R. v. M.D.S., 2015 BCSC 678

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. M.D.S., 2015 BCSC 678 Date: 20150429 Docket: 74745 Registry: Nanaimo Between: Regina v. M.D.S. Restriction on Publication: Pursuant to ss. 486.4(1) of the Criminal Code Before: The Honourable Mr. Justice Baird On appeal from: Provincial Court of British Columbia, dated May 6, 2013 ( R. v. S. Nanaimo Registry No. 74745) Reasons for Judgment Counsel for the Crown (Respondent): B. McCormick Counsel for the Accused (Appellant): R. Mulligan QC Place and Date of Hearing: Nanaimo, B.C. March 18, 2015 Place and Date of Judgment: Nanaimo, B.C.

April 29, 2015 INTRODUCTION [ 1 ] On May 6, 2013 the appellant was found guilty of two counts of sexual touching contrary to s. 151 of the Criminal Code . On this

summary conviction appeal he argued that the convictions should be set aside. For the following reasons, I agree. The result will be a new trial. BACKGROUND [ 2 ] The complainants K.V. and D.V. are sisters. They are the nieces of the appellant’s common-law-wife, N.C. The offences were found to have been committed between October 1, 2011 and December 21, 2011 when the complainants were aged 11 and 9 respectively. They were 12 and 10 years old when they testified in court o n October 12, 2012 .

K.V. testified that, somewhere in the period referred to, the appellant rubbed her vaginal area on two discrete occasions during the same day. Her evidence was supported by D.V., who said that she witnessed the incidents. D.V. emphasised in her testimony that K.V. seemed to have instigated or enjoyed the appellant’s acts, which D.V. found upsetting. D.V. also testified that the appellant had touched her in a similar way sometime previously. [ 3 ] The complainants were staying at the appellant’s house with their father, R.R., and their three younger siblings.

The appellant and his common-law-wife had two children of their own and lived in a small rented townhouse. R.R. and the complainants’ mother had separated and R.R. had taken up with a new partner. The appellant and N.C. permitted R.R. and his children to board with them until matters sorted themselves out. They ended up staying quite some number of months during which, as it turned out, R.R. was only occasionally present.

The obligation of caring for the children devolved to the appellant and N.C. who, quite understandably, came to resent it. [ 4 ] The result, quite clearly, was a somewhat chaotic and unhappy home. The appellant and N.C. were obliged to sleep on an air mattress in the downstairs dining room so that the seven children could sleep in the three small bedrooms aloft. The cost of groceries for the entire crew was burdensome to the appellant and N.C., who are people of straitened means.

The stress of looking after her brother’s children was multiplied for N.C. by a complaint of abuse made to the child welfare authorities, found upon investigation to be groundless, by the children’s absent mother. Making an already glum situation worse, the rules of the appellant’s townhouse complex prohibited long-term guests, so that the prospect of detection and eviction loomed over the household throughout. THE TRIAL

[5] The trial record makes it clear that the complainants did not like living with their aunt and the appellant. They were upset bytheir parents’ break-up and wanted them to reconcile. They preferred to live elsewhere.

D.V., in particular, was aware that her report ofsexual touching could result in the children’s removal to their mother’s custody, a result for which she devoutly hoped. “Objectively,”found the trial judge, “each of the complainants had a motive to fabricate an allegation of abuse at the hands of the accused.” [6] N.C. testified that the appellant could not have committed the offences because she was invariably around the house and wouldhave detected any behaviour of the sort testified to by the complainants.

The trial judge rejected N.C.’s evidence, not because he thoughtshe was dishonest, but because he did not believe that the circumstances permitted her to be as vigilant and aware of what was happeningin her home as she let on.

This reasoning was not challenged on appeal. [7] The accused testified that the offences had never occurred, but the trial judge rejected his evidence on the basis of thefollowing analysis: 23 The first question is whether either or both of K.V. and D.V. are credible; i.e. whether they are telling the truth about what theyremember (whether or not their memories are accurate)....29 I assess the credibility of D.V. and K.V. primarily by reference to the reasoning process described in Faryna v.

Chorny (BC CA), [1952] 2 DLR 354 ... 30 In this case, the most compelling aspect of the evidence is D.V.'s perception that K.V. was a willing participant in, and perhaps theinstigator of, the activity described by the complainants. D.V. believes that her sister initiated and willingly participated in sexualbehaviour with the accused because K.V. enjoyed it.

D.V. is very upset by that.... 39 I am mindful that the issue is not whether I accept the evidence of K.V. and D.V., but rather whether I am satisfied beyond areasonable doubt, after considering all of the evidence, that the accused touched either or both of them for a sexual purpose. Beforereaching a conclusion on that question, I must consider whether the evidence of [the appellant] and N.C., taken individually or together,causes me to have a reasonable doubt as to the guilt of the accused. 40 [The appellant] gave evidence, and denied the allegations against him.

He presented well in the witness box, gave an impression ofsincerity and remained unshaken on cross-examination. There are no collateral grounds on which to impugn his credibility. However, Ireject his evidence, applying the principle stated in Faryna v. Chorny, because the inherent improbability that D.V. would invent a storywhich so seriously implicates her sister in behaviour which is so clearly offensive to D.V. convinces me beyond a reasonable doubt thatthe accused's denial must be false. … 42 For those reasons, I find [the appellant] guilty of the offences with which he is charged. THE R. v.

W.(D.) ISSUE [8] In my respectful view, the issue referred to by Crown counsel in argument as a “W. (D.) problem” is dispositive of the appeal. Iwill make no reference to the other grounds raised. [9] The passage from Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 upon which the trial judge relied is asfollows: The credibility of [an] interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [10] There is no basis for concern if this quote stands merely for the proposition that the credibility of a witness ought not to beevaluated exclusively on the basis of courtroom demeanour.

With the greatest respect, however, it is courting controversy to be guided ina criminal case by an authority which encourages one to think of an accused person merely as an “interested witness” whose testimonymust be tested for its “harmony with the preponderance of probabilities.” This brings clearly to mind the civil standard of proof and thesuspicion that the accused’s evidence was not rejected so much as the complainants’ testimony was preferred. [11] The formula for assessing the credibility of the accused in a criminal trial, on the other hand, is set out in the case of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 as follows (at para. 28): 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. [12] As noted by the Nova Scotia Court of Appeal in R. v.

Lake, 2005 NSCA 162, nothing can be made of the mere failure to cite orrecite the W. (D.) principles. The question on appeal is whether, upon consideration of the whole of the trial reasons, it is apparent thatthe analysis of the trial judge diverged from the essential principles underlying the W. (D.) analysis (para. 15). [13] The trial judge’s reasons in the present case expressly set out that he disbelieved the evidence of the accused because he

accepted the evidence of the complainants. More particularly, he pitted the credibility of the accused against the credibility of D.V., and rejected the former’s evidence purely as a result of the unlikelihood that the latter would fabricate allegations that impugned her sister’s conduct. This analysis speaks solely to D.V.’s credibility and fails adequately to deal with that of the accused.

The reasons for judgment disclose no other basis justifying rejection of the accused’s evidence, or any indication that the trial judge proceeded to consider the third stage of W. (D.) . , which, in my respectful view, was of vital importance given the rather fraught and unhappy living situation out of which the allegations arose, and the trial judge’s earlier expressed view that, because of it, he considered that the complainant’s had an objective motive to fabricate. [ 14 ] I consider the present appeal to be on all fours with R. v.

Gharabaghi , 2005 BCSC 1641 and have concluded that it should be allowed for essentially the reasons given by my colleague Arnold-Bailey J. in that case. In my respectful view, the reasons for conviction in the matter before me give rise to the inference that the trial judge inadvertently applied the civil burden of proof in a criminal case or shifted the burden of proof to the accused to disprove the complainants’ version of events. Either constitutes a reversible error of law for which the only suitable remedy would be a new trial.

DISPOSITION [ 15 ] The appeal is allowed, the convictions are set aside, and a new trial is ordered. “Baird J.”