R. v. J.M.W. Date:, 2014 BCPC 303

Citation: R. v. J.M.W. Date: 20141104 2014 BCPC 0303 File No: 7693-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth) REGINA v. J.M.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Youth Matter - Restriction on Access s.118 & s.110 YCJA BAN ON PUBLICATION 486.4(2) CCC

Counsel for the Crown: C.D. Hagen Counsel for the Defendant: L. Wansbrough Place of Hearing: Nanaimo , B.C. Date of Hearing: July 16, 17, Sept. 16, 17, 2014 Date of Judgment: November 4, 2014 Introduction [ 1 ] THE COURT (orally): J.M.W., presently aged 14 (the "Accused"), is charged as a young person within the meaning of the Youth Criminal Justice Act of sexually assaulting D.S. (the "Complainant") between the 1 st December 2012 and 16 th June 2013. Charges are brought under s. 271 of the Criminal Code .

The Complainant was aged six during that charge period; the offender was almost 12 1/2 years old during the charge period. [ 2 ] The Accused denies the allegations made against him. [ 3 ] The matter came on for trial on July 16 and 17 and continued on September 16 and 17, 2014, and is set today for a decision.

Summary of the Evidence The Crown's Case [ 4 ] Crown called a number of witnesses, including the Complainant, the mother of the Complainant, and three members of the administration and staff at the school where the alleged offence is alleged to have occurred. Those were the principal, Ms. Y.; Mr. S., the student support teacher; and Ms. S., the staff member who was the counsellor and teacher in charge.

Also called were Constable Susan Phillips, a member of the RCMP and the school liaison officer who received the initial report from school officials about the alleged offence, and Constable Ross Wallace, another member of the RCMP who has received specialized training and is experienced in interviewing children and, in particular, children who may have been the victims of sexual assault. [ 5 ] Constable Wallace works out of Victoria, and he attended at the Nanaimo detachment to conduct the interview of the Complainant. The Voir Dire [ 6 ] A considerable portion of the evidence was heard in a voir dire.

This included Constable Wallace's video-recorded interview of the Complainant completed on June 19, 2013, as well as the evidence of Constable Wallace and that of Constable Phillips. At the date of the video-recorded interview, the Complainant was just turning seven years of age.

During the video-recorded interview, the Complainant described the acts complained of which form the basis of the charge against the Accused. [ 7 ] Constable Phillips received the initial report of the complaint of the alleged offence on June 7, 2013, and was able to follow up with school officials on June 11, 2013, and thereafter to take steps to obtain various witness statements, other than from the Complainant.

She obtained a referral to and was able to arrange for Constable Wallace to conduct the video-recorded interview of the Complainant. [ 8 ] Substantially all of the evidence of the Complainant at the trial was given from an outside courtroom by way of a closed-circuit television link. This is permitted by s. 486.2 of the Criminal Code .

One brief appearance in the courtroom by the Complainant did occur for the purposes of the Complainant identifying the Accused. [ 9 ] The video-recorded interview of the Complainant was played during the voir dire and was viewed by the Complainant while in the outside courtroom. [ 10 ] Crown sought to have the video-recorded statement of the Complainant admitted into evidence pursuant to s. 715.1(1) of the Criminal Code . [ 11 ] In the course of the Complainant's testimony following the viewing of the video-recorded interview, the Complainant stated that she remembered talking to "Constable Ross" about what had occurred in connection with the Accused.

She further said she was trying to tell the truth when she was speaking to Constable Ross. She also recalled drawing various pictures during those discussions. The Complainant's drawing of various pictures and her completion of anatomical diagrams was observable on the video-recorded interview. [ 12 ] The Complainant was subject to cross-examination by the defence. [ 13 ]

Section 715.1 of the Criminal Code provides as follows: Evidence of victim or witness under 18 715.1

(1) 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 is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere

with the proper administration of justice. Order prohibiting use

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1). [14] Following submissions from counsel, the video-recorded interview of the Complainant was ruled admissible into evidence onthe basis that:

a) the video-recorded interview of the Complainant was, in the circumstances of this case, conducted within a reasonable time (seeR. v. L.(D.O.), (SCC), [1993] S.C.J. No. 72 at paragraphs 73-77);

b) the Complainant adopted the statement made within the video-recorded interview within the meaning of s. 715.1 and within thetest laid out in R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183 (see paragraphs 36, 37, and 43).

c) the Complainant was present at the trial and the adoption. She had promised to tell the truth and the court had the opportunity toobserve the Complainant, and she was subject to cross-examination (see paragraph 44 of R. v. C.C.F.);

d) the principles and factors to be considered by the court in exercising its discretion to either admit or exclude the video-recordedinterview, as those are set out in R. v. L.(D.O.) at paragraph 65, and in R. v. C.C.F. at paragraphs 51 and 52, support the admissibility ofthe video-recorded interview in this case. [15] Therefore, in accordance with R. v. C.C.F., the adopted video-recorded statements became evidence of the events described as ifthe child were giving the statements on the videotape in open court.

The adopted video-recorded statement, together with the viva voceevidence given at trial, comprise the whole of the evidence in chief of the Complainant. [16] I am mindful that it is an error in law to allow the video-recorded statements, consistent with the child's viva voce evidence, tobe used to bolster the credibility of the Complainant. Only evidence that comes from a source independent of the Complainant can beused to bolster her credibility (see R. v. K.P.S., [2007] B.C.J.

No. 1660 at paragraphs 20 to 29). [17] The adopted video-recorded statements and the Complainant's viva voce evidence regarding the alleged wrongdoing of theAccused are disputed and contradicted by the Accused. Evidence of the Crown's Case [18] The Complainant and the Accused were, at the time of the alleged offence, both students at the same elementary school, whichaccommodated an enrolment of about 275 students from kindergarten to grade 7. The school is located in Nanaimo, British Columbia.

The Complainant was in grade 1, and the Accused was in grade 7 at the time of the alleged offence. [19] The school offered remedial and individualized learning sessions which were overseen and supervised in a separate classroomby Mr. S., the student support teacher. [20] Mr. S.'s classroom was a regular-sized classroom without any barriers in the teaching portion but contained a separatedcloakroom area.

The teaching portion was furnished with a number of different-sized tables, with thin legs of approximately one inch byone inch in size and a number of different-sized plastic chairs for the students, including small chairs to accommodate the grade 1students. [21] Along the window side of the classroom were approximately five computer stations for use by the students.

Laptop computerswere also available throughout the classroom and available for use by the students for such things as online reading programs. [22] At the front of the class was a chalk board, and immediately adjacent to and facing it was a horseshoe-shaped tableapproximately 10 feet in length and two and half feet in width with no barriers across the bottom of the table. It could accommodate fiveto seven students and was used for group work or assisted reading. [23] A teacher's chair was located at the horseshoe-shaped table positioned to face the teaching portion of the classroom.

From thatlocation there was an unobstructed view of the students and the tables and workstations located within the classroom. Mr. S. utilizedthat chair to work at and to conduct his supervision.

While his view of the class was unobstructed from that location, he was not able tosee all of the children all of the time in that setting. [24] He was usually the only teacher in the classroom but occasionally had help from an educational assistant. [25] The room also contained a teacher's desk and chair at the very rear of the classroom, with the chair positioned so that it alsooffered an unobstructed view facing towards the front of the classroom. [26] Some students also participated in reading groups conducted and overseen by the school principal, Ms. Y.

Those readinggroups occurred in a small office used by Ms. Y. and usually consisted of about six students who sat around a table. [27] The reading groups for both Ms. Y. and Mr. S. usually lasted for a period of approximately one-half hour, and such sessionswere usually held daily from Mondays to Thursdays, either from 10:15 a.m. to 10:45 a.m. or from 10:45 a.m. to 11:15 a.m., commencing

in October of 2012 and continuing through to June of 2013. [ 28 ] Students in grades 6 and 7 who were seeking leadership roles or others who were not participating in band or fine arts were asked to be peer helpers for the younger students during the reading sessions conducted in both Ms. Y. and Mr. S.'s rooms. The Accused was one of the three older student helpers asked to provide this assistance. None had red or orange hair.

One other purpose of engaging some of these older students, such as the Accused, in this fashion was to keep them active and engaged in a productive manner and to help reduce their stress and to settle them down. [ 29 ] The Accused was not in a regular grade 7 class. He experienced problems completing his class work. Therefore, he had a somewhat less structured program, which commenced around Christmas of 2012 and resulted in him spending a good portion of his school time in Mr.

S.'s classroom rather than in his regular grade 7 class. [ 30 ] The school's records for the Accused indicate that he was frequently absent from or late arriving at school. He was observed wandering the halls of the school outside of a formal classroom setting. In response to this, the school administration and staff attempted, with some limited success, to arrange a check-in procedure for the Accused. [ 31 ] The Complainant was originally assigned to a remedial reading group conducted by Ms.

Y., and she remained in that class until sometime between January and March of 2013. [ 32 ] The Complainant was described by Ms. Y. as having a loud voice, who was quite active and constantly moving her legs and unintentionally kicking other students. She had problems being respectful of other students' space. She frequently spoke out, not in a negative way, but in a fashion that was disruptive to the other students in the reading group. She was not fitting in to Ms. Y.'s reading group. [ 33 ] Accordingly, arrangements were made to transfer the Complainant to Mr.

S.'s class for remedial reading and, at the suggestion of Ms. Y., to pair her with the Accused to act as her student peer helper. Although not a strong reader, the Complainant was quite a bit above the level of the other students in Mr. S.'s remedial grade 1 reading group. Hence she worked more on her own, reading books or utilizing online reading programs or was reading with the Accused. Therefore, she had less time in Mr. S.'s reading group. [ 34 ] The Accused was the only peer helper assigned to the Complainant while she was in Mr. S.'s class. Mr.

S. said that the Complainant would not have had interaction with any of the other older children while she was in his room. [ 35 ] Mr. S.'s classroom was an energetic and often busy place. In addition to his regular reading and math group attendees, there were "extra bodies" ranging from one to six students who would drop in to his classroom and use it as an alternative place to work. These students had behavioural issues, health issues, or management issues (including not doing their assigned work) such that these students could not be in other classrooms. Among the older boys who utilized his classroom, Mr.

S. stated that only one had red hair. [ 36 ] Mr. S.'s remedial groups were quite often energetic and boisterous. There were numerous individual challenges. They needed to be guided. Keeping the groups and the drop-in attendees on task was an ongoing challenge. [ 37 ] The Accused was well known to Mr. S. since the Accused spent a lot of his time in his classroom, although his attendance in Mr. S.'s classroom was sporadic at times. They had a positive relationship, and Mr. S. enjoyed having the Accused in his classroom.

The Accused occasionally got a lot of his work done, but for the most part, he was unmotivated and did not do any work. He did not pose a behavioural problem in the classroom. [ 38 ] Mr. S. described the Accused as having "dirty brown" hair. Ms. Y. testified that she recalled that the Accused had at one point dyed his hair black, but she did not recall him dying his hair red. [ 39 ] Mr.

S. described the Complainant as a lively, very noisy, outspoken child with no sense of volume about her voice and who impulsively was "blurting out what was on her mind." She frequently shared her opinions about what was happening at home and about other children. She often jumped out of her seat. She was easily distracted and easily went off task and required redirection. She also required specific comments and guidance from Mr. S. about her behaviour in the classroom. At times, Mr. S. worked with the Complainant as part of the group work at the horseshoe-shaped table at the front of the room. [ 40 ] Mr.

S. was able to observe the relationship and the interaction between the Complainant and the Accused for an extended period of time up until approximately June 2013 at which time the allegations became known to the Complainant's mother, school officials, and subsequently to the police. [ 41 ] The Crown's evidence about the number of occasions on which the Complainant and the Accused were working together in Mr. S.'s classroom is imprecise. Based on the analysis of the school's attendance records for both the Complainant and the Accused completed by Ms.

S., and the school counsellor and part-time teacher in charge, and based on Mr. S.'s recollection, the Accused and the Complainant had an opportunity for possible interaction on a number of occasions during the charge period. [ 42 ] During these possible periods of interaction, Mr. S.'s usual task was working with the grade 1 reading group at the front of the room, at the horseshoe-shaped table. [ 43 ] According to Mr. S.'s recollection, the Complainant and the Accused would be seated beside each other in the middle of the classroom, in what I understand to be the rear half of the classroom, in plain sight of Mr.

S., who was approximately four to five metres away while working with the reading group. [ 44 ] According to Mr. S.'s further recollection, the Complainant was usually seated on her bottom on one of the smaller chairs with the Accused in one of the larger chairs, in front of a table, facing the front of the classroom. Occasionally, she would kneel on her chair. [ 45 ] Again, according to Mr. S.'s recollection, the Complainant would read to the Accused, and he would help her with harder

words. They appeared to work well together and were appropriately engaged in their tasks. [ 46 ] On occasion, the Accused would gently call to the Complainant in an attempt to get her back on task. The Accused reported back to Mr. S. about the Complainant's progress and his concerns about the Complainant being off task. [ 47 ] Mr. S. considered the Accused a good helper who took the task as a peer helper seriously, unlike some of the other peer helpers. [ 48 ] From his vantage point at the front of the room, Mr. S. was in a position to observe the Complainant and the Accused.

Because of some prior information about the Accused received by Mr. S., at first he may have paid more attention to the Accused, but he indicated that he was not "hyper vigilant" in his observation of the Accused nor the Accused's interaction with the Complainant. [ 49 ] Mr. S. never observed the Accused and the Complainant sitting too close to each other nor on the same chair nor did he observe the Accused put his arm around the Complainant nor did he observe the Accused touching the Complainant for the purposes of redirecting her.

The closest the Complainant and the Accused physically came was when he would lean in towards her to congratulate her on her accomplishments. He never saw the Complainant touch the Accused. Occasionally, he saw incidental contact between the Accused and the Complainant's legs but noticed nothing untoward or unusual. [ 50 ] Mr. S. testified that if the Accused and the Complainant had been sitting too close to each other, he would have said something to them. [ 51 ] The Complainant spoke about the Accused to Mr. S., but never negatively, and never brought any concerns about the Accused to Mr.

S. [ 52 ] Throughout the period that the Complainant worked with the Accused, there was no observable change in the Complainant's behaviour or demeanour. [ 53 ] Other than providing Mr. S. with updates, the Accused never complained to Mr. S. about the Complainant. [ 54 ] Therefore, Mr.

S. was shocked, dismayed, and experienced regret when he heard about the allegations made by the Complainant against the Accused. [ 55 ] J.S., mother of the Complainant (the "Mother"), when questioned in cross-examination about whether the Complainant ever lied, stated that the Complainant was "pretty brutally honest" and "pretty black and white" about things, and the Mother had never caught the child in a lie. [ 56 ] In examination in chief, the Mother testified that while in grade 1, the Complainant was somewhat socially delayed and still learning about boundaries and other people's personal space. [ 57 ] According to the evidence of the principal, Ms.

Y., this had been a problem in kindergarten when Ms. Y. had to speak to the Complainant about inappropriate touching of other children which arose out of an incident when she twisted the glasses of another child.

The Mother did not recall any calls about this type of behaviour from the school when the child was in kindergarten, but the Mother did recall that the personal boundary issue did stem back to the Complainant's time in daycare. [ 58 ] According to the Mother's evidence, this apparent continuing concern about personal boundaries arose in the context of three incidents that occurred in grade 1. [ 59 ] One incident occurred earlier in the grade 1 school year when the Mother learned from the grade 1 teacher that there had been times that the Complainant had placed her hand on another child's leg in what the Mother described as a "kind gesture." The background was that the Complainant apparently had a crush on a grade 1 boy at her school and expressed her affection by touching him.

In response to the school's concerns, the Mother spoke to the child and told the Complainant that it was necessary for her to respect other person's "personal space" or their "personal bubble." [ 60 ] The second incident brought to the Mother's attention by the school appears to have occurred earlier in the school year and apparently resulted from the Complainant being smacked in her face by a young boy which resulted in the Complainant retaliating by putting her hands on the boy's neck. [ 61 ] The third incident occurred in June of 2013.

Again, a grade 1 substitute teacher called the Mother and apprised her that there had been an incident on the school playground when the Complainant had reportedly spanked two boys. [ 62 ] The Mother assured the substitute teacher that she would talk to the Complainant about good and bad touching and respecting the boundaries of others. [ 63 ] The Mother engaged the child in a discussion and explained to her that putting her hands on another person's body was not appropriate.

The Complainant's explanation to the Mother was that she had spanked the two boys because they were being mean to her. [ 64 ] It was in the course of that discussion on a Thursday that the Complainant told the Mother that she had been touched inappropriately on her "bum" and her "vagina" by the Accused, whom she referred to by name, and further that it had occurred while she was in the reading group in which the Accused was participating as a helper.

The Complainant demonstrated to the Mother the way she said that she had been touched. [ 65 ] Approximately 24 hours later, the Complainant was in the bathtub having a bubble bath. The Mother was checking on her. The Complainant complained that her vagina was being bothered by the bubble bath. Referring back to the alleged incident, the Complainant then indicated to the Mother that it had been more than just a touch and that there had been some "rubbing" and that it had been "frequent." Thereafter, the Mother had no further discussions with the Complainant about the alleged incident.

[ 66 ] The Mother reported the allegations made by her daughter to Ms. Y. in her capacity as principal of the school on the next day, being a Friday, following the making of the allegations. The Mother followed that up with an email exchange with Ms. Y. to clarify the things that she wished to be done, including removal of the Complainant from further contact with the Accused in Mr. S.'s class. [ 67 ] Ms. Y. reported the Complainant's allegation to the assistant superintendent of the school district, to Mr. S., and Ms.

S., as well as a child and youth care worker who dealt with the Accused, and to Constable Phillips. [ 68 ] In addition, Ms. Y. spoke to the Accused's father, as well as the Accused himself. She told the Accused that for his safety and the safety of the Complainant, they would be separated. Ms. Y. also arranged for the Complainant to re-join her reading group. [ 69 ] The Accused's response to the allegations was described by Ms.

Y. as being "calm and respectful" and that it was a "mature conversation," remarking that was not always the case when she had interaction with the Accused. [ 70 ] At the beginning of the following week, an unfortunate exchange took place between the Accused and the Complainant in the school when the Complainant called out to the Accused, in public, and told him that he was not to touch her "privates." This resulted in the Accused calling his father and going home. Ms. Y. believed that the Accused was upset.

According to his attendance records, it appears that he did not return to school for several days after that incident. [ 71 ] Ms. Y. understood that the Complainant had been previously told by her Mother not to have any contact or discussions with the Accused. Therefore, on that basis, Ms. Y. spoke to the Complainant about the inappropriateness of her making such a comment publicly to the Accused. Ms. Y. required the Complainant to draw a picture for the Accused as an apology for the public comment made to the Accused. [ 72 ] Ms. Y. also spoke to the Complainant in Ms.

Y.'s office about the allegations she had made against the Accused to her Mother, at which time the Complainant made the same allegations to Ms. Y. [ 73 ] While of course maintaining that the touching never took place, the Accused's evidence is also at odds with some of this background evidence and evidence of the circumstances presented by Crown's witnesses. What is materially in dispute or at odds is set out later in these reasons under the headings of "defence evidence" and "analysis" and is identified as such.

Disputed Crown Evidence Video-Recorded Evidence [ 74 ] Following Constable Phillips becoming aware of the allegations, arrangements were made for the Complainant to be interviewed by and to provide her video-recorded statement to Constable Wallace. Besides the video-recorded statement, Constable Wallace produced a narrative text hardcopy of the audio portion of the interview.

That document was admitted into evidence. [ 75 ] At the outset of the video-recorded interview and after some preliminary discussions and questions and answers to set an appropriately comfortable setting for the Complainant, the following questions are asked by Constable Wallace and the following answers are provided by the Complainant. These appear in the following lines of the narrative text hardcopy: Line 172 Wallace: That's very good. Hey you know what I'd like to talk about today? Line 173 Complainant: What? Line 174 Wallace: I'd like to talk about just the truth, just what is real. Is that okay?

Line 175 Complainant: That's what a big kid did? Line 176 Wallace: Oh well do you know the difference between the truth and a lie? Line 177 Complainant: Mmmm I don't know Line 178 Wallace: Okay um what happens if you tell a lie? Line 179 Complainant: Mm (shrugs) Line 180-181 Wallace: Okay all right so um but when I say we just want to talk about the truth is that okay?

Line 182 Complainant: What's my grandma's name? [ 76 ] Thereafter, the discussion continues and the Complainant starts talking about her other family members but does not offer any further answer or other response to Constable Wallace's question about truth and lies. [ 77 ] At a later point during the video-recorded interview, Constable Wallace returns to the question of truth and lies: Line 419 Wallace: I see, I see. So remember I was asking about the truth and a lie? Line 420 Complainant: Yeah Line 421 Wallace: What's the difference there? Line 422 Complainant: I don't know maybe [J] touching my privates

Line 423 Wallace: Oh sorry what's that about? Line 424 Complainant: You know [J] touching my privates my mom set up to talk, talk to you for about [J] touching my privates but it, it's okay we don't have to. [ 78 ] At no point during the video-recorded interview does the Complainant ever actually directly answer or deal with the questions about truth and lies but refers to it in the context of the Accused's alleged touching of her private parts, such as in lines 422 and 424 above. [ 79 ] The Complainant describes some of her favourite characters that she apparently views on YouTube.

They include Rainbow Dash and My Little Pony Friendship whom she describes as being "magic" at lines 488 to 493 and 705 to 708. She also describes a number of other fantasy, cartoon-type programs that she watches on YouTube such as Hot Wheels Battle Force Five (see lines 707 to 735).

At lines 965 to 976, she is questioned about and she initially gives an indication that the cartoon My Little Pony is "real" and then later says that it and My Little Pony Friendship are "magic." [ 80 ] The Complainant is questioned about her understanding of private areas or private parts and expresses both verbally and by completing anatomical diagrams an understanding that her vagina and her bottom (referred to by her as her "butt") were her private areas or private parts. [ 81 ] In lines 424 to 438 of the narrative text, the Complainant describes that the Accused, whom she refers to by his first name, touched her butt and her vagina when she was reading with him in Mr.

S.'s reading group. [ 82 ] At lines 522 to 566, the Complainant states that she is in grade 1 and the Accused is in Grade 7. She says the touch was with his hands while they were sitting reading a big book at the "table near Mr. [S.'s] desk." [ 83 ] At lines 580 to 583, she says that the touching was on top of her clothes. [ 84 ] At lines 595 to 617, she says that right after he touched her privates, that it was time to go and that she never told anybody; that it happened the once; that the Accused had touched her five times; and it did not occur again. [ 85 ] At lines 672 to 675, the Complainant states that Mr.

S. was the only teacher present on this occasion. [ 86 ] At lines 751 to 754, the Complainant again confirms that the touching of her private parts by the Accused only occurred once and that it did not happen after that because she was now in Ms.

Y.'s reading group. [ 87 ] When Constable Wallace revisits what had occurred while the Complainant and the Accused were reading, at lines 784 to 789, the Complainant says, "I don't know," and then proceeds to ask about the current time and about lunchtime but never provides a reconfirming answer. [ 88 ] At lines 924 to 940, the Complainant describes that she was sitting at a table "near Mr. [S.'s] desk" and that the Accused was right beside her, and then at line 932 says that the Accused was "at the other table." [ 89 ] At lines 932 through 936 of the narrative text hardcopy, the Complainant describes that she was kneeling on the chair towards the table with her bottom and feet extended to the back of the chair and that she was reading a book. [ 90 ] At lines 939 to 944, the Complainant said that she did not know what happened at that time, and then she did not know how it happened that the Accused touched her, and then at lines 943 to 949, in completing her answer and as visible in the video, shows that she was being touched in the area between her legs. [ 91 ] In the course of the video-recorded interview, the Complainant indicates that the touching incident took place "maybe in April" (see line 536), and then says that it occurred "mmm at May" (in line 548), and repeats that answer at line 923. [ 92 ] At lines 805 to 810, the Complainant describes the Accused as having orange hair, just like one of her girlfriends whom she identifies by name. [ 93 ] At lines 441 to 443, the Complainant said that she never told anybody and that she "forgot" to tell. [ 94 ] At lines 811 to 814 and in lines 831 to 833, she confirms telling her Mother about the touching but nobody else. [ 95 ] During the videotaped interview, she does not indicate that she had any intention to tell any other person, such as Mr.

S., nor provide any reason for not doing so. [ 96 ] At lines 815 to 828, she recounts the incident of Ms. Y. calling her to the office and being mad at her for saying "that mean thing to" the Accused about not touching her privates. Complainant's Viva Voce Evidence [ 97 ] During the trial and preceding the playing of the recorded video interview, the Complainant provided viva voce evidence, as noted above, by way of the closed-circuit television connection. She testified for part of the time in the presence of a support person, being her maternal grandfather, as permitted by s. 486.1(1).

Later, she did not want her support worker to be present as she gave her evidence. [ 98 ] She was eight years of age at the time of the trial and about to enter into grade 3. On two occasions, she mistakenly identified the year of her birth as "206." She and her family have now moved to another province.

[ 99 ] During the course of her evidence, she was able to satisfactorily demonstrate an understanding of female and male genitalia and other private parts, including the buttocks area. She did express embarrassment about having to say words like "vagina" in front of the judge or other boys, like her father, and explained that further by using the expression "it grosses me out." [ 100 ] She testified that she recalled living in Nanaimo and attending grade 1 at the school where the alleged touching incident took place. She indicated that the incident had occurred in Mr.

S.'s classroom "a long time ago in 2012." It involved the Accused, whom she identified by name, and whom she eventually described as being "older," but was unable to recall his age or grade. [ 101 ] She had difficulty remembering the days that she attended reading group in Mr. S.'s classroom or the time frame of those attendances or her class schedule. She recalled that she attended Mr. S.'s classroom for reading, that there was a reading group that Mr. S. conducted, and that she also sometimes worked on the computers near the windows. She recalled being engaged in the reading group in Ms.

Y.'s room. [ 102 ] She had difficulty recalling the number of children in her grade 1 class, starting off with the suggestion that were a hundred children and then reducing it in increments of 10.

She could recall the names of some of her friends and classmates. [ 103 ] She described the touching of her "vagina" and "butt" by the Accused with his fingers "over her clothes." In response to the question of what kind of touch it was, she stated that it was "not a comfortable touch." She later testified that "it was an uncomfortable touch," and then qualified that answer with the expression "I think." [ 104 ] She went on to say that in response to the question of how did she feel after the alleged touching, she described it as her brain "was going ...

What?" [ 105 ] When asked in cross examination about the word "uncomfortable," she said it was a word that she thought her mom had told her about. She had some difficulty explaining her understanding of that word "uncomfortable." [ 106 ] In cross examination, she also indicated there were times that if she was asked to do something that she did not want to do, that she may tell her mom that she was "tired and sore" when actually she was not.

She also indicated that in such a situation, it would not be truthful and that she may not always tell the truth to her mom. [ 107 ] She described that the touching took place while she and the Accused were reading out loud from a "big book" and while each of them were seated on separate chairs with a table in front of them. She said that she "thought" that the touching occurred "more than once." She said at the time, she was sitting at a "vacant table" but that it was not near to Mr. S. She did say that she was "near" to Mr. S.'s desk. [ 108 ] She stated that she did not tell Mr.

S. because "I think I would get into trouble." She then went on to say that Mr. S. told her to "wait" when she tried to tell him and that is why she told her mom. She also said that what she told in her his evidence is what she told her mother. She told nobody other than her mother and did not tell Ms. Y. because "she would freak out at me too ... [and] say ... What?" [ 109 ] She did not speak to the Accused about the touching, and he did not speak to her about it. [ 110 ] The Complainant also said she did not speak to the Accused about it at school. Similarly, she did not recall Ms. Y. getting mad at her and Ms.

Y. having to speak to her regarding the necessary apology to the Accused for what she said to him out loud in public following the disclosure of the touching allegations to her mother. She also did not recall any games or other incidents involving her spanking boys or being spoken to by a teacher about that type of conduct. [ 111 ] During examination in chief, the Complainant said that she thought she had "founded" the Accused whom she said was the boy that touched her privates and that she had seen him when she was in the courthouse with Crown counsel and her mother.

She also came into the courtroom in which the trial proceedings were being conducted and in which the Accused was seated. She greeted him very matter-of-factly by name, attempted to engage him in a discussion about what grade he was in, and to explain that she was now in a different school. Then, in response to a question, identified him as "the real one that touched me." [ 112 ] In cross examination, she was asked about the colour of hair. She indicated that she knew what red hair was. She also indicated that nobody in her grade 1 class had red hair.

The female classmate whom she described in the video-recorded interview as having "orange hair" was described by the Complainant as having dark hair. The evidence of the adult Crown witnesses suggest that, in fact, that child had bright red hair. The Defence's Case [ 113 ] The Accused testified on his own behalf and was extensively cross-examined by the prosecution. [ 114 ] At the time of the trial, the Accused was 14 years of age.

He had just completed grade 8 at a different school than the one at which the alleged incident giving rise to the charges had occurred and where he had attended grade 7. [ 115 ] He confirmed that during grade 7 he was often late for school by 20 to 30 minutes as a result of sleeping in. Other times he would be absent as a result of oversleeping. He missed quite a bit of school in grade 7, and his attendance was "off and on." He did not complete a lot of his work that year, and he had trouble focusing.

He did not complete a lot of the necessary classes at that school, in particular, at the end of the school year. [ 116 ] He attended for his own reading group in both Ms. Y.'s and Mr. S.'s rooms but most often in Mr. S.'s room from around April 2013 onward. Those groups took place almost every day of the week commencing from about 10:45 a.m. and would last for about 45 minutes. Another reading group would then arrive. He spent most of his mornings in reading groups and then would do his own work and then work on the computer in Mr. S.'s room.

He helped other students getting logged into the computers in order to use the various mathematics and reading programs.

[ 117 ] After lunch, on Tuesdays and Thursdays, he would have story groups with Mr. S., and then, after completing that, he would return to his own class. [ 118 ] He said that he often worked in Ms. Y.'s room throughout the year. He also confirmed his frequent attendances in Mr. S.'s room, especially from about February 2013 onward, as being of longer duration for a greater portion of the day. Mr. S. assigned him most of his work. He could not recall his daily

schedule with complete exactitude. [ 119 ] In the earlier part of the year, he had been going to the band room with his grade 7 class and was providing help on his own time with the musical instruments to the band teacher. However, he quit music altogether because he did not like the instrument he was playing. He also did not like fine arts. [ 120 ] He agreed that to keep him engaged after he quit band, he was asked by Ms. Y. to participate as a student helper in Ms. Y.'s and Mr. S.'s rooms.

He described himself as the "roaming helper" for a number of the students in the lower grades, especially on the computers in Mr. S.'s room. He apparently started this type of participation sometime after February of 2013. [ 121 ] He knew and recognized the Complainant as one of the students that he assisted. He said that around February of 2013, he had known her as one of the younger students who was in the band room. He said it is there that she, on one occasion, attempted to hug him.

He told her not to and then "gently pushed her away." He described the Complainant thereafter as "upset" or "sad or something." He never told anyone about this incident until he was confronted with the inappropriate touching allegations by Ms. Y. in her office. [ 122 ] While acting as a student helper, the Accused said he assisted the Complainant as well as two other children, whom he named and said he believed them to be in the same grade as the Complainant. He was not told that he was assigned to work with the Complainant exclusively. He said that he read with whomever Mr. S. instructed him to do so. If Ms.

Y. took over Mr. S.'s class, she would often instruct him to provide the Complainant with assistance. [ 123 ] He confirmed that he provided the Complainant with a fair amount of help with such things as getting her books, getting her chair, and logging in on her computer. She would often call out to him for assistance. [ 124 ] He said that there were times that he would stand behind her or beside her and assist her with reading. He said that he helped out the Complainant regularly but that he did not actually read with her except on two occasions, in Mr.

S.'s classroom, towards the end of the time that he was acting as a student helper. This appears to be in May or June of 2013. [ 125 ] He indicated that on each of these occasions, it was for a relatively brief period of time, estimated to be about 10 minutes. He indicated that on one occasion, they were seated at a table in an area closer to the front of the classroom where Mr. S. sat at the horseshoe-shaped table facing the classroom. This location was closer to the front of the room than had been identified by Mr. S. in his evidence.

On that occasion, the Accused said he sat facing the front of the room, and the Complainant was sitting across from him. [ 126 ] On another occasion, they read at the horseshoe-shaped table where he says he had stood and bent over the Complainant as she sat on a chair. [ 127 ] He says that Mr. S. had told him that students should be an arm's length apart, which distance he says was about two to three feet.

He said he observed that distance when seated with the Complainant. [ 128 ] On the one occasion he was reading with her while standing at the front of the room, he says that six or seven children were "bundled up," and therefore he was probably one and a half to two feet from the Complainant. [ 129 ] He described the Complainant as often moving around in her chair, kicking her legs, and sitting up on her knees. She often did that when she was reading. [ 130 ] The Accused described that the Complainant blurted out a lot and would start talking about what was on her mind and ignoring her book.

He said that on such occasions, he would have to refocus her. He did not complain to Mr. S. He said that she would listen to him. [ 131 ] In cross examination, the Accused stated that after the incident in public at the school when the Complainant told him not to touch her privates, that he was not embarrassed, not angered, and not upset.

He said he did not have any reaction other than to call his father and go home. [ 132 ] The Accused denies that he touched the Complainant in any fashion or that they had any physical contact, incidental or otherwise, other than the time that she had attempted to hug him while in the band room. He says he never spanked her or touched her in the lap. In particular, he says that he did not touch her buttocks or her vagina.

He further stated that he did not have the opportunity to do so, given the limited number of times they actually read together, given the locations in the classroom where the reading together occurred, and the fact that most of this interaction occurred while he was standing by her and she was seated. The Applicable Law [ 133 ] The question presently before the court is whether or not Crown has proven its case beyond a reasonable doubt.

If the allegations made by the Complainant are accepted beyond a reasonable doubt as factually correct, then the alleged touching is an offence under s. 271 of the Criminal Code . [ 134 ] This case is one that involves the Complainant testifying that she was inappropriately touched by the Accused in a teacher- supervised classroom. [ 135 ] The Accused denies that any such touching occurred; in any event, that given the limited time they were seated or in close proximity, and given the location of their interaction in the supervised classroom, that there was no opportunity for the alleged

inappropriate touching to occur. This can be characterized as a flat denial by the Accused. [136] Therefore, the central issue is the credibility between the young Complainant, on one hand, and the youthful Accused, on theother. [137] In these circumstances, and in accordance with the fundamental principle which underlines our criminal law, the assessment ofcredibility must be decided on the basis of proof beyond a reasonable doubt. [138] The analysis that must be applied by this court to address this issue is outlined by the Supreme Court of Canada's decision in R.v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

First, the court must consider whether the evidence of the Accused is to bebelieved. If so, then the Accused must be acquitted. Second, if the court does not necessarily believe the evidence of the Accused butnonetheless finds that what the Accused says could reasonably be true as to raise a reasonable doubt, then the court must still acquit.

Third, even if the court is not left in doubt by the evidence of the Accused, the court must go on to consider, on the basis of the evidencewhich is accepted, whether the evidence as a whole establishes the guilt of the Accused beyond a reasonable doubt. [139] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., (BC CA), [1991]B.C.J.

No. 2753, adds a fourth step to the W.(D.) analysis: namely, if after a careful consideration of all the evidence the court is unableto decide whom to believe with respect to the central issues in the prosecution, then the Accused must also be acquitted. [140] Josiah Wood J.A. (as he then was) suggests that, logically, this ought to be second in order in the W.(D.) analysis. [141] In R. v. E.H.S., [2012] B.C.J. No. 2728 ("E.H.S."), being another sexual assault case, Blake P.C.J. helpfully observed as followsat paragraphs 43 and 44: 43 There are a couple of comments to be made about the modified W(

D) test as it applies to this case. First, I think it should bepointed out that as the case law has developed in the twenty years since W(

D) was decided it has become apparent that trial judges arenot required to necessarily follow the precise sequence of the analysis which W(

D) appears to contemplate. As Rosenberg, JA said in R.v. Minuskin, (ON CA), [2003] O.J. No. 5253 (CA): It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instructionwas intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words.Nor is the trial judge expected to approach the evidence in any particularly chronology, for example, looking first at the accused'sevidence and then at the rest of the evidence.

It should, however, be clear [from] an examination of the reasons that at the end of the daythe trial judge has had regard for the basic principles underlying thereafter W(

D) instruction. One of those principles is that it is notnecessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if thereafter trier of factbelieves the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J inW(

D) at p. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonabledoubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole". 44 In this respect, see also the comments of Charron, J. in R. v. Dinardo 2008 SCC 24 , 2008 SCC 24, at paragraph 23. [142] E.H.S. was also a "flat denial" case which prompted His Honour to further observe at paragraphs 45 and 46 as follows: 45 In the present case, the defence amounts to what is sometimes called a "flat denial".

E.H.S. takes the very straightforwardposition that he simply did not commit the alleged act or acts of wrongdoing. It is important for a court not treat such a defence assomehow illegitimate or as somehow less worthy of the W(

D) form of analysis than other, more complicated types of defence. As theAlberta Court of Appeal said in R. v. McIntosh, 2010 ABCA 352 , [2010] A.J. No. 1331 (CA), at paragraph 12, there are nodoubt plenty of situations in which one might fairly ask "what more can an accused do" than offer a denial under oath and open himselfup to cross-examination. That sort of question may be particularly appropriate, it seems to me, when a historical sexual assault is alleged. 46 The "flat denial" raises particular issues related to the W(

D) analysis, however. It seems to me that in a case where that sort ofdefence is put forward, it is singularly unhelpful to begin with an analysis of the defence position. Anderson, PCJ considered the effectof the flat denial on the method of analysis in R. v. Rana [2010] A.J. No. 697 (PC). At paragraph 14 of that decision His Honour stated: The accused's denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracityof a denial without more.

The strength of a denial depends entirely on context. [143] In cases in which there is a flat denial by the accused, the court cannot simply deal with the accused's testimony in isolation andbefore considering the testimony in the context of all the other testimony. [144] In R. v. J.W.A., 2010 ABCA 406 , [2010] A.J. No. 1469, the Alberta Court of Appeal outlines this proposition atparagraph 22 as follows: [22] ... the law has not elevated the requirements of W(

D) to include a mandatory statement as to the precise reasons for rejecting theaccused's testimony in isolation before considering that testimony in the context of all the other testimony. This argument was advancedto the trial judge and properly rejected. Relying on R v JJRD (2006), (ON CA), 281 OAC 37, 215 CCC (3d) 252,she concluded that the evidence of the accused must be considered, not in isolation but rather in the context of the evidence as a whole.She stated as follows: Here there is a simple denial.

There are admittedly no facts in the descriptions of the events given by the girls so that the denial isnecessarily simple. However, to say that all I can consider at Steps 1 and 2 of the W(

D) analysis is the evidence of the accused and otherdefence evidence is essentially to give the defence a veto or put up an impenetrable roadblock to consider the evidence in the trial as awhole.

We agree. [145] The assessment of the strengths and weaknesses of the prosecution case must always be done in the context of not reaching anyfinal conclusion until all the evidence has been considered. Our Court of Appeal in R. v. P.W., [2003] B.C.J.

No. 2447 (C.A.), stated asfollows at paragraph 19: 19 In my opinion, when the trial judge says that she believes the complainant and then is not moved from that position by anythingthe appellant said, she seems to me to be describing an incorrect process which has, perhaps, been influenced by the mechanisticapproach that may be necessary in instructing a jury as set out in R. v. W.(D.). It is not the function of the trial judge to decide whethershe believes the complainant and, having reached a conclusion in that, to go on and only then consider what the evidence of the appellantwas on his own behalf.

The consideration of both must be deferred until they can be looked at together and an overall conclusion reachedon the basis of the whole of the evidence. [146] I am mindful that in the view of the Supreme Court of Canada, that it may be wrong to apply adult tests for credibility to theevidence of a child.

While the evidence of a child in criminal cases is still subject to the same standard of proof as the evidence of anadult witness in a criminal case, the evidence of a child is to be approached not from the perspective of rigid stereotypes but on acommon sense basis taking into account the strengths and weaknesses which characterize the evidence presented in the particular case. [147] The Supreme Court of Canada, in R. v.

W.(R.)[R.W.], (SCC), [1992] 2 S.C.R. 122, says the following atparagraphs 24 and 25: 24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like timeand place, may be missing from their recollection. Wilson J. recognized this in R. v.

B. (G.), (SCC), [1990] 2 S.C.R.30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, shesaid that ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with thetestimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that thecourts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proofmust be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as acontradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concernis well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate thewhen and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. Inrecent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking andcorroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, ofcourse, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of youngchildren. 25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that theevidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protectingthe liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for averdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of childrennot from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths andweaknesses which characterize the evidence offered in the particular case. [148] It will also be an error to automatically discount a child's evidence without regard to the circumstances of the particular case: seeR. v. W.(R.)[R.W.], supra, at paragraph 23. Crown's Position [149] Crown says that it has established the offence against the Accused beyond a reasonable doubt.

In support of that, Crownsubmits that based upon the Complainant's testimony and demeanour apparent in both the videotaped interview and in her examination inchief during the trial, that the court's conclusion should be that she is an intelligent and forthright child witness who says what shethinks. Crown says that having regard for the age of the Complainant, and based on the whole of evidence, it is clear she comprehendsthe notion of truthfulness.

Furthermore, she has no motive to lie or fabricate the alleged wrongdoing by the Accused. [150] Having regard to her viva voce evidence and the video-recorded interview, she tells a consistent story about the allegedwrongdoing by the Accused, whom she clearly knows and whom she identified as the person who touched her. Specifically, based onthe whole of her evidence and on the corroborating evidence provided by the other prosecution witnesses, there is an internal andexternal consistency to her testimony.

She correctly identifies the location, the types of activities being carried on in that location, andthe surrounding circumstances in which the alleged wrongdoing took place. She places the touching as having occurred in a time framethat falls within a period that the Accused could have perpetrated the wrongdoing on her.

She describes the alleged touching in a directand consistent manner. [151] The Complainant is characterized by Crown as self-correcting when she makes an error in her description of any event ormaterial fact. [152] On the other hand, Crown characterizes the Accused's evidence as contradictory, incredible, and self-serving with respect toopportunity, his role in the classroom, his interaction with the Accused, and his description of the location of his activities within theclassroom. Defence's Position

[ 153 ] The defence theory is that the Complainant deflected the Mother's discussion about the Complainant's inappropriate touching of the two boys at school when she spanked them by making the unfounded allegation that she herself had been touched inappropriately by the Accused. [ 154 ] Defence also says that the Complainant's evidence in the video-recorded interview demonstrates that she is unable to understand the distinction between the truth and a lie.

Defence points to the unanswered questions put to her by Constable Wallace and her inability to distinguish between the reality and the fantasy or magic world of her cartoon characters. [ 155 ] Defence also says that identification of the Accused as the wrongdoer is in issue, pointing to the Complainant's assertion that the Accused had orange hair like a particular named friend who, in fact, had bright red hair. [ 156 ] Defence submits that in her testimony, the Complainant gives a number of irreconcilable and conflicting answers as to the number of times that the touching occurred and even suggesting that her answers to certain questions in the video-recorded interview should be interpreted as the Complainant saying either that the Accused was not present or that the touching never happened. [ 157 ] It is further submitted that the evidence of the Complainant in the narrative text hardcopy found between lines 919 to 928 regarding the location of the Complainant and the Accused at the time of the alleged touching is consistent with the Accused's version about the seating of these two parties being across from each other.

Therefore, there would not be the physical opportunity for the alleged touching to have occurred. [ 158 ] Simply put, the defence invites the court to find that the Complainant is an unreliable historian with respect to the alleged wrongdoing. [ 159 ] On the other hand, defence says the testimony of the Accused reveals an honest witness who did his best to recall a number of circumstances about which he was questioned.

He was able to recall a lot about the circumstances and spoke to specifics, including what he did in the classroom, the ongoing activities within the classroom, the setup of the classroom, and his interaction with the Complainant. It is said his evidence was consistent and thoughtful, and he was not rattled on cross-examination, and his story remained consistent both internally and also externally with the other available evidence. [ 160 ] Therefore, the Accused's denial as to both the commission of the wrongdoing or the opportunity to do it raises a reasonable doubt which therefore necessitates an acquittal.

Analysis [ 161 ] I am satisfied on the whole of the evidence that identification of the Accused as the alleged perpetrator of the wrongdoing has been established by Crown. I am also satisfied that Crown has established that the opportunity for the commission of the offense could have arisen within the time of the charge period. [ 162 ] I leave aside for the moment the important dispute as to whether or not the alleged inappropriate touching took place, and the discrepancies in the evidence of the Accused and that of the Complainant, and some relatively minor discrepancies in the evidence of Mr.

S. and the Accused. I accept the Crown's evidence as to the background and circumstances as have been outlined in the evidence of the Crown witnesses described above and except as I may specifically note below. [ 163 ] I now return to and deal with the important disputed evidence. [ 164 ] As part of the assessment of the credibility of the Complainant, I have the benefit of the observations made by several witnesses about the Complainant as well as my own observations of her in the course of providing her viva voce evidence and her video-recorded statement.

She appears to be a reasonably bright and loquacious child. She engages with the task at hand, in this case, with answering questions about the alleged offence and the circumstances surrounding it. But she becomes distracted relatively easily and goes off task, wishing to speak about a number of things which have apparently crossed her mind. She is not hesitant to speak out about a number of these things and can fairly be characterized as very outspoken.

She expressed some reluctance in both the video-recorded interview and in her viva voce evidence about discussing the alleged touching incident and discussing private parts.

That was much more apparent in the video-recorded interview. [ 165 ] She gives the impression of being a fairly observant child and demonstrated an adequate memory and ability to formulate a recollection of events. [ 166 ] In that recollection of events, always mindful that she is a child and not to be assessed on the same test for credibility as an adult, she does, on a number of occasions, provide conflicting details and sometimes a less than clear picture. In her evidence in chief and in cross-examination, the Complainant would often provide a number of various alternative answers to the questions being asked.

This occurred several times before she then indicated that she did not know or could not remember. She demonstrated some limitations in her capacity to process and formulate complex ideas, which is consistent with her age. [ 167 ] She demonstrated an adequate and age-appropriate understanding of physical anatomy, knew and could name the parts of the body, and knew what parts of her body are to be considered as private. [ 168 ] She demonstrated reasonable linguistic abilities for her age, although from time to time she misused words, approaching, on occasion, what may be regarded in an adult as a malapropism.

At times in the video-recorded interview, her sentence structure was incomplete and occasionally difficult to follow as to its intended meaning. [ 169 ] She demonstrated some challenges in attempting to explain her understanding of the word "uncomfortable" as it related to the alleged touching, this being the word she heard from her mother. [ 170 ] The evidence does not suggest that she was distraught or afraid or even apprehensive of the Accused as a result of the alleged

touching experience, either at the time of the video-recorded interview or at the time of the trial. In fact, she appeared quite interested in seeing the Accused in person in the courthouse and in the courtroom where the trial was being conducted.

She sought to engage the Accused in conversation when she did come face to face with him in the courtroom. [ 171 ] This leads me to conclude that she may not have a full appreciation of the fact that her serious allegations had significant consequences for the Accused. [ 172 ] Given the Complainant's very outspoken nature, it certainly would not have been out of character for her to have spoken out immediately at the time that the alleged touching took place in Mr. S.'s classroom.

She was certainly outspoken enough to publicly raise the touching allegation with the Accused at school after her disclosure of the allegations to the Mother, which thereafter resulted in the responsive actions of Ms. Y. The Complainant certainly had a history of being a verbal and physically reactive child in her dealings with her classmates. [ 173 ] There was no observed changes in her behaviour or demeanour following the alleged touching in the classroom.

Also, it is noteworthy that the Complainant offers alternative and conflicting evidence as to why she did not disclose the alleged touching at the time it occurred. [ 174 ] Notwithstanding the concerns expressed by defence, I have concluded that, on the whole of her evidence, the Complainant does understand the nature of truth and lies. The Complainant admitted that, on occasion, she told her mother that she was sore and tired when, in fact, she was not, thus avoiding certain things that she did not wish to do.

It is reasonable to conclude that there are times that she is not entirely truthful when asked about certain things. However, it would not be reasonable to say that she was prone to telling lies. [ 175 ] The manner in which the disclosure was made by the Complainant to the Mother and the context in which the disclosure was made certainly bears examination. The school spanking incident of the two boys certainly was not the first time that the Mother had to speak to the child about inappropriate touching.

There had been a pattern of similar discussions between the two of them during the course of grade 1 arising out of the Complainant's apparent lack of understanding about personal boundaries. [ 176 ] The context of the disclosure, in my view, raises a reasonable possibility that the Complainant did make the disclosure of the alleged wrongdoing as a means of deflecting the discussion away from her own behaviour, which was the initial topic of the discussion between the Mother and the child. [ 177 ] Before coming to a final conclusion on the credibility and reliability of the Complainant's evidence, I must continue to examine the whole of the remaining evidence. [ 178 ] The Accused demonstrated an adequate ability to recall his history in grade 7 and, in particular, his experience in Mr.

S.'s classroom. For the most part, the evidence of Mr. S. and the Accused are aligned. Where there are deviations, it is fair to assume that the Accused's recollection may be more accurate than that of Mr. S.'s, whose time and duties included dealing with a number of other children, including those in his reading groups and also a number of drop-in attendees in his room. [ 179 ] I accept there may be a significant difference in perception between the Accused's view of his exclusive responsibilities of acting as the Complainant's peer helper and those of the school administration and staff. Although Ms.

Y. determined that the Accused should fulfil that role and Mr. S. may have implemented that role to a degree, there is nothing to confirm that the expectation of an exclusive assignment was ever conveyed to the Accused. [ 180 ] It is reasonably possible, based on the number of different reading groups and the number of students passing through Mr. S.'s classroom, that the Accused's own description of being a "roaming helper" who was engaged with a number of students is, indeed, reasonably accurate.

That type of help is consistent with the evidence from the Accused that other than one time, he stood beside the Complainant while he provided assistance to her. [ 181 ] The Accused confirms that he frequently responded to the Complainant's calls for his help. Where he and Mr. S. differ is as to the frequency that the Accused may have been actually seated in the vicinity or beside the Complainant. Mr.

S.'s evidence certainly suggests that it was more than just once, as is contended by the Accused. [ 182 ] There is also the difference as to the number of times that the Accused actually read with the Complainant, beyond providing help with a more difficult word. There is nothing to suggest that Mr.

S. was keeping strict track of this, and accordingly, his impressions of more frequent interaction between the Complainant and the Accused may not be as accurate as the recollections of the Accused. [ 183 ] The evidence of the Accused and the Complainant is consistent about their relative location in the classroom on what the Accused says was the one particular occasion that they were seated and reading from a big book. The relative location would have made the alleged touching almost impossible to occur or, at the least, it would likely have been obvious to other persons in the classroom, including Mr. S.

That location is also materially consistent with Mr. S.'s observations. [ 184 ] It is clear on the evidence that Mr. S. was able to observe the Complainant and the Accused, that they were at all material times apparently quite close to him, and that there was nothing to obstruct his view. From this vantage point, his evidence is clear that throughout the course of the observed interaction between the Complainant and the Accused, Mr.

S. saw no inappropriate touching nor did he have any concerns about the separation of distance between the Accused and the Complainant. [ 185 ] The Accused offers a credible version of what took place in Mr. S.'s classroom during the interaction with the Complainant.

His evidence was internally consistent and, for the most part, externally consistent with the evidence of a number of the school staff and administration who were called as witnesses. [ 186 ] If I were to accept the Complainant's evidence of the alleged inappropriate touching, I would have to do so in the context that it had to have occurred in a very open and public place right in front of the supervising teacher and not in a private location and not in a location that was shielded from the watchful eye of Mr. S. On the whole of the evidence, I find that to be a difficult conclusion to reach.

Conclusions [ 187 ] Having regard to all the evidence, having assessed the credibility and reliability of both the Complainant's evidence and the Accused's evidence, and having regard to the circumstances surrounding the Accused's denial, I am satisfied that, at the very least, what the Accused has said in making his denial could reasonably be true. Therefore, I must acquit him on the second step of the W.(D.) formulation. That said, I do accept his denial as being credible and truthful, and therefore I would also acquit him on the first step of W. (D.) .

Decision [ 188 ] Therefore, Crown having failed to prove their case beyond a reasonable doubt, I acquit the Accused of the charge of sexually assaulting the Complainant as alleged. (REASONS CONCLUDED)