2019 QCCQ 9290, 2019 QCCQ 9290

Protection de la jeunesse — 19311 2019 QCCQ 9290 JG2072 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] «Youth Division» N° : 505-41-008993-182 DATE : January 24 th , 2019 ______________________________________________________________________ PRESIDED BY : THE HONORABLE MARIO GERVAIS J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] , youth protection worker duly authorized by the Director of Youth Protection A, Applicant -and- X, born on [...], 2011 Child-respondent -and- C Mother-respondent -and- D Father-respondent ______________________________________________________________________ J U D G M E N T

Section 38 of the Youth Protection Act ______________________________________________________________________ WARNING : The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child's parents to be identified. Any person who contravenes this provision commits an offence and is liable to a fine. [sections 11.2.1 and 135 Y.P.A .] [ 1 ] The Director of Youth Protection (the Director) petitions the Court with an Application for Protection, according to

Section 38 of the Youth Protection Act , in the matter of the children Y, born on [...] 2008, X, born on [...] 2011 and Z, born on [...] 2013. [ 2 ] The Director alleges that the security and the development of the children are in danger for the following reasons: X The child is subjected to gestures of a sexual nature by Z’s father, Mr. E , and the child’s parents fail to take the necessary steps to put an end to the situation; Y The child runs a serious risk of being subjected to gestures of a sexual nature by Z’s father and the child’s parents fail to take the

necessary steps to put an end to the situation; Z The child runs a serious risk of being subjected to gestures of a sexual nature by her father. [ 3 ] The Director recommends, as key measures, that X and Y remain under the care of their parents and that Z remain under the care of her mother, with a social follow-up for one year. All contacts between the children and Mr. E are suggested to proceed in the presence of a third person designated by the Director. Position of the parties and litigation [ 4 ] Mr.

E and the parents of X and Y dispute all allegations for which the security and development of the children ought to be declared in danger. If ever the Court concludes otherwise, the measures sought by the Director are not disputed. [ 5 ] X shares the Director’s position. Her lawyer informs to the Court that X mandated her by saying that « everything that I’ve said in the video is true ». [ 6 ] Y supports the position of her parents. [ 7 ] Z ’s lawyer is acting under a legal mandate.

At the end of the hearing, she is of the opinion that the evidence produced by the Director is insufficient to support a conclusion of sexual abuse or risk of sexual abuse. The Context [ 8 ] On January 31 st , 2018, the Director retained the reports that led to the present proceedings. [ 9 ] At that date, the familial setting is as follows: ➢ The mother and her husband, Mr. D , ( the parents , for the judgment’s purpose) are the parents of A , Y and X ; ➢ The mother has another child, Z , born of her union with Mr. E ; ➢ The mother, Mr. D , Mr.

E , A , Y, X and Z live in the same house. ➢ Another child, B , entrusted to the parents as a proximity foster care, also lives with the family; ➢ Mr. D and Mr. E are long-time friends; ➢ Mr. E was romantically involved with the mother in 2012, while the mother and Mr. D were separated; ➢ For a short period of time following the resuming of the mother’s and Mr. D ’s relationship, Mr. E left the house in December 2012 and came back in July 2013. ➢ All family members’ rooms are on the ground floor except that of Mr.

E which is in the basement. ➢ During the events in litigation and until January 31 st , 2018, X use to share her room with B . X would sleep on the upper part of the bunk bed. ➢ Since that date, X shares her room with Y and is still sleeping in the upper part of the bunk bed. [ 10 ] On January 31 st , 2018, a provisional agreement between the parties provided that Mr. E lived outside the house, without seeing the children. [ 11 ] Since March 2 nd , 2018, a provisional Court Order confirmed that Mr.

E has to live outside the home but allowed him to have contacts with the children under the supervision of a third person designated by the Director. [ 12 ] In compliance of the agreement and the Court Order, Mr. E lives with his own mother. The Director’s evidence 1. The unveiling [ 13 ] During the school year 2017-2018, Mrs. F is an attendant at School A. As such, she spends three hours per day in X ’s classroom dedicated to children with special needs. [ 14 ] On January 30 th , 2018, X is upset in class, refusing to read and crying.

The attendant decides to retrieve the child and have a walk with her to discuss furthermore. Such kind of intervention is usual for classmates. [ 15 ] Along the way, the child says « I am stupid, I can’t read ». The attendant suggests to the child that she seek help at home to improve her reading skills. The child replies « No, my family doesn’t likes me ». [ 16 ] Questioned why she is saying that, the child answers « E touches me ». The attendant asked « What do you mean by that ? » and, along with other questions, obtains worrying information:

➢ « He comes home at night after work, wakes me up and touches me » ; ➢ Mr. E touches the child on top of her clothes and under her clothes; ➢ If her mom is sleeping, the child is not allowed to wake her up otherwise she gets mad; ➢ If her mom is awake, the child screams for her mom who tells Mr. E to go to bed; ➢ Once, the child blocked Mr. E who then hit her on the head; ➢ Sometimes Mr. E can give the child a bath and touch her inside her private area; [ 17 ] The attendant asked the child how she could help her feel safe.

The child responded « maybe you can come check-up on me at home at night time ». [ 18 ] Later that day, the attendant went to see the school supervisor/behavior technician, Mrs. G , to inform her of the content of her discussion with the child. Both decided to meet the child together the following day. 2. The meeting between the child, the supervisor and the attendant [ 19 ] The next morning, the planned meeting takes place. The key information collected from the child are: ➢ Mr. E touched her again last night; ➢ Mrs. F asked the child if she could explain to Mrs.

G the conversation they had the day before; ➢ The child is afraid to sleep at night; ➢ Mr. E comes in her room at night, when he comes back from work; ➢ Mr. E touches her in the bathroom; ➢ Once, Mr. E hit her because she tried to stop him; ➢ When asked if she told someone before, the child indicates her mother and her sister Y; ➢ The child cannot wake up her mother when she’s asleep; ➢ When the mother is awake and called upon by the child, the mother tells Mr.

E to leave the room; ➢ Y confided to X that E did the same to her when she was younger; ➢ Since X was playing with Barby dolls, one of the many toys in the « blue room » where the meeting was held, she is asked to show with the dolls where she was touched. X points to the breast and the private parts of the dolls. [ 20 ] Following this meeting, the supervisor brought the child’s situation to the attention of the school’s principal. 3.

X ’s statement at the police station [ 21 ] On January 31 st , 2018, the child is interviewed at the police station by detective Chantal Chabot of the Service de police de l'agglomération de Ville A. [ 22 ] The highlights of X ’s statement are : ➢ E touches me at night; ➢ I try to block him; ➢ E touches me everywhere that I don’t like - X touches her thighs, knees, tibias, ankles and feet ; ➢ Detective: The last time it happened? – When I was five years old; ➢ I was four years old, the first time; ➢ He touches me: o On the belly which I don’t like; o On the knees which I don’t like; o On my head I don’t like; o On my chest I don’t like;

➢ Detective: Anywhere else he touches you? – No; ➢ Detective: Never happened when you were six years old? – No; ➢ Detective: The last time/where/when? o In Spring; o I was five years old; o I was six years old; o In my bed, in a bunk bed; o B is in my room; o At night; o X touches her forehead, belly, thighs, knees, tibias, feet, hands and her back to show where Mr.

E touches her; o He touches me like this - X uses both of her index and touches repetitively her forehead – like poking; ➢ He touches me nowhere else - X touches again the same parts of her body ; ➢ X uses again both of her index and touches repetitively her left thigh ; ➢ He did this - X slaps with her hand her right thigh ; ➢ Poking me, tapping me; ➢ I told Miss F and a teacher; ➢ What I’ve said to you is what I told her; ➢ Detective: It is not exactly what I know, I think that you were saying that he touched you somewhere else? - X touches again the same parts of her body and then points at her vagina ; ➢ Detective: Does he touches you somewhere you don’t like? - X opens her legs and points at her vagina ; ➢ He pokes me, I try to block; ➢ I told my mom, mama tried to force E to go to bed; ➢ He touches me everywhere, that’s all he does; ➢ Detective: You are not given me enough details about that? – He touches me here, here - X touches with her hands and with both index numerous parts of her head, belly, thighs, knees and feet; ➢ X draws her room.

She positions herself lying on the upper

section of the bunk bed ; ➢ Detective: Where is E ? – Standing on the bed - X draws E standing up on the bed ; ➢ Detective: He’s standing up on the bed? – Yes; ➢ Detective: Tell me one time he touched your private parts? – Three days ago; ➢ He touched me here - pointing to her vagina - and I don’t like it; ➢ He pokes; ➢ Detective: Does he touch you over you clothes or under your clothes? – Over; ➢ Detective: How many time did he touch you there? – One time; ➢ Detective: Was it the only time or it happened before that he touch your private parts? [question related to number of time repeated often]: o Only one time; o It only happened one day; o He touched me three days and ten days; o Ten times in three times; o Ten days in a month;

o A month ago; o Three more times; ➢ E was wearing a black shirt and grey pants; ➢ I told my mom that E touches me all night; ➢ Detective: How long does it last? All night? - X nods her head meaning yes ; ➢ Detective: He is standing up all night? – On my bed, of course ; ➢ I said « E stop I don’t like it »; ➢ Detective: Does he stop? – In the morning, he stops. 4.

The child’s interview by the Director in the presence of the attendant [ 23 ] On February 8 th , 2018, Mrs. [Social Worker 1] , social worker in charge of the investigation for the Director, met the child in the presence of the attendant. [ 24 ] The social worker declares that she requested the presence of Mrs. F’s for two reasons: ➢ To provide moral support for the child; ➢ To make the child more comfortable to open up. [ 25 ] In her Assessment Report [1] , the social worker summarizes the interview. She writes: We met with X at school February 8 th . She was accompanied by Mrs.

F, resource teacher, so she could feel more comfortable. She reported that her parents asked her not to talk to us. In regards to the abuse she says that it doesn’t happen anymore, that E stopped touching her. She added that E told her after our last meeting that he would never touch her again. We ask X to tell us about a situation that she reported happened in the bath. She said it only happened once. There were Barbie dolls in the room where we were meeting with her and X showed us where he touched her on the Barbie doll and she mentioned he touched her everywhere and on her private area.

She said it was over her clothes and under her clothes.

According to X, E took off her underwear and put his finger inside her vagina, X is able to tell us that it happened more than once and it started when she was 5 years old. [ 26 ] During her testimony, the social worker provides additional information concerning this interview: ➢ The social worker decided to interview the child because of the differences between the report (signalement ) made to the Director, the statements of the child at school and her statement during her interview by a detective at the police station; ➢ Since Barby dolls were used during the meeting that took place on January 31 st , 2018 between the child, Mrs.

G and Mrs. F , the social worker asked Mrs. F to bring the dolls and to put it on the table at the child’s disposition; ➢ Mrs. F remained discrete and withdrawn, but, at one point, said to the child « it is OK to tell her [social worker] what you told me »; [ 27 ] During the supervised visits or phone calls with Mr. E , the social worker observed that the children, including X , seem to love him, that their interactions are positive and that Mr. E is caring; [ 28 ] The social worker is of the opinion that Mr.

E is highly involved with all the children at home and that he is assuming a major role in the family’s organisation. [ 29 ] During her assessment, the social worker observed that the parents and Mr. E , even though did cooperate during the process, were defensive, mistrustful and gave statements that were not always compatible. [ 30 ] Finally, the social worker concludes that X was sexually abuse by Mr.

E based on the following elements: ➢ X ’s statements are credible: o The unveiling was spontaneous; o The unveiling was expressed in the context of X feeling rejected from her family; o X identifies her abuser in all her statements; o Even though X has difficulties to situate herself in time and space, she describes with sufficient details at least two incidents of sexual abuse, one in her bedroom, one in the bathroom; o X wants her abuser to stop; o X saying that E can’t touch her anymore - in reference that he left the house; o X has maintained her verbalisations;

➢ The existence of a dynamic of secret within the family, X having revealed to the social worker that her mother had asked her not to talk to the social worker; ➢ The parents’ attitude with the social worker, mostly the mother being evasive about when the sharing of X ’s room was reorganized and undermining the extent of the involvement of Mr. E with the children. The defence [ 31 ] Mr. E offered a testimony where he denies all allegations of sexual abuse of any kind towards any child. [ 32 ] With emotion, Mr. E expresses his attachment to his daughter Z and the other children. [ 33 ] Mr.

E confirms the extent of responsibilities he assumes at home, some exclusively, others shared with the parents, such as: ➢ Preparing the meals; ➢ Doing the laundry; ➢ Babysitting the children when the parents are away for errands, restaurants or movies; ➢ Supervising the children’s schoolwork, especially in French since he his more knowledgeable than the parents; ➢ Giving Z a shower; ➢ X ’s bath is given by one of her parents. When the mother performs this task, Mr. E helps X to get in and out of the bath to ensure that she doesn’t slip or fall. To that effect, he only stays in the bathroom for a minute or so.

The mother is usually present or, if not, takes over shortly. It is because of the mother back’s poor condition that Mr. E helps X to get in and out of the bath. ➢ Preparing the clothes for the night for Z and X ; ➢ Preparing X’s clothes for the next day; [ 34 ] At around 7 O’clock at night, Mr. E joins the mother and Z in the mother’s bed, watching television until Z gets to sleep, which takes about 30 minutes. The mother or Mr. E then put Z to bed in her own bedroom for the night. [ 35 ] Mr. E usually gets in X ’s room to say good night, never later than 8 O’clock.

At that moment as well as any time during the day, he can tease and tickle X . [ 36 ] Otherwise, Mr. E spends most of his time downstairs, gaming online with his computers. Never will he be on the first floor after 8 O’clock, except for having a late lunch. If so, he never goes back in X ’s bedroom. [ 37 ] Mr. E is on welfare because of medical restrictions. He spends most of his time at home, but can sometime be out to help a friend. [ 38 ] Mr. E doesn’t have a substance abuse problem. [ 39 ] Mr. E has never been sexually abused. [ 40 ] As for the parents, they believe Mr.

E . [ 41 ] The parents confirm that they have no confidence in the Director. They consider the assessment process to be inaccurate, if not bias. [ 42 ] From the parents and Mr. E ’s perspective, X has been pressured with repeated questions to obtain a statement to the effect that she was sexually abused. [ 43 ] The parents state that they both are not working and are at home almost at all time. Also, X ’s bedroom is close to their own bedroom.

For these reasons, the parents are convinced that the events in litigation couldn’t have happened without their knowledge. [ 44 ] The mother adds that she is a light sleeper and that she is aware of whenever Mr. E comes on the ground floor at night, especially with the squeaky stairs and floor boards. [ 45 ] On February 6 th , 2018, the mother met the social worker just after the social worker’s interview with the child in the presence of Mrs. F . When informed of X ’s verbalizations, the mother requested the social worker’s authorization to briefly question her child.

Once allowed to, the mother asked the child if E touched her « pee-pee » and if E touched her private parts. To both questions, X answered « No ». [ 46 ] The mother insists that she has a close relationship with X and that her child would have disclosed to her any inappropriate gestures from Mr. E if they had occurred. [ 47 ] With regards to X ’s having said that she asked her not to talk to the social worker, the mother specifies that, in response to a child’s question, she answered that X had no obligation to talk to the social worker. Analysis

[ 48 ] The Director has the obligation to demonstrate by a preponderance of evidence that X has been victim of sexual abuse by Mr. E and that Y and Z incur a serious risk of being subjected to sexual abuse. [ 49 ] The Court rules that the evidence, as a whole, does not support such conclusions and that the applications ought to be dismissed for the reasons set out below. [ 50 ] The Court also rules that X ’s statements that were introduced in evidence according to

section 85.5 of the youth Protection Act lack sufficient guarantee to support a conclusion of security and development of the children being in danger. [ 51 ] From the outset, the Court states that any statement by a child that she or he is the victim of sexual abuse is worrying in itself.

It demands proper consideration and must not be set aside without serious reasons. [ 52 ] A thorough assessment of its credibility and reliability, first by the Director during its assessment of the report, and by the Court, when legal process is instigated, must be carry out based on numerous criteria, circumstances and factors. [ 53 ] Having said that, it is of the greater importance and the duty of the Court to analyze the evidence submitted by the parties without any preconceived idea as to where lies the best interest of the child, since: ➢ If it is quite obvious that the rejection of allegations of sexual abuse is highly prejudicial to a child who, in reality, has been victim of such a abuse; On the other side, ➢ It is also of high prejudice for a child to judicially be declared victim of sexual abuse when, in fact, the allegations were unfounded. [ 54 ] In brief, « Autant il est important de faire cesser un abus sexuel, autant il est important de déceler les situations où l’abus sexuel dénoncé ne s’est pas produit » [2] . [ 55 ] Let’s also emphasize that the conduct of an interview by a skilled professional with a child alleged to be sexually abused is a very delicate task, especially given their vulnerability to suggestibility, and even more when it involves a child of young age such as X . [ 56 ] The evidence reveals that X was interviewed on January 31 st , 2018 by a specially trained investigator at the police station under video recording; the whole in accordance with the « Entente multisectorielle relative aux enfants victimes d’abus sexuels, de mauvais traitements physiques ou d’une absence de soins menaçant leur santé physique » [3] (Multi-Sectorial Agreement). [ 57 ] This agreement, in force since 2001, includes protocols to implement a coordinated socio-judicial intervention of the various actors concerned, first and foremost the Director and the police, to ensure the protection of children victim of sexual abuse, physical abuse or whose health is threatened by lack of care. [ 58 ] It also specifies the mechanisms to offer to these children an adequate and adapted response to their specific needs, in particular by defining the responsibilities of each partner and the modalities of their cooperation. [ 59 ] In application to the Multi-Sectorial Agreement, from what the Court has experienced and also as appears from the Youth Court judgments, the responsibility of conducting a child’s interview lies upon a specially trained police investigator to address specifically the allegations of sexual abuse, physical abuse or health being threatened by lack of care. [ 60 ] This interview is the centerpiece of t he concerted socio-judicial intervention aiming at avoiding multiple interrogations of children, although subsequent meetings of the Director with the child to assess the founding of the aforesaid allegations are not formally prohibited, but seldom. [ 61 ] In the case at bar, after examining and reexamining the video of X ’s interview conducted by the police investigator at the police station, the Court retains essentially that when facing « open » questions, the child answers once in naming and always in pointing, with her hands or fingers, towards her body parts touched or pocked by Mr.

E, without any reference to if it would or could reasonably be an improper touching. [ 62 ] In answering non suggestive questions, not only will X not indicate anything of a reasonably sexual nature, but when asked if she was touched anywhere else, she replies without hesitation « No ». [ 63 ] Furthermore, X declares spontaneously to the police investigator « he touches me, nowhere else » when once again pointing the same body parts to show where she was touched or pocked by Mr.

E . [ 64 ] At this point, not only is X omitting in gesture something that can reasonably relate to a sexual abuse, but is now excluding this possibility since she’s clearly saying that there was no touching anywhere else. [ 65 ] Then came the stage of the interview where the police investigator asked X if she had told anybody about the situation. [ 66 ] The child mentions that she told Miss F and affirms readily « What I’ve said to you is what I told her ». [ 67 ] The Court notes here that even after referring to a conversation she had with the school attendant, X remains of the same position. [ 68 ] It is only when the police investigator says « It is not exactly what I know, I think that you were saying that he touched you somewhere else » that X points for the first time at her vagina. [ 69 ] The Court is of the opinion that this line of comment from the police investigator sorely affects the credibility and reliability of

X ’s reaction. [ 70 ] Not only is this comment suggestive by negating what the child just said, but it is also of the nature of cross-examination by referring specifically to what would be a prior incompatible statement of the child to another person. [ 71 ] Add to these elements, that the comment from the police investigator emanates from a person in authority and is addressed to a child of young age, and serious damage is done with regards to the credibility and reliability of what follows from X or any child vulnerable to suggestibility. [ 72 ] For the above, the Court concludes that the information obtained from the child after the police investigator said « It is not exactly what I know, I think that you were saying that he touched you somewhere else » are not of probative value. [ 73 ] On the contrary, the Court gives weight to the numerous and consistent answers from X , in words or gestures, that do not refer to, or exclude, what can reasonably relate to a sexual abuse, in respond to open questioning. [ 74 ] The Court will now examine the child’s interview by the social worker in the presence of the school attendant. [ 75 ] As the Court has already mentioned, a child’s interview by the Director following her interrogation by a police investigator with regards to the founding of the allegations of sexual abuse, is not prohibited by the Multi-Sectorial agreement but rare. [ 76 ] Much more seldom is a child’s interview by the Director in the presence of a third party not acting under the Director’s authority and, particularly in the case at bar, a school employee that the Director’s knows not much about. [ 77 ] The Court, from legal database or from its practice, neither has found nor experienced such a precedent.

The Court wouldn’t dare conclude that this situation is absolutely and assuredly unprecedented, but will, at least for the past 20 years, consider it to be very unlikely. [ 78 ] Anyhow, the main point remains the fact that a child’s interview, whether by a police investigator or a social worker, in the absence of a third party for moral support or whatever reasons, makes a lot of sense. [ 79 ] The best way, if not the only way to protect the child from any influence, no matter how subtle it may be, and to obtain a statement in a context that promotes its reliability and credibility, precludes the presence of a third person, such as the school attendant in present situation. [ 80 ] In her testimony, the social worker conceded the possibility that the presence of the school attendant during the interview, and the resort of dolls which the Court will address a little later, could have incited the child to rather repeat what she mentioned to the attendant before instead of genuinely answer her questions. [ 81 ] Anyhow, the Court considers it to be of common sense and of the most basic caution to exclude a third person during a child’s interview on such a sensitive matter.

It is even more so when that third person has received a prior statement from the child.

Hence, such exclusion must be adamant to avoid any kind of influence and contamination of the child’s verbalizations. [ 82 ] In addition, the Court is troubled by the fact that the social worker resorted to the usage of dolls during the child’s interview, even if, as appears from her testimony, she knew « for years this approach isn’t used any more ». [ 83 ] It is something that is well established for about 30 years by Court’s decisions that the usage of dolls is unadvised and the information thus collected from a child ought to be consider inconclusive. [ 84 ] The following decisions are the bench mark of this position thus adopted: ➢ Protection de la jeunesse - 233 , [1987] R.J.Q. 2701 ; ➢ Protection de la jeunesse - 329 , [1988] RJ.Q. 1739 ; ➢ Anonyme, C.Q.

Ch.J, No 415-41-000017-88 , 24 novembre 1988 . [ 85 ] Some could claim that the social worker made Barby dolls available to the child which do not constitute sex dolls in the sense of the preceding rulings. However, the Court does not find in this anything significant to be distinguished from these judgments.

Furthermore, no evidence was introduced and no argument were made to convince the Court to set aside these Court’s decisions. [ 86 ] Ultimately, the Court considers the child’s interview by the social worker to be flawed because of the combination of factors: ➢ The school attendant’s presence during the interview; ➢ The fact that the school attendant brought, at the request of the social worker, the dolls that were used by the child when interviewed a few days before by the school supervisor/behavior technician with the school attendant; ➢ The fact that the dolls were put on the table in front of the child because, according to the social worker, « it’s how she talked about it at school ». [ 87 ] These circumstances of the interview which X was facing, a young child vulnerable to suggestibility must we repeat, are the combination of conditions more likely to make her repeat what she said when « she talked about it at school» than being only focussed on answering the questions accurately. [ 88 ] Objectively, it must be recognized that the evidence reveals that such a serious risk of contamination exists.

[ 89 ] Add to the above, that the school attendant, even though she remained discrete during the interview, told the child that « it is OK to tell her [social worker] what you told me », and the serious risk that already existed became more than reasonable probability of contamination. [ 90 ] For all these reasons, the Court allows very little weight to the information gathered during the child’s interview by the social worker on February 8 th , 2018, with regards to a situation of sexual abuse. [ 91 ] The Court will now address the child’s interview by the supervisor/behavior technician in the presence of the attendant. [ 92 ] From the outset, the Court’s reiterates its concerns with regards to the presence of the school attendant, who in the chronology of events had previously received the unveiling, and the unadvised usage of dolls when the child was questioned, especially since « she [ X ] was invited to do so to show us, it’s our suggestion », according to the school attendant’s testimony. [ 93 ] In all fairness to the supervisor/behavior technician and the school attendant, they probably did not know that the use of dolls was inappropriate when a child is questioned about whether she or he has been sexually abused. [ 94 ] Ultimately, even in good faith, the result remains the same since these circumstances of the interview create a serious risk of influencing and contaminating the child’s verbalizations. [ 95 ] That being said, the Court deems necessary to underline that the Multi-Sectorial Agreement involves, among its many actors, not only the Director, the Police’s force but the Education Ministry. [ 96 ] Having that in mind and that this agreement aims in particular to avoid multiple interviews of children in X ’s situation, the Court is of the opinion that X ’s interview by the school supervisor/behavior technician in the presence of the school attendant should not have occurred. [ 97 ] From the first conversation the school attendant had with X , on January 30 th , 2018, while walking together outside the school, she already had obtained reasonable grounds to believe that the security or development of a child is or may be considered to be in danger. [ 98 ] A report of sexual abuse should have then been made to the Director to trigger a professional thorough investigation.

Of course, the school attendant was at liberty to confer with the school supervisor/behavior technician to seek guidance before doing so. [ 99 ] The evidence reveals that it is mostly the school supervisor/behavior technician’s decision, in all good faith, to conduct an interview with X concerning the sexual abuse she might have been victim of. [ 100 ] Yet, has the Court already stated previously, a young child’s interview by a professional with regards to a situation of sexually abuse is a very delicate task and requires a special training.

In [Region A], in application of the Multi-Sectorial Agreement, training is offered at Centre d’expertise Marie-Vincent [4] and emphasis is put on a non-suggestive interview in compliance with NICHD protocol [5] . [ 101 ] Here, there is no evidence at all to ascertain any kind of training that could have received the supervisor/behavior technician to conduct the interview with a child of young age on the matter of sexual abuse. [ 102 ] Hence, an improper attitude, question or approach could have been made without the interviewer realizing her mistake and without her even considering relevant to mention it in her testimony, still because she was just not aware of its importance. [ 103 ] Ultimately, the Court retains that such an interview cannot be held without special training, whatever good were the intentions of the interviewer, and should had been left to the Authorities in application of the Multi-sectorial Agreement. [ 104 ] In that context, X ’s statement to the supervisor/behavior technician in the presence of the attendant on January 31 st , 2018, is without probative value. [ 105 ] Remains the statement of the child to the school attendant on January 30 th , 2018, which constitute the unveiling of the situation of sexual abuse.

At this point of the analysis, it is the cornerstone of the value of the evidence of the Director . [ 106 ] The unveiling has the following qualities: ➢ It is spontaneous; ➢ The child identifies Mr.

E as the abuser; ➢ The child identifies where it happened, namely in her bedroom, on her bunk bed; ➢ The child mentions being touched where she doesn’t like; ➢ The child points at her private parts as for the incident in the bathroom; ➢ The child declares wanting the touching to stop. [ 107 ] These qualities certainly constitute sufficient grounds for the Court to be worried and concerned of the existence of sexual abuse. [ 108 ] However, the final determination is not for the Court to have its worries and concerns subsided significantly, but to rule if there is a preponderance of evidence supporting the allegations of sexual abuse.

[ 109 ] The Court observes inconsistencies between X ’s unveiling with her other statements, and contradictions with the evidence as a whole. [ 110 ] For instance: ➢ X said to Mrs. F that she confided the sexual abuse to her sister Y who responded by revealing that she experienced a similar situation; o Yet, Y was interviewed by the social worker. She denied X ’s disclosure as well as herself having been sexually abused; ➢ X said that when abusing her in her bedroom, Mr. E was standing up on her bed (the upper part of the bunk bed). In her drawing on the board at the police station, she also positions Mr.

E standing up on the upper part of the bunk bed; o Yet, this is physically impossible from the description of X ’s bedroom, furniture, the picture of the bunk bed and Mr. E being an individual of considerable height; ➢ X is deeply confused with regards to the number of events, declaring to the police investigator: o One time; o Only one time; o It only happened one day; o He touched me three days and ten days; o Ten times in three times; o Ten days in a month; o A month ago; o Three more times. ➢ X said to Mrs.

F that she was touched over and under her clothes; o On the contrary, X mentioned to the police investigator that she was touched over her clothes; [ 111 ] None of the elements above mentioned is conclusive per se , and their weight is variable. However, it is the combination of their existence that affects the probative value of the unveiling of January 30 th , 2018.

The Court comes to that conclusion, even though the Court must be flexible and lenient in the assessment of a child’s testimony by comparison to an adult’s testimony [6] [ 112 ] Furthermore, on January 31 st , 2018, the child said to the school supervisor/behavior technician and the school attendant that she told her mother about what was going on. The latter would get angry if the child thus wakes her up. If already awake, the mother would just tell Mr.

E to leave the child’s bedroom. [ 113 ] The Court is conscious that such a situation, namely where a mother can be aware of a sexual abuse but doesn’t really care to protect her child from the abuser for whatever reasons, unfortunately has been the reality of too many children. [ 114 ] On the other hand, in the case at bar, after hearing the mother’s testimony, the Court is convinced by a preponderance of evidence: ➢ That the mother would never have tolerated such a devious act from Mr.

E ; and ➢ That the mother would never express anger towards her child for waking her up because the child resorted to her protection to stop a sexual abuse under way. [ 115 ] It is true that the mother has not been fully transparent with the Director and that the Court cannot take for granted everything she said in Court. [ 116 ] That being said, the Court paid careful attention to the mother’s testimony, which was emotionally charged and which was eloquent with regards to her bound with the child. [ 117 ] Although the Court doesn’t have a crystal ball to probe her soul, the mother made it clear that she has the well-being of her child at heart and that she is a protective mother. [ 118 ] Finally, the Court gives weight to Mr.

E ’s testimony which is plausible and realistic. Both during the cross-examination and in the examination-in-chief, he did not try to evade the questions. His answers were coherent at both stage and seemed spontaneous and sincere. [ 119 ] Consequently, Mr. E’s denial of the facts alleged against him is of merits.

FOR THESE REASONS, THE COURT [ 120 ] DISSMISSES the application. ________________________________ Mario Gervais, J.C.Q. M e Caterine Caron Attorney for the Director M e Patricia Denis Attorney for the child M e Lucie Gaucher Attorney for the mother M e Alexandre Germain Attorney for the father Dates of the hearings: September 13 th and 14 th 2018 December 10 th and 17 th 2018