R. v. C.J.C.A. Date:, 2017 BCPC 152

Citation: R. v. C.J.C.A. Date: 20170526 2017 BCPC 152 File No: 83832-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.J.C.A. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: E. P. Sabourin Counsel for the Defendant: A. Glouberman Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 20, 21, 22, 23, 30, 2017 Date of Judgment: May 26, 2017

Introduction [ 1 ] The Accused C.J.C.A. is before the court facing four charges of sexual offences which are alleged to have occurred sometime between the first day of 2010 and the last day of 2011. Specifically, the offences alleged are incest, contrary to section 155 (2) of the Criminal Code of Canada, invitation to sexual touching, contrary to

section 152 of the Code , sexual assault, contrary to

section 271 of the Code , and sexual interference, contrary to

section 151 of the Code . [ 2 ] The Accused’s daughter is alleged to be the victim of the offences. She has been identified in these proceedings by her initials, and will be referred to as “the Child” in these reasons in order to protect her anonymity. During the time frame of the alleged offences, she was approximately 4 years and 3 months old at the beginning of 2011 and 6 years and 3 months old at the end of 2012. The Child was approximately 8 years and 10 months old when these allegations were first mentioned to a social worker in August of 2015.

She was approximately 9 years and 2 months old in December of 2015 when she was interviewed by police about these allegations and she was approximately 10 years and 5 months old when she testified at the trial of this matter. [ 3 ] The Accused has denied the allegations, both by his pleas of not guilty to all of the counts that he is charged with, and in his testimony at trial. There is no direct evidence of these offences, other than the testimony of the Child herself. The evidence of the Child and of the Accused cannot both be true. The issue before the court is not one of determining which witness is correct.

In a criminal matter such as this, as with all criminal offences, the burden of proof rests with the Crown to prove each element of these offences beyond a reasonable doubt and the issue is whether or not the Crown has met that burden of proof. [ 4 ] There are a number of factors which complicate the evaluation of the evidence before the court.

First of all, there is the fact that a ten-year-old child is doing her best to recollect things that occurred when she was between four and six years old, which creates challenges in assessing the reliability of the Child’s recollection and her perception of what was taking place at the time. On the one hand, the nature of the events which this Child has testified to are not within the realm of typical childhood make-believe.

On the other a court must be alive to the potential for false memories and false reporting, in cases of this nature. [ 5 ] A second complicating factor is that, while these events were alleged to be occurring, this Child was living in a home, where she was being raised by parents who were engaged in a lifestyle of daily drug usage that included marijuana, Oxycodone, some Percocet, mushrooms, and some cocaine. While both parents have testified that they do not believe that this affected their ability to parent, it is reasonable to suspect that this may not be the most objective assessment. [ 6 ] Following is a

summary of the evidence presented at the trial of this matter, and of an analysis of whether or not the Crown has proven the commission of these offences beyond a reasonable doubt.

Summary of Evidence [ 7 ] The Child who is alleged to be the victim of these offences had her tenth birthday last fall. She now lives with her mother and her mother’s new partner, and she has a sister who is two years younger than her. From 2006 to 2010 she and her parents (her mother and the Accused) lived in Abbotsford.

For the first part of that time, the family lived with the child’s maternal grandparents, before moving into a basement suite in a home in a residential neighbourhood. [ 8 ] The Child testified that when she was approximately four years old, she was attending pre-school and also spent part of the time in a day-care. In her examination in chief she made some startling accusation against the Accused. She was asked the following questions and gave these answers to the Crown Counsel: Crown: Could you tell us what it is that you’ve told the police about. Can you tell us what it is that brings you to court?

Witness: Well, [the Accused] abused me when I was about four. [Inaudible] because, it was like, I don’t know how to explain it. Crown: Okay, when you say he abused you, what do you mean?

Witness: He would put his penis in my vagina, and then he would put his penis in my butt, then he would put his penis in my mouth. [ 9 ] The witness went on to say: “He would take me to the bathroom, he would put lotion on my butt and my vagina, and he would do the same with him, and he would take me to the living room, and he’ll sexually abuse me by putting his penis in my vagina.” She was asked by the Crown how old she was when this took place. She answered “three or four, I’m not a hundred percent sure.” She said that this took place when the family was living in the basement suite.

Shortly after this she was asked if she had any specific memories of this happening in the basement suite and answered “no”. Crown then asked if she remembered this happening in the basement suite or in different places.

She answered “I’m not a hundred percent sure of that question.” But in response to the next question, she said that the bathroom that she was referring to was in the basement suite. [ 10 ] She said that the Accused would apply lotion to her in the bathroom and would take her to the living room where he would apply the lotion on himself “on his penis and butt” and place her on the corner of the couch before inserting his penis in her vagina “and butt.” [ 11 ] The Child said that this took place when her mother would be out, either shopping, on a hike, or visiting the child’s grandmother.

She said that she wasn’t “a hundred percent sure” but then said that she remembered her mother going out to get groceries “when I was abused.” She said that her mother was never present when the sexual assault occurred and that her younger sister would be in the bedroom sleeping. [ 12 ] The Child was asked by Crown counsel for more detail about how the assault would take place on the couch. She said “he would lay me down flat and he would sexually abuse me.” She was asked by Crown if she would be lying on her back or on her stomach.

She replied that she would either be on her back or on her stomach. She was asked if she would say anything when this was happening. She said “I would try telling him, at least, I think I remember, I would try telling him, ‘stop it, I don’t like this’.” She said that she was nervous, scared, and had a lot of different other feelings that are difficult for her to describe. [ 13 ] The Child gave different answers to different people when asked about how often the sexual abuse occurred.

When asked by Crown, she could not recall how many times this happened to her, but she agreed when Crown asked if this had happened more than once.

When Crown asked if this had happened more than two times, she said “probably, I’m not a hundred percent sure.” In cross- examination, it was pointed out to the Child that she had told one of the officers who had interviewed her that this was something that happened much more often than that, perhaps daily. [ 14 ] Later in her examination-in-chief, the Child testified that the Accused had put his penis in her mouth, but that she was “not a hundred percent sure” that he did so at the same time as when the other incidents occurred.

She said that she remembered that “it tasted horrible” and that it caused her to gag. She says that she told him to stop and that she didn’t like it. She said that he would tell her, “it’s okay, you don’t need to be afraid.” [ 15 ] The Child said that the Accused told her that if she told anyone about what had happened, she would be grounded for two months. She also said that these incidents took place in the living room because the Accused would be able to see if the Child’s mother was coming home.

He would either hear the car getting home, or her mother would send a text message to the Accused telling him that she was coming home. She also said that when these events occurred, it appeared to her that the Accused was under the influence of something. She said “I believe he was on drugs or he was an alcoholic. I’m not a hundred percent sure. He would be acting weird, acting crazy in the mind.” [ 16 ] The Child said that she told her baby-sitter about this. She said that she also told her mother, but that her mother didn’t believe her. [ 17 ] An Agreed Statement of Facts, as allowed under

section 655 of the Criminal Code , was filed by counsel. Attached to the Agreed Statement of Facts was a series of Child Family and Community Services Act Investigation Reports. Paragraph 9 of the Agreed Statement of Facts sets out the agreement of counsel on the use to be made of these reports as follows: The contents of these documents either represent observations made by, or information gathered by, the MCFD [Ministry of Children and Family Development] personnel.

Any conclusions reached by the author represent his or her subjective determinations and are not meant as a substitute for the issues to be decided by the trier of fact in these proceedings.

Any hearsay contained within these documents is provided to the court as a historical narrative, and not as proof of any allegations contained. [ 18 ] A report written by Social Worker Loren Wilker on August 27, 2010 states that on August 23, 2010, this child told an unnamed third party that her father had “kicked her and pointed to halfway down his right leg.” The report also states that on August 27, the child complained that her right side hurt. The same third party noticed a bruise underneath the Child’s ribs.

The report says that the Child also told the third party that “her butt hurt.” When the Child was asked to show the third party where she hurt, the child pointed to her vaginal area. The third party reported that when the child was being changed, her vaginal area appeared to be quite red, and what was described as “an off-coloured slimy substance” was noticed by the child’s vagina. When the third party went to wipe the child, the child became “quite tense”. The third party asked the child what had caused the bruise and the child wrapped her arms around herself and squeezed very tight.

The third party then asked about the child’s butt hurting and according to the report, the child said “big pink, too big” and made a circle with her fingers. The report then continues: “When asked where did this happen, she stated ‘in my bed’. When asked when did this happen she stated ‘last night’.

She also said ‘mommy bite my tongue.’” The third party suggested that the child had bit her own tongue, but according to the report, the Child “was adamant that mommy bit her tongue.” [ 19 ] When cross-examined about this report, the Child said that her mother never bit her tongue and that her mother never ever hit her at all. She said that she didn’t know if the Accused had ever hit her either. [ 20 ] Following this reporting, the Ministry investigation reports states that the Child’s statements were reported to the Ministry and the Child was taken to the Abbotsford Regional Hospital for an examination.

The report indicates that the Child was examined “from head to toe” but that the examining physician found nothing of concern. Specifically, the doctor had no concerns about the Child’s genitalia. Vaginal swabs were taken. [ 21 ] The Ministry reports also indicate that at the time, there was concern about the Child telling lies about the day-care provider, and about the Child being caught in other falsehoods.

In an entry in the report dated October 29, 2010, the parents complained about the Child telling lies, including complaining that she was seen hitting her younger sister, but denied doing it, even after being caught. [ 22 ] The reports also indicate that the Ministry had concerns at the time about drug usage in the Child’s home and how this affected the ability of the parent to look after their children. For example, there are reports of the parents failing to pick the Child up from day care, and of them being called on the telephone, and sounding drowsy or not very alert.

The reports suggest that this was an issue that the Social Workers were concerned about at the time. [ 23 ] In cross-examination, the Child said that she could not remember how many times the sexual abuse she described occurred. She said it was too far back to remember. She could not remember talking to a social worker or seeing a doctor.

She was asked about whether or not she had accidentally walked in on her father when he was using the bathroom, and she admitted that this did happen, in her words, “a bunch of times.” She also said that she had walked in on her parents when they were having sex, and that perhaps this happened twice. [ 24 ] The Child said that she is very close to her mother and that her mother helped her in trying to remember what had happened to her. She said that it was her mother who taught the term “sexual abuse” and that her mom had told her that the Accused had sexually abused her.

She said “mom helped me to figure out what happened. Mom helped me to remember.” She later said that her mother had told her that “little kids three to five are easy to abuse.” [ 25 ] It was suggested that at the time when these incidents were occurring, the Accused did not have a cell phone to receive text

messages. It was also suggested that it was not possible for the child to see through a window from the living room whether or not hermother would be getting home. The Child conceded that she was not sure about these things. [26] In re-examination by Crown Counsel, the child said it was possible that someone else had told her about one of the things shesays that the Accused did. She gave these answers: Crown: Are you one hundred percent sure that you remember your dad putting his penis in your butt? Witness: Yes, I’m a hundred percent sure.

Crown: Is it possible that you remember that because somebody else told you? Witness: Possibly, possibly, I’m not a hundred percent sure about that. [27] The Child’s mother testified as a witness for the Crown. She is thirty years of age and reported that she suffers from an anxietydisorder. She appeared to be under considerable distress and discomfort when giving her testimony. She was cross-examined at lengthand on several occasions during her cross-examination her stress levels were such that a break in the proceedings was called for.

Shepresented as a very vulnerable witness and the stress she was experiencing was palpable. At one point she exclaimed to counsel, “itbothers me how you can be so heartless.” It was not my perception that the cross-examination was a heartless one, but that was certainlyhow it felt to this witness. [28] This situation illustrated the difficulty presented in dealing with sensitive witnesses. On the one hand, an Accused has a right tomake full answer and defence, and reasonable latitude must be afforded in cross-examination for that purpose.

On the other hand, trialjudges have been criticized for not affording sufficient protection to vulnerable witnesses. The duties of a trial judge in this regard arediscussed in R. v. Valley (1986) (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), and R. v. Mitchell, 2008 ONCA 757.Special considerations apply to cross-examination in sexual assault cases: R. v. Shearing 2002 SCC 58 and R. v. Huber 2007 BCSC1074.

This case illustrates the need for clearer guidelines as to what is expected of trial judges and what the moral and ethicalconsiderations for counsel are in such situations when witnesses are found to be in this type of distress. [29] In her evidence in chief, the Child’s mother testified that this family moved into their basement suite residence on the west sideof Abbotsford sometime in 2010, after a series of moves that included briefly residing with her parents. The child was approximately fouryears of age when they moved into that residence. The mother had part-time employment at a pet grooming salon.

When she was at worksometimes the Accused would watch the children and sometimes her parents would watch them. She was critical of the Accused for hisfailure to help in many of the child care duties. In her words, he was “not very fatherly”. [30] By her own admission, she admits that she herself was not the ideal parent. She testified that she drank alcohol, though not asmuch as she had during her teenage years. She used Oxycodone, Percocet, marijuana, cocaine and mushrooms with the Accused, andthat, in her words, “we were like a team in that sense”. [31] These parents ended their relationship in 2011.

The mother gave the reason as being “due to fighting, anger, and his lack offatherly closeness.” She said that she asked the Accused to move out of the home. At first, he did not want to do so and wanted to try towork things out, so she says that she got him to move in with his parents “under the false guise of trying to work things out.” When shebegan a relationship with a former boyfriend, she said that this angered the Accused. [32] When asked about the contact with the Ministry of Children and Family Development in 2010, the Child’s mother recalls thatboth she and the Accused were angry with the Ministry.

She recalls that she confronted the Accused about the allegations and he deniedany abuse. At the time she believed him, but she said that she later became concerned once when she came back in the house afterforgetting her wallet, and she found the Accused masturbating to internet pornography. The children were not present, but she was angrythat he was doing this in the living room while the children were in the house. [33] The Child’s mother testified that it was many years later when the Child first complained that the Accused had sexually abusedher.

She says that one evening while she and her new partner were in the living room of their home watching television, the Childspontaneously said “I don’t like what daddy did.” She recalls that she left the comment alone for several hours before talking with thechild. The mother testified that she was “really drunk” when she had a conversation with the child about this statement. She did not callpolice or the Ministry about the remark however. It wasn’t until August 13 of 2015, when she received a call from Social Worker AngelaTourigny about closing the Ministry file that she mentioned to Ms.

Tourigny that the child had mentioned this. The social worker suggested that the mother contact the Abbotsford Police, something that the mother did twelve days later on August 25th. The child wasnot interviewed until the following December, first on two occasions by a member of the RCMP detachment in the community that thechild was residing, and then in January of 2016 by a member of the Abbotsford Police Department. [34] In cross-examination, the Child’s mother was asked about the amount of drug use in the home during the time that these eventswere alleged to have occurred.

She acknowledged that both she and the Accused abused Oxycodone and that both were daily consumersof marijuana, something she says helps her with her severe anxiety. She says that both of them over-consumed the Oxycodone, whichhad been prescribed to the Accused for pain management due to a work-related injury he was suffering from. She said that they also usedEcstasy and some cocaine as well.

Cocaine was consumed, in her words, “frequently at night”, adding, “we’d do coke until we ran out ofmoney or coke.” She says that they had what she described as a “drug relationship”, adding, “no one could keep up with us.” She saysthat they were both insistent that the drugs they had be shared equally. She said that they tried to hide their drug use from their childrenand says that because she has a high tolerance for drug usage, she did not believe that this affected her ability to parent.

She testified thatthe drug use took place after the kids were put to bed. [35] She recalls that when the Ministry was investigating the possibility that the child may have been abused, this was a surprise toher. She said that up to that time she had not heard or seen anything that made her wonder if such a thing was occurring. Both she and theAccused were angry about having to go to the hospital for the child’s examination and she wondered if it was the Ministry who wasputting these ideas in the child’s head.

[ 36 ] On April 30, 2009, the Child was examined by Doctor Morrison, and one of the purposes of the examination was in response to the mother’s concern about possible sexual touching of the child. A

summary of this examination reads as follows: Does show mild erythema [a superficial reddening of the skin] to the inside of labia, but hymen ring is intact. No evidence of any scratches or abrasions noted. Over external genitalia does have a sort of linear sort of abrasion noted over the lt. labia. Really is tangential more in keeping with sort of trauma. No evidence of any correlation with clitoris or with opening. As mentioned, hymenal ring intact. A: mild vaginitis. [ 37 ] A record of visits by the Child to her physician was presented, both before and after the alleged offence dates.

These reports do not contain anything suggesting any sort of injury to the child of the nature that might be expected from these allegations. It reports three subsequent visits that were scheduled. On one of these the child was not seen by the physician and on another the record states “no show”. [ 38 ] The Child’s mother was asked about the time prior to when the family moved into the basement suite in Abbotsford. They were living with the mother’s parents. She was asked about whether or not her father had been caught by her watching pornography on his computer with the child on his lap.

She denied that this had happened, but acknowledged that her father frequently watched pornography on his desktop computer in a common area in the basement and that this was a frequent subject of complaint on the part of her mother. She rejected the suggestion that her father may have acted inappropriately with the child. [ 39 ] The Child’s mother said that she was upset about the fact that after she began her new relationship, the Accused chose to absent himself from the lives of his children. She said that the Accused has not seen the children since December 27, 2011.

She said that she has enrolled in the Family Maintenance Enforcement Program in order to try to collect child maintenance from him. [ 40 ] The Accused testified at trial and denied that he had ever touched his child inappropriately. When asked directly by his counsel, the Accused denied that he ever did any of the things to his child that he has been accused of doing. [ 41 ] He said that he met the Child’s mother online in 2005 and they were in a relationship until December of 2011.

At that latter time, he was on a bus going to Calgary for work, and she sent him a text message telling him that she was seeing someone else. He remained in Alberta until March of 2012. He said that he chose not to have contact with his children or with their mother, stating “I just felt it was best to disconnect.” He testified that he now regrets this decision, stating “I played it very wrong. I regret not being a part of their lives.” [ 42 ] The Accused expressed some resentment over being ordered to pay spousal support.

He acknowledges that the Family Maintenance Enforcement Program has become involved in collecting child support from him and in garnisheeing his wages and that he has been in arrears in his child support obligations. [ 43 ] The Accused believes that the complaint leading to the charges he is facing may be connected to the claims against him for child and spousal support. He testified that the Child’s mother made vague allegations to him when they two of them were discussing child support following their separation, implying that if he did not pay support, he would be accused of being inappropriate with the child.

He says that in response, he told her to stop contacting him. He said that he told her that if she believed that he had done anything wrong, she should contact the police. He also said that this was part of the reason for his decision not to see his children, but he added that, in his words, he feels “like a bag of garbage” for not seeing his kids. [ 44 ] The Accused acknowledged that it was their mutual drug use that formed the bond that led to his relationship with the Child’s mother. In his words, “we were using a lot of drugs” but the couple did not have a lot of money.

Together, he says that they used cocaine (in powder form), ecstasy, marijuana, and mushrooms. He said that the two of them fought a lot during their relationship, usually about their lack of money. He said that they used drugs equally, and both stopped using together during the pregnancies leading up to the births of their children. [ 45 ] He recalls that they lived with her parents for about a year and that there were a lot of arguments in that house, including between the Child’s mother and her dad.

He remembers that her father liked to watch pornography on the computer, something that the Accused admits that he also did. He said that this made the Child’s mother very angry, as she saw this as being disrespectful of her. He said that on one occasion the two of them saw her father sitting at the computer watching pornography while the Child was sitting on his lap.

He says that her father apologized and promised not to do this again, but they did not trust him, although he said that he never saw this happen again. [ 46 ] When the couple lived in the basement suite, the Accused agrees that he did not take on a lot of the child care responsibilities. He attributes this to being young and immature, and also because of the example he had learned from his parents. [ 47 ] The Accused testified that he began to abuse Oxycodone after the drug was prescribed to him for pain management, following a knee injury that he suffered at work.

He acknowledges that he developed an addiction to the drug. Looking back, he admits that he was not an adequate parent, adding that neither of them were. [ 48 ] The Accused recalls that in May of 2010 his father died, on the same day that he had his knee surgery. The surgery left him with some significant mobility issues at the time. He also testified that because of a lack of money, the two of them only had one cell phone that they shared. It was not until May of 2011 that his mother got him a “pay-as-you-go” cell phone.

He also recalled that the basement suite did not have any windows in the living room that provided a view of the street, and it would have been impossible for him to keep a lookout from there to determine whether or not anyone was coming to the house. [ 49 ] The Accused recalled that there were times when the Child walked into the bathroom when he was using it, and also times when she walked in on him and the Child’s mother when the couple were sexually intimate. [ 50 ] When the Ministry became involved in August of 2010, the Accused recalls that the Child was questioned by her mother and that the Child did not mention anything to suggest that anyone had touched her inappropriately.

He also recalls that at the time the

Child’s mother defended him to the Ministry quite strongly. [ 51 ] The Accused’s mother testified about observing both of the Child’s parents and about how both of them were neglectful as parents. She is a registered nurse’s aide and has worked for a child care agency. She testified that she is angry at the Accused because his lack of involvement in the lives of the children has also limited her contact with her grandchildren. During the time that this couple was active in their drug use together, the Accused’s mother tried to check in on the children to look out for their welfare.

She said that she did not observe any indication of neglect or abuse of the children. She recalls that the Child had a problem with diaper rash, so she recommended some cream for the problem. [ 52 ] The Accused’s mother provided a series of text messages that she had exchanged with the Child’s mother in which the Child’s mother complains about the fact that she is not receiving any child support from the Accused. In a later message, sent in May of 2016, the mother says that the Child is “mad and hurt” that the Accused is not in jail.

She then complains that he has not paid anything, presumably referring to his child support. When the Accused’s mother does not respond to this, the Child’s mother sends the following text message: I am guessing that you aren’t replying because of all of this stuff (court and the no contact order, which has nothing to do with you and the girls.) Which is understandable as a mother protecting her child (son). However, I will say, as a mother as well, protecting her babies, that I am hurt and offended that you lied and betrayed your own grandchildren the way that you have.

And so for that reason, this is the last time we will ever speak. You will not see or speak to either of them ever again. Take care. Analysis [ 53 ] In a situation such as this, where one witness has accused someone of a serious crime, and that person has denied the offence, the law is clear that it is not simply a matter of deciding who is more believable. Rather, the burden of proof rests with the Crown to prove all elements of the offence beyond a reasonable doubt. [ 54 ] Proof beyond a reasonable doubt does not mean that every element of an offence must be proven to an absolute certainty.

A reasonable doubt cannot be founded on imaginary or frivolous speculation. It cannot be based on sympathy or prejudice, nor can a conviction result because of sympathy for a complainant. A reasonable doubt is a doubt based on reason and common sense which must logically come from the evidence or absence of evidence. It is not enough to conclude that an accused is probably guilty, or that his or her guilt is more likely than not. A reasonable doubt does not mean that the offence has been proven to an absolute certainty.

That is an impossibly high standard and if that was what was required, virtually no one would ever be convicted of a criminal offence. [ 55 ] In a case such as this, where a complainant has asserted that the Accused committed the offences he is charged with and the Accused gives evidence in which he denies doing so, the law requires a three stage analysis. First, I must consider the Accused’s evidence. If I believe the Accused, then he is entitled to an acquittal.

If I do not believe the Accused, but if what he is saying might reasonably be true, in other words if I am left in doubt about the Accused’s guilt as a result of his evidence, then the Accused is entitled to the benefit of that doubt.

Finally, if I do not believe the Accused, and if his evidence does not leave me in any doubt, I must still consider whether or not, based on the evidence that I do accept, the Crown has proven all of the elements of the offence beyond a reasonable doubt. [ 56 ] It has been held that a court is not required to “slavishly adhere” to this formula, as long as the principle that the burden of proof rests on the Crown to prove all of the elements of the offence beyond a reasonable doubt is always kept in mind.

I am taking into account that at the time that these offences are alleged to have occurred, this Child was living in a home where frequent drug use was the norm. While some in society might view this as “normal” or that this family was “functional” in its drug use, this does not present itself as a reasonable conclusion. It is certainly at odds with what was observed by independent and objective observers such as the Accused’s mother.

It has been the experience of the courts across Canada, and likely elsewhere, that where a culture of drug use exists to the extent described in this case, the truth is an early casualty. For this reason, I will first turn to the third aspect of the credibility analysis before considering if I can reasonably accept the Accused’s denial or whether it leaves me it a reasonable doubt. [ 57 ] In assessing the credibility of witnesses, this involves not only an assessment of the honesty of a witness, but also of the reliability of what that witness is saying.

Witnesses may be honest, but unreliable due to a number of factors, including imperfect recall, a lack of understanding, or a limited ability to communicate. Special considerations apply to the evidence of child witnesses. [ 58 ] This case is somewhat unusual in that it involves a ten year old child trying to remember what happened to her when she was four years old. The evidence of a child witness must be carefully considered. This does not mean that because the testimony is coming from a child that it should be more worthy of belief, or less worthy of belief.

It only means that the age and cognitive ability of the child must be taken in to consideration in understanding what the child is saying and in considering the reliability of what the child is saying. Children are not adults, and they should not be expected to deliver their evidence in the same manner as adults. This does not mean that we should subject the testimony of children to a lower level of scrutiny for reliability than we would do adults. It does mean that children should not be expected to give their evidence in the same way that adults do. [ 59 ] 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 differences which must be considered in evaluation of the evidence of child witnesses. While children can be reliable witnesses, their memories are less well developed than adults. As children become older, their memory improves. [ 60 ] A major concern with child witnesses is their potential for suggestibility.

As a result of repeated or misleading questions, the memory of a child witness may become distorted. The authors write that it is possible for a child who has been subjected to repeated, suggestive questioning to develop "memories" of events that did not in fact occur. Children, especially young children, are more suggestible than adults. [ 61 ] The authors note that the way in which children are questioned can greatly affect what they are able to communicate. Children, especially young children, often 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, but if asked they will usually try to answer. In addition, "yes orno" questions are problematic with young children, who often have a bias to produce "yes" answers. They write: 15 Children, especially young children, are socialized to provide responses to questions, even if they do not fully understand what isbeing asked.

Children who are asked questions that they do not fully understand will usually attempt to provide an answer based on theparts of the question that they did understand, so that a child's answer to a question may seem unresponsive or may even be misleading. [62] In the case at bar, a young child has made a serious allegation against the Accused, the nature of which is outside the realm ofnormal occurrence. There are a number of possibilities for what has happened. One possibility is that the child is being truthful andaccurate.

There are a number of other possibilities, each of which must be discounted before the Accused can be convicted of theseoffences: 1. The Child is intentionally not telling the truth. 2. The Child is misperceiving something innocent that actually occurred. 3.

The Child has a false memory; that is, that the child legitimately believes something to be true that is not true because herrecollection has been subjected to outside influences. [63] In this case, a number of factors have been suggested on behalf of the Accused which should give reason to doubt either thecredibility or the reliability of the allegations that the Child has made in this case. These include the following: 1.

Records from the Ministry of Children and Families from around the time when these offences are alleged to have occurred also notecomplaints about the Child having a problem with lying in general, and with making false accusations against her daycare provider. 2. Records from the Ministry also report that when it was first suggested that the Child may have been abused, an examination of theChild took place at Abbotsford Regional Hospital, described as being “from head to toe”. The conclusion of the examining physicianwas that he found “nothing of concern”.

More specifically, the doctor noted no concerns regarding the Child’s genital area. 3. A medical examination of the child performed in April of 2009 failed to disclose any evidence supporting the conclusion that theChild had been sexually assaulted. The Child in her evidence has said that the sexual assault included vaginal penetration. This wasdifficult to reconcile with this medical report, which found the Child’s hymen ring to be intact, and with at least two subsequent medicalexaminations of the Child, which did not disclose any evidence of this. 4.

It has been suggested that a false memory may have been created in the mind of the Child, as the result of the Child’s exposure topornography while in the care of her maternal grandfather, by walking into the family bathroom when her father was urinating, or bywalking into her parents’ bedroom when they were having sex. 5. The evidence of the Child’s paternal grandmother is that the Child experienced vaginal rashes for which creams or ointment wasprovided by the grandmother.

It is suggested that this may explain a misperception on the part of the Child in which she testified that sherecalled a cream being applied to her by the Accused. 6. The Child was questioned by her mother about whether or not she had been sexually assaulted by the Accused.

According to theevidence of the Child’s mother, this questioning took place when the mother was, in her words, “really drunk” and “highly emotional.”This raises concerns because of the potential for children who are not properly questioned about such matters to provide the answers thatthey believe that their questioner wants to hear, rather than providing objective answers. It is difficult to assess whether or not this hasoccurred here because of the lack of any accurate recording of the questioning and because of the questioner’s lack of sobriety at thetime that the Child was questioned. 7.

A further concern expressed is the timing of the complaint to police, not because of the delay in reporting to police, but ratherbecause of the proximity to the reporting to demands made by the Child’s mother regarding outstanding child support. 8. Counsel for the Accused also argues that the language used by the Child in testifying as to the assault is atypical for a child of thisage, and invites the inference that this suggests that the Child has been influenced in what to say. [64] When a child of this age makes a report of this nature, everyone is right to be concerned.

It is abnormal for little children tobring up these kinds of subjects. An accusation of this nature is well outside the realm of normal childhood imagination.

Because of thevulnerability of young children, it is necessary to fully investigate such reports and to prevent the potential for any further abuse and tostop those who abuse children from further harm. [65] A criminal conviction for acts of this nature will typically attract a penitentiary term for the offender and will imprint the labelof “sex offender” to that person and place the offender in the Sexual Offender Registry for most of all of the rest of that person’s life.

Thelaw requires the absence of any reasonable doubt before affixing such consequences. [66] In the present case, there is reason to feel great sympathy for this complainant, who presents as a very sweet child, despite notbeing raised in the healthiest of conditions. A criminal conviction cannot be founded on sympathy alone. In the present case, there arereasons that emerge from the evidence that make it dangerous to found a conviction on this evidence.

Foremost among these are thepotential for inaccuracy in memories from such an early age, the documented past history of this young Child in making false claims, thefailure of the contemporary medical information to support these allegations, and the questioning of the Child while her mother wasintoxicated. It is impossible to say that the Child’s disclosure is inaccurate, but that is a reasonable possibility in this case. It would bedangerous to convict the Accused under these circumstances. [67] In R. v. C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Mr. Justice Wood said of assessingcredibility:

If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [ 68 ] This is such a case. Under these circumstances, reasonable doubt exists and accordingly, the Accused is acquitted of all counts on the information. Dated at the City of Abbotsford, in the Province of British Columbia, this 26 th day of May, 2017. _________________________________________ (The Honourable Judge K. D. Skilnick)