R. v. D.J.M. Date:, 2012 BCPC 155

Citation: R. v. D.J.M. Date: 20120511 2012 BCPC 0155 File No: 56238C3 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D. J. M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: J. Verrier Counsel for the Defendant: N. Adams Place of Hearing: North Vancouver , B.C. Dates of Hearing: Jan 19, 20, 24; Feb 3; Mar 5, 23, 26, 29; Apr 26; May 4, 11, 2012 Date of Judgment: May 11, 2012

[ 1 ] The defendant is charged with 4 counts of sexual offences relating to two complainants, MM, and KM, his stepdaughter and daughter. They have each testified to certain events on which the Crown bases an assertion that they were touched inappropriately by the defendant. [ 2 ] The defendant denies the offences. He is presumed innocent. The law requires that the Crown prove beyond a reasonable doubt that his denial is false. This is a heavy onus that involves more than just choosing one witness over another.

The Court is not permitted to reject the defendant’s denial based simply on a preference for the evidence of the complainants. The evidence must establish that his testimony cannot be accepted, and also, that he committed the alleged acts beyond a reasonable doubt. Facts [ 3 ] The defendant was the common law spouse of the complainants’ mother, CM. MM is her daughter from a prior relationship. KM was born within a year after CM and the defendant started seeing each other. They lived together on and off after that until the allegations arose, in early 2011.

MM [ 4 ] The first complainant, MM, was 14 when she testified. She was about 5 when she first met the defendant. The family lived in three different residences during that time, all in North Vancouver. In each, KM and MM shared a room, and CM and the defendant shared a room. The defendant sometimes slept on a mattress outside the mother’s bedroom, particularly after their son, JM, was born, in 2009. MM [ 5 ] MM testified via closed circuit TV. In relation to the allegations of sexual touching she testified as follows.

The allegations [ 6 ] She said the defendant “sexually abused” her, by which she meant inappropriate touching. This began when she was 8 or 9 and went on for 4 years. [ 7 ] MM said the incidents started with the defendant cuddling her and KM or rubbing their backs to help them sleep, but then he started to touch MM. It started in the first of the three homes they lived in. He would come into the room, lie with KM until she fell asleep, then come and lie down with MM. [ 8 ] On the first occasion, MM and KM were in their bedroom, in separate beds, and their mother was either out for the evening or in her bed.

MM thought she was wearing a long shirt and underwear and the defendant was wearing a shirt and boxers, or just his boxers. KM was snoring so MM believed she was asleep. MM could not recall if the bedroom door was open or closed. The defendant got into bed with her. She did not recall if she was under her comforter or not. She said sometimes the defendant would lie on top of the blankets and sometimes he would get under them. [ 9 ] On this occasion, MM said, the defendant started rubbing her back as usual but then his hands started moving to her breasts. He pushed her shirt out of the way.

He slowly started rubbing her side, then her stomach, then her breasts. He touched her breasts with his hands, and then he used his mouth. He put his mouth on both breasts, one at a time. She did not recall if he used one or both hands. She did not know what to do, so she would just lie there. She said nothing, nor did the defendant. [ 10 ] After that, the defendant moved his hand toward her vagina. He pushed her underwear out of the way. He touched her there, and put his finger inside her.

When asked to clarify what she meant by that, MM became upset, and repeated her evidence that he put his finger inside her vagina. After that, she said, the defendant put his mouth on her vagina, and put his tongue inside her. She thought she may have tried to push him away, but she could not describe how she did this. [ 11 ] MM had not said anything in her prior statements about the defendant putting his tongue in her vagina. She first related it in her interview with the prosecutor, but said he had put it on her vagina, not in it.

She said this was because she had blocked the incident out and she had just remembered it the week before she testified when she spoke to the prosecutor. [ 12 ] This incident, MM said, occurred when she was 9 or 10, at a time when the defendant either lived with them or visited a lot. She recalled that he did not live with them for a time when KM was little, after he had cheated on their mother, she said. He came back when KM was 2 or 3.

She was pretty sure the first incident was after that, in 2006 or 2007. [ 13 ] MM said she had her eyes open when the incident started, but then she just closed them because she didn’t understand. It ended when the defendant got up and left.

[ 14 ] The last occasion was in mid-October or November of 2010, at which time, MM said, the defendant tried to “have intercourse” with her. She gave this portion of her evidence in a very matter of fact way, without particular emotion. [ 15 ] MM said that on this last occasion, she defended herself. Her evidence about the timing of this incident differed by a month from a statement she gave to the police. She said that she had remembered when she was interviewed by the prosecutor that it was October, not November as she had previously stated.

This was because she had spoken to her father shortly before the incident and she thought that was close to Halloween. [ 16 ] This incident had started with the defendant coming into her room. This was when they lived in the third residence. He started doing what he usually did, the same as the first incident, she said. Then, she said, he tried to have intercourse with her. While this was occurring, MM said, KM was on the top bunk and MM was on her mattress on the floor under it.

She said she again recalled hearing KM snoring, but in cross-examination she denied recalling whether KM was present, or saying that she was. [ 17 ] MM agreed she had said in a statement to the police that KM had been on an overnight visit at a friend’s house. She said either could be correct. She was pressed on this in cross-examination. Counsel asked, “Now you remember hearing snoring?” and she said yes.

She agreed with the explanation that this memory had come to her when she talked to the Crown, that the police statement was wrong, and that it had just popped into her head, similarly to her evidence about the incident with the defendant’s tongue. [ 18 ] MM thought she may have been asleep during this incident when the defendant first came in. Her first memory was of the defendant with his hands and mouth on her breast and his hand on her vagina. Then, she said, he tried to put his penis into her vagina.

Again she stated this in a fairly matter of fact way, but laughed when she misspoke by starting to say, “he tried to put his vagina…” [ 19 ] MM thought the defendant may have taken off her shirt and her underwear on this occasion. She did not recall if he had clothes on. She was on her back on the bed. At first, he was lying on his side beside her, doing what he usually did, with his hands and mouth on her. He moved to be slightly on top of her. His hands were on her thighs, holding her legs apart. [ 20 ] MM was asked for more detail regarding the incident, and said she didn’t know how to describe it.

She said he held her thighs apart; he tried having intercourse. She didn’t want him to, so she punched him in the gut. [ 21 ] MM was pressed by the Crown to describe what she meant by “he tried to have intercourse”. She remained silent for some time, giggled, and then said, “I don’t know, I am sorry.

I am not feeling good.” Crown Counsel asked her if she knew what sexual intercourse means and MM said, “Well, if he had succeeded he would have put his penis into my vagina.” She was unable to articulate further what actions the defendant had performed other than what she had already said. [ 22 ] MM said she had slight bruises where the defendant’s fingers had dug into her inner mid-thighs on this occasion, but she did not show them to anyone. [ 23 ] Another incident that MM said she remembered was probably “near the start.” She said the defendant tried to make her give him a “hand job”.

She was asked what she meant by that and she said, “Um, I don’t know how to explain it exactly.” Again she was unable to articulate further what she meant. [ 24 ] MM did not remember much detail regarding what happened during this incident, saying that he “did what he usually did”, put his hands and mouth on her breasts, and hand on her vagina. On this occasion, however, he grabbed her wrist, and tried to pull her hand toward his penis.

She pulled her hand away from him. [ 25 ] MM said the nights between the first and the last incident were pretty blurry, or as she said later in her evidence, she had blocked them out. She only remembered this particular one because he tried something new, and she didn’t like it. [ 26 ] MM estimated that these incidents occurred sometimes once a month, sometimes once a week, and sometimes not for a month or two. She said “it was just any time he wanted.” It always happened in her bed. [ 27 ] MM was asked by the Crown several times if she knew what ejaculation meant, and said she was unable to explain it in words.

She became clearly uncomfortable. Given that her direct evidence did not include any such allegation it was not clear to me, with respect, why this line of questioning was pursued. [ 28 ] The following are aspects of MM’s evidence that have bearing on the issues of credibility and reliability. Disclosure [ 29 ] MM says she first told her friend NS about these incidents, in about the summer of 2009. Sometime before Christmas, 2010 she told her friend CL.

She did not tell her mother until February 2011, she said because she did not understand that what the defendant was doing was wrong until the end of grade 7, which would have been June 2010. In her words, she was “pretty ignorant in that matter”. [ 30 ] MM said she waited until February 2011 because she “didn’t know it was wrong”, and she didn’t understand it. She also said she was slightly embarrassed because she thought she should have told the defendant not to do it. [ 31 ] What caused MM to tell her mother when she did was that CL had told her own mother, D, and they both persuaded her to tell her mother.

MM told her mother with her friend NS about a week and a half before she talked to the police. She said that she told her mother that the defendant had “sexually abused her”, by “touching her inappropriately”. These were terms she had learned in school in Grade 7. She did not give her mother any details. [ 32 ] MM told CL she did not want to go to the police until her mother got the defendant’s employment insurance cheque, because

she knew he would be kicked out of the house once she went to the police. She admitted in cross-examination that a friend’s father had been required to leave their residence when the mother complained of abuse to the police. [ 33 ] After talking to her mother, MM went to stay at her friend CL’s house. KM remained in the residence with CM and the defendant. MM returned after 2 nights and found the defendant still there, even after her mother had gotten his E.I. cheque. MM had hoped that CM would ask him to leave. [ 34 ] MM then went with CL to speak to CL’s counselor, JB.

JB called in a Ministry social worker who took MM’s complaint, and then took her to see the police. MM said that when she spoke to JB, she was not aware that she would have to go to the police. JB testified that MM appeared upset when she spoke with her, but as soon as she understood it might be a complaint of inappropriate behavior she referred it to a social worker. [ 35 ] MM agreed that the defendant was out of the house within two days of her making her police statement.

MM’s belief in abuse of KM [ 36 ] MM said in her testimony that she did not suspect that KM was being touched by the defendant before she complained to her mother.

MM recalled that her mother talked to KM after MM disclosed to her, and she then told MM that the defendant was also touching KM. [ 37 ] MM testified in direct that she had seen the defendant get into bed with her sister to cuddle, but she never saw KM being touched inappropriately by the defendant and never told KM what the defendant did to her. [ 38 ] She said in cross-examination that she let KM have the top bunk when she asked, at the last residence, but was not aware at that time whether the defendant had done anything to KM. [ 39 ] However, MM told the police in her statement that when she “figured out” that the defendant was doing stuff to her little sister she was insistent on getting the bunk bed assembled so her sister could sleep on top.

She said in Court that she did not remember saying that. She agreed that her statement was inconsistent with her testimony that she had learned from her mother that something had happened to KM and that it “didn’t make sense”. Conflict Between MM and the Defendant [ 40 ] There is evidence that MM had animosity toward the defendant. MM said when she first met him, the defendant stole some of her mother’s attention when she was an only child, which upset her a bit.

At first, however, he was nice and fun to hang around with, but, she said, “And then, um, with the sexual abusing I started to hate him.” [ 41 ] MM said she also started to hate the defendant for other reasons by Grade 7, mainly his attitude and his temper, and when she started figuring out what he was doing was wrong. She said she was mad and annoyed by him being around so much. [ 42 ] By the time she told her mom, MM said, she hated the defendant more than she had ever hated anyone else.

The sexual abuse was a major part, but also his really bad temper, the fact that he got fired from jobs, and the fact that he ate their food, which pissed her off. [ 43 ] MM said she has always refused to call the defendant her stepfather, preferring to think of him as her mom’s boyfriend. She sees her own father on occasion. She felt the defendant had no business disciplining her.

In particular she objected to him talking to her about shoplifting because she believed he shoplifted as well, or telling her to put more clothes on when she was wearing only her underwear around the house, because he also sometimes wore only his underwear. [ 44 ] MM agreed that she sometimes called the defendant names, and described an incident where she had done so and then become enraged because he had taken the younger children into a separate room. She believed she was in charge of them because her mother had asked her to babysit, even though she acknowledged they were his children.

She punched a hole in a door on that occasion. [ 45 ] MM and the defendant had confrontations about money, as MM believed he did not contribute enough to the household, and ate more food than he bought or paid for. In one such conversation the defendant told MM her own father had not contributed anything, and she got very upset. MM said her mother had led her to believe her father was contributing, and had also confided in her that she was only staying with the defendant so she could get a financial contribution from him.

She said this conversation was several weeks before she made her complaint to the police. [ 46 ] MM believed her mother was trying to get into subsidized housing and that once that occurred, the defendant would not live with them. She was aware that her mother took the defendant’s cheques so he would not spend his money on drugs. Her mother had told her he did heroin sometimes and she was aware that he went to rehab in 2010. MM also acknowledged that she was angered when the defendant lost his employment. She told the police that she believed her mother needed a nudge to get the defendant out of the house.

The stained pants [ 47 ] In cross-examination it came out that while in the process of cleaning out the residence after the disclosures came to light,

MM’s mother found a pair of her pants with what appeared to her to be semen in the crotch area. She asked MM about them and MM said it was “probably” the defendant’s semen. CM told the police about this when she made her second statement to them, and was asked to retrieve the pants so they could test them for DNA. [ 48 ] In her second statement made after her mother had asked her about the pants, MM told the police that she was pretty sure those pants were ones the defendant had used to wipe her off when he used to come. As her mother described them, she believed they were the pants she wore as pajamas.

MM had not mentioned these events in her prior statement. When she was asked about this in Court she said, “He would wipe it off with what was closest, my pants, his shirt, it was disgusting.” [ 49 ] CM took MM with her when she went to get the pants. CM’s evidence establishes that MM knew at that point that the police wanted to test the pants for DNA. When she saw the pants, MM told her mother it was not semen, but acrylic nail glue that she had spilled on them.

Her explanation for this was that she had not been clear on which pants her mother was referring to until she saw them. [ 50 ] The pants were not turned over to the police and there was no further discussion of the semen allegation. The mother in her evidence said that she had asked MM if the semen might belong to her boyfriend, as she had snuck out one night to meet him. Opportunity [ 51 ] The defendant did not have a key to CM’s residence, and had to be let in by her or MM. If he arrived, MM would call her mom to see if it was okay to let him in.

MM believed this was because her mom did not trust him after he was in recovery. MM said that whenever the defendant was present in the residence, her mother was there. [ 52 ] MM said she had never seen the defendant with less on than his boxers. This included during the last incident when she said he tried to have intercourse with her. [ 53 ] KM generally slept in the top bunk in the room that she and MM shared.

Further Inconsistencies [ 54 ] In cross-examination it came out that MM had told police she thought the defendant may be doing this to her because her mother was saying no to him, but when pressed on this she agreed that the timing of when she believed her mother had starting refusing him was after the time when she said he started abusing her. [ 55 ] It was apparent, however, that MM was aware of her mother’s and the defendant’s sexual relationship and that MM’s mother confided with her daughter in many ways that might be described as age inappropriate. [ 56 ] MM also agreed with the suggestion that the detail of pushing the defendant away on the occasion when he put his tongue in her vagina was something that popped into her head when she was interviewed.

It also had not been included in her statement. [ 57 ] MM said she first came to realize that what the defendant was doing was wrong at the end of Grade 7. She denied that was when she started resisting, but agreed that she told the police “once I started to figure out that it was wrong, I started to try to push him away.” She agreed that was not consistent with her evidence that she pushed him away on the first occasion. She agreed that both could not be true, but could not explain her evidence. KM [ 58 ] KM spent her 8 th birthday waiting outside the courtroom to give evidence.

She actually testified on another date, also via closed circuit TV. Her evidence was heard on a voir dire pursuant to

section 715.1 of the Criminal Code ; however defence ultimately conceded that the video of her interview with the investigating officer, Cst. Gueulette, was admissible. [ 59 ] KM watched the video and at the end of it she adopted its contents as required by the section. [ 60 ] While I was not asked to rule on the issue of admissibility I had occasion to consider the relevant factors as KM gave her evidence and as I viewed the video.

The factors relevant to whether to admit a videotape in these circumstances are closely related to those that bear on the analysis of reliability and weight of both the video and the complainant’s viva voce testimony, and so I will review them. [ 61 ] In R. v. Bradfield , [2011] S.J.

No. 102 , Mills J. of the Saskatchewan Queens Bench made the following observations in relation to the factors relevant to an application to admit a child witness’s videotaped statement: 8 The last legal issue which is of importance in this application is the overriding condition that a judge can exercise his/her discretion to not allow into evidence the video recording if, in their opinion, it would interfere with the proper administration of justice. In R. v. L. (D.O.), supra, the Supreme Court identified [a] non-exhaustive list of factors which would assist the court in exercising the discretion.

At p. 463, they are:

(

a) The form of questions used by any other person appearing in the videotaped statement; (

b) any interest of anyone participating in the making of the statement; (

c) the quality of the video and audio reproduction; (

d) the presence or absence of inadmissible evidence in the statement; (

e) the ability to eliminate inappropriate material by editing the tape; (

f) whether other out-of-court statements by the complainant have been entered; (

g) whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim); (

h) whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant; (

i) whether the trial is one by judge alone or by a jury; and (

j) the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described. 9 As can be seen from these factors, they go beyond the issues of simple necessity or reliability and deal with the question of trial fairness as it relates to the accused.

As is so often the case, it comes down to the trial judge doing a balancing act between the legislated encouragement to utilize videotaped statements of young persons at trial in the search for truth and the particular factors in a specific case that impact on the accused's right to a fair trial. [ 62 ] And so the distinction is made between assessing the video for procedural concerns or irrelevancies, essentially, and assessing it for reliability. However some of the factors relating to trial fairness also clearly relate to the issue of reliability.

In relation to the manner in which KM’s evidence was elicited during the interview, my observations may be summarized as follows. [ 63 ] After a very few introductory preliminary pleasantries, Cst. Gueulette launched into having KM identify body parts on drawings of people. There was no discussion of the purpose of the meeting or whether the child knew why she was there.

I assume she did not and the intention was to not alert her to the desired outcome, but would have expected some efforts on the part of the investigator to put the meeting into some kind of context, for the child. [ 64 ] I did not make a note of the question that elicited the first allegation, but I am reminded by Crown in submissions that it was something along the lines of, “Do you know why you are here?” The response was: “Sometimes my dad touches me in bad spots, when I have my clothes on he touches me on the vagina and I don’t really like it.” Instead of clarifying what KM means by this “touching” however, she is immediately asked about timing. [ 65 ] In addition, rather than asking an open-ended question about timing, KM is given a choice of before Christmas or after.

She settles on before and after. KM is then asked about the time of day, and she says, sometimes in the day and sometimes in the night. She adds, “In the day he is playing and he does it and I don’t really like it. He tickles me.” Cst. Gueulette then says, “And touches you in the vagina” and the child responds, “yes.” [ 66 ] KM is asked about what happens at night, and she says it happens in bed, adding,” I don’t really like it because… I don’t like it, sometimes he puts me to bed, he touches me, sometimes he touches me and he touches it.

I noted that as she watched this portion of the video, KM appeared extremely uncomfortable and unhappy. [ 67 ] Cst. Gueulette asks, “How does he touch it” and here I noted there should really have been some clarification of what “it” was. KM responded, “I don’t remember, it is not that much only once a day maybe so I don’t remember. It has been a long time. Sometimes he does it and sometimes he doesn’t I don’t remember the last time he did it or how.” [ 68 ] Cst. Gueulette says, “It was after Christmas” and KM answers, “yeah”. There is some talk about the child getting a bike for Christmas and then Cst.

Gueulette asks, “Did you have your bike when it happened?” The child thinks and then answers yes. There was no suggestion of any link between the bike and the incidents and it is apparent at this point, and others, that the child is just trying to please the interviewer by providing an answer to an “either or” question, or merely agreeing with her suggestion. [ 69 ] Cst. Gueulette asks about who lives at the house, and where KM sleeps. She says, “In the bedroom I am on the top bunk. Or on the bottom if my sister is on a sleepover, her bed is much comfier.” [ 70 ] KM then says, I am nervous, but Cst.

Gueulette appears not to hear her. There is no question about whether these things happened in a bed or which bed. The child then volunteers, “Mom told me he does it when I am asleep.” Cst. Gueulette asks, “When did she say that?” and KM says she doesn’t remember. Cst. Gueulette asks if it was yesterday and KM says she does not remember. [ 71 ] Cst. Gueulette asks, “Do you remember your dad touching you or was your mom reminding you.” KM says, “When I am asleep sometimes he does, I don’t remember it.” Cst.

Gueulette pursues this, asking whether KM remembers it or only knows it because her mother told her, and she says, “I remember it myself.” This is clearly inconsistent with what she had just said, and again appeared to be an obvious attempt to please the interviewer.

[ 72 ] The child then makes several unprompted statements: “ He touches me in a bad way. I remember he touched me on the vagina.” Cst. Gueulette does not pursue what KM means by in a bad way, or how he touches her. [ 73 ] They then talk about KM’s family and she says I love my mom and dad a lot, and my sister and brother.

The officer says she is pretty lucky to have a big family, which I would have to observe is a somewhat unfortunate remark in light of the circumstances, which entailed the recent removal of her father from the home. [ 74 ] In her viva voce evidence, KM testified that she remembered being interviewed and that she was telling the truth.

She was asked if she remembered anything about her dad touching her now, and she said, “Not really, some of it.” [ 75 ] When asked to say it in her own words, she said, “I remember my dad touching me, only tickling, but one time when he was tucking me into bed he accidentally bumped it, my vagina.” That may not be verbatim, but it is the gist of what she said. [ 76 ] Crown counsel asked, “Why do you say it was accidental?”, and KM said, “Because it was.” My notes of her further evidence on this point were that she said, “I was already in bed, he was tucking me in.

I was getting into bed; I asked him to come and tuck me in, he did and then he accidentally bumped my vagina. I had pajamas on, the blankets were on, and he was tucking them in by putting them on me.” [ 77 ] KM was then asked how many times he touched her and she said, “Maybe 10.” Those touches occurred in her bed, or on the couch when he was tickling her.

She was asked what part of her body he touched, and she said, “My vagina.” [ 78 ] She was asked how long it was and said, “Only like 3 seconds.” She said “a few it was really fast” – then she put her hand up to demonstrate a poke and added, “On purpose by accident like.” She added, “once he rubbed it accidentally.” [ 79 ] KM did not remember talking to her mother about the touching before talking to the officer. In cross-examination she agreed she may have talked to her mother about a week before the interview, when she told her she was sad because not going to be able to see her dad ever again.

She added, “I know that is wrong; I will see him someday; but I don’t know when.” When pressed she recalled her mother taking her into her bedroom and talking about whether her father had touched her. [ 80 ] KM remembered her mother asking her what was wrong and her saying “Dad kept touching me in the vagina.” She was asked why her mother was asking what was wrong and she thought she may have looked kind of angry.

She said she told her mother that day and not before because her father was not present and it was the day she felt like talking to her mother. [ 81 ] KM also denied ever talking to MM about what the defendant did or knowing what MM had just told her mother before they talked. She agreed that she was upset with her father because he did not take her bike riding in the rain. [ 82 ] KM said later in cross-examination that she and her father were sitting on the couch one day and he was tickling her and accidentally touched her vagina.

She had told her mother that he touched her when he picked her up and played with her sometimes. [ 83 ] KM said she knew when they went to the police station that she was going to talk to the police because she had told her mother that her father touched her in a bad spot. Her mother had asked her if her daddy ever touched her where her bathing suit covers and she said “yes, but I had clothes on.” She agreed she told her mother that he touched her in a bad place. [ 84 ] Then, KM said, “I told her sometimes he pokes it and sometimes he rubs it really fast.

The time he rubbed it, he was covering me up with the blanket.” [ 85 ] She was asked, “All the times he has touched you were accidental?” and responded, “yes.” She agreed that all occurred when they were playing, including the time he covered her with the blanket.

She distinguished this from the way her mother tickled her, which was not in the vagina. [ 86 ] KM was asked what “touching in a bad way” means, and said, “It means that it is not right for you to touch it there.” She was asked, “Is it never okay to touch anywhere near the vagina,” and answered, “Only if it’s a baby and you are changing diapers.” [ 87 ] She was unable to say whether it was never okay to touch where a bathing suit covers.

She agreed that her father was too big to get into the top bunk. [ 88 ] KM agreed that she did not know where she got the number 10 from and that she had just come up with a number because people kept asking her. CM [ 89 ] The mother testified at some length. In brief, I took the following from her testimony. MM told her of allegations of a sexual nature involving the defendant in February 2011. She was at the playground at Queen Mary School with the younger children and the defendant. MM and her friend N came up to her. MM got agitated, and she asked her to come and talk to her.

That was the conversation in which she told her what happened. [ 90 ] Just prior to this, the defendant had tried to check MM’s breath for alcohol, which offended MM. CM did not remember exactly what MM told her. MM wanted her to talk to N about it, and kept avoiding the subject. CM finally asked, “Did [the defendant] do something?” MM said, “Yes he did.” CM asked what. MM was very uncomfortable, and wanted N to talk to CM. MM then asked if CM knew why MM did not like the defendant for so long. CM suggested it was because he let them down and they fought, and MM said, no, it was because he had been touching her.

[ 91 ] CM was unable to get any further details from MM. Ultimately they decided to talk about it later. MM and N left the park. CM admitted she told MM they needed to wait, that she did not want to talk to the defendant until after she received some money from him. MM was upset, but CM perceived that she totally understood and agreed. [ 92 ] CM was a little hazy about the events following MM’s disclosure to her. She believed that CL’s father was a counselor and had told her he should speak to MM before CM spoke to the defendant. He was not a counselor and it seems there was no such discussion.

In any event, CM did not call the police after MM made the allegation. [ 93 ] CM agreed that she and MM had talked about D leaving many times for different reasons: his drug use, arguing, his temper, etc. MM wanted him to leave toward the end of the relationship, quite badly, but CM did not understand why. She said on a number of occasions that she wanted him to go. She started vocalizing this about a year prior to the disclosure. [ 94 ] CM spoke with KM after MM made the allegation. KM was 7 at the time. They spoke twice, once at the apartment, and again within a few days of that.

On the second occasion, KM was upset because she had done something wrong and the defendant was going to talk to her. She ran into CM’s bedroom. The defendant went in to talk to her, but KM pushed the door, and the defendant bumped her with the door by accident. Both got very upset, and CM went to intervene. She talked to KM, and this was the second discussion they had about touching. [ 95 ] CM said she did not remember what had been said by either of them on the first occasion.

On the second occasion, she used the hurt with the door to find out if anything had happened between KM and the defendant by asking KM if the defendant had ever done anything else to make her feel uncomfortable. KM told CM that the defendant had touched her but not under clothing, and it was only during play. CM said she had to ask in a number of ways before KM said even this much. [ 96 ] CM told MM about the first conversation she had with KM, basically that KM had said the defendant touched her when they were playing. She did not tell KM about her conversations with MM.

She recalled saying to MM that she was concerned that KM may have “vocalized something that had happened”, and said that he had “touched her” during play. [ 97 ] CM was aware that MM had gone to speak to CL’s counselor. She had agreed to that. She had told MM they would go to police after she spoke to CL’s father. She took KM to the police station after MM went there to make her statement. [ 98 ] The defendant was arrested and put on conditions.

CM encouraged him to breach the conditions by seeing and talking to her, and seeing the children on one occasion when it was his birthday and they were visiting his father in hospital. The defendant was arrested for breaching his conditions on that occasion. CM said she misunderstood the conditions but they were clear and the evidence of her notes to the defendant and conversations with his mother indicate that her encouragement was deliberate.

It is clear she believed she would be in trouble with the Ministry if she was seen to be condoning contact between the defendant and the children. [ 99 ] CM confronted the defendant about the allegations. It was her recollection that he said he was willing to take a lie detector but that his lawyer would not permit it. He told her KM was lying and he would never do that and that MM was pissed off because of what he had said about her father. He also told her, she said, that he had massaged MM’s back.

CM had asked why would she say this, and the defendant said he had never done anything, never touched her at all, that all he had done was massaged her back. CM asked him, “If she didn’t like it why keep doing it?” and he responded, “I don’t know.” [ 100 ] CM said she had seen the defendant massage her back when she was younger, maybe about 8 but not after that, as she recalled. [ 101 ] In cross-examination, CM said she had not noticed anything that would indicate to her that MM was being abused. She didn’t know what signs to look for, and has researched it later, but it came out of the blue.

She agreed MM had been expressing hatred of D for some time, and had said 6 weeks before the disclosure that she would do anything to get him out of the house. Some of MM’s friends had told CM she wanted him out. [ 102 ] CM said that MM pranced around with few clothes on and she would have expected her to cover up, if she was being abused. She became aware that MM had talked to friend about it the year before. CM was concerned it might be a means to an end. The police told CM that MM said she had learned that this was wrong after getting sex education in school.

CM told the police that she didn’t know how that was possible because she had talked to MM about this a long time ago. CM believed they had an open relationship and MM had told her other events, before that. She was very concerned her dislike of D was at the root of this. [ 103 ] CM said that the officer who interviewed her, Cst. Dick, provided some explanation or rationalization for each of her concerns. [ 104 ] CM asked MM if she could wait before going to the police until the defendant’s E.I. came in, because if she went straight to the police, he would withhold it and they would be evicted.

They were on a waitlist for BC Housing, where he could not live with them. They had applied initially in 1997, but there were errors with the files at BCH and she had to reapply in 2007. [ 105 ] CM was not consistent in her evidence as to whether the defendant had a key to the residence. It became apparent that she was reluctant to agree he had been living there, likely because she was collecting social assistance and child support on the basis that they were not living together for most of the relevant time frame.

The defendant’s mother’s evidence later supported a conclusion that the defendant rarely actually lived there for any length of time. [ 106 ] It also became apparent that CM was significantly motivated by money, more so than might be considered natural, perhaps because of her addiction struggles. [ 107 ] CM felt that the defendant’s mother was blaming her for all of this. She believed it was the defendant’s fault that her children could not come home. She felt it would have been solved if he had just gone in to the police and done a lie detector test. The kids could have come home.

[ 108 ] CM recalled that the defendant wasn’t arrested until the Sunday evening after she and the girls had made their statements to the police. She believed they went there because she or his mother had called them, saying the defendant was threatening suicide. MM called the police and told them where she thought he might be going. She understood that they found him at home. [ 109 ] CM said she was put under a Ministry supervision order “because of all of this crap”. [ 110 ] CM identified a number of notes she wrote to the defendant around the time of his arrest.

In one she encouraged him to surrender himself, saying, if he was telling the truth he had nothing to hide. Defence sought to elicit what the defendant had said to CM that prompted the statement in her note. Although the Crown had led what the defendant said to CM about the allegations after she spoke with MM, this statement was disallowed on the basis that it would be self-serving. [ 111 ] CM wrote several notes to the defendant and made several telephone calls to his mother’s residence, all in violation of the bail conditions, and in many she was seeking money from the defendant.

CL [ 112 ] MM’s friend CL testified that she was on the bus with MM when MM whispered into CL’s ear that D had been sexually abusing her. [ 113 ] CL asked MM what he had done to her, and she just told her that he had crawled into bed with her, one night. She gave no detail of what he had actually done. When CL asked, she changed the subject. CL suggested she should go to the police but MM said she would do that later. CL later told her mother and JB a few weeks later.

CL and JB arranged for MM to meet them for lunch and talk to JB. [ 114 ] CL perceived that MM and the defendant never really got along. [ 115 ] In cross-examination, CL said MM talked to her about the defendant before she ran away from her mother, which happened before MM spoke to JB. CL perceived that MM got annoyed with the defendant or her family about small things, that she seemed jealous of her sister. [ 116 ] She said that MM told her about the defendant about 6 weeks before she set up the lunch with JB, and it was her idea to set up the lunch, but she could not explain why she waited.

On the bus she had asked MM what she meant by sexual abuse and she could not articulate that. She also agreed that MM had told her she did not want to go to the police until they got the defendant’s money. It appears this was before she told her mother about the allegations. Cst. Gueulette [ 117 ] The officer’s testimony added little in terms of the issues that need to be decided in this case. It is notable that she told CM that KM had made a disclosure, though as I have said in my view the interview was equivocal. She also told CM about what MM told her.

They talked to CM about keeping the defendant away from the kids and getting him to come in to the detachment. [ 118 ] In cross-examination Cst. Gueulette agreed that she had not told CM, MM or KM not to talk to each other about their statements after they were taken. She agreed she had given CM a brief

summary of what KM said. This she described in her testimony, under oath, as KM having said that she was touched over and under her clothing, but admitted later that was wrong, that she was in error, and had just had an inaccurate recall of the interview. [ 119 ] She said she did not believe that she had told CM that KM had said she was touched under her clothing. Unfortunately, Cst.

Gueulette did not bring her mistake to the attention of the Court until she was asked about it in cross-examination, when several days had passed since her erroneous statement. [ 120 ] Defence counsel also highlighted in cross-examination the fact that although KM said in her statement that her mother told her that her father touched her while she was sleeping, she did not take steps to ensure that was canvassed with the mother in an interview, although she knew Cst. Dick was going to take a statement.

In fact we have no interview or information regarding what CM said to KM before the police interviewed KM, and how much the child may have been coached. [ 121 ] Cst. Gueulette also agreed that she had not followed up on the stained pants after MM said it was not semen on them, nor had she investigated the living arrangements or residences of CM and the defendant during the allegation period. There was also some discussion about several somewhat remarkable statements made by Cst. Dick in her interview of CM.

The Defendant [ 122 ] In short, the defendant had significant admitted memory difficulties due to an ongoing struggle with a heroin addiction and his participation on the methadone program. In this he was not unlike CM, except that he says he has been clean since his birthday in July, and he appeared when he testified to be free of current substance abuse, whereas she did not. He has a support network from a church he attends, some of whom attended Court with him. His mother also testified as part of the defence case. [ 123 ] The defendant’s evidence may be summarized briefly as follows.

He was raised in North Vancouver and is currently 35. He

admits to a criminal record, involving a robbery at age 18 years old, to which he pled guilty and received 4 months in jail. He stole fordrugs and had a habit at that time consisting of cocaine and marihuana. He received treatment and remained clean for 6 years after that. [124] At 27 he resumed using cocaine and started heroin. He met CM just after that. CM got pregnant within the first couple ofmonths. Seeing the ultrasound triggered the defendant to use again. He was in treatment when KM was born.

He did not know at thetime that CM was using, but was aware she was on methadone. [125] The relationship with CM was on and off. She decided when he could stay with her. She was in charge of finances. They hadups and downs.

During the last few months together they were both using heroin. [126] The defendant had a good relationship with MM at the beginning but it deteriorated, and by the time she was in high school itwas difficult. [127] The defendant has done some soul searching about the allegations, and has concluded that MM was upset with him for anumber of reasons, and having heard her evidence and CM’s about the reason they kept him around and wanting to get into BC Housing,he assumes that MM has made the allegations out of spite and to help her mother improve her situation.

He was aware that CM hadapplied for BC Housing, and assumes they have received it since the offences came to light. [128] The defendant says he used to cuddle KM but he never did that with MM. In more recent times, he would sometimes tell her toput clothes on when she would prance around in underwear and a t-shirt. MM would tell him off, or CM would tell her to put moreclothes on. [129] As to his physical play with KM he says he never touched her in an inappropriate manner or sexual manner of any type. Ifanything happened, it was by accident.

He thinks she is just confused because of what MM has said, that she wants the attention, andnotes that in the video statement she said it was accidental. He does not remember any of the touching she says occurred. He says thebunk bed was too small for him to lie on the top or the bottom. [130] The defendant knew at the time when the allegations came out that MM wanted him out of the house based on what she said tohim, and her behavior.

It got worse after she saw her father in Winnipeg one summer; her attitude became completely different whenevershe saw her dad. [131] CM always made it clear that if she had to choose, her kids came first, and he left the decision to her. There was a lot of conflictwith MM in the few months before the charges arose. Some of this revolved around MM’s eating habits and stealing. MM often told thedefendant he was not her father. [132] MM was having trouble attending school in the year or so before the allegations.

MM and CM had a good relationship but thedefendant’s and CM’s drug use was not helping, [133] The defendant said he never lay down to cuddle with MM or give her massages. She was not his daughter and he didn’t feel itwas right. [134] The defendant admitted to having some trouble with dates and addresses but said he was very clear that he never touched KM orMM in any sexual fashion whatsoever. [135] He admitted to having had an arrest for shoplifting in February 2012 and another prior one. Neither resulted in charges.

He saidin direct evidence that he had not had any more trouble with the law, which was arguably inconsistent with those encounters. [136] In cross-examination, the defendant admitted that the odd time he would have affectionate hugs with MM. He may have readher books as a child. They never cuddled in front of the TV and never in bed. He sometimes lay beside KM or sat beside her while shewent to bed. MM always went to bed later. If KM was on the top bunk, he might stand beside her and talk her to sleep. [137] Some time prior to the disclosure MM told him and CM that she had snuck out to meet her boyfriend.

It bothered him when MMpranced around in her underwear and he asked her to put clothes on or asked CM to ask her to do so. JM [138] The defendant’s mother testified, but added little except more specifics regarding the living arrangements between the defendantand CM and some of the chronology. She characterized the relationship with CM as on and off. [139] JM recalled dropping the girls off at school the day they made the disclosure. She drove them with the defendant to theirschools, and thought they seemed happy.

MM had been off school at that point for 3 days, but JM did not know why. [140] The defendant called her to come and pick him up the day the police wanted to come and charge him and give him his bailterms. She confirmed the phone calls from CM about getting money from the defendant after his arrest, and the birthday visit in breachof the bail terms. Submissions [141] The Crown submits that the issue is credibility, such that the principles of R. v. W.(D.), (SCC), [1994] 3 S.C.R.

521 apply. The complainants are of course both children. She reminds the Court of the standard relating to the assessment of childwitnesses; that in assessing their credibility the Court must have regard to their particular individual characteristics: R. v. Horton, 1999BCCA 150, para. 20a. Children are not assessed according to adult standards, inconsistencies should be assessed in accordance with theage of the child at the time when the alleged incident occurred. Details as to time and place, descriptions of clothing and etc. may oftenbe missing, yet may be attributed to the age of the child.

The Court is to have regard to whether the essential elements are relatedconsistently in the video and at the trial. R. v. B. (G.), [1990] S.C.R. 30; R. v. W.(R.), (SCC), [1992] 2 SCR 122, p. 16;R. v. W.G.B. 2001 BCCA 230, para. 16. [142] The Crown submits that the video statement of KM is a key piece of evidence submits the Crown, permitting an assessment ofher evidence at a time closest to the events in question: R. v. C.C.F (SCC), [1997] 3 SCR 1183. Once admitted it isevidence and must be taken with the child’s viva voce evidence.

The whole must be considered. [143] Once the video is admitted, the circumstances as to the taking of the video, timing, and contradictions do not render the partsinadmissible, though it may be given less weight. The Court may conclude that inconsistencies are insignificant. [144] Ms. Verrier, in her able submissions, urges the Court to look at things like behaviour changes in the child, and confirmation ofperipheral details. She submitted that the consideration of credibility will come down to whether there is a motive on the part of the childto lie.

I queried whether this was a factor the Crown could rely on, but Ms. Verrier clarified that where the defence raises an allegationthat the child has a motive, it is one of the factors that the Court must look at. [145] The defence here, she submitted, is that MM has a motive to lie, animus toward the defendant, based on something other thanwhat she says occurred. She also anticipates that the defence will assert that the mother has a motive to encourage the allegations. [146] Crown Counsel submits there is no indication of coaching of MM by the mother.

Nor was it put to MM that her testimony wasprovoked by pressure or improper motives. There can be no motive for her to have come forward, in the Crown’s submission, norinfluenced by the mother. [147] Ms. Verrier points to the family dynamic at the time of the allegation. A lot of the case centred on that between the accused andCM, but served to obfuscate the main issue of whether the complainants were sexually abused by the defendant. CM was financiallydesperate and caught in the middle regarding her feelings for the defendant. She hoped the allegations were not true and could notbelieve it was happening.

She still loves the accused and breached his bail terms by contacting him. [148] There was no reason in light of those circumstances, Crown submits, for CM to coach her daughters to lie or to tell KM herfather touched her in the night. She submits there is no evidence of collusion between the girls or the three. [149] Ms.

Verrier summarized the evidence of KM on the video, and submitted that it may be accepted as a disclosure of sexualtouching and is therefore supportive of the allegation of her sister, MM. [150] As to MM, the Crown submits that it should be considered in context of her age at the time the events were alleged to haveoccurred. She was consistent regarding the addresses they lived at and the sleeping arrangements.

She said she didn’t figure out it waswrong until the end of grade 7, and said the last time was around October 2010. [151] The Crown submits as well that it was not MM’s intention to go to the police, in that she did not expect to do so when she wentto see JB, and this supports a conclusion that MM was not motivated by wanting the matter to go to the police.

She also points to the factthat MM did not say she had seen the defendant touch her sister, which one would expect her to say, if she was fabricating her evidence. [152] In relation to the evidence of the defendant, the Crown says that he is overstating the amount of control that CM exerted overhim and the finances. She points to his failure to ask for a key, and his habit of collecting bottles before CM asked him to do it for thefamily. She says he was trying to make the case about CM.

She says he minimized a lot of his transgressions; his cheating on CM; hiscriminal involvement; the reasons for breaching the bail; whether CM was the supervisor. [153] Crown says he had the opportunity because he was with the children without CM on occasions. She says he is inconsistent inhis evidence around MM’s relationship, saying it was good, and then trying to minimize it. He agrees with MM’s evidence regarding thetiming of MM’s change in attitude toward him, that being the period when she realized it was wrong.

Crown submits that a dramaticchange is corroborative and the defendant didn’t try to get to the root of it because he knew the problem. [154] The Crown submits that the defendant also minimized his relationship with his own daughter, which is inconsistent with KM’sevidence that he tucked her in pulled up the blankets, and touched her. Crown says he is tailoring his evidence to address that of thewitnesses. The timing fits, she says, and there is no motive for MM to raise these allegations.

She says it is telling that MM started tohate only the defendant and not her mother, which would be a normal teen reaction if her behaviour change was attributable only toadolescence. [155] Ms. Adams for the defendant filed thorough and well prepared written submissions. Given the view I took of the matter, I didnot require her to repeat them orally. Analysis [156] As I have said, the defendant denies the offences. The issue as I apply the law is whether there is evidence independent of thewitnesses which establishes that his denial is a lie.

[ 157 ] I will deal first with the evidence of KM. I have highlighted some of the problems with her evidence in my

summary of it. In my assessment the form of questioning in the police interview obfuscated the evidence of the child and failed to clarify it in several material respects.

While I would not say there was any bias displayed, the interest of a police interviewer who has received a prior indication that there is a complaint is probably less than neutral. [ 158 ] I would say in this case it is more that the interviewer is unskilled, with all due respect, and did not permit the child to answer open-ended questions as much as she should have, did not clarify what she meant by the crucial aspects of her allegations about touching, and was not alert to the apparent discomfort of the child or her obvious desire to “get the answers right”.

There was also no exploration of the issue of coaching by the mother, about which I will have more to say in my assessment of the mother’s evidence. [ 159 ] I would have concluded that the evidence of KM was equivocal as to whether any kind of sexual touching could be inferred from it, even without hearing the mother about the manner in which her complaint was elicited.

Although I agree with the defence concession that the videotape was probably admissible, the manner in which the interview was conducted, the statement on the video, and the evidence of the child, all militate against a reliable conclusion that there was any sexual touching at all in relation to this complainant. [ 160 ] Because I have found that the younger complainant’s evidence and statement are equivocal, the case amounts to an assessment of credibility as between MM and the defendant.

As I said at the outset, the question is whether there is support in other evidence for the allegations of the complainant, or, whether there is a basis within the defendant’s own testimony on which to found a conclusion of guilt. [ 161 ] In relation to MM’s evidence, as I have summarized it above, I noted the following frailties: • Inability to articulate some of the acts complained about – of course this may relate to age and be considered in that context; however, she was 14 when she testified and the evidence establishes that she knew the term “semen”, knew about “hand jobs”, and may have had a boyfriend that she snuck out to meet. • MM said she never saw the defendant without his shorts on, which makes her allegation that he attempted to have intercourse with her somewhat difficult, particularly given her inability to articulate what she meant by that general assertion.

Again, I consider that evidence in the context of the witness’s age at the time of the allegation, but again, it is inconsistent with her later somewhat unsolicited evidence that he would “wipe it off” on any available object. • There were significant inconsistencies in MM’s evidence about when she came to believe KM was being abused. • Her explanation for not coming forward was that she didn’t know until the end of grade 7 that it was wrong, yet she did wait for 7 or 8 more months after that time, without much by way of explanation.

While I acknowledge there are any number of reasons a young complainant may be reluctant to come forward, MM’s assertion of naiveté as the reason for her reluctance is inconsistent with the concern on her mother’s part that the semen on the pants might be her boyfriend’s, and her admission that she had snuck out to meet him some time prior to the disclosure. • MM learned after the end of Grade 7 and before the disclosure that her friend’s father had to leave when an allegation was made against him. • MM’s statement to CL about what happened to her is inconsistent with her statement.

Her statement to the police was also inconsistent with her evidence in many respects. Again, I am mindful of the manner in which children’s evidence is to be assessed; nonetheless, it is incumbent on the Court to be cognizant of difficulties in the evidence. • More importantly, there were established motives for MM to want to report malfeasance on the part of the defendant. She wanted him out of the residence. She was aware that a police report by a friend’s mother had had the desired result.

She was aware that her mother wanted to be in BC housing and that the defendant would not reside there with them. [ 162 ] It is important to note that in a case of this type, it is not necessary for the defence to establish motives to fabricate on the part of the complainant. Nor is it relevant that the frailties in a child’s evidence may be explained by the characteristics of the child. The cases relating to the assessment of children’s evidence for the most part address situations where the defendant did not testify.

A child is on no stronger footing than an adult witness in a case which amounts to a credibility contest. A complainant, whether a child or an adult, may be completely credible; yet if there is no independent support for the Crown theory, a simple denial will often, and if unchallenged, must result in an acquittal. [ 163 ] Here, the only suggested independent support for MM’s allegations is that the defendant may have admitted to CM that he gave her a massage, when he now denies it. The theory of the Crown would be that this denial is founded in consciousness of guilt and with the other points Ms.

Verrier raises, should support a rejection of the entirety of his evidence. [ 164 ] However, the defendant denies this conversation, or at worst, does not remember it. The impact of the evidence of the defendant’s admission of a massage is therefore dependent on the reliability of CM’s testimony. It was clear from CM’s testimony, demeanour and the extraneous events as established in the evidence that she is struggling with recovery from a substance addiction. She is admittedly on methadone, but I had difficulty concluding that it was the only substance she was struggling with.

Her condition deteriorated visibly over the months during which she attended court on continuation dates. [ 165 ] It was apparent CM was very bonded with her children and very conflicted about her allegiance to the defendant. She was very reluctant to accept what MM told her about the defendant’s behavior. Her delay in going to the police led to Ministry involvement, which complicated matters. Of course allegations of this type must be accepted at face value by child protection authorities and treated accordingly.

Families are rent apart, children are displaced; of necessity; whether or not the allegations are true, or even credible. And the wheels of justice are brought to bear, presenting a seemingly interminable path to a result that can never fully resolve all the issues

that have arisen, whatever the outcome. [ 166 ] There were serious problems with CM’s evidence. Whatever the gist of the conversation she had with the defendant, she came out “hoping this was all bullshit” in her own words. It was established in cross-examination that there were occasional family hugs and touching, in the early years, involving MM. [ 167 ] An admission of a massage is a classic minimization technique of a person who is guilty of sexual abuse. The Court hears it from time to time. It is a device to diffuse scrutiny, thought somehow by a misguided mind to be more palatable than a flat denial.

Sometimes it is a telltale sign; a dead giveaway; for instance, where there is no familial relationship between the defendant and the complainant. [ 168 ] That is not the case here. Firstly, I am not satisfied that conversation occurred as related by CM or was properly fleshed out. Her recollection was so faulty in other areas that to hang a conviction on her version of what was said in that conversation would in my view be dangerous.

I note in particular that she could not remember the details of either what MM told her, or what KM told her; details that to a functional mother would have been etched forever in her memory. [ 169 ] I acknowledge that she probably heard what she wanted to hear from the defendant, but I am unable to find she heard anything close to an admission. Even if he did admit to massaging MM and now denies it, it may have just been a massage. He and MM were in a familial relationship, and there is evidence that there had been familiar contact in the past.

It does not prove or support the balance of her evidence, which he flatly denies. [ 170 ] The defendant’s propensity to shoplift also does not assist the Crown, nor does his failure to bring it up in his examination in chief. None of that or any of the other points raised by the Crown affected his credibility sufficiently for me to conclude he is obviously or reasonably also lying about his innocence in this matter. In particular I did not find that he obviously tailored his evidence, as submitted by the Crown. [ 171 ] It is unfortunate that there cannot be certainty here.

That is not the function of a criminal court. The case is in my view rife with reasonable doubt. What the investigation has done to the family is tragic. If the offence did occur, it should have been proven properly, without sacrificing children to the altar of “justice”. What am I to do with what amounts to a simple credibility contest? There is no forensic evidence; DNA; a signed confession; a witnessed transgression.

Ten days of court time have been spent here, and all it has achieved is the further destruction of what seems to have been a potentially functional family. [ 172 ] There is unfortunately no alternative in our current system, where such an allegation comes to light, whether it is reliable or not. The Ministry wheels are set in motion, the family is rent asunder, never to be reassembled in quite the same way. If only the resources existed to establish the truth, at least it might not all be for naught.

Unfortunately if those resources exist they were not brought to bear in this particular case. [ 173 ] The charges are dismissed. ________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia