, then an essential element of the charge wouldnot be proven and the accused would be acquitted. [40] What is not in issue? It has been proven beyond a reasonable doubt that, on February 2, 2018, V. was under the age of 16 and wastouched for a sexual purpose. [41] In law, we also know that on February 2, 2018, V. was sexually assaulted. To put our knowledge in a different way, we knowthat V. was a young girl, and a male sexually touched her. He should not have. She did not consent. As our witnesses have said, "she wasunderage". She was too young to consent.

On top of all that, we know that she was under the influence of alcohol. I only mention thisbecause, all decent human beings should know that, no matter what age you are, no matter what the circumstances, if a person isintoxicated and passed out, you should leave them alone and respect them, or help them, but do not hurt them. Our young ones need to becared for and helped; not disrespected and sexually assaulted. LAW OF IDENTIFICATION [42] The identification of the accused can be done in many ways. A person can see them in court and point them out.

They can look atwhat are called photo packs – which is like a line-up of photos. Or the investigating officer might even create an in-person line-up. Inother cases, circumstantial evidence can be used. For example, if my DNA was found at a crime scene, and the Crown could prove it wasmine, the Crown could try and prove that I was the one that committed the offence. Eyewitness Evidence [43] In R. v. Field 2018 BCCA 253, in reviewing one of my trial decisions, the court wrote that: “Experience has shown that eyewitness evidence proffered by a stranger to the accused is the least reliable identification evidence.

It hasbeen described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653 at para. 29. In light of the many instances in which identificationhas proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identification evidence arising from thepsychological fact of the unreliability of human observation and recollection": R. v. Burke, (SCC), [1996] 1 S.C.R. 474at para. 52. [44] In R. v.

Panghali, 2010 BCSC 1710 aff’d 2012 BCCA 407, Holmes J. summarized the significance of prior acquaintance in thisway: [42] Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the peoplein their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with theaccused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail.

But atthe other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may havesubstantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[43] That said, a complete inability to respond to questions about the basis for the opinion may, even in a person long familiar with thesubject identified, call into question the value of the opinion. [44] Also, many of the well-known frailties of eyewitness identification have application in this context of “recognition” evidence. Ofparticular concern is that witnesses may unconsciously approach the process of comparison with an eye to similarities, and notdifferences. [45] But those are matters relating to the weight of the opinion, and do not usually preclude its admission into evidence. [45] In R. v.

Keshane, (BC CA), this Court, while recognizing the need for eyewitness evidence to be carefullyscrutinized, also acknowledged the limits of appellate review in respect of verdicts based on such evidence: [14] There is no special formula by which to assess eyewitness identification. Rather, such evidence is to be examined on a case by casebasis. And even where the witness’ identification is not based on the recognition of a distinctive characteristic of the accused this doesnot necessarily undercut the efficacy of the identification.

Similarly, where there is a discrepancy between the description given by awitness and the person subsequently identified by that witness, this is not necessarily fatal to a positive identification.

The sufficiency ofthe identification evidence will depend on the circumstances surrounding the original identification, the nature of the discrepancy, andwhether there is other cogent evidence in the case pointing away from the guilt of the accused. [15] Whether or not evidence of identification is sufficient is a question for the trial judge. … [Citations omitted by Groberman J.A.] [46] I covered the law on identification in some detail in a previous decision R. v. Field 2016 BCPC 423. Starting at paragraph 15 Iwrote: LAW ON IDENTIFICATION EVIDENCE [15] R. v.

Whitman, 2005 BCSC 1574 , [2005] B.C.J. 2448 is a 2005 BC Supreme Court decision. [16] At paragraph 37, Justice Romilly writes: Due to the frailties of eyewitness identification, a judge sitting alone should address himself or herself in a manner similar to what a juryas trier of fact would be subject to. The following lines as suggested in The People v. Casey (No. 2), [1963] I.R. 33 at 39 and adopted byJessup J.A. in R. v.

Sutton, (ON CA), [1970] 2 O.R. 358 at 368-69 (C.A.) are indicative of a proper approach: We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerablenumber of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too muchprobative effect to the test of an identification parade.

In our opinion it is desirable that in all cases, where the verdict dependssubstantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number ofinstances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution.Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shownthat mistakes can occur where two or more witnesses have made positive identifications.

We consider juries in cases where thecorrectness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of theprisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been anumber of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had beenadequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; andaccordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after carefulexamination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feelsatisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it. [17] It is stressed at paragraph 39 that “tragedies have occurred as a result of mistakes made by honest, right-thinking eye witnesses.

Itshould be explained that a vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitnessidentification.” [18] At paragraph 40 again, relying on R. v. Bulloch, a 1999 Ontario case, the point is made that: Eyewitness identification evidence canbe notoriously unreliable calling for considerable caution by the triers of fact. I realize that I must be particularly cautious of relying onevidence where the suspect is unknown to the witness. [19] The law as stated in the BC Court of Appeal case R. v. Reitsma, [1997], could not make the point any more clear.

At paragraphs 58the Court states: The frailties of eye-witness identification may be most pronounced in cases where the accused was not known to the complainant beforethe offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter. [20] I fully accept that such identifications have to be given very little weight - or perhaps even none. [21] I find that the Queen v.

Nikolovski, at 409, as stated by Cory J. summarizes my duty and cautions - reminding me to take appropriatecautions when he stated: The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth. In a criminal trial the search for truth isundertaken to determine whether the accused before the court is, beyond a reasonable doubt, guilty of the crime with which he ischarged. The evidence adduced must be relevant and admissible. That is to say, it must be logically probative and legally receivable. Theevidence may be that of eyewitnesses or it may be circumstantial…

[47] As a minimum, it must be determined whether the witness was physically in a position to see the accused and, if so, whether thatwitness had sound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have theability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear orexcitement on the ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or atleast a biased perception of the event or the parties involved?

Other judicially formulated checklists provide similar factors for analysis:Mezzo v. The Queen, (SCC) at 129-132 per Wilson, J. In an appropriate case, a trier-of-fact may be justified inconvicting on the evidence of a single eye-witness: see R. v. Pelletier, (SCC), [1996] 3 S.C.R. 601 at 601 per LamerC.J.C. (affirming [1995] A.Q. No. 1129 (C.A.)).

In this regard, at page 413 of the Nikolovski decision, Cory J. stated, “it is clear that atrier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of asingle eye-witness.” A fleeting glance of a suspect by an eye-witness is generally unsatisfactory: Regina v. Carpenter, [1998] O.J. No.1819 (C.A.). V.’s EVIDENCE [48] Once more, no evidence is perfect. No memory is perfect. Trials are not a memory contest. But in this case I find there were onlytwo people immediately present during this attack: the attacker and the victim.

DNA was located, but it was not helpful in theidentification of anyone, other than, of course, that it was a males DNA. There may, or may not, have been more people in the roomoutside the bedroom, perhaps sitting on a couch. How many and who is very unclear. Although while I appreciate that in the mind of V.,A.T. was one of the ones on the couch, I am not able to make the same inferential leaps to come to this conclusion and make no findingsas to who, if anyone, was on the couch. [49] There were obvious differences between all of the witness’ testimony. Who went here and there, at what time, and who saidwhat.

It is not uncommon to have some differences in testimony. We recall things differently. We express things differently. At anymoment in time, we also see things differently. Here is a simple example: Let’s say a car goes speeding by and there are three of us thatsee it. If we had to swear an oath and say what colour it was, one might say it was black, one might say it was dark blue, one might say itwas dark grey. Which one is lying? Which one is telling the truth? Maybe nobody is intentionally trying to deceive the court about thecolour of the car.

But all I know for certain from the evidence is that, in fact, a car did go speeding by. [50] For the sake of brevity, I will not cover all of V.’s evidence. A short

summary is that V. and her young female friend and sisterwent to a local motel to have some alcohol drinks with some older males. All the young girls are from the [omitted for publication] FirstNation. They were in their teens. V. was 14. [51] What is noteworthy is that there were up to five males present throughout February 2, 2018. I understand that they were allmembers of the [omitted for publication] First Nation. They were in their twenty’s or thirty’s.

The accused was 29. [52] These girls did not really know these adult men, except, it appears from the evidence in this trial, that at least two of these fiveadult men have bought alcohol for underage girls. Or to use the words of the witnesses, some of these guys were the ‘boot’, as inbootlegger. A.T. was one person described as ‘the boot’. K.F. was also said to have been a ‘boot’. [53] I pause for a moment to make this comment, neither of these two men are before the court on charges of providing alcohol tominors.

If they were I would tell them this, “If you provide alcohol to young minors, you are breaking the law, and you are putting theseyoung people at risk. At risk of injuring themselves. At risk of becoming addicted to substances. At risk of being harmed by others. It isyour duty to help and care for the young ones around you. Do not buy them alcohol. ” [54] What did V. say about the accused? She told the court that she “did not know him before this day and had only just met himwhen we got to the motel room.” A.T. (AKA ‘‘A.T.’) was there.

V. also said “another guy was there, but I don’t remember who he was.”In fact, I conclude there were any number of males in that room during that day. [55] She described the scene and confirmed that as soon as she arrived at the room she started having shots of vodka. When askedhow many drinks she had she said, “I don’t remember, I don’t know, more than five shots, I was there two hours I think.” While notconfirmed by any other witness, she mentioned that she had consumed three ‘coolers’ and smoked marihuana before coming to the motelroom.

Her interactions with the accused were limited in time, and there is no evidence of any direct memorable interaction with him.Mostly, she spent time with her sister and friend. [56] On the topic of alcohol, we will never know how much anyone had to drink. Different witnesses said different things. There wasevidence of a ‘26er of whiskey’, a number of mickeys of vodka and beer being present, as well as marihuana. One thing seems apparent,V. says she ‘blacked out.’ [57] She told the court that she passed out in the back room, where the bedroom is. None of the witnesses confirm this.

When asked toconfirm this memory of passing out in the bedroom, V. said “I kind of remember, but not really.” Her recollection is really just a guess aswe do not know at all how, or if, she went from one room where everyone was, to a separate room alone with her attacker. I note, aswell, that if her friend or sister knew she had passed out in a stranger’s motel room, they would not have left her there. [58] The next thing she remembers is waking up with a male on her. She remembers trying to push him off and telling him to stop.She described how this male sexually touched her and forced sexual intercourse on her.

For the purpose of these reasons, I do not need toreview the details. It is sufficient to say that she remembers being sexually assaulted. [59] It is extremely unclear as to the timing of this attack. Was it before or after her friend and sister left? Did she leave and comeback? Was there a point in time where she did go to the back room? Who was in the hotel room when she was in the back room? Thereare many unanswered questions, but clearly, she was sexually assaulted.

To make things even more complicated is the fact that therewere two rooms on this floor of the motel that were occupied by males, with similar descriptions and, while not in evidence, I suspect therooms may have looked similar as well. [60] There are many things that she does not remember, such as what she was wearing, or how she got to the bedroom, or where her

friend or sister were. Some of these points, such as what she was wearing, is not probative of anything. Whether she remembers some of these details, or not, does not help us identify the attacker. However, witnesses had described seeing her at a 7-Eleven during this time period and confirmed that she was extremely intoxicated. V. has no memory of being at the 7-Eleven. [ 61 ] The Crown is courageous, and a bit creative in their submissions with respect to what V. knows and does not know. They ask the court to view V.’s testimony as more credible because she admits when she does not know certain things.

The fact is that during this day she has been self-described as being on and off ‘black out drunk’. I am less concerned with what she does not know and more concerned about what evidence is reliable. I agree with the Crown’s proposition that intoxicated people can provide reliable evidence, but whether they do so in any case, is largely dependent on the circumstances of each case. [ 62 ] With respect to the identification of the accused, here is a brief

summary of some questions and answers from the Crown and defence counsel. Questions From Crown: Q: What was your next memory? A: I came to and N. was on top of me. Q: Could you see his penis? A: I didn’t want to look. Q: Could you see his face? A: No. Q: How did you know who it was? A: I seen his face when I pushed him off. Q: Did you have any injuries? A: Yes, I had bruises on my leg and a bite mark, I don’t remember how I got them. Q: How close were you to him? A: Very close, his face was in my face, but I just saw his face once. Q: Did he have hair on his face? A: It’s been so long.

Q: What did his voice sound like? A: I don’t know. Q: Is there anything unique you remember about N.? A: No. Cross Examination by defence counsel. [ 63 ] With respect to the cross-examination process, there are different styles of questioning. Sometimes questions can come across as antagonistic or even aggressive. I note for the record that defence counsel was slow, polite and calm in this cross-examination. At one point, V. said it was happening too fast, and counsel apologized and took a different approach.

He would ask a question, pause, tell V. that she could take as much time as she wanted to answer the question and then actually sat down to give her time. The cross- examination of V. was the most gentle and professional cross-examination I have witnessed in a trial. I did not find the cross-examination of V. to be fast, confusing or aggressive in any manner. [ 64 ] Even with testimonial aids, victim support workers, a supportive family and respectful approach in cross-examining, V.’s testimony came across as quiet and often the answers were whispered to the point of not being able to hear her.

There were long drawn out pauses, sometimes lasting for minutes between question and answer. I am not certain there was anything else that could have been done to try and create a safe environment for V. to testify in. And as she told the court, she may just be a quiet person. [ 65 ] I realize that normally trial judges are able to consider the demeanor of a witness. However, I think it would be dangerous to assume anything of these long pauses in her testimony. One might interpret the delays in answering questions to be somewhat evasive. I did not.

As I mentioned, I believed every witness was trying their best to answer the questions to the best of their ability, and V. was too. [ 66 ] Of course, a courtroom is inherently foreign to most and, no matter what measures we take, I understand that all witnesses suffer anxiety and stress in the trial process. Even more so when a person is young, talking about private things, and about a time when they were sexually assaulted. The ‘manner’ in which V. testified did not take away from her credibility. Questions from Defence

Q: Had you seen him at the liquor store earlier? A: I got black out drunk and it is affecting my memory as to what happened for the entire day. Q: When the police asked you who did this, what did you say? A: I told them ‘A.T.’ But I was still drunk when I was doing the statement. Q: Can you remember giving the statement? A: I don’t know. Q: Do you remember going to the hospital?

A: Not really. [ 67 ] I recognize that on some of these points about giving the statement or going to the hospital, whether intoxicated or not, victims often have a memory loss around the time of the trauma and their inability to recollect things can be attributed to being in shock. Q: Do you remember talking to the police that day? A: I don’t know. Q: Do you actually remember who assaulted you? A: Ya, I don’t know. Q: It might have been him or somebody else? A: No answer. Q: Are you sure it was N. who did this or maybe it was A.T.? A: I’m pretty sure it was N.M., I was intoxicated.

Q: You told the police three times it was A.T., is that possible? A: No answer. Q: You are not 100% certain who assaulted you? A: No answer. Q: Do you agree or disagree that it was A.T.? A: I don’t know. Q: Do you generally remember giving a statement to the police? A: No. You could tell I was drunk though because I wasn’t making any sense. [ 68 ] (Again, I pause here to add that she also had just been sexually assaulted and that could account for her not making sense.) Q: You were trying to not look at his face? A: Ya. Q: The only time you saw his face is when you pushed him off? A: Ya.

Q: So you only saw him for a couple of seconds? A: Ya. Q: Is it possible that someone else did this, because you identified another person? A: Mmmmmmm. (with a long pause) No. Q: Would you agree that it is at least possible that it was A.T.? A: I don’t know. Q: Could it have been A.T.? A: I don’t know.

[69] In re-examination, she was given an opportunity to help us understand why she told the police it was A.T., then told the court itwas the accused, and then when asked if it could have been A.T. she said “I don’t know.” Question from the Crown Q: Can you clarify what you mean by “I don’t know”? A: I don’t know. I was confused I guess, I don’t know. PHOTO EVIDENCE [70] V.’s mother testified. She was able to confirm that her daughter came home upset and angry, and she learnt that V. had beensexually assaulted. Her actions show a bravery and courage that few would have at that moment.

She removed her daughter’s clothes toprotect any evidence that might come from them. She called the police and took her daughter to the hospital to ‘get a rape kit done’. [71] When I was hearing the action she took on behalf of her daughter, I was a bit surprised that anyone would have the ability to actso rationally and with such immediacy. I had a better understanding how she could react so appropriately when she told the court that shehad also been raped by an [omitted for publication] man when she was 16.

She qualified her comment and said something like ‘I am notputting that reserve down or anything.’ It is just a fact. [72] Just before going to the hospital, she drove to the motel, told her daughter to stay in the car and went to the room where herdaughter said she was sexually assaulted. [73] She said “I knocked on the door. N.M. answered the door. And then I said ‘How dare you take advantage of my daughter,’ andhe said, ‘what are you talking about?’” After doing a couple of other things, she then took three pictures of him with her telephone.

Thenshe told the court “I went down to the truck, showed V. and asked is this the guy?” By showing this photo, in those circumstances, thereis an issue of pretrial identification that needs to be addressed. The Crown argues that this event actually bolsters the in-dockidentification. Respectfully, I disagree. It is also not lost on me that, more than likely, V. was not only in shock at the moment she viewedthis photograph, but probably also extremely intoxicated. [74] In R. v.

Thomas, 2017 BCPC 212, the Honourable Judge Gouge discusses why we have to be careful in pretrial identificationprocedures, starting at paragraph 11: [11] In R v. Osborne [2012] OJ No. 3384; 2012 ONSC 4287, Justice Forestell said @ paragraph 31: Two dangers arise from improperly conducted pretrial identification procedures. The first is that a flawed pretrial identification processimproperly influences the choice made by the witness or their level of confidence in their choice. Such tainting can occur intentionally orinadvertently.

However, the concern is that the identification or level of confidence is not the result of what the witness recalls, but ratheris the result of the biased process employed. The second danger flows from the first. The second danger is that once the evidence of thewitness has been tainted by a biased process, the process may taint any subsequent descriptions, identifications or statements ofconfidence made by the witness.

Here the concern is that the witness' evidence stems not from the original event, but from the earlier,flawed identification process. [12] Where a witness is asked to participate in an identification process, the witness should not be told, at any stage of the process,whether her identification was correct. To do so can "... only serve to increase her confidence in the accuracy of the identification andthus make her a more convincing witness ...": R v.

Hanemaayer 2008 ONCA 580 , [2008] OJ No. 3087; 2008 ONCA 580 @paragraph 26. [75] I recognize that V.’s mother was trying to be helpful. [76] To me, this pretrial identification has an appearance of what we call ‘police show up’ ID’s. These type of identifications takeplace when the only person shown to a witness is the suspect.

For the above reasons, we know that this sort of pretrial identification cangreatly increase the chance of an erroneous identification at the trial. [77] It is important to note that all the witnesses confirmed that throughout February 2, 2018, there were at least five males in and outof that room that day. Witnesses used many descriptors that applied to almost all of them. For example, ‘from [omitted for publication]’,‘scrawny’, ‘Indigenous’, ‘brown hair’, were all common descriptors.

To put it another way, we know the accused rented the room, whichhe was in throughout the day and he was present when she knocked on the door, but we do not have the benefit of knowing what theother individuals look like, although one witness described the accused and A.T. as scrawny with facial hair and from [omitted forpublication]. [78] I pose this question, if the accused was not there when the door was knocked on, but A.T. was there, and the photo was of A.T.and the same question was asked, “Is this him?”, what would V. have said?

DOCK IDENTIFICATION [79] During the trial, V. testified behind three different screens. These screens were designed so that she could see counsel and thejudge. However, she could not see the accused. Even when she entered and exited the courtroom she could not see the accused. Themain reason for this was she was extremely anxious to be in court, and did not want to see the accused. [80] For a moment, she came out from behind the screens and was asked whether she recognized the accused, she said, “yes” andpointed to him in the courtroom.

It should be noted, however, that due to COVID restrictions, other than court staff, such as a uniformedsheriff, there was only one male in the body of the court. To put it another way, there was really only one person she could have pointedto. It has long been acknowledged that the value of dock identification has its limitations. Pointing to a person, identifying him by name

and saying ‘that is the accused’ and commenting on what color of jacket he is wearing adds little to no value to the ultimate issue of whether this is the person that committed the crime. Perhaps to a jury, it has a dramatic effect. CONCLUSIONS ON ISSUE OF IDENTIFICATION [ 81 ] V. had little acquaintanceship with the accused, A.T., or any of the other males she saw that day. She had just met them. She was not able to confirm any specific features of the accused. [ 82 ] Her ability to make observations of her attacker was limited by a number of factors.

She had her eyes closed and said she only saw the face of her attacker for one or two seconds. I cannot imagine a more stressful or terrifying encounter than what she described. [ 83 ] The pretrial identification of the accused by looking at the photo her mother took compounds the reliability issues with respect to identification. [ 84 ] Her state of intoxication also undermines the reliability of her identification.

What she saw, heard and remembers has been severely affected by the amount of alcohol she drank. [ 85 ] We do not have the benefit of a proper photo identification as the officer, for their own reasons, chose not do a photo line-up. [ 86 ] We do not have the benefit of circumstantial DNA evidence due to the sample being inadequate. [ 87 ] There is also the fact that V. told the police it was A.T. that sexually assaulted her. She said at least three times, A.T. was the name of the person that ‘did this’.

Unfortunately, we do not have the benefit of knowing what A.T. has to say about any of this as he was not interviewed by the police. It appears none of the males that were present that night were interviewed. Of course, the identification of A.T. as the culprit needs to be considered in the larger context that V. was extremely intoxicated when she told the police this. So whether it is true or not, is secondary to the idea that her statement creates at least some cogent evidence pointing away from the accused.

I decline to consider whether the timeline issues as submitted by defence are indicators of further exculpatory evidence. [ 88 ] What do we know? We heard testimony that N.M. invited underage girls into his hotel room, and that he and his friends gave them alcohol. We also heard evidence that he grabbed the butt, took off the bra and kissed one of the young girls. We also heard evidence that he surprised one of the other young girls by dropping his pants down to his ankles as she came out of the bathroom.

We also heard that he kept inviting these young girls to come and sit on his lap. [ 89 ] These are the actions of a drunk and disrespectful man. Do I think it is possible he hurt V.? Yes, I think we all know that is a very real possibility. If I were to judge him by his behaviour towards the other two young girls, I would even say it is probable that he did this. However, possibilities and probabilities are not the standard of proof required in a criminal trial.

Proof beyond a reasonable doubt means more than just a chance or probability. [ 90 ] In light of all the circumstances, having considered the totality of the evidence, I conclude that the Crown has not proven beyond a reasonable doubt that it was the accused that committed this terrible act of violence against this young girl. Accordingly, I acquit him of these charges. [ 91 ] Please do not mistake the concept of an acquittal with the concept of innocence.

The accused and these other males are guilty of not taking care of these young girls. [ 92 ] We all share in the blame that our youth have ‘boots’ to bootleg, drink ‘hard-bar’ to get drunk, and think it is fine to bring a bong to a drunken party with a bunch of older guys that they don’t know. [ 93 ] It is not their fault. They are young. It is our fault for not being better teachers. Any of those young men shouldered a larger responsibility to be like a brother, or an uncle, or a father to these young girls.

Instead, we now have another young girl emotionally, psychologically and spiritually scarred. [ 94 ] When I began these reasons, I introduced this idea: When we talk about the “criminal law” we are talking about the idea that we as society are bound by certain laws that restrict our behaviour. When we break these laws, we are breaking our promise to the community to abide by the same rules.

And when we break the law, we are hurting and injuring not only the individual victim, but the whole community. [ 95 ] While I am duty-bound to come to the legal conclusion I have, you as a community have other options. [ 96 ] This case is illustrative to me that there is intergenerational trauma caused by the residential school system that has flowed from our grandmothers down to our grandchildren. [ 97 ] In this case, somebody from the [omitted for publication] First Nation harmed this young girl from the [omitted for publication] First Nation.

A sense of harmony in our community has been lost, and needs to be restored. While perhaps I cannot conclude with sufficient certainty that one particular person is to blame for harming the community, I hope there is an opportunity to pursue restorative justice approaches to healing the communities involved. [ 98 ] I do not have enough cultural knowledge to make suggestions of what can be done. Nor do I think it is my place to direct communities to do certain things, and I will not. But I would welcome the opportunity to be part of any community driven restorative justice approach that might be undertaken.

I have been part of healing events in other places. These healing events can be transformational. [ 99 ] I have invited representatives of the [omitted for publication] and [omitted for publication] First Nations to be present today for these reasons and will forward a copy of these reasons to them.

[ 100 ] I believe they would share this idea that “everything is one and all is interconnected.” Forgive my pronunciation, but I think the word is is hišuk ʔiš c̓awaak. I believe these two First Nations also believe in the Nuu-chah-nulth way of life of to taking care of your own and building relationships or ?iisak (respect). [ 101 ] Indigenous females have a greater chance of being victims to spousal violence. They have an increased chance of being sexually abused while in care, and sexually assaulted when out of care. If you are a female teenager in jail, chances are that you are an Indigenous girl.

We need to do something, we need to act. [ 102 ] If we do not act now, when will these horrible crimes against our young girls and women ever end? _____________________________ The Honourable Judge A.

Wolf Provincial Court of British Columbia CORRIGENDUM – Released January 26, 2021 [1] In my Reasons for Judgment issued on December 22, 2020, the following corrections have been made, as set out below. [2] The victim’s name previously initialled as [omitted for publication] is changed to initial V. [3] Para. 68, line 13 and 15 to add punctuation, to now read as: A: I don’t know. [4] Para. 69, line 5 to add punctuation, to now read as: Q. Can you clarify what you mean by, “I don’t know”? _____________________________ The Honourable Judge A. Wolf Provincial Court of British Columbia