R v R.C., 2023 MBPC 30

CITATION: R v R.C., 2023 MBPC 30 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) Joel Myskiw and Brendan Roziere ) ) for the Crown - and – ) ) ) R.C. ) ) Scott Newman and Omri Plotnik for the Accused ) ) ) ) Reasons for decisions delivered: June 28, 2023 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. Cornick P.J.

INTRODUCTION [ 1 ] R.C. is charged with sexual assault and sexual interference pursuant to sections 271 and 151 of the Criminal Code . The trial for those matters was heard on April 12 and 14, 2023. [ 2 ] R.C. also brought an application pursuant to

section 7 of the Charter of Rights and Freedoms alleging that lost evidence has prevented him from having a fair trial. The lost evidence in question is a statement the complainant allegedly made to the police on October 27, 2020. R.C. asserts that this statement was video recorded by the Arborg RCMP and subsequently lost.

Further R.C. claims that the loss of this statement has prevented him from having a fair trial and as such, a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms is the appropriate remedy in the circumstances. [ 3 ] It was agreed that the trial would be heard in its entirety in the context of the application. The Court was to decide the motion and then proceed to a decision in the trial proper if appropriate. BACKGROUND: Lost Evidence Motion [ 4 ] On December 6, 2020, the complainant in this matter, G.C., provided a statement to Cst.

Horvath of the Arborg RCMP alleging the accused committed the previously noted sexual offences against her between March 1, 2020 and September 30, 2020. The accused was charged and arrested with those offences. [ 5 ] The allegations are that over the course of those months R.C. would enter G.C.’s bedroom and touch her inappropriately overtop of her clothing including her breasts, her sides, her back and her vagina. The allegations are also that R.C. would lay on top of or beside G.C. and hug her, and that he kissed her legs. [ 6 ] While he was preparing for trial, Cst.

Horvath reviewed the December 6, 2020 video statement and it became apparent to him that he had met with G.C. before that date. Cst. Horvath had no memory or record of this meeting. Once the officer reviewed the statement he took on December 6, 2020 there was clear reference to a prior meeting with G.C. While Cst. Horvath continued to maintain he has no memory of an October 2020 meeting and has no record of it, he accepts that it occurred given the content of the December 6, 2020 statement.

Evidence from both G.C. and her mother indicated they attended at the Arborg detachment on October 27, 2020 for G.C. to speak with Cst. Horvath. They both independently recalled the meeting.

[7] This meeting on October 27, 2020 is the crux of R.C.’s lost evidence motion. He asserts that a recording of that meeting existsor existed and that Cst. Horvath lost it. The Crown asserts that there is no evidence a recorded statement ever existed and nothing waslost making R.C.’s application meritless. THE LAW [8] Both parties agree that a violation of

section 7 of the Charter of Rights and Freedoms and a claim of abuse of process havelong been merged into a singular argument or application for a Court’s consideration. (See R v. O’Connor (SCC), [1995]4 S.C.R. 411 paragraph 61 and R v. Schacher, 2003 ABCA 313 paragraph 10). In cases of lost evidence despite the singular application abreach of

section 7 may be found in the absence of an abuse of process. (See R v. La (SCC), [1997] 2 S.C.R 680) [9] A

section 7/abuse of process argument arises in two contexts: first where the accused’s right to a fair trial is adversely affectedby abusive state conduct and secondly, in a residual category, encompassing other types of state conduct that would contravenefundamental notions of justice and undermine the integrity of the judicial process. [10] The Supreme Court of Canada expanded on those two categories in R v. Babos, 2014 SCC 16 , [2014] 1 S.C.R. 309 atparagraph 34. To summarize, in considering the main category the question is whether there is ongoing unfairness to the accusedrendering the trial unfair.

The question in the residual category is whether the state engaged in conduct that offends society’s notions offair play and decency. There are times when the state conduct is so troublesome that having a trial—even a fair one— will harm theintegrity of the justice system. [11] The test for a judicial stay relative to both categories is found in Babos at paragraph 32: “i. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome”; ii.

There must be no alternative remedy capable of redressing the prejudice; and iii. Where there is still uncertainty over whether a stay is warranted after step 1 and 2, the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decisions on the merits”.” [12] The burden rests on the Applicant to establish on a balance of probabilities that his

section 7 right has been breached. Withrespect to a lost evidence motion, in particular once it has been established on a balance of probabilities that evidence has been lost, theCrown must provide an explanation as to how or why the evidence was lost. (See R v. La (SCC), [1997] 2 S.C.R. 680). [13] If the Crown satisfactorily explains the loss of evidence, then the onus shifts back to the accused to establish actual prejudice tohis right to make full answer and defence. (See R v.

Kociuk, 2011 MBCA 85). [14] A judicial stay of proceedings is a drastic remedy as it permanently halts the prosecution of an accused depriving all parties ofthe truth seeking function of a full trial on the merits of a case. Therefore, it is not the only remedy available to deal with unacceptablestate conduct and is to be used only in the clearest of cases. ANALYSIS [15] The first issue that must be resolved is whether the October 27, 2020 statement existed. [16] I am satisfied that on a balance of probabilities a statement from the October 27, 2020 meeting exists or existed.

G.C. and hermother are adverse witnesses to each other. Yet, they provided consistent statements on this point. [17] D.C. attended to the Arborg detachment with G.C. She said she made the appointment with Cst. Horvath for October 27, 2020.She picked up G.C. at her boarding school two hours away and drove her directly to the detachment. Cst. Horvath met them there andexplained to her and G.C. where the camera and microphones were and that they did not need to yell. D.C. was interviewed on October30, 2020.

She asked the officer what was going to happen and was told that he would compile her statement and G.C.’s statement and theinvestigation would proceed from there. [18] G.C. recalled attending to the Arborg detachment a few days before Halloween. She recalled her mother picking her up fromschool in Gretna and driving her there. She recalled speaking to an officer (not Cst. Horvath) in an audio-video room but recalled nothingabout their conversation. She recalled being taken to the same interview room where the December 6, 2020 video interview wasrecorded.

She recalled seeing the camera and microphones and the officer telling her that she was being recorded. [19] Cst. Horvath is not a particularly helpful witness overall, but some aspects of his testimony supports the existence of a recordedstatement. He testified about his general practices when dealing with victims of sexual assaults. He does not conduct a pre-interview. Hisevidence was that he takes a witness into the interview room in order to get a first account of their evidence.

He does not take notes in hisofficial notebook, but rather on loose-leaf paper so that he can circle back to areas of interest during the interview. Most importantly, theofficer is not denying that he interviewed G.C.; rather he does not recall doing so in October 2020. He cannot recall where he met her,what he asked her or what her responses were. He did not take any notes surrounding this event.

He has no independent recollection ofthe event other than it must have happened because there is reference made to it in the December 6, 2020 interview. [20] On direct examination, he said he did not remember if he took a statement, then later he indicated that he does not believe that astatement exists. He stated he did not lose or destroy the statement. Yet, he also recalled searching high and low for the statement withinthe detachment. It is unclear how or why he would do that if he were firm in his belief that one was not taken. He testified that he

recalled interviewing D.C. but not the content of that interview. When confronted with the fact that he told D.C. that he would compileher statement, G.C.’s statement and the other ones his response was that he either was planning on taking a statement from G.C. or hehad already taken one. As he stated throughout his evidence he had no recollection and did not take any notes. [21] Finally, exhibit 1 in the trial is the statement of G.C. taken on December 6, 2020 wherein Cst. Horvath refers to the previousencounter he had with G.C. and her mother.

He pointed to the same couch where G.C. and her mother were seated during the October 27,2020 interview. They discussed the interview and the impact that the presence of G.C.’s mother had on the interview that day. [22] The Crown was particularly concerned that this court not rely on the evidence of D.C. and G.C. to find that that a recordingexisted. The officers stated intention is something that two adverse witnesses clearly heard and believed. They are circumstantialindicators that this court can take into account with a host of other factors.

While none of these factors alone establishes that thestatement exists or existed when woven together they support a finding on a balance of probabilities that a statement was taken. I do notrely exclusively on G.C. and D.C.’s evidence that they were told a statement was recorded for this purpose. [23] G.C. and her mom attended to the station to speak with Cst. Horvath on October 27, 2020. This was not an unplanned or casualvisit. D.C. testified that Child and Family Services directed her to speak to Cst.

Horvath as he was conducting an investigation into herhusband; she said she made the appointment herself, and drove a significant distance to ensure that G.C. attended at the station. [24] Her evidence is vastly more reliable than that of the police officer on this point and is corroborated by G.C.’s recollection. Cst.Horvath met them there. They were taken to a room where audio and video recording equipment was available. They were giveninstructions about the recording equipment and G.C. testified about seeing the recording equipment.

This was consistent with Cst.Horvath’s general practice of not conducting pre-interviews. It is the same room where the December 6, 2020 statement was recorded.Cst. Horvath initiated the reference to the October 27 interview on December 6. He raised it as a way to discuss how G.C.’s mom mayhave influenced her during that interview. Specifically, at the end of the December 6 interview he asked G.C. if what she said last timewas “because she was pressuring you and she was sitting right there next to you”.

The officer must have recorded the content of theinterview in some capacity such that he was referring to it almost three months later. [25] There is no explanation for the missing statement. The Crown maintains there is no statement. Cst. Horvath’s evidence isunreliable as he repeatedly stated in his testimony that he has no recollection of October 27, 2020 and that he has no notes or reports toassist him in that regard.

The action he undertook when asked to produce the statement he purportedly took that day was not to deny itsexistence, but rather to look for it. [26] There is no satisfactory answer here about what happened to the interview conducted on October 27, 2020. What is clear is thatG.C. provided evidence to the police and it was not preserved in any way. While I found on a balance that the interview was probablyvideo recorded, the failure here is not specific to whether the interview was or should have been video recorded, but rather the failurewas to preserve the evidence at all, in any format.

G.C.’s October 27, 2020 statement to police would be disclosable per R. v.Stinchcombe, (SCC), [1995] 1 S.C.R. 754 and therefore the Crown was unable to meet its disclosure obligations. (SeeR v. La (SCC), [1997] 2 S.C.R 680 paras 55-58) [27] I appreciate the parallels the Crown was trying to draw to R v. Cathcart 2022 SKQB 37 and the line of cases reviewed therein.The important distinction is that this was not a passing or impromptu interaction with a police officer at an impaired driving checkpointor an arrest not captured by a body camera.

This was an ongoing investigation and an appointment was made for a potential witness toattend to the detachment. The implication at the outset of the interactions between the police, G.C. and her mother is that evidence wasbeing gathered in a serious allegation involving the accused.

It is perplexing that not a single note or record of any sort was made that apotential sexual assault victim attended to the RCMP detachment and was interviewed by an officer. [28] There is no evidence that the failure to preserve and therefore the failure to disclose the interview with G.C. on October 27,2020 was deliberate to defeat the Crown’s disclosure obligations. Cst. Horvath was on the job for 7 months at the time of thisinvestigation. Clearly, his inexperience and failure to adhere to his training such as good note taking was a costly and embarrassingmistake in this situation.

His inability to recall anything about the investigation leading up to the December 6 2020 interview is a clearreflection of these failures. It rendered the investigation deficient and overcomplicated the adjudication of this matter.

The officer’sconduct in not making any record, even simple notes, about his interview with G.C. is unacceptable, but I do not find it to be an abuse ofprocess. [29] Given the timing of the application and that it is being decided after the entirety of the trial evidence has been put before theCourt I am satisfied that the accused’s right to make full answer and defence was not impaired by the loss or failure to preserve theevidence.

While accused persons have the right to make full answer and defence there is no such thing as the right to a perfect defence. [30] All of the witnesses that participated in the events of October 27, 2020 were present in court and were subject to examination orcross-examination. Clearly, memories had faded and the exact content of the interview remains unknown. After hearing from all of thewitnesses, it is reasonable to conclude that no criminal activity was revealed on October 27, 2020.

G.C. confirmed in cross-examinationthat what she said to the officer on October 27, 2020 was “on the innocent side” and that she did not provide details because her motherwas present. R.C. was not arrested following the October 27 interview. [31] In the December 6 interview, G.C. said that she did not tell the truth in the October 27 interview, but was being truthful withthe officer now. The absence of the details from that interview rendered the cross-examination limited to generalities and imperfect, butnot ineffective. [32] While defence counsel drew parallels between the instant case and R v.

V.C. 2017 MBQB 94 the key distinguishing factor isthat this Court had the advantage of hearing the trial in its entirety before making its ruling and has a broader context in which to assessactual prejudice to the accused. The Court in VC did not have this luxury for a variety of reasons including the fact that the trial wasproceeding by judge and jury and that similar fact evidence was expected. [33] Given that I am not satisfied there was prejudice to the accused’s right to a fair trial I dismiss the application pursuant to section

24(1) of the Charter and decline to enter a stay of proceedings. [ 34 ] This dismissal in no way should be interpreted by the Crown and especially by Cst. Horvath as vindication of any sort. The accused was deprived of important information relevant to his defence. While I found no malice or ill-will in his conduct, it remains baffling that the officer did not have any independent recollection of the events surrounding October 27, 2020 and that he did not take notes or allow himself any mechanism by which to refresh his memory.

In so doing, he did a disservice to himself as lead investigator, to this court and to the parties to this proceeding. [ 35 ] Having dismissed R.C.’s application for a judicial stay of proceedings I turn now to my decision on the merits of this case. TRIAL DECISION BACKGROUND [ 36 ] While there is no formal agreement with respect to the facts leading up to the allegations in this matter there was very little dispute between the witnesses. The accused, his wife D.C. and their daughter G.C. were residing in Fraserwood, Manitoba on a rural property.

They shared the home with foster children and D.C.’s father was moving his trailer onto their property. [ 37 ] G.C. had her own bedroom, which she was able to lock from the inside. Above the doorframe was a nail or hook that allowed the family to maintain a key to the room in the event it needed to be accessed from the outside. The primary purpose of this arrangement was to afford G.C. some privacy and keep the much younger foster kids out of her room. The accused and his wife shared a bedroom next to G.C.’s. [ 38 ] At the time of the allegations, the family was struggling with the effects of the pandemic.

G.C. who had been attending boarding school in Gretna was distance learning at home, respite and funding for the foster children was lacking, and the accused was struggling with his mental health. [ 39 ] Prior to attending boarding school G.C. was homeschooled. She had struggled with anxiety, depression and fitting in at school. She began attending boarding school in Gretna when she was in grade 9 and would have been around 14 years old.

In March 2020, the boarding school shut down because of the pandemic so G.C. returned home. [ 40 ] It was also not in dispute that R.C. would often come into G.C.’s room to chat and spend time with her. They would sit on the bed and watch videos on their phones or R.C. would engage in conversation with G.C.. G.C. would often get annoyed with R.C. and eventually ask him to leave. G.C. often locked the door and R.C. would knock to be let in. [ 41 ] The facts become contentious when discussing what occurred in G.C.’s room at the times R.C. was in there. R.C. denies any inappropriate or sexual touching.

G.C. claims R.C.’s presence in her room would often lead to sexual touching. [ 42 ] R.C.’s evidence was not significantly challenged on cross-examination. It was consistent with G.C.’s evidence and D.C.’s evidence on various points. He stated that he was having issues with his mental health in the summer and fall of 2020. It got to a point where he felt suicidal and emergency mental health intervention was required. He disagreed that his mental health issues—namely his paranoia and anxiety altered his state of mind, but agreed that it may have altered his perception of events.

Obviously, he denied touching G.C. for a sexual purpose. [ 43 ] R.C. conceded that he wanted to spend time with G.C. and it probably bothered her that he came to her room so much. He lectured her, played games on their phones and watched Tik Tok videos. There were occasions where he spent only a couple of minutes in her room and other times he was in there for up to 45 minutes.

Sometimes G.C. would tell him he was not allowed in and he would leave her alone. [ 44 ] He conceded that he showed affection to G.C. in physical ways such as hugs and kisses, but they were what was to be expected between a father and daughter and there was never anything sexual about these displays of affection. He did not shy away from the fact that he spent time alone with G.C. He recalled an incident in July 2020 when he kissed G.C. on the knee. He said it was overtop the blankets on her bed. He was in her room talking with her, but she was not engaging and appeared annoyed with him.

He said as he was leaving he said good night and to annoy her he kissed her on the knee. [ 45 ] R.C. described a breakdown in late September that involved suicidal thoughts. This led him to make an appointment with a therapist and to change his medications. Sometime between Labour Day and his first appointment with the therapist on October 1, his wife confronted him about the kiss to G.C.’s knee. She was upset and wanted to know what that was all about and whether anything inappropriate was going on. G.C. confirmed in her evidence that she was present at this family meeting.

R.C. indicated that he had a strong emotional and physical reaction to this confrontation. He was crying and shaking. He attributed this to his fragile mental health and the serious subject matter of the confrontation. The Crown suggested he had this adverse reaction because he was panicking, as he knew that his behaviour had been inappropriate. It was also suggested that he recalled the July 2020 kiss on the knee months later and knew exactly what his wife was talking about when she confronted him because he had done something wrong.

He denied this and all instances of sexual touching. [ 46 ] R.C. testified that on October 23, 2020 other individuals made allegations against him of a similar nature. As such, his foster children were no longer in the home and when G.C. came home from boarding school on the weekends he had to leave the house and stayed with his mother in Winnipeg. [ 47 ] D.C. testified in a consistent manner. She described the same difficulties within the home due to the pandemic. She confirmed R.C. was struggling with his mental health and described an event where he expressed a desire to commit suicide.

D.C.’s evidence was also consistent on many points with that of G.C. She confirmed that G.C. had her own room and described the arrangement with the key on the hook above the door. She also confirmed that she knew R.C. would spend time in G.C.’s room.

[48] D.C. denied that G.C. ever made any disclosures to her about the accused touching her bottom when she was around 10 yearsold. D.C. explained that when she was a child her older brother molested her between the ages of 6 and 9 years old. She essentiallydescribed hyper vigilant behaviour on her part.

She discussed the difference between appropriate and inappropriate behaviour with G.C..She said she was very open with G.C. about what happened to her and wanted to make it safe for G.C. to talk to her about these issues.She is certain G.C. did not tell her about the accused touching her bottom when she was 10 years old because she said she would haveleft the accused.

She explained that she had ended a previous relationship because of concerning comments made by her then partner.She did not want what happened to her to ever happen to her daughter. [49] D.C. confirmed that in mid September G.C. made an unusual disclosure about the accused kissing her knee that summer. Theywere heading to Barb Reader’s home to pick up G.C.’s boyfriend. Ms. Reader was D.C.’s friend. D.C. described asking G.C. manyquestions to determine if there had been anything more. She denied that G.C. disclosed anything else about inappropriate touching.

G.C.described that the accused was being annoying and wanted to spend too much time with her. G.C. told her she just wanted to be leftalone. D.C. recalled telling her friend, Ms. Reader, about this and that the conversation with G.C. continued at the Reader residence. [50] She described going “full crazy mother bear” on the accused later that evening, demanding an explanation. She described beingsatisfied after the family meeting that nothing untoward was happening but that R.C. should just leave G.C. alone and give her privacy.She continued to ask G.C. questions to make sure everything fine.

Aside from this kiss on the knee incident, she never had any concernsabout the accused being inappropriate with G.C. [51] She confirmed that on October 23, 2020 allegations of a similar nature were made against her husband and that the fosterchildren were taken from the home. The accused was not allowed to be home when G.C. was there so he spent weekends at his mother’shouse. She recalled that at this time Child and Family Services directed her to speak with Cst. Horvath. As a result, she set up theOctober 27 meeting at the RCMP station in Arborg. [52] D.C. was present when G.C. spoke to Cst.

Horvath in the interview room. She could not recall the conversation specifically, butshe stated that if anything inappropriate had been disclosed in that room she would have ended her relationship with R.C. She recalledattending to the RCMP station and providing her own statement to Cst. Horvath on October 30, 2020. [53] D.C. recalled that in November of 2020 she found out that G.C. was not doing well in school and was failing her assignments.She confronted G.C. about this and was very upset because the boarding school cost a lot of money.

She recalled telling G.C. that if shewas not going to take school seriously she would come back home and go to the local school. G.C. felt this was unfair and was unhappyat that suggestion. [54] Shortly after that argument, D.C. described attending the local CFS office with G.C. to speak with Candace Koomen the workerthat had attended to the house to remove the foster children. She recalled Ms. Koomen making disparaging remarks to her about herparenting and failing to keep G.C. safe. D.C. said that she walked out of the room because she was very angry and wanted to avoidescalating the situation further.

She was not let back into the office, and stated that she never saw G.C. again after that day. Shortly afterthat, R.C. was arrested. [55] During cross-examination, D.C. confirmed that the events described by G.C. could have happened when she was not around.She fairly conceded that she was not with R.C. and G.C. all the time. After all, she had four young foster children in her care. Sheconfirmed it would be upsetting to her if she were not able to protect G.C. from this type of abuse.

She denied providing evidencefavourable to R.C. because it is easier to tell herself that nothing happened. [56] G.C.’s statement to the police on December 6, 2020 was admitted into evidence as exhibit 1 pursuant to

section 715.1. Shedescribed an incident when she was nine and the accused touching her bottom. She went on to say that during “quarantine”, the accusedwould come into her bedroom after everyone was asleep and lay in bed with her. He touched her, hugged her and kissed her. He askedher to remove her sweater but she never did. G.C. said the touching happened over the top of her clothes. She described the incidentsbeginning in April 2020 and ending in September 2020.

She said that she tried to tell her mom but she was not receptive and would denyG.C.s claims. [57] The incident where the accused touched her bottom happened either when she was nine or it happened when she was 10turning 11. G.C. said she told her mom about it within a week of it happening and she is not sure if her mother ever spoke to the accusedabout it. G.C. stated it was difficult to speak to her mother about what was happening because D.C. would become defensive and “getamped up”. [58] During cross-examination, G.C. said the sexual touching was constant between ages 10 and 16.

She said that R.C. would touchher when she was home from boarding school on weekends. She was confronted with the fact that she was not in boarding schoolbetween the ages of 10 and 14. She was being home schooled. She explained that she would sometimes go visit friends and was notalways home. She conceded this was a change in her testimony. She explained “that her memory was not good when it came to trauma”. [59] G.C. also indicated on cross-examination that the touching happened under her clothing on her bare skin. She conceded thatthis was a change in her story and that her recollection of events is muddled.

She described 2020 as a blur. [60] It was suggested to her that she was annoyed by the accused wanting to spend time with her and that her home life was chaoticbetween the accused’s mental health issues, the foster children, and her mother threatening to pull her from boarding school. Sheconfirmed she was annoyed by these things but denied fabricating the allegations to escape her home life. THE LAW [61] This is a factual case with two different versions of events. The accused called evidence and testified in his own defense. Thecourt must weigh the evidence as outlined in R v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (SCC): “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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” [62] It is important to be mindful that the W. (D.) analysis is not a strict credibility contest where the trier of fact must absolutelyprefer one version of events while completely rejecting another.

The source of the evidence and the manner of presentation are certainlyrelevant factors, but the most reliable way to evaluate credibility is to analyse the specific information offered within the testimony. Thatanalysis must take into account common sense and plausibility, internal consistency, and external consistency. [63] In the context of the W. (D.) framework, the court must also be mindful of the fact that the complainant was a child at the timeof the alleged assaults and at the time the statements were taken. She was barely an adult at the time of her testimony.

As outlined byJustice Beard (as she then was) in R v. R. (D.B.) 2004 MBQB 69 there are three common sense principles to keep in mind whenweighing the complainant’s evidence: “Firstly, it may be wrong to apply adult tests for credibility to the evidence of children; secondly; there is no standard response by avictim following a sexual assault; and thirdly, a victim may have difficulty recounting the details of an individual event in a series ofsimilar, repeated events such as one particular sexual assault in a series of many sexual assaults.” [64] In R v.

B. (G.) (SCC), 1990 CarswellSask 20, the court suggests that the judiciary should take a commonsense approach to dealing with the testimony of young children noting that children are not to be held to the same standards as adults.Contradictions, an inability to recount precise details, and communicate time and place with exactitude does not mean children arenecessarily unreliable or not credible. However, this common sense approach does not relieve the court of its duty to carefully assess thecredibility of a child witness and it does not lower the standard of proof in such cases.

The Crown must still prove its case beyond areasonable doubt. ANALYSIS AND DECISION [65] The accused testified on his own behalf and D.C., his wife testified in his defense. [66] The Crown argues I should disbelieve R.C. because he was suffering from mental health issues at the time of the allegationsarose and his perception of reality may have been altered such that he offered an unbelievable account.

The Crown said the court shouldbe concerned with the fact that the accused knew about or recalled the incident where he kissed G.C. on the knee and immediately knewwhat D.C. was talking about when she confronted him. He had both an emotional and physical reaction to being confronted because hehad done more than just kiss G.C. on the knee. [67] The Crown argues I should disbelieve D.C. because she was not always present with G.C. and the accused and cannot accountfor those times. I should also disbelieve her evidence because she is struggling to accept what happened and that her husband victimizedtheir daughter.

It is easier for her to believe that nothing happen rather than accepting that she was unable to protect her daughter. TheCrown suggested to D.C. in cross-examination that she would be alone and struggle if R.C. went to jail. [68] Defence argues that the Crown’s case is deficient because it relies exclusively on G.C.’s evidence to prove it. G.C.’s evidenceis not credible and unreliable because it has changed over time in inconsistent ways. In October of 2020, she presumably told the policethat nothing untoward or criminal happened.

In December of 2020, she disclosed one incident where the accused touched her bottomwhen she was 10 and then described a 6-month period where the accused would touch her inappropriately over her clothing. Duringcross-examination, she indicated that the accused consistently touched her inappropriately from ages 10 to 16 when she came home fromboarding school on the weekends. This touching occurred over top her clothing and on her bare skin. [69] Defence also argues that I should be concerned about G.C.’s own statements that her memory is unreliable.

She indicated thatquarantine is a blur, she should have kept a journal and these instances happened in her room mostly at night. Her evidence is also inconflict with D.C.’s evidence that G.C. never made any disclosures to her aside from the kiss on the knee. [70] On the first step of W. (D.) I do not entirely believe the accused’s evidence.

I share some of the Crown’s concerns with respectto how quickly the accused recalled with precision the kiss on the knee incident given that it was described as an innocuous act ofteasing an annoyed teenager months prior. [71] It is not a foregone conclusion that people who suffer difficulties with mental health are unreliable witnesses, but in theaccused’s case, he conceded on cross-examination that he might see things differently than other people because of his mental healthcondition.

It was clear from both his account and that of D.C. that the accused was under a tremendous amount of pressure, some self-imposed and some because of the pandemic. His behaviour was erratic, he was short, easily upset, paranoid and finally suicidal before hegot help. [72] These concerns however are not determinative of the accused’s credibility so on the second step of W. (D.) the accused’sevidence while not accepted in its entirety has raised a reasonable doubt in the Court’s mind.

While the previously mentioned concernsprevent me from believing his account entirely they are certainly plausible accounts of the events in question. There were no significantcontradictions or internal inconsistencies within the accused’s evidence. [73] I have no difficulty accepting D.C.’s testimony. She was unshaken on cross-examination. She revealed a very personal andpainful part of her childhood, which explained her actions and her perception of the events between September and December 2020.

Shedescribed having difficult conversations with G.C. about the kiss on the knee incident; she described herself as getting angry at G.C. forfailing her classes, and openly acknowledged her poor choice of words in the CFS office before G.C. was apprehended. There was noattempt to diminish or hide the dysfunction in her household in the fall of 2020. [74] G.C. confirmed D.C.’s evidence that she investigated the kiss on the knee incident by confronting the accused, telling her

friend Barb about it, and continuously asking G.C. about it. This behaviour was inconsistent with the Crown’s suggestion that she was essentially burying her head in the sand about the abuse. There was nothing in her evidence or the evidence of any other witness that suggested D.C. was motivated to keep R.C. out of jail because she feared financial difficulty or being left alone. While I fully accept her evidence, it is not determinative of the guilt or innocence of the accused. [ 75 ] I also share some of the concerns raised by Defense counsel in relation to G.C.’s statement.

I am mindful that children’s evidence is almost expected to contain some level of contradiction and an inability to recount precise details such as time and place. However, in certain key aspects of G.C.’s testimony it was difficult to reconcile the discrepancies as typical difficulties a child might have with time and place. [ 76 ] In her statement to the police filed as exhibit 1 in these proceedings she framed the abuse as occurring between April and September 2020. These timelines were not suggested to her. She said it all began during quarantine.

In direct examination, she confirmed that the events happened between April and September of the same year she gave the statement. On cross-examination, she indicated that the abuse was continuous between the ages of 10 and 16. She acknowledged that she did not mention this to the police even though she described an incident when she was 10 where R.C. touched her bottom. She acknowledged not telling anybody this until that moment. [ 77 ] She was asked when these incidents occurred and she indicated that they happened when she was home from school on the weekends.

It was pointed out to her that between the ages of 10 and 14 she would have been home schooled. She acknowledged that was the case, but explained that sometime she spent nights away at friends’ homes. She conceded that spending time away from her home when she was being home schooled meant one or two nights. While it is possible for a witness to have a new recollection on the stand, particularly when they have been reviewing years-old evidence and events, the explanation for it did not make sense.

It is unclear how the fact that she spent some nights away from home between the ages of 10 and 14 explains how the accused only abused her on weekends prior to her attending boarding school. Rather than conceding she was mistaken or confused about the timeline, G.C. insisted on it and continued with the inconsistent explanation.

Eventually it became clear that the explanation was not satisfactory so she concluded by saying that she does not have a good memory when it comes to trauma. [ 78 ] G.C.’s account on cross-examination not only expanded the timeframe of the offence from 6 months to that of 6 years, but also escalated the nature of the assaults. In exhibit 1, she described the accused touching her over her clothing. During cross-examination, she told the court that the sexual touching occurred both over and under her clothing on her bare skin.

When confronted by defence counsel on the new development she said that while she could not recall any specific details she does remember that it happened. [ 79 ] In her statement when recalling the incident where the accused touched her bottom, she was asked where it occurred. Her response was “oh uh we were in the [unintelligible comment] uh either in my room, or yeah, just call it my room, that makes a lot of sense.” Certainly, it is expected that G.C. might have difficulty recalling where the one incident specifically occurred.

However, the response appears to surmise where the incident would have occurred raising concerns about whether G.C. could actually recall it or whether she was making assumptions about where it would make the most sense for the incident to have occurred. [ 80 ] While the court is expected to use a flexible and common sense approach to the evidence of children, it must be cautious not to completely ignore frailties in its credibility and reliability.

The Crown’s burden of proof beyond a reasonable doubt is not modified because the case rests on the evidence of a person who was a child at the time the allegations arose.

I have found some of those frailties in the evidence of the complainant. [ 81 ] While the W. (D.) analysis ends at step 2 because I am left in doubt by the evidence of the accused it bares mention that I would also have some difficulty at stage 3 of the analysis and whether the evidence supporting the Crown’s case was sufficient to prove it beyond a reasonable doubt. [ 82 ] As such, I acquit the accused of all of the charges on the information. “Original signed by:” Cornick PJ