R. v. A.K.M. and S.K.M. Date:, 2013 BCPC 62

Citation: R. v. A.K.M. and S.K.M. Date: 20130405 2013 BCPC 0062 File No: 76739-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.K.M. and S.K.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. Di Curzio Counsel for the Defendants: E. Chapman Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 7-10, February 4, March 6-7, 2013 Date of Judgment: April 5, 2013

Introduction [ 1 ] The Defendants A.K.M. and S.K.M. are each charged with a single count of assault contrary to

section 266 of the Criminal Code . Each count represents a separate assault, but each is alleged to have been an assault of A.M., a child, and each count is alleged to have occurred sometime between August 13 and August 17 of 2011, when A.M. was six years old. A.K.M. is A.M.’s paternal aunt and S.K.M. is A.M.’s paternal grandmother. [ 2 ] The Crown presented five witnesses in support of its case. These included A.M. and his two sisters, as well as the children’s mother and the investigating officer. Each of the children gave a videotaped statement to police, and the Crown applied under

section 715.1 of the Criminal Code to admit the statements into evidence as permitted under that section. The Crown’s application was granted. [ 3 ] Each of the Accused testified and each denied committing any assault of A.M.. It is the theory of the defence that the children have been coached to give false evidence in order to advance their mother’s case in family court proceedings. Also called as defence witnesses were the children’s stepfather and a plumbing contractor who may have been present when one of the assaults is alleged to have occurred. [ 4 ] This case presents interesting issues about what use can be made of recorded statements of children under

section 715.1 of the Code and about children’s evidence generally. Following is

summary of the evidence heard and of the applicable law, and the analysis of the law to the evidence.

Summary of Evidence [ 5 ] R.K.M. is the mother of A.M., the alleged victim of the assaults charged, and of A.M.’s sisters J.M.(1) and J.M.(2). The father of the children was G. M.l, who passed away on April 10, 2010. Following her husband’s death, R.K.M. married her late husband’s brother H.M. in August of 2010. The two of them had a child together, V., and H.M. had a five year old daughter from a previous relationship. The marriage of H.M. and R.K.M. was not a successful one and the two of them separated in August of 2011.

At that time R.K.M. and the children left the home and went to live in a transition house. [ 6 ] R.K.M. testified that following the separation, A.M., who was six years old at the time, told her about something that had happened while he was at his paternal grandmother’s house in August of 2011. She couldn’t understand what he was telling her, but her oldest daughter J.M.(1) reported to her that A.M. had been assaulted while at his grandparents’ home. R.K.M. passed this information along to a social worker and the police were called.

R.K.M. testified that she did not see any injuries on the child, but later she noticed some marks on his leg. She had been talking with police about an unrelated incident, but did not tell them about the incident involving A.M.. She said that this was because she didn’t know that she could report incidents other than the one she was talking with police about. [ 7 ] In cross-examination, R.K.M. said that she had been talking with police about an alleged assault on her by her husband H.M. which allegedly took place in July of 2011.

The two of them subsequently attempted reconciliation in early August, 2011, but it was unsuccessful and she and the children left H.M. on August 8, 2011. On August 9, 2011 a family court order was made for joint custody of the three children. [ 8 ] On September 8, 2011, R.K.M. met with a police constable about the assaults now before the court in this matter. In cross- examination she was questioned about the suspicious timing of her report of this matter to police, in that it was made the day before an appearance in family court.

It was suggested to her that the children may have been offered presents, including some sort of motorized bike, and laptop computers. R.K.M. denied suggestions that the children were given presents as an incentive to falsely report that A.M. had been assaulted by his aunt and grandmother. [ 9 ] Constable Michelle Hurtubise (then having the surname of Zacour) of the Langley detachment of the RCMP was assigned to investigate the alleged assaults on A.M.. She first became involved on September 8, 2011.

She arranged to have the children brought to the Langley detachment office for the purpose of interviewing each of them. She reported noticing a bruise on A.M.’s leg, which she photographed. [ 10 ] The children were interviewed at the Langley RCMP Detachment on September 8, 2011. J.M.(1) was the first to be interviewed. Her interview was conducted by Constable Hurtubise. The interview began at 11:29 a.m. and ended at 12:33 p.m.

J.M.(1) is now 14 years of age, but would have been about 12 years and 8 months old at the time of her interview. [ 11 ] Early on in the interview, J.M.(1) gave a lengthy narrative detailing a number of complaints about her step-father. It is apparent from this narrative that it contains information that she would not have been privy to at the source and therefore someone (likely her mother) told her about these things.

They include the circumstances of her mother’s recent pregnancy, financial matters between her mother and stepfather, alleged threats made by her stepfather to her mother, and things that a judge was supposed to have said in a court proceeding. At the end of this narrative, J.M.(1) described the alleged assault by S.K.M. on A.M..

She told Constable Hurtubise (at page 8 of her statement): “My brother was trying to – when we went for the engagement we stayed there for a couple of days too and then what happened was that my grandma was chasing – my grandma was chasing my brother and then he ran upstairs and tried to lock the door so my grandma wouldn’t hit my brother.

He locked the door and he went into my aunt’s closet and then my grandma, she had the keys, and then she picked A.M. and then slapped him and hit his head on the wall and then my aunt a couple of days before that or after that she said – then she kicked my brother and sat on him and stuff.”

[ 12 ] J.M.(1) went on in her statement to tell Constable Hurtubise that she walked in on A.M. and his four year old cousin and saw them kissing. She went to tell her grandmother about this and said that she expected her grandmother to tell the children not to do this. Then (at pages 11-12 of her transcript) she said: “So I told my grandma and then she went and start hitting, I mean and then like chasing him, right. She was, but then he ran away and then she started chasing him, and they went up the stairs into my aunt’s bedroom. Locked the door. Went to the closet. My grandmother waits for a little bit.

She goes ‘come out.’ We tried, just tell her like, come out, and then he wouldn’t. So she just got the key. She has bedroom keys for every door, and in this, in this one closet she got the keys, she opened the door. She first she was – and there was a plumber too in my aunt’s bedroom because he had to plumb or something. So she kind of hit that plumber too, like right in front of him and the plumber was – the plumber is – let me tell you something about the plumber... The plumber, right, you know my aunt was getting married, A.K.M. Her fiancé, the plumber was her fiancé’s best friend...

And the thing is then she got the, first she was looking in the bedroom, like ‘where did he go’ ‘cause my aunt had a pretty big bedroom. Then she found him in the closet, got him out, and then slapped him a couple of times and then hit his forehead on the wall and then, and then um yeah, and then I think he, yeah, then everybody calmed down a bit and then my aunt came home. And then my aunt found out my grandma slapped my brother in front of her fiancé’s best friend so she was like ‘you embarrassed me, you hit him.

You could have hit him somewhere else and not in front of my fiancé’s best friend.’ Like that’s all she cared about was embarrassing.” [ 13 ] J.M.(1) gave this description to Constable Hurtubise (at page 13) of how her grandmother had hit A.M.: “Like she was, in our language she was saying like ‘what kind of bad stuff are you doing’ and slapped him, slapped him, slapped him and then waited a couple of times and slapped him more and then he, she’s pulling him out of the closet and then he kind of, A.M. kind of trips, right, and then he’s like turn a leg, run away, but then my grandma hits his forehead on the wall.” [ 14 ] J.M.(1) told Constable Hurtubise that her grandmother used an open hand to hit A.M. in the face, and also used a closed hand to punch him in the shoulder area.

She was standing behind her grandmother and her sister J.M.(2) was behind her. She told Constable Hurtubise that things settled down, but when her aunts returned home from work and found out what happened, her aunt A.K.M. started kicking A.M.. She said that A.M. was lying on the floor and A.K.M. was sitting on top of A.M. to make sure that he didn’t get away, and kicking him at the same time. [ 15 ] J.M.(1) later was asked about the plumber who may have witnessed the assault of A.M. by her grandmother.

She said that the plumber was in the bathroom when A.M. was hit and probably didn’t see him getting hit, but should have heard what was going on. J.M. (1) was also asked to give a better description of how A.K.M. hit A.M..

She said that A.M. was trying to run away, but A.K.M. grabbed him, made him lie on his stomach, “and she fell on top of him... with like one leg, she’s holding his head and one of her legs was holding, like on his back, and she was kicking him with the other.” (Page 31 of the transcript.) [ 16 ] In her testimony at trial, J.M.(1) said that she was being honest with Constable Hurtubise and she adopted the evidence given in her statement as her evidence at trial. She recalls that she, A.M. and J.M.(2), were at their grandmother’s house from August 13-16, 2011.

She repeated much of what she had said in her interview with police. She testified that she walked in on A.M. and his stepsister when the two were downstairs. She saw them kissing and went to tell her grandmother. She repeated her description of the grandmother following A.M. upstairs, unlocking the door to the bedroom, taking the children out of the closet, and hitting A.M.’s head against the wall. [ 17 ] At different points in her evidence, J.M.(1) said that the two assaults on A.M. (by his aunt and by his grandmother) occurred on different days, and later said that she believed they occurred on the same day.

At one point in her evidence in chief, she said that her aunt A.K.M. got home, learned of what A.M. had done, got mad at A.M. and sat on him in such a way that she was able to kick him. She testified that she saw her aunt give A.M. “a couple of kicks, I don’t remember where” but later said that she believed that they were kicks to his thighs. [ 18 ] In cross-examination, J.M.(1) agreed that she always disapproved of her mother’s relationship with her uncle H.M..

She was also mad at him because he had caused her to miss an audition for a television program called “The Next Star.” She admitted that she had discussed court proceedings with her mother. She also said, in cross-examination, that her brother was not slapped by their grandmother in front of the plumber. [ 19 ] A.M. was six years old when he was interviewed by Constable Hurtubise on September 8, 2011. His interview began at 1:40 p.m. In his interview, his behaviour was typical of many children his age. He was restless and distracted.

Early on in the interview, Constable Hurtubise told him “you can tell me anything you want in this room,” to which A.M. replied, “um, my grandma, she, she got grandma, she banged my in that wall.” He went on to say that he “just remembered a little bit, a little bit I forgot a little bit of it.” [ 20 ] A.M. went on to report a number of curious incidents. He mentioned a time when someone threw a shoe at him, another time when he was hugging his uncle and his grandma slapped him “really hard.” Later in the interview he mentioned something about glue, a crowbar and being hit in the head really hard.

It is difficult to ascertain whether some of these recollections are reality or products of his imagination.

When Constable Hurtubise tried to redirect his attention to the incident with his grandmother, A.M. replied “I don’t know that much, I forgot.” [ 21 ] The subjects in his statement wandered, as he talked about playing hide and seek, going to the movies, and his being chased, He repeated his response that he forgot, and when reminded about something he said to the Constable in the car about his grandmother, he said “can’t remember” and “I forgot that.” Later on, Constable Hurtubise asked A.M. if he was telling the truth when he talked about being chased around the house.

He said that nobody was chasing him, but then said that this wasn’t the truth. At this point A.M. began to cry. He was asked if he had done anything special lately. He said that he forgot, and when asked what he forgot, he said “they hit me in the head, then grandma, she hit, she was, she was get step on my legs.” Constable Hurtubise asked if his grandma stepped on his legs and he replied “no, my boojie.” Boojie is a term he used to refer to an aunt.

[ 22 ] A.M. referred to some details similar to those described by his sister. For example, he said his grandma had a key to open the door, he said that his two sisters were watching when he was hit, he mentioned being with his stepsister, and he mentioned his grandma hitting him. Constable Hurtubise had this exchange with him (at page 19 of the transcript of the interview): Constable: You said your grandma used a key and she opened the door and your sister J.M.(2) and your sister J.M.(1) were there and they saw it. A.M.: Yeah.

Constable: And you said that they saw her hitting you and her, who’s her, is that your grandma? A.M.: (Unintelligible answer) Constable: Okay and stop me if I’m getting it wrong, okay, if I get confused I’m old so you gotta stop me and tell me I’m getting it wrong okay? So your grandma was hitting you? Where was she hitting you? A.M.: She, she , she, she, um, hitting me in the wall. Constable: She hit you in the wall? How did she hit you in the wall? A.M.: She, she, she like um, she grabbed my hair and banged it. Constable: She grabbed your hair and banged it?

A.M.: And she slapped there. [ 23 ] A.M. also described how he was hit by his aunt (or his Boojie as he called her.) He said that she chased him, he was sitting on the ground, and she “made steps.” [ 24 ] About two-thirds of the way into the interview, A.M. began crying. Constable Hurtubise left the room, but returned a couple of times in an effort to calm the child. The interview then went in a strange direction. A second female officer, unidentified, came into the room and began to speak to A.M. in a very terse and unsympathetic manner. She told him to stop crying.

When A.M. told the officer that he was thirsty, the officer told him that she would get him a drink in a minute, but first insisted that A.M. tell her “everything that’s happened.” When A.M. replied that he didn’t know that, his sisters knew that, the officer sternly replied “no, you know it A.M..” A.M. tried to explain that he was scared because of a movie he watched. He told this officer that it was his grandma who stepped on him and gave him the bruise on his leg.

The officer said to the child “you know more” and told him that he’s “not a baby.” A.M. then replied that it was his “boojie” who stepped on him. [ 25 ] When A.M. told the second officer that he had gotten in trouble because his sister had kissed him and then he kissed her, the officer told him that he was a good boy. But when he said that nobody grabbed him, the officer told him “A.M., tell the truth.” The interview proceeded in such a manner that, so long as A.M. provided information supportive of his being assaulted, he was spoken to nicely, but when he suggested the contrary, he was talked to sternly.

At the end of the interview the officer told the child (at page 36 of the transcript): “Do you know what A.M.? Your sisters could come in here and tell me exactly what happened. They told me exactly what happened with your grandma, with your boojie, with everybody... But you didn’t tell me what your grandma did to you, but your sisters did... Why are you not telling me everything?... You know more. And I know that you do but I’m not going to push you any more okay? Because for some reason you don’t want to tell me...

You know what A.M., that’s entirely up to you, but I can’t protect you and I can’t keep you safe unless I know exactly what happened... I know you know more because your sisters have told me everything so I know that there’s more there and I know you know more because you’re six and I know that six year olds know that kind of stuff.” [ 26 ] In response to this dressing down, A.M. volunteered more responses, such as telling the officer that his grandma banged his head. When he began to cry again, the officer said to him “Stop crying, stop crying, you’re fine. Be a big boy...

There’s no need to cry.” Right up to the end of the transcript, this officer criticized the child for not giving up all of the details of what had happened. This style of interviewing a six year old child who may also be the victim of violence is very troubling. It is both insensitive and likely unreliable. Its unreliability stems from the fact that when the child gives details that accord with the version that the officer wants, the child is spoken to nicely, but when he says things that do not match what the officer wants to hear, he is spoken to sternly.

The child was given an incentive to give a particular version of events, whether or not that version was truthful. The child was treated more like an adult suspect than a child victim. It would be dangerous to convict anyone solely on that portion of the child’s interview that was conducted by the second officer. [ 27 ] In his testimony at trial, A.M. said that he what he told the police officer was true. He also said that “my grandma stepped on my foot and I was bruised.” He was unsure if the two incidents occurred on the same day or on different days, or which happened first.

He later said that his grandma pulled his hair, and his head hit the wall. He said that his sisters were there. He also said that his aunt walked on his legs, below his knee he thought, one leg at a time. He said that she sat on him in the living room. [ 28 ] In cross-examination, he said that he didn’t know why his mother took him to the police station on September 8th. He agreed that he felt that he was being pressured by the police.

Many of the questions asked of A.M. in cross-examination were not very helpful because they were often very lengthy, containing multiple subjects and using language not in the vocabulary of the average elementary school-aged child, especially one raised in a home in which English was a second language.

[ 29 ] The last of the three children interviewed by police was J.M.(2), who was nine years old at the time of her testimony, and was almost eight when she was interviewed by police. J.M.(2)’s interview began at 2:40 p.m. and while she was being interviewed, A.M. could be heard crying in an adjacent room. J.M.(2) told her interviewer, Constable DeVisser, that her mother didn’t tell her why she was coming to the police station. After giving some background information about her family, J.M.(2) was asked about her grandmother.

At page 7 of her transcript, she said: “In his like, my grandma (unintelligible) his hair and then banged his head on the wall and them cause my cousin was kissing him, and so, um, so A.M., and my grandma hit A.M. on the head and then my aunt, my aunt (unintelligible) is gonna get married, my aunt, she steps on him with both, um with both feet and she was like so fat and A.M. was so skinny like he was crying, so my grandma didn’t care about him. He said it, like, she said you should (unintelligible) like he didn’t say anything you know and then I told my mom and then I saw it she doing it.

I saw my aunt putting both legs on my brother and hitting head on the wall. And my sister saw it too. And yeah, that’s all. And, er, my grandma and my aunts have never been mean to me but only a little bit sometimes be mean to me like just sometimes but they will hit me but they only hit my sister and my brother, that’s all, but they only be mean to me little bit sometimes.” [ 30 ] J.M.(2) told Constable DeVisser that she and her sister were on the couch when she saw her aunt hit A.M..

She said that her aunt got on A.M.’s legs with both feet, “like almost standing on them sideways.” [ 31 ] J.M.(2) described the incident in which her grandmother hit A.M., saying that A.M. and her cousin had locked themselves in their other aunt’s bedroom. Her grandmother had a key. She was standing behind her sister, and at first she said that she didn’t see her grandmother hit A.M.. But she said that she asked her sister to let her have a look.

She said that she saw her grandmother slap A.M. and pull his hair. [ 32 ] In giving her evidence, J.M.(2) said she believed that the incident involving her aunt happened one day, and the incident involving her grandmother happened the next day. She also said that she was being truthful when speaking with the police. In cross- examination, J.M.(2) was respectful but adamant when she rejected the suggestion that she had lied to police. She said “I didn’t lie to the police. I didn’t lie.” [ 33 ] Both of the Accused gave evidence at trial.

A.K.M is now married and living with her husband, but at the time she was living with her parents at their new home when these incidents are alleged to have happened. She testified that there was an engagement ceremony on Saturday and she had been involved in preparations on the previous day. She had reviewed her week, including her return to work on the following Tuesday, and did not recall any unusual events. She denied that she had any sort of confrontation with A.M., or that she had ever struck him, kicked him or assaulted him.

She said that she had little contact with the children, and she had thought that she had a good relationship with the children. [ 34 ] S.K.M. is 63 years of age. She testified that she was very surprised by the accusation made against her because she believed that she had a very strong relationship with her grandchildren. She testified that during the week that the assaults of A.M. are alleged to have taken place, the children were at her home from Saturday morning of that week.

On Saturday the children were at an engagement ceremony for her daughter A.K.M. and aside from that, the day was uneventful. [ 35 ] She testified that later in the week, she recalled an incident involving A.M. and his cousin J. A.M. was saying something inappropriate to his cousin, so S. held A.M.’s arm and said to him “you can’t do that.” She said that A.M. was telling J. “hold my penis” and she wanted to correct that behaviour by telling him not to do this. She testified that she became aware that the two children were running up the stairs and that they had been kissing in a closet.

She wanted to make the children understand that this was wrong, so she went upstairs where she found them in a closet. She later said that the bedroom was locked. She testified that she took the children out of the closet and spoke to them, telling them that they couldn’t do this. She denied that she hit the children in any manner. She said that she made them sit and listen to her. She told them “these things are not good for you and you can’t do this.” She recalls that J.M.(1) was present when this took place.

She said that she did not harm the children in any way and testified that she did not see anyone else harm the children. [ 36 ] In cross-examination she said that she didn’t recall a plumber being there. She admitted that she became angry when she learned that A.M. was kissing J., but that she only responded by telling A.M. that his behaviour was wrong. Other than grabbing his arm to get him out of the closet, she did not hit him, strike him, pull his hair or assault him in any manner.

She added that she had never struck her own children and would not do so to her grandchildren. [ 37 ] S.S., known as “S.S.,” is a plumbing contractor who is a friend of the husband of A.K.M.. He testified that he believes that he was at the home of S.K.M. on August 12, 2011, to inspect a reported problem with the plumbing in the ensuite bathroom of the bedroom in which it is alleged that A.M. was assaulted by his grandmother.

He recalled children being present, but testified that he recalled them being “pretty happy.” He did not witness any argument, discipline, or assault of any kind. [ 38 ] H.M. was the final witness and he testified about his relationship with R.K.M., the mother of the three children. He testified about his relationship, including the events leading to its break-up and the subsequent family court proceedings. He was not present at the M. home when these assaults are alleged to have occurred as he was busy working on his blueberry farm.

He testified that on September 9, 2011, the day after the children had attended to the Langley RCMP detachment to give their statements, he was met with an application in court to have his access to the children supervised. He also said that he had been charged with assaulting R.K.M., but that the charge against him was later stayed by the Crown. [ 39 ] He testified that since matrimonial proceedings have commenced, the children’s behaviour to him has worsened. For example, J.M.(2) becomes angry and disobedient and A.M. mentions calling the police.

He also testified that A.M. had told him that his mother had promised him a laptop computer and a motorcycle if he got H.M. in trouble. [ 40 ] H.M. was asked in cross-examination about an affidavit he had sworn in a family court proceeding, in which he said that his mother had hit A.M.. He admitted that he had sworn such an affidavit, but said that this was based on his misunderstanding of a word in

the affidavit which he said had been translated incorrectly. The word, phonetically, is “kouria”. He said that he later swore a secondaffidavit pointing out this error. Position of the Parties [41] On behalf of the Crown, Ms. Di Curzio argues that each of the children should be viewed as credible witnesses, noting that theirevidence has both internal and external consistency. While there are some differences in their testimony, the Crown argues that thisnegates any suggestion that they have been coached.

The Crown notes that the two younger children may have difficulty in articulatingwhat took place, but that the oldest child has the necessary cognitive skills to be able to recall and articulate the assault that shewitnessed. Ms. Di Curzio also argues that the children lack any motive to lie and that their evidence must be considered in light of thetraumatic events which had occurred in their lives in recent months: the death of their father, the presence of a new stepfather, a newbaby in the home, and the breakup of their mother’s second marriage with the resulting family court battle. [42] Mr.

Chapman for the defence notes that it is suspicious that there is no prior suggestion of any violence against the children byeither Accused until this incident, which occurred in the midst of the family court proceedings. He argues that one should be verysuspicious about why the alleged assaults against the children were not reported until three weeks after they allegedly took place, on theday before a family court proceeding was taking place. He notes that the allegations were used by the mother of the children as the basisfor an order limiting the stepfather’s access to supervised access.

He also notes the lack of any physical injury supporting the allegationsof assault should raise suspicions about whether they actually happened, or whether the children are being manipulated by their mother,to the detriment of their stepfather and his family. Applicable Law

Section 715.1 of the Criminal Code [43]

Section 715.1(1) of the Criminal Code of Canada reads as follows: In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence isalleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim orwitness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice. [44] The purpose of

section 715.1 was explained by the Supreme Court of Canada in R. v. D.O.L. [1993] 4 S.C.R. 319. MadameJustice L’Hereux-Dube wrote: 34 I agree with the submission that the goals of s. 715.1 are not unique but multifaceted. First, I find that the

section is designed topreserve an early account of the child's complaint in order to assist in the discovery of the truth and to provide a procedure for theintroduction of the child's story into evidence at the trial... 35 Secondly, the procedures set out in s. 715.1 are designed to diminish the stress and trauma suffered by child complainants as a byproduct of their role in the criminal justice system. This "system induced trauma"... often ultimately serves to revictimize the youngcomplainant.

Further, the most recent report of the House of Commons entitled Four-Year Review of the Child Sexual Abuse Provisionsof the Criminal Code and the Canada Evidence Act (formerly Bill C-15) by the Standing Committee on Justice and the Solicitor General,dated June 1993 (at p. 11), indicates that s. 715.1 was intended to preserve the evidence of the child and to remove the need for them torepeat their story many times.

It is often the repetition of the story that results in the infliction of trauma and stress upon a child, who ismade to feel that she is not being believed and that her experiences are not being validated.

In response to those who suggest that thepurpose of s. 715.1 is in no way geared to assist the child witness, it would be difficult to imagine how the legislators could have ignoredthe benefit such a provision would have in limiting the strain imposed on child witnesses, who are required to provide detailed testimonyabout confusing, embarrassing and frightful incidents of abuse in an intimidating, confrontational and often hostile courtroomatmosphere.

Finally, and most importantly, the limited scope of the rule is, in my view, a legislative attempt to balance these objectiveswith the rights of an accused to a fair trial. 36 Whilst the primary purpose of s. 715.1 may be the attainment of truth, the

section is particularly focused on the needs of childrenand the special protections that they require in order to expose that truth. Children, for example, find it stressful to face their perpetratorwhile they are testifying and to tell their story in front of strangers. It is these types of concerns at which s. 715.1 is aimed. [45] The purpose of this

section was once again explained by the Supreme Court of Canada in R. v. C.C.F. (SCC),[1997] 3 S.C.R. 1183, where Justice Cory wrote: 17

Section 715.1 is a statutory exception to the rule that hearsay is inadmissible. It permits an out-of-court statement to be admitted forthe truth of its contents, provided that certain conditions are met. Specifically, the complainant must be under 18 years of age, the offencemust be one of an enumerated list of offences (predominantly sexual offences), the video must have been made within a reasonable timefollowing the alleged offence, the complainant must describe the acts complained of and, while testifying, adopt the contents of thevideotape. 18 The

interpretation of legislation will always be facilitated by a consideration of its aim or goal. In the case of R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419, the constitutional validity of s. 715.1 was considered. The

section was unanimously held to beconstitutionally valid. Chief Justice Lamer, writing for six members of the Court, made this comment upon the aim and purpose of thesection at p. 429:

“By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.” 19 It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be.

Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, "Do Children Forget Faster?", [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the

section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question... 21 It can thus be seen that the primary goal of the

section is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth. The video record may indeed be the only means of presenting a child's evidence. For example, a child assaulted at the age of three or four years may have very little real recollection of the events a year or two later when the child is attempting to testify at trial. Justice L'Heureux-Dubé in her minority reasons in L. (D.O.), supra, noted the fundamental importance of having the videotape before the court. At p. 450 she stated:

Section 715.1 ensures that the child's story will be brought before the court regardless of whether the young victim is able to accomplish this unenviable task. 22 The important subsidiary aim of the

section is to prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings. This will be accomplished by reducing the number of interviews that the child must undergo and thereby diminish the stress occasioned a child by repeated questioning on a painful incident. Further, the videotaping will take place in surroundings that are less overwhelming for a child than the courtroom. [ 46 ] From these authorities, the following principle emerge, concerning

section 715.1 of the Criminal Code : (

a) Section 715.1 seeks to preserve an early account of the evidence of a child witness in order to assist the court in discovery of the truth. (

b) The procedures set out in

section 715.1 are intended to reduce the stress and trauma which child witnesses are faced with. It does this in part by removing the requirement for the child witness to repeat his or her evidence over and over again. (

c) Requiring a child to repeat his or her evidence many times can lead to the belief in the mind of the child that he or she is not being believed.

Section 715.1 seeks to remove this perception. (

d) The

section recognizes that a videotape made within a reasonable time following an alleged offence, describing the act, creates a record of what is likely the best recollection of the event. (

e) These considerations must not ignore the requirement that an accused is given a fair trial. To balance out these concerns,

section 715.1 must be strictly complied with. (

f) For such statements to be admitted, the witness must be under the age of 18 years on the alleged offence date, the video recording must be made within a reasonable time after the alleged offence, the witness must describe the alleged offence, the witness must adopt the contents of the video recording, and the presiding judge must be satisfied that admission of the video recording would not interfere with the proper administration of justice. (

g) For the purposes of

section 715.1 , to “adopt” the contents of the video recording, a statement is adopted if the witness recalls giving the statement and testifies that he or she was attempting to be honest and truthful when giving the statement. (This definition is taken from R. v. C.C.F. ) (

h) If the requirements of

section 715.1 are met, the video recording may form part of the evidence for the truth of its contents as an exception to the hearsay rule. [ 47 ] In this case, counsel for the Accused did not challenge the admissibility of the videotaped evidence of each of the children under

section 715.1 and each video was ruled admissible at trial under that section. In each case, I find that: (

a) the child in the videotaped interview was under the age of 18, (

b) each interview was conducted within a reasonable time following the alleged incidents, (

c) each child has described an incident which would meet the definition of an assault as described in each count on the information, (

d) each child has adopted the contents of their statements in his or her interview, and (

e) I am satisfied that admission of the video recording would not interfere with the proper administration of justice, with one exception, that being the portion of A.M.’s interview conducted by the second (unidentified) officer. That portion of the interview was conducted in such a manner as to cast serious doubt on its reliability and I therefore place no reliance on that portion of A.M.’s statement. (

b) Credibility and Burden of Proof

[48] Each of the Accused challenges the credibility of the Crown witnesses. Each relies on the application of the presumption ofinnocence to support her contention that the Crown has failed to prove the offence of assault beyond a reasonable doubt. Thepresumption of innocence is enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms. It requires that an accused cannot beconvicted of a criminal offence unless each essential element of the offence that he has been charged with has been proven beyond areasonable doubt. It also requires that where a defence is raised and where there is an evidential foundation for that defence, the defencemust also be disproved beyond a reasonable doubt in order to sustain a conviction. [49] The test in a criminal trial is not which side is believed, but whether the Crown has proven the offence beyond a reasonabledoubt.

As Justice LaForest said, speaking for the majority of the Supreme Court of Canada in R. v. MacKenzie, (SCC),[1993] 1 S.C.R. 212, “The two versions cannot be simply pitted against one another in isolation, rather all of the other evidence must alsobe considered.” I keep in mind that I must not examine the facts separately and in isolation with reference to the criminal standard.Rather, I must consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt.

No accused person is ever required to show a motive for why a complainant would lie. R. v. Krack(1990), (ON CA), 56 CCC (3d) 555 at 561-562 (Ont. CA). [50] Where there is conflicting evidence in a case such as this, the law requires that the conflict be analyzed according to thefollowing directions set out by the Supreme Court of Canada in R. v. W.(D). (SCC), [1991] 1 S.C.R. 742 at p. 757, whichI paraphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [51] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr Justice Wood gave the followingfurther advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [52] In R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence.

It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty. (

c) Elements of the Offence of Assault [53] An assault is defined in section 265 (1) (

a) of the Criminal Code as the intentional application of force against another personwithout that person’s consent. The amount of force must be more than trifling. [54]

Section 43 of the Criminal Code permits a parent or a person standing in the place of a parent to use force against a child as ameans of correction of the child, provided that “the force does not exceed what is reasonable under the circumstances.” [55] In this case each Accused has denied assaulting A.M.. Neither argues that the force alleged does not meet the definition of anassault, or that it fell within the bounds of reasonable corrective force. I find that if force as alleged is proven, it falls within the definitionof an assault under the Criminal Code.

The actions of hitting the head of a six year old child into a wall, or standing on a child’s legs asalleged here are not trifling and each constitutes an intentional application of force, if proven. Neither constitutes a reasonable means ofcorrection within contemporary Canadian standards. (

d) Considerations Regarding Child Witnesses [56] Appellate courts in Canada have noted that different considerations apply to the evidence of children, as opposed to that ofadults. For example in R. v. Stewart (1994) (ON CA), 18 O.R. 509 (Ont. C.A.), Justice Finlayson of the Ontario Courtof Appeal noted: [W]e must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses toperform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level ofscrutiny for reliability than we would do adults.

My concern is that some trial judges may be inadvertently relaxing the proper level ofscrutiny to which the evidence of children should be subjected. The changes to the evidentiary rules were intended to make childevidence more readily available to the court by removing the restraints on its use that existed previously but were never intended toencourage an undiscriminating acceptance of the evidence of children while holding adults to higher standards. [57] In an

article entitled Judicial Assessment of the Credibility of Child Witnesses, published at (2005) 42 Alta. L.R. Rev. 995-1017,the authors Nicholas Bala, Karuma Ramakrishnan, Roderick Lindsay and Kang Lee point out some of the developmental differenceswhich must be considered in evaluation of the evidence of child witnesses:

10 Research establishes that while children can be reliable witnesses, children's memories are less well developed than adult memories. Children are more suggestible than adults and they have greater difficulty than adults in communicating what they know. There is no research, however, that compares the honesty of children and adults. 11 As children become older, their memory improves. Even children as young as four years can provide accurate information about what happened to them one or even two years earlier.

Interestingly, while older children and adults can give more information about past events that happened to them than younger children, older children are also more likely to provide inaccurate information about past events than younger children. 12 Research also reveals that children are more likely to consistently recall information about the core elements of an experience than about peripheral elements, and thus inconsistencies about peripheral elements (such as descriptions of clothing or setting) in their stories may not be an important marker for the veracity or accuracy of their testimony with regard to central elements of what happened to them. 13 A major concern with child witnesses is their potential suggestibility.

As a result of repeated or misleading questions, the memory of a witness may become distorted. It is possible for a person who has been subjected to repeated, suggestive questioning to develop "memories" of events that did not in fact occur. While children, especially young children, are more suggestible than adults, there is great variation between individuals of the same age in suggestibility and in resistance to suggestion.

There is a large body of experimental research about the suggestibility of children, as well as some research about the suggestibility of adults. 14 The way in which children are questioned can also greatly affect what they are able to communicate. Research studies reveal that children and adults generally provide more information in response to specific questions rather than to the open-ended questions that are typically posed during direct examinations of witnesses.

Children, especially young children, may lack the cognitive capacity to provide meaningful and consistent answers to questions that involve frequency of events, time or size, or that require explanation of motive (why questions), though if asked they will usually try to answer.

In addition, "yes or no" questions are problematic as children, especially young children may have a bias to produce "yes" answers, and when asked such questions by unfamiliar adults, young children will rarely respond with "I don't know." 15 Children, especially young children, are socialized to provide responses to questions, even if they do not fully understand what is being asked.

Children who are asked questions that they do not fully understand will usually attempt to provide an answer based on the parts of the question that they did understand, so that a child's answer to a question may seem unresponsive or may even be misleading. [ 58 ] In this case, two of the witnesses were in their early elementary school years, while the third was in her latter pre-teen stage.

In assessing the credibility of the children, I am not reviewing their evidence separately and in isolation, but rather must consider it within the context of the totality of the evidence as a whole, including the evidence of the other children. Considerations of internal and external consistency continue to apply, though to varying degrees when compared to the evidence of adults, especially as regards inconsistency on peripheral details. [ 59 ] A consideration of these authorities leads me to conclude as follows: (

a) Child witnesses must not be expected to perform in the same manner as adults when it comes to giving testimony. (

b) Changes in evidentiary rules are not intended to lead to an undiscriminating acceptance of the evidence of children. (

c) Child memories are less developed than adult memories. (

d) Children are more suggestible than adults. (

e) Children have greater difficulty communicating what they know than adults do. (

f) As children become older, their memories improve. (

g) Older children can provide more information about what happened to them than younger children, but are also more likely to provide inaccurate information about past events than younger children. (

h) Children are more likely to consistently recall information about the core elements of an experience than about peripheral events surrounding that experience. Inconsistencies about peripheral elements are less likely indicators regarding truthfulness. (

i) Repeated suggestions are more likely to distort the memory of a child witness than an adult. (

j) The way that children are questioned affects what they are able to communicate. (

k) Children, especially younger children, may lack the cognitive capacity to provide meaningful or consistent answers about such things as frequency of events, time or size. (

l) Children, especially younger children, are socialized to provide responses to questions, even if they do not understand the question. (

m) Younger children may have a bias to provide “yes” answers to “yes or no” questions, especially those posed by unfamiliar adults. Analysis (

a) Count One [ 60 ] The first step in analyzing whether or not the Crown has proven each offence beyond a reasonable doubt requires a

determination of whether or not I accept the evidence of each Accused. This can not be decided in isolation, it requires a consideration of each witness’s evidence within the context of the totality of the evidence. I will first consider the evidence of A.K.M.. Her evidence is that the assault which she is alleged to have committed simply did not happen. [ 61 ] One of the difficulties with this count is the lack of clarity as to how this assault is alleged to have occurred. The assault alleged in count one was not witnessed by the children’s mother.

It is described differently by each of the children, and sometimes differently at different times by the same child. J.M.(1) first tells Constable Hurtubise that her aunt “kicked my brother and sat on him and stuff.” Later she says that A.K.M. grabbed A.M., made him lie on his stomach, fell on him, held him down with one leg and kicked him with the other.

In her testimony at trial she said that A.K.M. sat on him in such a way as to be able to kick him, but was unclear how she was able to do this. [ 62 ] A.M. initially tells Constable Hurtubise that his grandmother stepped on his legs, but he corrects that to say that it was his aunt. He repeated this to the second officer, telling her at first that it was his grandmother who stepped on his legs, and later that it was his “boojie” or his aunt. At trial, A.M. said “my grandma stepped on my foot and I was bruised.” [ 63 ] J.M.(2) told Constable DeVisser that her aunt stepped on A.M. with both feet.

She also said “I saw my aunt putting both legs on my brother and hitting head on the wall.” She later said that her aunt was “almost standing on [A.M.] sideways.” The children were also unclear as to when this incident had occurred in relation to the alleged assault in count two. [ 64 ] It is the theory of the Crown that the injury observed on A.M.’s leg was the result of the assault alleged in count one. The position of the defence is that this is unlikely because of the delay between when that assault is supposed to have occurred and when the children were interviewed.

The theory of the defence is that the bruise or scrape looks too fresh to be from an injury that occurred at least three weeks earlier. From my observation of the photographs and the description of the injury by Constable Hurtubise, my conclusion is that the defence theory is more likely. [ 65 ] From all of the evidence on the assault alleged in count one there is a lack of clarity as to how the assault actually took place.

There are at least two different versions tendered (either the Accused stood on the child’s leg, or she sat on him while simultaneously kicking at him.) A conviction based on this evidence would be tantamount to saying to the Accused “we don’t know how you did it, but somehow you hurt the child’s leg.” A conviction should not be sustained on this basis.

It makes it difficult to assess whether each element of the offence has been proven beyond a reasonable doubt and it makes it impossible to articulate on what basis the Crown has proven the elements of intent, or to negate possible defences such as accident. [ 66 ] The evidence of the children raises a strong suspicion that something happened to A.M. involving his aunt and his legs. There is considerable territory between suspicious circumstances and proof of an offence beyond a reasonable doubt.

The evidence on count one falls short of meeting the latter standard and the Accused A.K.M is entitled to an acquittal on that basis. (

b) Count Two [ 67 ] The Crown’s case in regard to count two is a completely different situation. There is considerable consistency on most of the details of the assault alleged in count two, not only among the children, but also with the evidence of the Accused S.K.M.. There is consistency on the following details: (

a) S.K.M. was told that A.M. and his cousin were kissing in a closet: She admits this in her evidence. J.M.(1) also says that she told her grandmother about this. (

b) A.M. ran upstairs and S.K.M. followed him: S.K.M. admits this in her evidence, and J.M.(1) also testified that this happened. (

c) A.M. locked the door to his aunt’s bedroom and S.K.M. had to unlock the door with a key: This was a consistent detail in the evidence of S.K.M., J.M.(1), and J.M.(2). Even A.M. told Constable Hurtubise that his grandma had used a key to open the door to where he was. (

d) A.M. was found in a closet by his grandmother: This was also a consistent detail in the evidence of S.K.M., J.M.(1), J.M.(2) and even A.M.. (

e) S.K.M. took A.M. out of the closet to confront him: once again, the testimony of S.K.M. and J.M.(1) are in agreement on this point. (

f) J.M.(1) and J.M.(2) were both present when S.K.M.’s confrontation with A.M. took place: S. testified that J.M.(1) was present when this occurred. J.M.(1) said that J.M.(2) was beside her when this incident took place. J.M.(2) said that when this took place, she was standing behind J.M.(1). A.M. told Constable Hurtubise that J.M.(1) and J.M.(2) were both present when he was hit by his grandmother. [ 68 ] Up to this point, the testimony of S.K.M. confirms that the children have accurately reported all of these details. The only significant detail on which they differ is on that of the actual assault.

S.K.M. testified that she did not hit A.M.. J.M.(1) said that her grandmother hit A.M.’s head against the wall of the bedroom. A.M. told Constable Hurtubise that his grandmother had grabbed his hair and banged his head against the wall. J.M.(2) also said that her grandma had banged A.M.’s head on the wall. [ 69 ] There are peripheral details on which the children are not consistent or on which they may clearly be wrong. The most significant of these is the presence of the plumber. S.S. testified that he was not a witness to any assault on A.M..

However he was present on a day when this may have happened and therefore his presence at the house is not a complete fabrication. J.M.(1) also testified that the plumber may not have seen the assault. Whether the plumber was present but did not witness the assault, or was in the home at some other time around that event, this detail is not central to the event. I agree with the proposition that children are more likely to consistently recall information about the core elements of an experience than about peripheral events surrounding that experience.

As Professor Bala and his fellow authors have suggested, inconsistencies about peripheral elements are less likely indicators regarding truthfulness.

[ 70 ] Applying the analysis set out by the Supreme Court of Canada in R. v. W.D., supra, I must first determine if I believe the evidence of S.K.M.. The answer to this question depends on the reliability of the evidence of the three children who say that she assaulted A.M. by banging his head into the wall. If I accept the children’s evidence as truthful, then the evidence of S.K.M. should not be believed.

A finding that the children’s evidence on this point is reliable leads to the conclusion that the offence has been proven beyond a reasonable doubt. [ 71 ] The children have proven themselves to be reliable reporters of all of the details of what transpired up to the point where the assault on A.M. is alleged to have taken place. I accept their evidence up to that point because it also accords with what S.K.M. has said happened. [ 72 ] For a reasonable doubt to exist because either the children are mistaken or are being untruthful about the assault itself, there must be a basis for that doubt.

The children have shown themselves to be reliable and truthful on all of the details leading up to the point of the assault. For all of the children to be mistaken or wrong when they say that their grandmother hit A.M.’s head into the bedroom wall this would mean that either they misapprehended what happened, or they have colluded in a lie.

There is nothing in the description of events in the evidence of S.K.M. that would suggest the children mistook some innocent action for an assault, and therefore a reasonable doubt can not be founded on the first of those two options. [ 73 ] It has been suggested that the children have been coached or convinced to lie by their mother in order to give her an advantage in her family court proceedings with H.M.. I agree with the submissions of the Crown that this is not a reasonable conclusion.

If R.K.M. was inclined to coach her children to tell a lie in order to gain an advantage against her husband, it would make more sense for the lie to be about him, rather than about his mother and sister. The children were extensively questioned by police, and it is not reasonable that the children would stick to that lie throughout the interview, especially considering the age of the younger children.

I believe that J.M.(2) was being completely sincere when she testified in cross-examination “I didn’t lie.” The consistency of the children’s evidence on core events, coupled with their inconsistency on peripheral events supports the conclusion that they are relating an incident that they actually witnessed, not one which was made up. [ 74 ] For these reasons I find the evidence of the children to be truthful and reliable on its core elements, including their evidence that they witnessed their grandmother bang A.M.’s head into the wall as an excessive form of discipline.

I do not believe the evidence of S.K.M. because it is in conflict with the evidence of three witnesses that I have found to be reliable and truthful. Any doubts which have been raised about the children’s evidence are not reasonable ones and I am not left in doubt by the evidence of S.K.M.. On the basis of the evidence which I do accept, I find that the Accused S.K.M. intentionally applied force against A.M. to a degree that was more than trifling and in a manner falling within the definition of an assault under

section 265 of the Criminal Code . This application of force is not a reasonable means of correction as permitted under

section 43 of the Criminal Code. Conclusion [ 75 ] For the reasons stated, I find the Accused A.K.M. not guilty of the offence of assault as charged in count one in the information. While the evidence of the children makes me suspicious about whether or not the offence was committed, their lack of clarity on precisely what took place raises a doubt, the benefit of which A.K.M. is entitled to. [ 76 ] Also for the reasons stated, I find the Accused S.K.M. guilty of the offence of assault as charged two on the information.

Dated at the City of Abbotsford, in the Province of British Columbia, this 5 th day of April, 2013. ___________________________________________________ The Honourable Judge K. D. Skilnick