R. v. G.H., 2019 MBPC 33

CITATION: R. v. G.H. , 2019 MBPC 33 THE PROVINCIAL COURT OF MANITOBA Garden Hill Centre BETWEEN Her Majesty the Queen ) K. Anderson, for the Crown ) - and - ) ) G.H. ) J. Corona, for the Accused ) ) ) Judgment delivered: May 22, 2019 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. C.A.

DEVINE, P.J. (Orally) [ 1 ] G.H. is charged with sexual assault and sexual interference between January 1, 2003 and January 1, 2006 against his granddaughter, D.H. The Crown called one witness, the complainant, and Defence called one witness, the Accused. Something should be said about the difficulty that both these witnesses faced in communicating their evidence to the Court. With respect to D.H., she had difficulty in answering questions without long pauses.

D.H.’s ability to answer questions more quickly is slowly returning, but it was still obviously quite difficult for her to speak as required in answering questions posed to her during the trial. She is now 19 years of age. She turns 20 in July of 2019. She presents as a much younger teenager. A discretionary order for a screen and support person was made. [ 2 ] G.H. is 57 years of age. His first language is Oji-Cree, and although he speaks and understands English, he has better facility in his own language.

I was assured by defence counsel that the trial could be conducted in English without the use of an Oji-Cree interpreter. I clarified matters with him where I thought he may have misunderstood questions, or where I was not clear about the meaning he wished to convey. I am satisfied that G.H. understood the proceedings and the questions posed to him as a witness sufficiently that he had a fair trial. [ 3 ] D.H. now lives in Winnipeg in a foster home. She grew up in Garden Hill with her six siblings - three sisters and three brothers. She had grandparents in Garden Hill.

G.H., the accused, is her paternal grandfather. He is not her grandfather by blood, he was married to S.H., her father’s mother, but G.H. was step-father to S.H.’s three children including the complainant’s father. The home of S.H. and G.H. was virtually next door to the complainant’s house on the reserve. She testified that she saw her grandfather almost every day. She visited there lots of times and she slept overnight lots of times. She went there with her siblings and she also went on her own. [ 4 ] G.H. and his wife lived in a trailer with one large room with one or more bedrooms at either end.

The living room area has a television and two couches. The description of the trailer was provided by both D.H. and G.H. G.H. testified that it is 20 by 30 feet. [ 5 ] D.H. moved to Winnipeg when she was 16 years of age. She first disclosed the sexual abuse to a counsellor in Winnipeg.

She testified that after she told her counsellor, someone told the RCMP and then one and a half years ago she went to Snowflake Place in Winnipeg and was interviewed by a professional interviewer, Theresa, about what happened. [ 6 ] D.H. testified that her grandfather touched her vagina under her clothing when she was five or six years old, and although she testified that, “It felt like lots of times,” she testified to “two or three times.” [ 7 ] In her testimony, D.H. provided detail about two different incidents. Both times she described it occurring in the living room in her grandfather’s home on the couch.

The television was on. She testified that her grandfather put her on his lap on the couch and then put his hand down her pants - she thinks jeans - and panties, and touched her vagina, wiggling his fingers around. She thinks that she had been playing with toys before it happened. [ 8 ] On one occasion after he stopped, he smelled his fingers and was laughing.

She testified that there was no one else in the living room although there were other people in the house including L.H. (the Accused’s daughter) who is only two years older than the her, and her grandmother S.H. [ 9 ] The other time that her grandfather touched her vagina, she said that L.H. and her younger sister, S.H. were sitting on the floor

between the kitchen and living room playing. She thinks there was a chair between her and them; she could only see their heads. They weren’t looking at her and they did not say anything. [ 10 ] She could not remember the time of year or if it was light outside. She was not sure if it was day or night. She could see in the room. [ 11 ] In terms of other men who may have had access to her as a small child, D.H. testified that the only other men she saw in the house were her uncle John, Clark Harlos, who is related to G.H., and Arthur, who is Shannon’s husband. She testified that they were at the house sometimes.

But she testified that they did not do this. She testified that she saw who did this, it was her grandfather. She saw his face and his whole body. She identified him in court. [ 12 ] When D.H. looked at and identified G.H. in court, she was visibly shaken – her body instantly moved backwards in her chair. She said he looked scary. She became upset after identifying him and needed to take a break. [ 13 ] She did not remember that she had not told the interviewer Theresa that L.H. and S.H. were there or that she was on the Accused’s lap.

She also did not tell the interviewer about the Accused smelling his fingers and laughing. It was suggested to her on cross-examination that she did not remember this and was confused about it. She was unshaken in her testimony. She testified that she was not confused. She insisted that she slept there overnight. [ 14 ] She testified on re-direct that she was uncomfortable when she testified at Snowflake Place. She testified that between that time and now there is a difference in terms of how she talks to people.

She testified that she used to take a very long time to answer questions and it feels different now in terms of answering questions. [ 15 ] G.H. turned 57 on May 6 th . His first language is Oji-Cree, although he declined needing a translator. It is clear his comfort is not in the English language and I take that into account when assessing his evidence.

For example, he referred to his three step-children as foster children; clearly he was not a foster parent, but rather a step-parent to his wife’s three children. [ 16 ] He testified that D.H. and her brothers and sisters would come to his house for food because they were starving; the parents would use the family allowance for booze and their mother took off all the time. [ 17 ] He testified that the kids never came at night. Only one time D.H. slept there.

He said he never touched her. [ 18 ] He also testified that the television was on in the living room. [ 19 ] He said once a week the kids would come to his place for food. Their mother took off all the time, every night. He went to the Band Constables to get help for the kids and then he called the Band Constables. [ 20 ] The kids would play outside around his place. He then testified that the other kids were the ones who came for food, never D.H. He said several times, “I never bothered her.” Then he testified that D.H. did come to his place. He said none of the kids ever slept there.

Then he testified that sometimes the kids came in the house during the day, sometimes he was there. He said some kids were inside and some kids were outside. He said he made them supper, soup and bannock. He said sometimes a lot of the kids were there watching a movie. He testified that there were no other toys just a video game. He said the kids never brought their own toys. He said he sometimes sat on the couch with the kids. He said he sometimes considered them his grandkids. [ 21 ] He said he never held a grandchild on his lap, and then said sometimes he held one on his lap.

He said he was working all the time. He said the kids never came at night only mornings and afternoons. He said that he never did this. He was asked if he ever drank and he said yes, he went to residential treatment in Sagkeeng with his wife 15 years ago and that helped. He went so he could get a job. Issue [ 22 ] There is no question that the acts complained of constitute sexual assault and sexual interference in law. The only issue in this case is whether the behaviour alleged by the complainant took place.

I must resolve this by an analysis of the credibility and reliability of the evidence of the two witnesses, D.H. and her grandfather. The Law with Respect to Children’s Evidence and Adults Testifying to Childhood Events [ 23 ] The events that D.H. testified to took place between 13 and 15 years ago, when she was five or six years of age. [ 24 ] In this case, the defence cautioned me to be loathe to convict because the Crown’s case was entirely based on the evidence of D.H. about events that occurred over a decade ago when she was a very young child.

The grounds raised by Defence were: - to be very cautious about convicting on the basis of children’s evidence, - the absence of forensic evidence or other corroboration, - the delay in reporting, - the inherent difficulties five year olds have “grasping truth and consequences”, and - the danger in believing testimony of adults about childhood events when they were five years old. [ 25 ] Underlying several of these concerns are myths about sexual offences and children’s evidence that no longer form part of the law in Canada. [ 26 ] Children’s evidence is no longer considered to be inherently unreliable.

It is not necessary to treat all children’s evidence with

special caution. I am aware however of the requirement that there may be special attention paid to the reliability of a witness’ testimonywhen they are testifying about childhood events. (R. v. Sanichar, 2012 ONCA 117 per Laskin JA dissent, upheld 2013 SCC 4). [27] Secondly, it is no longer required that children’s evidence be corroborated. [28] Justice McLachlin (as she then was) explained these changes to the law in R. v.

W.(R)., (SCC), [1992] 2 S.C.R.122 at paragraph 24: Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence ofyoung children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of thenotion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to betreated with special caution. Thus, for example, the requirement that a child’s evidence be corroborated has been removed: s. 586 of theCriminal Code, R.S.C. 1970, c.

C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifyingunsworn, was repealed by

An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1,1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, havealso been eliminated. The repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent thejudge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case.

But it doesrevoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable thanthe evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of theparticular case, it will have fallen into an error. [Emphasis added] [29] Thirdly, the doctrine of recent complaint has been abrogated.

In W.(R.), Justice McLachlin criticized the Ontario Court ofAppeal’s reliance on what she described as: . . . the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which foundexpression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuseoften in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed. (At para. 31) [30] Similarly in R. v.

D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275, Justice Major discussed many reasons why victims do notdisclose sexual abuse shortly after it occurs: . . . there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave. Some will make animmediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many andat least include embarrassment, fear, guilt, or a lack of understanding and knowledge.

In assessing the credibility of the complainant, thetiming of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standingalone, will never give rise to an adverse inference against the credibility of the complainant. (At para. 65) [31] The law of evidence has also developed in the past three decades to appreciate that children are not little adult witnesses, suchthat the approach to admitting and considering their evidence must be different.

Justice McLachlin stated in W.(R.) at para. 31: The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives of children.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. [32] This does not change the rigorous analysis of evidence with respect to credibility and reliability that is necessary to ensure thatan innocent person is not convicted. The standard of proof remains, whether the complainant is a child or an adult. (W.(R). at para. 26): . . .

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. (At para. 27) Also see R. v. Storheim, (24 January 2014) Winnipeg (Man.QB.) at 24. [33] The judge must also consider what effect the passage of time has, a witness’s vulnerabilities due to her age, and the factualcontext at the time the events allegedly occurred, following the Supreme Court’s direction in R. v.

R.P., 2012 SCC 22 at paragraph 17: . . .

It is up to the judge who sees and hears a witness to determine what effect the passage of time might have had and how vulnerablethe witness was in light of his or her age and the factual context. [34] Justice Mainella stated in Storheim that “it is important to consider the witness's ability to accurately observe, recall, andrecount historical events.” (At p. 24) Reasonable Doubt and the Approach to Analyze Evidence in Canadian Law [35] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [36] Many evidentiary and procedural rules support the presumption of innocence.

In determining whether a person is to beconvicted or acquitted of a criminal offence, the onus on the Crown is high. The Court must be satisfied of the accused’s guilt, on the

whole of the evidence, beyond a reasonable doubt (R. v. C.L.Y. , 2008 SCC 2 at paras. 6-8 ). “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” ( R. v. Vuradin , 2013 SCC 38 at para. 21 ). [ 37 ] The Supreme Court of Canada in the R. v. W.(D.) decision stated that the mind must be convinced and the conscience must be satisfied as to the Accused’s guilt.

Any lingering or nagging doubt must be resolved in favour of the Accused. ( W.(D.) at para. 8). [ 38 ] In order not to lose sight of the proper approach to be taken in such a case, to avoid a human tendency simply to compare and choose which evidence is preferable, the Supreme Court provided direction to trial judges, in W.(D.) . As Justice Cameron explained the “ W.(D.) ” analysis in R. v. Menow , 2013 MBCA 72 : In W.(D.) , the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (at p. 757).

Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focused on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 39 ] The evidence of the Accused cannot be assessed in isolation.

It must be assessed in light of all the evidence in the trial. ( Menow at para. 23 ) [ 40 ] A judge must assess all the witnesses’ evidence in terms of its inherent reliability and the likelihood that the events happened as they the events happened. [ 41 ] Justice Mainella provided a practical guide for considering how to analyze witnesses’ credibility in Storheim : Some of the things to consider are: did the witness seem honest? Is there any reason why the witness would not be telling the truth? How did the witness appear when giving evidence?

Was the witness forthright and responsive to questions, or was he or she evasive or hesitant? Was the testimony of the witness reasonable and consistent, or did the witness contradict himself or herself? Was the witness's testimony consistent with the testimony of other witnesses? Do any inconsistencies in the witness's evidence make the main the points of the testimony more or less believable and reliable? Did any inability or difficulty the witness had remembering seem genuine or did it seem made up as an excuse not to answer questions?

Was there something that helped the witness remember the detail of the event that he or she described? The incidents that gave rise to these charges occurred 28 years ago, and the lapse in time may affect one's ability to recollect all of the events in detail. This, of course, does not mean that the witness is not attempting to give an honest recollection of events. (At p. 32) Analysis of the Evidence in this Case [ 42 ] G.H. denied the allegations, specifically stating, “I never did it.” His evidence on direct examination was brief.

More evidence, and then inconsistencies, emerged during cross-examination. [ 43 ] He initially testified that D.H. would “sometimes” come to his house for food because she and her siblings were starving, when the parents routinely spent the money on alcohol. On cross-examination he testified the kids would come over once a week for food. He testified he would make soup and bannock for them. He testified that sometimes he would call the Band Constables because no one was looking after the kids. Later in cross-examination he testified that D.H. “never” came for food, only the other kids.

Then he testified that D.H. came too. He said she would eat and “then leave right away.” [ 44 ] He then said, “I never bothered her. I never bothered her.” [ 45 ] He initially testified on direct examination that it was not at night. He initially testified that D.H. slept there one time. On cross- examination he testified that none of the kids ever slept at his house. [ 46 ] He testified that lots of kids were inside the house and some kids were outside the house. Sometimes the kids would watch a movie. He sometimes sat on the couch with them.

When he was asked if the kids sometimes sat on his lap, he initially said “never”, then he said he sometimes hugged the kids, but quickly went on to say he was never there, and then he testified that the kids “sometimes” sat on his lap. [ 47 ] He testified that he remembers every time the kids came to his house. He further testified that he remembers everything. [ 48 ] G.H. also testified that he used to drink.

It might have been around the time of the allegations; he further testified that he and his wife entered residential treatment at Sagkeeng First Nation about fifteen years ago, so he could get work. [ 49 ] The inconsistencies about whether or not D.H. was at his house, whether she ever slept there, how often she was there and whether she sat on his lap were central issues. His evidence about this information was inconsistent.

Overall, his evidence was tailored to attempt to paint a picture where he had no opportunity to sexually assault D.H. because she was not in his house or did not sit on his lap or did not sleep there or ate the food and would leave right away. [ 50 ] It was not credible.

[ 51 ] His claim to have a memory of every time the children came to his house was contradicted by his inability to keep his story straight about who was there. It is implausible for people to remember everything from 13 to 15 years ago. And it appears as though the grandchildren were at his house fairly frequently. [ 52 ] I do not believe G.H. and his evidence does not raise a reasonable doubt. [ 53 ] D.H.’s evidence was credible, cogent and compelling. Her responses to the questions were slow in coming, but clear and consistent.

The evidence was simple and straightforward, very much like one would expect about memories from when she was five or six years old. The quality of her testimony therefore rendered it more credible. [ 54 ] Defence argued that her evidence was inconsistent because she said it happened two or three times but she provided detail of only two different occasions.

I have considered this and have come to the conclusion that it is not an inconsistency that causes me concern, given that these are memories of traumatic childhood events from when she was very young. [ 55 ] I have no reason to think her memory was unreliable. There was no examination of the quality of her memory nor her ability to discern the truth from fiction. [ 56 ] I have considered D.H.’s evidence both for its credibility and reliability. I have already stated that I believe her evidence was credible, and why I found it credible. I also found it reliable.

Notwithstanding she was a young child at the time of these events and over a decade has passed, there was nothing brought out in her evidence to convince me that her evidence was unreliable. [ 57 ] She testified about what happened to her simply and to the point. The detail about the Accused wiggling his fingers and then smelling them and laughing is a detail that has an air of reality to it, because it is unusual. She did not give this detail in her interview at Snowflake Place. I accept that she was better able to communicate at the time of the trial than a year and a half earlier.

I also accept that she was not asked specific questions during the Snowflake Place interview. It is not uncommon for additional details to emerge from childhood sexual abuse.

It does not mean that those details are incorrect nor does the fact that people testifying provide the detail much later affect their credibility on other evidence they did give earlier. [ 58 ] I am not convinced that the additional details D.H. provided at trial – the details about the fingers, the detail that she thought she was wearing jeans, the detail that her sister and cousin were playing in the room one time when this happened and the detail that she was sitting on her grandfather’s lap – are unbelievable or should not be believed.

They are simply additional details she has remembered or been able to voice at trial but was unable to earlier. [ 59 ] There is no evidence of any motive to lie about these matters. This would be unlike a situation where there is evidence the victim hates the accused or has previously denied that the events occurred. ( Sanichar ONCA at para. 77) [ 60 ] D.H.’s evidence about who did this to her was clear and unequivocal – it was her grandfather.

Her reaction to identifying him in court was consistent with seeing someone who had abused her. [ 61 ] I believe the evidence of D.H. that her grandfather sexually assaulted and sexually interfered with her on at least two occasions when she was a young child. Both times she was sitting on his lap. He would open her pants and put his hands inside her pants and panties and digitally wiggle his fingers around on her vagina.

One time he smelled his fingers and laughed after doing this. [ 62 ] I find G.H. guilty of the offences of sexual assault and sexual interference. [ 63 ] I will hear from counsel with respect to Kienapple. “Original signed by:” C.A. DEVINE, P.J.