R. v. C.T. Date:, 2011 BCPC 38

Citation: R. v. C.T. Date: 20110127 2011 BCPC 0038 File No: 5791-2C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.T. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: G.R. Lindsey Counsel for the Accused: S. Paterson Place of Hearing: Chilliwack , B.C. Date of Hearing: Jan. 24, 25 and 27, 2011 Date of Judgment: January 27, 2011 [ 1 ] This case began on Monday of this week, continued Tuesday and today. The evidence is all fresh. I do not, therefore, propose to repeat it at length. [ 2 ] First, some initial observations.

I am mindful that this like any criminal case requires proof beyond a reasonable doubt. The accused is presumed innocent. It is only if I decide that the evidence shows him to be guilty of these charges beyond a reasonable doubt that I can convict. Possible or even probable guilt does not suffice. [ 3 ] Second, the defence calls no evidence in this case. That is the right of every single accused person.

No one charged with an offence is required to call evidence to prove or disprove anything. [ 4 ] Third, this particular case concerns interactions that took place between 11 and 13 years ago approximately -- the dates set out in the Information. The problem here, as in all such prosecutions, is that human memory will tend to fade over time. Some details will be lost. As well, the complainant was a young child at the time that these offences were alleged to have taken place and may not have appreciated the significance of the events in the same way, or may be more prone to confusing them in retrospect.

That again is simply a part of the human condition. [ 5 ] There are really only two material witnesses as to what did or did not happen between the complainant and the accused. The

accused does not have to provide his account. The complainant has provided hers. It is important, therefore, to scrutinize her evidence very carefully. [ 6 ] There are three broad considerations that I must bear in mind when considering her evidence. Firstly, her honesty. Secondly, her objectivity. Thirdly, her accuracy. 1. Honesty [ 7 ] A witness may be honestly unreliable. He or she may be sincerely convinced that events happened in a certain way when they did not in fact do so. Hallmarks of honest evidence may include evidence of character, background or behaviour that touch upon honesty.

There is nothing in the evidence here to suggest that the complainant is particularly inclined towards telling stories or exaggerations or making up falsehoods. 2. Demeanour [ 8 ] Although this is sometimes a very deceptive indication, in this regard I find that the complainant has given her evidence in a straightforward and measured manner. She was not evasive or argumentative in cross-examination. 3.

Other examples of Truthfulness or a lack thereof that exist independently of the evidence [ 9 ] Here, there is no example before me to suggest that the complainant has ever been untruthful on any other occasion whether discussing these events or any other events. 4. Prior Inconsistent Statements [ 10 ] There are no prior inconsistent statements in this case which demonstrate a change of account or a change of recollection over time. That is sometimes referred to as internal consistency. 5. External Evidence [ 11 ] There is no reliable external evidence to contradict the complainant’s testimony. 6.

Collusion [ 12 ] There is no evidence whatsoever of collusion or collaboration between the witnesses or any other sources of improper influence. 7. Untoward Motive [ 13 ] There is no evidence here of any untoward motive or interest. In particular, since it was mentioned, I find no evidence that the complainant was motivated to protect anybody else. 8. Objectivity [ 14 ] The hallmarks of objectivity: 1. Can include assuming unproven facts. That feature is not present in the testimony before me. 2.

Sometimes it is said that partiality because of kinship, hostility or other relationships will have a bearing on a person’s objectivity. [ 15 ] I found in the testimony of the complainant no particular hostility displayed towards the accused. Her evidence in contrast was balanced. There were opportunities for her in the evidence to exaggerate things or otherwise make things worse than they occurred to her.

She did not take those opportunities. [ 16 ] Third, there is no evidence that hypnosis or any other means outside the courtroom has induced or otherwise affected the complainant’s memory of these events. [ 17 ] Fourth, there is no evidence here that the events since age five or six have caused the complainant to adopt a different recollection. [ 18 ] As to accuracy, first, although here she was young at the time, she had no physical or mental conditions that would affect her ability to observe these events. [ 19 ] Second, she knew the accused very well.

The possibility of mistaken identity does not in the circumstances before me arise as it sometimes does when parties are strangers. [ 20 ] Third, she was attentive. Obviously these acts if they happened would have attracted her attention. [ 21 ] Fourth, her recollection of collateral details, I find, is as good as one would expect under the circumstances given the passage of time.

Those details that she does not recall well tend to be minor details or details that one would not expect a child of that age to particularly take notice of. [ 22 ] Fifth, there is no air in her evidence of self-contradiction and she has obvious reasons as I have pointed out for recalling these events.

[ 23 ] Whether or not she perceived these events as unpleasant at the time, they were unusual. One would expect them to normally therefore stand out in a person’s memory. [ 24 ] In all respects, I find that the complainant gave an honest, objective, and accurate account of what she recalled taking place. She did not attempt to reconstruct or embellish her account in any way. There are no signs that she is tailoring her recollection at all. [ 25 ] I am satisfied that the events that she has testified to occurred in the timeframe that is set out in the Information.

The fact that she may have been playing with herself at a younger age is not particularly germane, in my view. The details that she did provide in her testimony have an air of reality. The details with respect to the last incident, the incident described in the bathtub in particular, are quite vivid and do not suggest confusion or fly in the face of her physical positioning in the tub. [ 26 ] The absence of corroboration, which was mentioned by Ms.

Paterson in her submissions, I do not and cannot take into account as it is not legally required and nothing in any event logically, in my view, turns on that. [ 27 ] While the evidence provided by the complainant’s mother and sister differed in some respects about the timeframe and/or the presence or absence of other people in the lives of the family, such differences, in my view, are minor in the whole picture. [ 28 ] The failure of the Crown to call witnesses, if it could be called a failure at all, in particular the complainant’s two cousins who were present in an adjacent room when the bath incident took place, does not detract from the evidence in any way. [ 29 ] There is no evidence to suggest that the complainant has misremembered the central details of these events.

On the contrary, I find that the Crown has proven both counts beyond a reasonable doubt and, in particular, I am satisfied that the four separate incidents described in the testimony of the complainant occurred within the timeframes set out in the Information. [ 30 ] I find Mr. C.T. guilty on Count 1 and guilty on Count 2. ______________________ R.C. MacKay Provincial Court Judge