R. v. S.A.S., 2021 BCPC 69

Citation: R. v. S.A.S. 2021 BCPC 69 Date: 20210303 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S. A. S. Restriction on Publication: A publication ban has been manditorily imposed under s. 486.4(1) and 486(4.1) of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the victim or a witness. This publication ban applies indefinitely unless otherwise ordered. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: A. Taylor Counsel for the Accused: C.

Beckingham Place of Hearing: [Omitted for publication] , B.C. Dates of Hearing: January 5, February 22 and March 3, 2021 Date of Judgment: March 3, 2021 A Corrigendum was released by the Court on September 27, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

PREAMBLE [1] I could simply say guilty or not guilty, and provide reasons at a later date, but I think it is time to finish this trial and I willattempt to give some reasons today. INTRODUCTION [2] Procedurally, there was a trial. What does that mean? It means that the Crown is able to bring to the court witnesses to try andprove what they say happened. The defence is given a chance to cross-examine witnesses by asking those witnesses questions.

They alsohave the ability to have their own witnesses take the stand and tell what they know. [3] The Crown contends that the complainant, who was between 12 and 16-years-old, was touched inappropriately by her malecousin, who was two years older. She didn’t tell anyone about the numerous times that her cousin touched her bum and vagina area untilabout four years after the touching started. At that time, she told her school principal, school counsellor, mother and a police officer.

Allthese people, except her mother, were witnesses for the Crown. [4] While one of the alleged incidents took place when this accused was just barely an adult, the Crown does not ask the Court tomake a finding with respect to it. Rather, they are of the view this accused, who is a 21-year-old adult now, should be prosecuted as ayouth, as he was under the age of 18 when most of the alleged incidents took place. [5] The accused and his mother testified for the defence.

CHARGES ON INFORMATION [omitted for publication] Count 1 S.A.S., from the 1st day of September, 2014 to the 31st day of August, 2018, inclusive, at or near [omitted for publication] in theProvince of British Columbia, did for a sexual purposes, touch, directly or indirectly, with a part of his body or with an object the body ofR.B., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code. Count 2 S.A.S., from the 1st day of September, 2014 to the 31st day of August, 2018, inclusive, at or near [omitted for publication], in theProvince of British Columbia, did sexually assault R.B., contrary to

Section 271 of the Criminal Code. LAW [6] What are the elements of the offence? The Crown must prove a number of things beyond a reasonable doubt. I list some of themhere. [7] In order to prove the first charge, the Crown will have to establish that between September 1, 2014, and August 31, 2018, theaccused touched the complainant for a sexual purpose and that the complainant was under the age of 16 at the time of the touching. [8] While the second charge is somewhat similar, it is important to know that it is a totally different charge. [9] The second charge is an allegation of sexual assault.

For this charge, the Crown must prove that between September 1, 2014, andAugust 31, 2018, the accused touched the complainant, and that the touching was sexual in nature, and that she did not consent to beingtouched. BURDEN OF PROOF AND STANDARD OF PROOF [10] The Crown has the primary, or ‘legal’, burden of proof throughout the trial and must prove all the elements of the actus reus andmens rea. I instruct myself that at no time does an accused person have to prove, or disprove, anything. [11] I appreciate he took the stand, and I remind myself that neither an innocent nor guilty person bears any burden.

Again, this meansthat they do not have to prove anything. In other words, he can take the stand and make any number of points, all of which might bedisbelieved or simply wrong. In doing so, that still would not mean that he is guilty of the offence. It may make him a liar or a personwho was mistaken, but even people who intentionally or accidentally provide false information benefit from the presumption ofinnocence. [12] This presumption of innocence is an essential ingredient to understanding the Canadian criminal justice system.

It means that anaccused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard of proof applies tothe evidence as a whole, but generally not to individual facts. [13] Since the accused has taken the stand and provided evidence on his behalf, I am guided by R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742. [14] The defence is what I would call a “flat denial”. That is, the accused says he was never alone in the same room with thecomplainant.

As well, he says in clear terms that at no point in time did he ever touch her inappropriately, and certainly never in a sexualmanner. [15] I find the analysis of the Honourable Judge Skilnick in R. v. Lavalley, 2018 BCPC 282 very helpful. In that case, as inthis case, there was a ‘flat denial’ defence with respect to sexual touching. Judge Skilnick states the applicable law as follows, starting atparagraph 42. While a bit repetitive to my comments above and below, I instruct myself that these points can never be emphasized

enough. Applicable Law [42] Both Crown Counsel and Defence Counsel have characterized this case as one that turns on the credibility of the Complainant. If Iam satisfied, beyond a reasonable doubt, that things occurred … as the Complainant has described, then the offences that the Accused ischarged with have been made out and he should be found guilty of those offences. But if it is a reasonable possibility that, as the Accusedsays, he was not present at that location at that time, he is entitled to the benefit of that doubt and should be acquitted.

Even if Idisbelieve the Accused, but still have a reasonable doubt about whether or not the Complainant is being truthful about what happened toher on the alleged offence date, the Accused is entitled to the benefit of that doubt as well. [43] More specifically, the act that the Complainant describes …The issue is whether or not I should be satisfied on the requisite burdenof proof beyond a reasonable doubt that these things did occur. [44] The theory of the Defence is that the Complainant is lying about what happened to her, or at the very least, about who victimizedher.

The Defence is not required to prove a motive for this, although a motive has been suggested in submissions. [45] The test in a criminal trial is not which side I believe, but whether or not the Crown has proven each offence beyond a reasonabledoubt. I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential elementof each offence beyond a reasonable doubt. [46] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v.

D.W. (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but am left in reasonable doubtby it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [47] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Mr Justice Wood aptly stated: “If aftera careful consideration of all the evidence, you are unable to decide who to believe, you must acquit.” [48] There are a number of considerations which a court can often apply when determining issues of credibility. Firstly, a court mayconsider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or otherbehaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonestconduct proven, such as false statements made to police in the course of the investigation. In this case, both key witnesses are personswhose addiction has led them to commit crimes of dishonesty to support their habit. This does not mean that their evidence must beexcluded in its entirety.

It is only one factor to be weighed in the assessment of credibility. [49] A court may also consider the demeanor and bearing of a witness while that witness gives testimony, although it is often suggestedthat demeanour is one of the least accurate barometers of credibility. In the modern era, demeanour is rarely a significant factor inassessing credibility. Its misinterpretation can create real problems.

I will simply state that in this case, there was nothing about thedemeanour of either key witness that gave any reliable indication of untruthfulness. [50] The credibility of a witness may be assessed by its internal consistency - that is by the presence or absence of any contradictionwithin itself. It may also be assessed by its external consistency - that is by the presence or absence of any contradiction with theremainder of the evidence. [51] For the most part, a complainant in a sexual assault is no different than a complainant in any other Criminal Code offence when itcomes to assessing credibility.

However a particular sensitivity and alertness must be had in order to dispel myths and stereotypes thatexist in regard to complainants and accused persons in sexual assault cases. A delicate balance must be maintained to ensure that thepresumption of innocence is preserved and that societal pressures to believe all complainants in sexual assault cases do not result in athumb being placed on the scales of justice in favour of conviction. The law must remain vigilant against wrongful conviction.

There aretoo many examples of this in our nation’s history and fidelity to the requirement of proof of criminal offences beyond reasonable doubtmust remain a fundamental Canadian value and must not be eroded. [52] At the same time, it must be recognized that those who complain of being assaulted in this most personal and intimate manner do soat considerable risk and with little to gain personally. Madam Justice L’Hereux-Dube of the Supreme Court of Canada recognized this inR. v. Seaboyer (SCC), [1991] 2 S.C.R. 577, noting that this is an offence which often goes unreported.

In respect of thereliability of such complaints. She wrote: 171 The preoccupation of the law with the credibility of the complainant in such cases and the blatant stereotyping of such complainantsas untrustworthy are difficult to comprehend. As we have seen, sexual assault is the most under-reported of all violent crimes. Even aftera report, the police and prosecutors filter out a significant number of the complaints based upon their congruence with rape myth andstereotype. Logically it would seem that the likelihood of false complaints is, in this context, much reduced compared to that for mostcrime.

Indeed, there is no evidence to support the contrary. [53] In assessing credibility in cases of sexual assault therefore, the trier of fact must be vigilant about not permitting what are known as“rape myths” to colour the assessment of credibility. These include the following stereotypes:

1. Women often provoke or precipitate sexual assault. 2. Women often agree to have sex, but later complain of sexual assault. 3. Women say no when they do not necessarily mean no. 4. Women who do not want to have sex will physically resist. 5. Women of bad character, e.g. those who drink or use drugs, are more likely to consent. 6. Women who are sexually assaulted will tell someone immediately. 7. “A woman scorned” is more likely to concoct a false accusation of sexual assault. [54] It is important to be mindful to avoid this type of stereotypical thinking.

In the past the use of these stereotypes has been especially problematic in their wrongful application to groups of vulnerable and marginalized complainants. This includes complainants who are: 1. Indigenous 2. Sex trade workers 3. Racialized or ethnicized 4. Intoxicated or addicted 5. Persons with disabilities 6. Those living in poverty 7. Spouses [55] In the present case, the defence presented is what is sometimes called a “flat denial”. The Accused takes the very straightforward position that he simply did not commit the offences he is charged with. As the Honourable Judge E.C.

Blake of this court said at paragraph [45] of his decision in R. v. E.H.S. 2012 BCPC 450 , it is important for a court not treat such a defence as somehow illegitimate or less worthy of an analysis of its credibility than any other more complicated type of defence. There are many situations in which all that an accused person can do is to deny the offence under oath or affirmation and present himself for cross-examination.

When the “flat denial” defence is put forward, the evidence of the accused must be considered, not in isolation but rather in the context of the evidence as a whole. [56] As the BC Court of Appeal stated in R. v. P.W. [2003] BCCA 542, the mechanical approach to credibility set out in R. v.

W.D., supra, may be deferred until the evidence of the Complainant and the Accused can be looked at together and an overall conclusion is reached on the basis of the whole of the evidence. [emphasis added] [ 16 ] Judge Skilnick’s words resonate with me and I know that in the truth seeking process I must consider a number of related, but separate, principles.

Even when an accused takes the stand and I don’t believe them, as mentioned, that would not prove his or her guilt. [ 17 ] I must consider all of the evidence in deciding whether there is any reasonable doubt, and any reasonable doubt must be resolved in favour of the accused. [ 18 ] With all witnesses, I may accept some of their testimony while disbelieving other parts. 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 some reason, do not believe them, I should also ask myself, why? As well, does the evidence make sense?

Even if I believe certain aspects of a person’s testimony, I still must be satisfied that the evidence is cogent and logical. [ 19 ] There can also be a reasonable doubt based on the absence of evidence, or a simple failure of evidence, to persuade me beyond a reasonable doubt. [ 20 ] In this case, credibility and reliability are important issues that I must consider. There are two very opposing views: the complainant, who says she was sexually touched by the accused, and the accused, who denies any of the sexual touching.

SINCERITY , CREDIBILITY AND RELIABILITY [ 21 ] The credibility of a witness is not the same as the reliability of a witness. One is about telling the truth; the other is about the ability to ‘rely’ on certain things, or recollections that a witness remembers. [ 22 ] To put it another way, credibility has to do with a person's veracity or truthfulness, whereas reliability deals with the accuracy of the 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 . [ 23 ] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. What this means is, if you lied, then the information cannot be reliable. [ 24 ] On the other hand, a finding that a witness is credible does not translate automatically into a finding that what the witness says

about 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. [25] 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. I note that Judge Skilnick draws implicitly on some of these considerations that as set out by the Honourable JudgeRounthwaite in the Parent case 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 [26] 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. [27] 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, as noted in reviewing some of the rape myths, the law would raise questions such as,‘why didn’t she scream or call for help?’ There were many irrelevant and improper approaches that we took in law. We now know betterthan to ‘expect’ certain behaviours from victims.

THE EVIDENCE [28] The principal of the complainant’s school, as well as a counsellor from her school, testified. Between the two of them, they wereable to confirm that there was a disclosure made to them that led them to believe that the complainant should make a report to the policeabout some inappropriate behaviour by the accused. [29] The complainant’s counsellor confirmed that she was asked by the complainant’s mother to support the complainant through theprocess of making a complaint to the police. In fact, that is what counsellor did.

She attended at the police station with the complainantso that the complainant could provide a statement. [30] A constable with the RCMP was able to confirm that a lengthy, nearly two-hour statement was given to the police by thecomplainant. THE ISSUE [31] What is not in issue? The complainant and the accused were cousins and had no consensual sexual relationship. [32] What is in issue? The main question is whether the sexual touching’s took place. It would be difficult to dispute that if they didtake place, as Ms. B. described, that the other elements of the offences would not also be proven.

Their ages are easy to figure out and,again, this is not a situation where it is alleged that any sexual contact was consensual. THE EVIDENCE OF R.B. [33] The key evidence provided by the Crown is the evidence of the complainant, Ms. B. She took the stand and testified as to whatshe remembered. By my calculation, and contrary to her view that there were nine incidents, her evidence suggests that there wereactually seven separate incidents where she alleges the accused touched her inappropriately. Whether these acts of touching took place isone question.

Whether they were done for a sexual purpose is another question. If any acts of touching were sexual in nature, I must alsoconsider whether the issue of consent needs to be examined. [34] For the sake of simplicity, I outline the alleged touching incidents as follows. 1. Touching over vagina, under blanket, on couch, over clothes for 10 second duration at [omitted for publication]; 2. Touching of vagina and buttocks, over clothes, 5 seconds vagina, 10 seconds buttocks, at [omitted for publication]; 3. Touching of vagina for 10 seconds, while she was sleeping, over clothes, but under blanket, at her house; 4.

Touching of vagina for 10 seconds, over clothes, in [omitted for publication]; 5. “Pulling on top of him”, her house;

6. Touching (or attempting to touch) bum, while putting on seat belt, in car; 7. Touching of buttocks, over clothes, 20 seconds, her room. R.B. – Chief Examination [ 35 ] She described that she comes from a huge family, with a lot of siblings. She also told the Court that there is a large extended family. The accused is one of her cousins. Throughout her life, she moved from different places and her extended family spent lots of time visiting with each other in these different places. [ 36 ] She described a number of visits when she and the accused were present.

The following are specific incidents that she alleges took place. INCIDENT ONE [ 37 ] She told the Court that she was about 12, in grade 7 or 8, when she first was touched inappropriately. The last time was on a trip to [omitted for publication] when she was somewhere around the age of 16. It was after this last incident that she decided to tell someone.

She told her principal and counsellor at her school. [ 38 ] She testified that sometime around December, when she was around 12-years-old, she was sitting with S.A.S. and two others watching TV when the accused “tried touching my vagina part, and he just touched over it while we were sitting there, I got really uncomfortable and just changed seats.” At the time she said S.A.S. was about two years older than her. [ 39 ] Her recollection of the incident was very clear, concise and specific. She provided details that helped me understand why she remembered certain things.

For example, when she was asked if there were any lights on, she said “Yes, the kitchen light was on, but the living room light was off.” While she did not remember what she was wearing, she knew she was wearing clothes and that the touch was brief in time and “over clothes.” INCIDENT TWO [ 40 ] She could not remember exactly when the next incident occurred, but she remembered it was at “his old house” and that “we were all sleeping on the floor.” She recalled that it was night and it was during a power outage.

She confirmed that there were many others in the room and, for a brief moment in time, the accused was next to her. She said, “I felt him touch my vagina and touch my buttocks; he felt over clothes.” She again said she got uncomfortable and moved away from him. INCIDENT THREE [ 41 ] She recalled one of the next times and said: “I remember when we moved into the new house... we didn’t see him that often; maybe once a month. Him and his family came over for the weekend, .... I always knew to keep my distance. Probably the first weekend, I had my own room, I was sleeping and it was late at night.

Somebody was touching my vagina.” [ 42 ] She explained that at first she did not know who it was, but then told the Court, “I seen that it was him when he walked out of the room that night.” This touching took place when she was wearing a white shirt and basketball shorts, and she testified that she remembered the touching took place “inside her pants, but over her underwear.” She explained how she basically froze, didn’t say anything, but was able to shift her leg, which she thinks may have made him stop and leave the room.

INCIDENT FOUR [ 43 ] She recalled another time where she was sleeping at his house in [omitted for publication] on a mattress, and she said, “felt someone touching me right around my vagina area.” She testified that this lasted for about 10 seconds. With respect to identification, she said “I felt I knew who it was”. She said it was probably around 2017, and she thought maybe she was in grade 8 or grade 9. INCIDENT FIVE [ 44 ] The next morning she said she was told to go get S.A.S. for breakfast, and when she did, she testified that “he pulled me on top of myself and I said, ‘what are you doing?’”.

At that point, she said he got up and went into his room. There was some confusing testimony, as brief as it was, about saying she thought he may have been pulling his pants down, and she said, “he didn’t get to touch me.” INCIDENT SIX [ 45 ] The next allegations had to do with a car ride. She remembered getting into a car and, when he was trying to put on his seatbelt, she believed he was trying to touch her buttocks area. She said she felt uncomfortable and tried to move away. With respect to this incident, I acknowledge that the Crown has made an excellent point.

Specifically, it is argued that if this were the first incident in time, then perhaps there might be some doubt as to the intentions of any touching. However, the Crown contends that this incident, considered in the context of all the evidence, must be considered in the total context of the interactions between these two individuals. Or, to put it in Crown words, I must “not consider it in isolation.” To this proposition, I agree. However, while I will discuss this further, I am not satisfied that the acts alleged of putting on a seatbelt, amounted to a sexual touching.

I have some doubt and give the benefit of this doubt to the accused. I also come to this conclusion with respect to the fifth incident of being pulled on him that is mentioned under the heading of ‘Incident Five’. I am not convinced beyond a reasonable doubt that his intention and actions were clearly sexual in nature. INCIDENT SEVEN [ 46 ] The Crown led evidence on this incident. However, at the end of the trial I was asked not to make a finding in law with respect

whether he is guilty of this incident. If I were to make this finding of guilt, then he would be guilty of a sexual assault as an adult. The Crown only wishes to pursue a conviction for the other acts alleged to have taken place when the accused was a youth. I have, however, considered the allegations of incident seven for the purposes of assessing credibility of both the accused and the complainant. [ 47 ] The allegation was that, in the summer of 2018, she testified that the accused had been staying with her mom during part of the summer. For most of that summer, she said that she was staying with her sister.

She testified that she did go home to visit her parents “almost every weekend”. She told the Court that on one night she was visiting, she was sleeping in her room, and late at night she woke up with him touching her vagina and buttocks for about 20 seconds. While the duration of each of these incidents were generally quite limited, she confirmed that this time it was longer than the other times. [ 48 ] She told the Court that “I am really really disgusted with him and disgusted with myself because I didn’t tell anybody.” [ 49 ] She was asked if there were any other incidents and she said, “No.

He got a girlfriend and it stopped after that.” [ 50 ] With respect to the reason for her disclosures, and the timing of them, she testified that: “I was tired of being scared all the time. I was tired of not wanting to have my aunty come over because I didn’t want to see him. It ruined connections with my family. I lost my family ties. It ruined a lot of things for my family. I was told I would feel better by reporting it.

But I don’t feel much better… and it has been almost two years.” [ 51 ] She explained how her parents wanted to deal with the allegations ‘culturally’, but her counsellor wanted her to come to Court. R.B. - Cross-examination [ 52 ] The cross-examination process was fair, lengthy and detailed.

She confirmed details about her disclosures and said that she was very upset, and in the middle of an anxiety attack when she told the people at her school “who he was and what he did to me.” While she could not remember the exact words she told her school authorities, she confirmed that she did tell them that the accused “sexually assaulted me.” [ 53 ] There had been some confusion about how often these events occurred. It appears at one point in her statement she said every week, then at another point in time she said every month.

I find that her explanation was adequate to help me understand these potential inconsistencies as to ‘how often’. She clarified that, depending on where their families lived, they may ‘have seen each other’ once a week or once a month. [ 54 ] She confirmed that, with respect to some of the alleged incidents, there were ‘other people around’, she had the ‘opportunity to get away’, and that there was ample opportunity to tell others what happened at an earlier time.

She said “yes”, other people were around, she did “get out of the way”, and she didn’t tell others ‘because she was scared’. [ 55 ] In answering many of the questions in cross-examination, she actually confirmed things such as: where it took place, what took place, and why they were in a particular place.

For example, on one sleep over, the families united under the same roof because there was a power outage and the home had a generator. [ 56 ] One question was put to her that “your Aunt G. would have been very strict about separating girls from boys?”, and she replied with, “No, we were all very close.” This was a good question to ask because her Aunt G. testified, and I will address this concept later in these reasons. [ 57 ] She confirmed that each of the incidents were “brief”, but she also added “that it happened more than once and that is why I am here today.” [ 58 ] No matter how hard she was pushed in cross-examination, she maintained consistent answers as to how she was touched, how long she was touched for, who touched her and the manner that she was touched.

BRIEF

SUMMARY [ 59 ] I realize the dangers of providing a short

summary of evidence, in that I may leave the impression that I have not considered the totality of the evidence. However, I do not find it helpful to parrot or otherwise, in verbatim-form, echo each and every utterance of a witness, whether that be the complainant or an accused. [ 60 ] I would note that defence counsel quite properly posed certain theories to Ms. B. For example, it was suggested that she could have said something to others at an earlier time, especially as there were people were present in the car or in the home on some of the alleged times and they could have been alerted.

As well, it was suggested that she could simply walk away from the situation. [ 61 ] It was suggested that the adults would not have put the girls with the boys during sleepovers, thus eliminating or lessening the likelihood that there was opportunity. [ 62 ] In any event, some of these thoughts of delaying disclosures, or ‘trying to get away’, are things that I caution myself on. All victims do not react the same. We know that there are often delays in reporting sexual assaults to the police. We know that not all victims try to escape their aggressor. Although in this case, I note Ms.

B. did confirm that she took physical action in some instances to show a lack of approval. For example, in one instance, she got up and moved away. On a separate occasion, she physically shifted her body away from him. These acts, of course, are not required, but I simply reiterate these points as they are found in her evidence. INCONSISTENCIES [ 63 ] There were inconsistencies in her testimony. To be clear, I would be more surprised if there were not. In any event, it is always important for me to consider inconsistencies and determine whether they cause me any concern with respect to the overall reliability or

credibility of the witness. I mention a few of the inconsistencies here, but will not comment on every minute inconsistency. [ 64 ] She supposedly indicated to the police these incidents occurred weekly, or at least this is what was suggested by defence counsel, but then it was suggested to her that she may have indicated it was monthly. As I have mentioned above, the complainant was able to confirm why she said these things.

Her explanation helped me understand what she was referring to when she said ‘weeks’ and ‘months’. [ 65 ] At one point in time, with respect to one of the allegations, she had said her buttocks was touched for 10 seconds, then she shifted her evidence in cross-examination that it was five seconds. While not raised by counsel, I noticed this small shift in her evidence. To be fair, the question in cross was posed to her with the premise, “five seconds”, and she simply agreed.

This small shift is not significant, and does not cause me any concern about the quality of her evidence. [ 66 ] In chief, she said at some point she was touched for 20 seconds, then she changed her testimony in cross to say it could have been 10 or 15. This inconsistency is also small and not important. On the one hand, whether it was 5, 10, 15, or 20 seconds seems insignificant, as the question does not probe whether the act itself took place, but it simply questions her memory as to how long the act took place. Any inconsistencies could, however, be relevant to credibility or reliability.

I do not find these small differences to be of any great concern to me. [ 67 ] On this point, as to how many seconds, I note she was young and it was a long time ago. The only difference that the ‘amount of time’ could be relevant to, other than credibility, is the argument that perhaps a couple-of-seconds touch is more consistent with a lack of intention, versus a longer, more prolonged touch, which is more consistent with an intentional act versus an accidental act. OVERALL IMPRESSION OF HER EVIDENCE [ 68 ] She came across as a confident witness.

She was able to tell the Court what she remembered, why she remembered it and how she came to the point of telling her principal, counsellor and family. [ 69 ] Once more, here are some examples of how she was able to help me understand why she remembered certain things. She remembered on one occasion, ‘there were lights on’, and specifically, the light shone in from the living room, but the actual light source was from the kitchen. This is a very specific, concise, unchallenged memory. [ 70 ] At one point, she knew she was touched over the clothes, but could not remember what she was wearing.

But she was clear that she had clothes on, and confirmed any number of times the touching was over, not under, her clothes. She was able to approximate the duration of the touching, specify where it was, when it was and who did it. [ 71 ] With respect to some of the other allegations, she was able to recall why she was sleeping on the floor next to him an others; specifically, that there was a power outage and that is why she was there.

She recalled that ‘they’ had a generator, and her family did not, and that’s why they were there. [ 72 ] With respect to the fourth incident, she said she was sleeping on a mattress and “felt someone touching me right around my vagina area”, and that she said “I felt I knew who it was” and that she was touched for about 10 seconds. The way she exclaimed “I felt I knew who it was” caused me a little concern.

I thought that she either knows who it was or does not know who it was, but she later told the Court she was confident she knew it was the accused who touched her. [ 73 ] With respect to the fifth incident, the night after the fourth, she said that she was sent to wake the accused up, and she told the Court that “he pulled me on top of myself and I said, ‘what are you doing?’” She then said “he got off”. She was a bit unclear ‘how he pulled her’ and had made a comment in her testimony that indicated something about him pulling his pants down.

But this part of the testimony was a bit unclear. [ 74 ] I recognize that it is somewhat suspicious that a person, with an alleged history of inappropriate touching, including

an act the night before, might ‘pull a person’ towards himself in a non-sexual touching manner. I also recognize that the act of putting pants on or off can provide a broader context of the intention behind the act of pulling. Lastly, I also acknowledge it would be open for me to infer that considering the context, the participants, and the totality of the circumstances, that the act ‘of pulling her’ could have been an attempt at sexual contact. However, I decline to do so.

The circumstances are too broad for me to find, with any degree of certainty, that the accused touched her for a sexual purpose, either with or without her consent. And while she said ‘he never got to touch me’, I accept her evidence that he, in fact, did touch her, and pulled her in his direction. I am satisfied that this touching was non-consensual in nature. However, I am not able to find beyond a reasonable doubt that the touching was for a sexual purpose.

I am also not able to conclude, with any degree of certainty, if the act was done solely in a manner that would meet the requirement of the included offence of assault. To conclude on this point alone, while I believe the complainant with respect to the act of pulling, I am not satisfied the act was solely consistent with a criminal intent. [ 75 ] The same can be said with respect to the alleged touching on the sixth incident. In that instance, it has been alleged that he was putting on a seatbelt and tried to touch her buttocks.

I also acknowledge and understand her testimony that his actions ‘made her feel uncomfortable’. However, I am not convinced on the totality of the evidence, with respect to this one allegation, that a sexual touching took place. I am also uncertain, even if it did, whether the requisite mens rea existed at the time of any such touch. To be clear, maybe he was trying to do what she said – but I cannot conclude beyond a reasonable doubt that he did, or attempted to, touch her for a sexual purpose, with or without her consent.

Once more, her evidence is just not clear on some of the details, although I accept her version of the actions that took place. [ 76 ] I also accept her recollection of incident seven. However, I make no findings in law as to whether they took place. Her evidence is clear, concise and consistent as to what she believed took place on this occasion. [ 77 ] Overall does her evidence make sense? Is it cogent and logical and have a ring of truth to it? Her testimony was clear, concise, and unequivocal. She was consistent, rarely shifting in her evidence from chief to cross.

In fact, in cross-examination, she was able to

confirm certain events, timing of those events, and was unshaken in her memory of the allegations. [ 78 ] It particularly rung true with me when she was asked why she eventually made the complaint. She said that “I was tired of being scared all the time. I was tired of not wanting to have my aunty over because I didn’t want to see him.” [ 79 ] She expressed a sad truth that also had a ring of truth to it. She confirmed how these actions have affected her. She said, “it ruined connections with my family, I lost family ties; it ruined a lot of things for my family...

I was told I would feel better… but I don’t feel better… and it has been almost two years.” OTHER EVIDENCE – His Statement [ 80 ] The accused provided a statement to the police. A copy of the video has been entered as an exhibit. The statement will speak for itself. In determining whether it was voluntary, I provided some concerns that I had. I will not repeat those concerns here, but the record will show what they were. I query whether a parent had been allowed in with this very young 18-year-old, with learning and language difficulties, would he have answered the officer’s questions the same way?

There was a power imbalance at any number of levels. Notably, the accused was young and speaking to an older person in authority. [ 81 ] While my concerns did not stop me from concluding the statement to be voluntary, I realize it is open for me to consider the weight of the statement. Specifically, I am able to consider whether the statement as a whole, or in particular parts, provides inculpatory or exculpatory words to the officer. Was it really a confession? The Crown has made strong submissions and urge me to conclude that the statement is clearly evidence that the accused is guilty of the offence.

This is a speculative leap that I will not take. [ 82 ] I question the value of the statement as to guilt. A reading of the statement clearly shows that there is no clear admission of guilt. There are concepts of apologies discussed, but not enough context to determine that he was admitting to the crime of sexual assault. For example, at some point he indicated that he was sorry for the complainant being sexually abused.

However, in my view, it is possible for someone to be sorry that someone else has been sexually abused, without being the abuser. [ 83 ] In any event, I ruled it voluntary, but I found it to be too vague, ambiguous and general to be solely consistent with a confession. The statement is not clear evidence of the guilt of the accused. [ 84 ] However, while I do not find the contents of the statement to be useful in directly determining the accused’s guilt, certain things with respect to credibility are apparent on the face of the statement.

First, as pointed out in cross-examination, he never denied the touching, he did tell the officer he was sorry, and he was specific with respect to working on two letters of apology; one to the complainant and one to his aunt. [ 85 ] He was asked why would he say or not say these things. It was a fair question, for which his did not have an adequate answer. He did say ‘he was trying to keep up to the questions.’ Or he ‘thought that’s what she wanted to hear.’ [ 86 ] As I mentioned earlier, the accused took the stand and provided evidence.

While I will not repeat the details, here are some basic parts of his testimony. S.S. [ 87 ] The chief examination of the accused was very brief. This is often the case in these sort of trials. [ 88 ] The accused said he was 20-years-old. He was asked some basic questions, such as “Do you recall the complainant saying that you touched her?” He responded by saying, “No.” There were a number of questions that he could not answer and some of it, no doubt, had to do with nervousness. Although I must say, he did not display any overt signs of nervousness. [ 89 ] The essence of his defence is simple.

In his words, “I would never do that.” This is what he usually said to the allegations of sexual touching. [ 90 ] He could not recall ever driving in a car with her. [ 91 ] At first he said he could not recall pulling her on top of him, then he said it never happened. [ 92 ] He was asked why he told the officer in his statement that he would apologize to the complainant. He said, “I thought that is what she wanted me to say.” He also added that he did not remember saying he would apologize to anyone.

CROSS-EXAMINATION [ 93 ] He confirmed that he was trying to tell the truth to the officer when he provided his statement. But there were a number of questions around this topic and he provided very different thoughts. [ 94 ] For example, he was asked “You were trying to tell the truth to the officer right?” And he responded with, “I was trying to keep up.” A follow-up question was, “Were you telling the truth?” There was an extensive pause as he thought about the answer. This pause is particularly notable to me because it is not that difficult of a question.

I know that sometimes people tell untruths or partial truths to police officers. Equally, sometimes people tell what they think is true. It is not too important to me if he did, in fact, lie to the officer; I am more interested in understanding ‘why’ a person might lie, or at least being truthful that you did lie, whether intentionally or inadvertently.

Unfortunately, he never did answer this question as ‘Yes, I was telling the truth’ or ‘No I was not telling the truth.’ Instead, he said, “She was asking too many questions.” [ 95 ] At this point, early on in his evidence, he appeared to be very evasive in the way he answered the questions. I appreciate the courtroom is a nervous place for most. As well, trials can even make people forget their own name. But the questions put to him were fair, even in tone, reasonably paced and he was provided ample time to think about the answer and respond. His responses were often

delayed, which, once more, may be expected considering the venue. Even when allowing for the venue, and for cultural differences in communicating, I still found his evidence to be evasive. I also understand from the evidence that he may have a learning disability and a problem putting words together. I am mindful that all of these factors will affect the way he explains his side of the story, and I give him a great amount of lee-way. I do not expect his answers to be complete, or even always logical. I do not expect that he will be able to express things as well as others might.

But is it complicated when you are asked, “Were you telling the truth to the officer?” [ 96 ] It was absolutely clear to me that he was comfortable with denying everything or explaining his answers to be the result of some sort of confusion. He was uncomfortable with almost any other answer that might put him in the same place, time or vicinity of the allegations. [ 97 ] I can say that having viewed the statement to the police, the questions were of the same type as in Court.

They were fair, even in tone, reasonably paced and he was provided ample time to think about the answer and respond. [ 98 ] Again, I am very sensitive with how witnesses, youthful or not, who have traits of FAS, ADHD or other learning disabilities might come across in the credibility assessment. I always try my best to understand that pauses can often be a result of some of these personal traits. To be clear, any doubt I have with respect to the manner in which witnesses speak in court, I always try to give to the accused. In the end, he was just not believable.

He constantly tried to twist his answers into a ‘flat denial’ answer, and fell back to ‘I was confused’ or ‘I can’t remember that far’ when it suited him. [ 99 ] He was cross-examined on a number of points. This question was put to him about his statement to the police. “She said you touched her and you never denied that, did you?” There was a long pause, and he did not answer the question. [ 100 ] It was put to him a different way, “You never said you didn’t touch her, did you?” He had great difficultly answering this question.

Eventually, again, he explained that he was just trying to ‘keep up’ to the questions that the officer asked him. [ 101 ] It was suggested to him, “When you spoke with the officer, you said you were sorry for what you did?” and he said, “I didn’t do anything.” [ 102 ] Then this was put to him: “But you told the officer that you did?” There was an extremely long pause, and it looked to me as if he was trying to come up with a suitable answer.

Eventually he said, “I cannot answer that question because I didn’t touch her.” This flat denial is consistent throughout his testimony, but it does not help me understand why he would tell an officer ‘he was sorry’. [ 103 ] Much of the statement was put to him in this manner. He was asked, “Do you remember being asked this question and answering with this answer?” Counsel was just trying to get him to agree that he was asked and responded in a certain way.

He was not able to do this. [ 104 ] More specifically, at one point Crown counsel asked if he agreed that “The officer said, ‘what made you do this?’ and you said, ‘I don’t know.’ Do you agree you said this?” There was an extremely long pause and it appeared once more he was trying to come up with a suitable answer, and, while it did not really make sense, he said, “I don’t agree.” [ 105 ] All the incidents were put to him and he said, “Most of those... not really most.... but none of it happened.” In fairness, the question was a long and awkward one. [ 106 ] I found this approach in his answers fairly consistent.

He would seem to try to mould an answer to the question, but when he could not answer a question, his fall-back position was always, “nothing happened.” [ 107 ] Crown posed this question, “What about when you were asked ‘why you did it’, you said you didn’t know what to say, but you’ve been thinking about it a lot?” Again, he simply denied that anything happened. [ 108 ] So then Crown asked, “So what did happen?” and the accused said, “We were never in the same room together.” Most of the scenarios were put to him and he basically said he didn’t remember ‘that far in time’, or he wasn’t there.

He was not on the floor sleeping. He was not on the couch watching TV. The complainant never once came over to visit her parents while he stayed with them. He either did not remember or denied that they stayed over due to a power outage. She never tried to wake him up for breakfast, and he never grabbed her and pulled her towards him.

With respect to the car incident, he started off by saying ‘he didn’t remember being in car with her’ to “we were never in a car together.” [ 109 ] The Crown asked, “Do you remember being asked if you would apologize?” The accused said, “I did say I would apologize, but I thought that is what she wanted me to say.” [ 110 ] Here is a brief snapshot of a few more questions: ‘Do you remember saying you started writing a letter of apology to Ms.

B.?’ He said, ‘Yes but I didn’t write one.’ ‘And do you remember saying you had started writing a letter of apology to your aunt?’ ‘Yes, but I didn’t write any of these.’ ‘So, why would you tell the officer one thing and the court another?’ ‘Why should we believe you when you were not telling the truth to the officer, but now believe you are telling the truth to us today?’ He said, “I don’t really know honestly.”

At some point in time he repeated these words: “It was just a thought and I forgot. It was just a thought and I forgot. It was just a thought and I forgot.” The answer did not really make sense to me, as it did not seem to be related to any particular question. Once more, perhaps stress, anxiety and a learning disability may have something to do with these utterances. Similar utterances were seen on the video statement. When the officer left the room, the accused repeated a number of times “I don’t remember. I don’t ‘remember.

I don’t remember.” I do not make much of these utterances as, again, they could simply be the result of stress or an underlying disorder. [ 111 ] In fairness to the accused, it is not for him to explain why I should believe him. It is my job to decide whether I should believe him or whether I should not believe him. [ 112 ] A number of unanswered questions remain. Why would he say he was working on, not one, but two letters of apology? Certainly the officer’s questions were not complicated or confusing nor designed to elicit such a specific response.

He could not answer why he said, “Well, apologizing won’t fix it.” And he could not provide any insight into why when asked, “Do you feel sorry for what you have done?” He said, “Ya.” Finally he was asked, “As you sit here today, are you sorry for what you did to R.B.?” There was an extremely long pause and he said, “I don’t know what you mean.” And there was the follow up question, “Why did you tell officer you sorry for what you did to R.B.?” Again, there was a long pause and he responded with, “I don’t know”. G.H. [ 113 ] This witness is aunty to the complainant and mother to the accused.

She testified that she has suffered significant trauma in her life as a result of her time in the residential school system. She confirmed that her sister, the step-mother to the complainant, also suffered significant trauma while in residential school.

She also confirmed that her son, the accused, was sexually abused at age 5 and 12, has some learning disabilities and also is recovering from his trauma. [ 114 ] I will only touch on some of her evidence. [ 115 ] I accept that as a result of the family traumas suffered by a number of her family members that she has done everything to be a responsible, caring, sensitive mother and matrilineal leader. She actively has taken steps to mitigate risk to all of the children she is around. When possible, which was most of the time, she separated boys from girls.

She protected both of her sons and often made them sleep with her if others were around. In essence, she has done everything in her power to make sure that sexual victimization did not take place against any children around her. [ 116 ] I find that the manner in which she answered questions, her body language, and other things she did and said, make it clear to me that she does not want to believe these things took place. Certainly, it was readily apparent to me that she, in no way, wanted to say anything that might support the Crown’s case. This is understandable.

She does not want to provide evidence that might hurt her son. But, in the truth-seeking process, witnesses only have one job and that is to listen to the question and answer it to the best of their ability. Picking and choosing their words, posing questions instead of giving answers, being defensive and evasive are not helpful for a trier of fact. [ 117 ] In this truth-seeking process, I am not trying to determine whether she or her sister are good parents or not. That determination is clear. By all accounts, they are loving and caring individuals that have dedicated their life to raising their families.

I have no doubt they are excellent mothers. Certainly Ms. B. thinks her aunty is an excellent aunty. [ 118 ] There were a number of times that it was obvious to me that G.H. was trying to design a neutral answer that would not favour the Crown’s

interpretation of events. I will not repeat them; they are all on the record. There are many. One noticeable one had to do with the time where her son was staying with the complainant’s mother in [omitted for publication]. She confirmed what other witnesses have already said, that the accused was staying with the complainant’s step-mother in [omitted for publication]. But when G.H. was asked, “To your knowledge, did S.A.S. ever have any contact with Ms. B.?” she instantly, without a moment’s hesitation, said, “Absolutely not.” This simply cannot be known by G.H. It is very possible that Ms.

B. went to her parents and saw the accused. In fact, I prefer Ms. B.’s evidence that she went back home quite often over that summer. I do not accept G.H.’s testimony that Ms. B. did not go back for a visit. [ 119 ] It was hard for her to agree to some of the most basic propositions. It took Crown counsel many questions, posed in many ways, to get her to admit one basic fact that the complainant’s family and her family may have slept under the same roof. It took even longer for her to admit that yes, on occasion, it is possible that the complainant and accused may have slept under the same roof.

While she had no independent recollection of a car trip to town with her son and niece in the car, she was adamant that she would not let them sit next to each other. Eventually, she said they might have been in the same car together and that there may have been a car trip. Eventually, she admitted there may have been a time where the families were together during a power outage, and may have been times that children would be sitting around with a blanket on them watching movies, and may have been moments in time where ‘eyes on’ the children at all moments was not possible.

It was very difficult for her to agree to any of these points. [ 120 ] To be clear, it would only be natural for most of these things to take place. Watching movies, taking in families during power outages, separating boys from girls, some road trips to town are all perfectly reasonable things that occur.

However, I got the clear impression that this witness was not going to easily agree to anything that might bolster the idea that the ‘opportunity’ to commit these crimes did exist. [ 121 ] I would have preferred the witness to be less defensive, less evasive, and focus on listening to the question and answering it to the best of her ability. I agree that I must be cautious with respect to G.H.’s testimony.

Not because I think she was being dishonest, but because she really did appear to be reluctant to answer even the most simple of questions in a forthright manner, especially if she thought the answer might go towards the concept of ‘opportunity’. CONCLUSIONS [ 122 ] To me, contrary to the Crown’s submission, the defence does not simply submit that the complainant has ‘fabricated’ the evidence or is simply lying. The defence, while inclusive of this concept of fabrication, seems to be a bit broader. It is argued that, if

some of the touching took place, some of it can be dismissed as ‘incidental’, or non-sexual. It is also implicitly argued that due to the small amount of time involved, 5 to 20 seconds, the contact might have even been accidental, or at least not sexual, even though it may have been in the buttocks or vagina area of the body.

There are other arguments that defence makes, such as the allegations lack specificity in time and other details. [ 123 ] The Crown submits that the complainant’s testimony was credible and reliable in all facets of her testimony. [ 124 ] I pose these questions to myself. [ 125 ] First, do I believe evidence which raises a defence or negates an essential element of the offence? If I do, then I must acquit. [ 126 ] I have considered the totality of the evidence with respect to all defence evidence, especially the accused’s evidence.

Even after accounting for the frailties in the manner in which he expresses himself, and some of the reasons behind this, this is an easy question for me to answer. I do not believe him. For the above reasons, I do not find him to be a credible witness. I am unable to rely on his evidence. [ 127 ] Further, while I approach his mother’s evidence with caution, there is nothing in her evidence to lead me to believe that the opportunities to commit these crimes did not exist.

I have no doubt, based on her evidence, that the complainant and accused could have been in the places during the times that the complainant has indicated. [ 128 ] Second, even though I do not believe the evidence raising a defence or negating an essential element of the offence, am I left in reasonable doubt by it? If so, then I must acquit. [ 129 ] There is nothing in the evidence of the defence case that causes me concern about any of the elements of the offences. I appreciate that I must be particularly careful in this case where the defence is a flat denial.

However, after considering all the circumstances, and the totality of the evidence, I am satisfied that the defence case does not raise a reasonable doubt with me. [ 130 ] Third, even though I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I still must ask myself whether, on the basis of the evidence I accept, whether I am convinced beyond a reasonable doubt of the accused’s guilt. [ 131 ] Once more, this is a very easy question for me to answer.

After having considered the evidence of the complainant, I am satisfied that she was both credible in what she said and that her evidence was absolutely reliable. Having considered the totality of her evidence within the general framework of the Parent variables, I have no concerns, and no doubts with respect to her evidence. [ 132 ] This is not a situation where I have any problem deciding whom to believe.

As stated, for many reasons, I did not find the accused to be credible and his mother’s evidence did not make me question any of the essential elements that the Crown needed to prove. [ 133 ] The Crown has indicated they are only asking the court to convict on the first charge of touching Ms. B. for a sexual purpose while she was under the age of 16. [ 134 ] I conclude that the Crown has met its burden and proven each element of the offence and I find the accused guilty of count one. [ 135 ] That concludes these reasons. _____________________________ The Honourable Judge A.

Wolf Provincial Court of British Columbia CORRIGENDUM - Released September 27, 2021 In the Reasons for Judgment dated March 3, 2021, the following changes have been made: [1] Paragraph two (2) is deleted. ____________________________ The Honourable Judge Wolf Provincial Court of British Columbia