R. v. R.J.A.P. Date:, 2012 BCPC 152

Citation: R. v. R.J.A.P. Date: 20120514 2012 BCPC 0152 File No: 8413 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.J.A.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. T. Livingston Counsel for the Defendant: Mr. B.W. Sundhu Place of Hearing: Kamloops , B.C. Date of Hearing: April 5, 2012 Date of Judgment: May 14, 2012 [ 1 ] R.J.A.P. [(omitted for posting)] has been charged with touching K.K., a person under the age of 16 years, for a sexual

purpose and with sexually assaulting K.K. The offence date is a single event transpiring somewhere between April 1, 2010 and June 30, 2010. [ 2 ] The accused says that this is not a legally complicated case but a difficult one because of the age of the complainant and the passage of time. At the time of the trial, K.K. was 9 years old. He was 7 at the time of the offence. [ 3 ] It is a fact that K.K. is a very young witness. Two years have passed and his memory will have been affected by that passage of time. In fact, in August 2010, K.K. apparently attended the Kamloops police detachment to give a statement.

However, he does not remember attending at that time or what he said in the statement. K.K. said that he did speak to an officer in October, 2010. All he remembered of that incident was going there, but not actually talking to the police officer. He knew he was going there to talk about R.J.A.P. and what happened. His father and step-mother took him. It is this frailty in parts of K.K.’s memory that the accused says must raise a reasonable doubt. [ 4 ] K.K. also gave a statement only days before trial.

There were some instances where his evidence at trial varied from his statement given to the police officer only days before. He said he only just remembered that evidence after school the day before trial. This recollection struck me as a true recollection and I find no false memory or outside suggestion in it. [ 5 ] Ms. O. said that they discovered the accused’s family lived in town when they moved to [omitted for posting] two and a half years ago. They went over to the P. house to meet them. Ms. O.’s brother-in-law took them. She said the first visit was just her, her husband and her daughter.

Neither K.K. nor K. (K.K.’s older brother) came on that occasion. She said they visited a couple of times more and then Ms. P. and R.J.A.P. came and visited them a couple of times. [ 6 ] Ms. P. testified that they first met Ms. O. and the two boys around the end of March or the beginning of April. She said that a lot of visits took place at their house. They went over to the O.s’ for Easter. The guests included herself, her husband, all of her children, all of the O. household, and a friend of E. (K.K.’s [omitted for posting]). She estimated there were 15 to 17 people there.

She said that R.J.A.P, K.K. and K. were outside a lot of the time with squirt guns. [ 7 ] Of the incident leading to these charges, K.K. said that one day he was playing with his brother when R.J.A.P. came over. R.J.A.P. had brought over his X-box and the boys began to play Halo 2. K.K. only played with the X-box twice with R.J.A.P. The first time was at R.J.A.P.’s house. The second time was at his own house. After they were finished with the X-box they started to play fight. R.J.A.P. put his hand on K.K.’s mouth. K. pulled it away. At that point, K.K. needed to use the washroom.

He said that R.J.A.P. followed him down the hall and locked them in the bathroom. [ 8 ] K.K.’s memory is vague on how he ended up on his knees. He was on his knees on the bathroom floor with his pants down and R.J.A.P. put his penis in his bum. K.K. said that he felt something in his bum. Defence counsel asked him if he felt something on his bum but K.K. was adamant it was in his bum. R.J.A.P. had told him to pull his pants down and R.J.A.P. took the front part of his own pants down.

He said that he turned around and saw R.J.A.P.’s penis. [ 9 ] When being interviewed by the police officer two days before trial, K.K. said that he did not know if he saw R.J.A.P.’s penis. His explanation at trial was that was because he forgot until he remembered. He said he remembered right after school “yesterday”, being the day before trial. However, when the police officer asked in the interview how K.K. knew that it was R.J.A.P.’s penis put in his bum, K.K.’s response had been because R.J.A.P. would not put his finger in his bum.

R.J.A.P. told K.K. not to tell anyone or he would be dead or he would get hurt. It all only lasted about a second. R.J.A.P. went home after that, but not right away. K.K.’s recollection, despite the inconsistency, was clear and compelling. Whether K.K. deduced that R.J.A.P. used his penis instead of his finger, or whether K.K. actually saw R.J.A.P. holding his penis does not detract from the fact that R.J.A.P. sexually assaulted K.K., which assault included penetration of K.K.’s anus.

I am, however, satisfied that K.K.’s recollection of seeing R.J.A.P.’s penis is genuine and not manufactured. [ 10 ] Afterward, K.K. said he was crying and his brother asked him what was wrong. He told his brother what R.J.A.P. had done. His brother then went into the living room and told Nana (D.O.) and Grandpa, being K.K.’s grandparents. He could not sleep and he was crying. His brother was crying as well. He forgot if he spoke to his Nana and Grandpa that night. However, K.K. does remember that he spoke to his Nana afterward. He said mostly his brother was talking to his Nana.

He also told his father but said he had not spoken to anyone else about it. K.K. also said that his brother claims he was the only one who went out and spoke to their Nana, but K.K. believes it was both himself and his brother. K.K. was unshaken in his testimony, despite what others have said to him about the incident. It lends more credibility to his credible recollection. [ 11 ] K.K. was unable to say what month this had transpired in, but that it had happened two years prior.

He said that he had gone to visit R.J.A.P. and his family at their house, and then a couple of days later they came over to K.K.’s house. He said that this happened the first time that R.J.A.P. came to his house. For reasons that became clear on the evidence, this is one point on which K.K.’s recollection is obviously wrong. On the occasion in question, R.J.A.P. came with just his step-mother. The other people at the house were K.K.’s own Nana and Grandpa, father and step-mother. All of the adults were out in the living room. [ 12 ] Ms. O. testified that when K told him K.K. had been hurt by R.J.A.P., Ms.

O. asked K.K. what happened. K.K. told him that R.J.A.P. got him in the bathroom and put his pee pee in his bum. She said K.K. told her almost two months after the event because he was scared to say anything. He worked up the courage because R.J.A.P. kept coming over to the house. It is from this estimate of time given to her that Ms. O. made the assumption the event happened around Easter. [ 13 ] Ms. O. made the further assumption that the events transpired on Easter because she believed everyone was there for Easter dinner. She said the whole family came including R.J.A.P. and his parents and their two girls.

She said there was also someone else there but she could not remember. This does not accord with K.K.’s account of who was present in the house on the day of the incident. [ 14 ] K.K. did not believe that this transpired on Easter, saying he thought it was a regular day. Ms. P. said that R.J.A.P. did bring over his X-box to play with the boys, but this happened after Easter. This accords with K.K.’s recollection that the event transpired on an ordinary day, and not at Easter.

[ 15 ] Nailing down the timing was a difficult task, in part because K.K.’s grandmother made an assumption about the date of the event that was not based on K.K.’s observations of the day. For instance, K.K., D.O. and G.P. were all asked about whether R.J.A.P. would often sit in the living room with K.K.’s grandfather and watch movies. Both Ms. O. and Ms. P. said that he did do this. However, K.K. said this was not what happened on that day. He said that R.J.A.P. was just playing with them on the X-box. [ 16 ] K.K. was asked a number of questions about playing pretend and about lying.

He was asked whether R.J.A.P. injured either K.K. or K. while wrestling. The version put to K.K. involved the boys going out to tell their Nana about it and then lying about R.J.A.P. not saying he was sorry. K.K. did not remember the event. He said nothing like that happened but it was difficult to tell whether he was referring to the day of the incident or any day at all. K.K. tended to be very specific in his testimony whereas the questions put to him were sometimes general. Ms. O. said it was K.K. who kicked R.J.A.P. in the “privates”. She said this occurred after Easter. [ 17 ] Ms.

P. said that she was there for the wrestling match. She remembered that K.K. and K. came into the living room to say that R.J.A.P. had punched K.K. in the groin. The next day Ms. O. said K.K. and K. owed R.J.A.P. an apology. Apparently, R.J.A.P. had accidently knocked K.K. in the groin, but apologized. K.K. and K. lied saying that R.J.A.P. had not apologized. [ 18 ] Ms. O. observed a change in K.K. after Easter 2010. She said he started acting up and not listening when he was told to do something. He would climb trees and not come down. She said he would do strange things in the yard like pulling his pants down.

When she would tell him not to do things like that and ask him why he was doing it, he would never tell her why. [ 19 ] Ms. O. said that they came several times after Easter. They would visit in the living room and dining area. R.J.A.P. would play with K.K. and K. outside in the yard. R.J.A.P. would suggest going to the bedroom but K.K. would say no he wanted to play outside. Ms. O. believed they came 5 or 6 times after Easter. K.K. said he never saw R.J.A.P. again after the incident. [ 20 ] Ms.

O. said that R.J.A.P. would bring over some games to the house and that they played them on the game television in their bedroom. Ms. O. said there were other occasions that R.J.A.P. brought videos over both before and after that Easter weekend. [ 21 ] Ms. P. said that they did not visit as frequently in May as they had done in April. However, she noticed no difference in K.K.’s or K.’s behaviour, or in how they played with each other or with R.J.A.P. K.K. was mistaken about the number of times R.J.A.P. came to visit.

Because he does connect the incident with Easter, the incident had to have occurred after, given the evidence of Ms. O. and Ms. P. [ 22 ] Ms. P. said that in the first week of June, she went to the O. household without R.J.A.P. She said K.K. and K. came out to ask why R.J.A.P. was not there to play. She was uncomfortable explaining why he was not there because she had just been told on the visit prior what R.J.A.P. was supposed to have done. [ 23 ] Ms. O. did not recall the children ever asking where R.J.A.P. was. In fact, she said K.K. told her R.J.A.P. plays too rough and did not want to play with him.

The only incident she can recall involving R.J.A.P. appearing was the day that he and his mother brought a barbecue over for the O.’s to use while their utilities were cut off. The boys came up the stairs to her and said that R.J.A.P. was there. This was the day that her son E. came upstairs and became very angry with R.J.A.P. [ 24 ] There was a dispute between Ms. P. and Ms. O. about whether the matter was to be reported to the authorities. According to Ms. O., she said that when she told Ms. P. about the incident, she insisted that P. report it to their social worker and to the authorities.

She was reassured when Ms. P. said that she would. However, after hearing nothing for a couple of weeks, Ms. O. took matters into her own hands and reported it to a social worker who came to their home. [ 25 ] In cross-examination, it was suggested to Ms. O. that she told Ms. P. to keep it (being this incident) in the family. It apparently related to an allegation that had been made against her own son E. when he was 12 years old regarding his cousin who was 3. Ms. O. denied having that conversation. [ 26 ] Ms. P. testified that she called the after-hours line at the Ministry of Child and Family Services.

She spoke with the after- hours social worker who obtained her consent to contact the R.C.M.P. Immediately, R.J.A.P. was sent off for counselling and Ms. P. was also put in touch with someone to give her counselling. [ 27 ] Ms. P. said that once Ms. O. told her what had happened, she told Ms. O. she would get a hold of a social worker and that the incident needed to be reported. She said that she bumped into S.O., the grandfather, a few days later. She told him that she was on the way to his house. He asked what it was about. She told him that she had reported the incident.

He got angry because he wanted to deal with it the family’s way. Ms. P. continued on to Ms. O.’s house. She told Ms. O. that she had reported the matter. Ms. O. was upset because social workers would be involved and they did not want that. In any event, none of this goes to whether the incident alleged occurred. I have no evidence before me to resolve whether either discussion took place or how the report was made. It is irrelevant to the allegation itself and would only go to credibility generally of Ms. O. and Ms. P., and only if I had evidence to resolve the disparity in their stories.

I can, without resolving that credibility issue, still determine their respective credibility on other parts of their testimony. [ 28 ] There was a good deal of evidence led about the layout of the O. home and whether a person could see into the bedroom or bathroom from the living area where the adults were apparently meeting. While the bathroom door was locked during the incident, it is easily picked. It is also the only bathroom on that level of the house which the adults would have had to use if the need arose. The theory was that there was too great a risk to commit such

an act in a bathroom where a discovery could be made so quickly with so many adults in the house. However, this would presume that R.J.A.P. turned his mind to the risk assessment. The evidence before me is that R.J.A.P. has the mental ability of a 7 or 8 year old. [ 29 ] Ms. P. said that R.J.A.P. has wide variety spectrum autism. He has a hard time understanding time, comprehending what people are asking him, and takes things differently. His learning level is at Kindergarten to Grade 1. He is in Grade 11 in a specialized program at [omitted for posting]. [ 30 ] There was an issue about the fact that K.K.. used the word “penis” at trial. Apparently, he typically used the word “pee pee”.

This was the word he used when interviewed by the police officer two days before trial. Notably, he also used it voluntarily at trial during the second recounting of the events. He said that he did not use the word when he was interviewed by the police officer two days prior because he was kind of nervous and did not want to use the word. It is the word Ms. O. used when describing what K.K. told her had happened. K.K. is also now 9 years old and is old enough to be aware that the words are interchangeable. He was a bright and attentive witness who took great care in giving his evidence.

I cannot conclude that anyone directed K.K. to change the word or, if they did, that it has any impact on his evidence or credibility. [ 31 ] K.K. has been exposed to age inappropriate sexual violence on a video game called True Crime. In it, there is a serial rapist who “goes around and humps girls”. He appreciated that the girls did not want this to happen. They told this rapist to stop and offered him money. He could not describe the act any more than that. He has never seen a person put their penis or pee pee in another person’s bum. No one else had ever done it to him.

He had not seen it in a picture or a magazine and no one has told him about it. Even with respect to the good touching and bad touching learned at school, K.K. said that his teacher told him not to touch anyone because they have their own bubble space. There is no evidence before me to support any concern that K.K. concocted this allegation from video games or a vivid imagination based on stranger danger teachings. [ 32 ] The concerns expressed by counsel are concerns the court must always be mindful of when dealing with young witnesses relating events that occurred so long ago. Mr.

Sundhu argued that a witness of this age is susceptible to coercion, manipulation and suggestion. All of this is true but I must assess whether it has occurred in this case or whether the version of events I am hearing from K.K. is his own recollection. On this point, counsel explored the statement given to police when all his family were present; whether Ms. O. and her son E. compared and discussed their statements in the hallway outside the courtroom before Ms.

O. testified; and whether anyone suggested to K.K. what he should say about how events transpired and when. [ 33 ] I am satisfied that the recollection related by K.K. is his own recollection and not one impressed upon him by his father or his grandmother or anyone else. In fact, K.K. was quick to point out inconsistencies between his and other people’s versions of the events such as K. saying that only he reported the incident to their Nana. K.K. has corrected questions put to him and been careful to clarify them.

He is also certain that the event did not transpire on Easter despite his grandmother’s certainty that this is the only date it could have occurred. He has, despite the views of others, insisted that the incident happened the first time R.J.A.P. brought his X-box over. However, the other witnesses testified that, while the first time R.J.A.P. brought the X-box over was after Easter, he came over a number of times after that.

While there have been some inconsistencies in K.K.’s evidence about what transpired on the day of the incident, he has explained those inconsistencies by way of recollection. [ 34 ] K.K. is a young witness and some of his recollection is clouded by time. For instance, he is clear that the incident did not occur at Easter, but his recollection of when he disclosed the incident to his Nana is not as reliable. He said he reported it the night it occurred and he never saw R.J.A.P. again. Ms. O. said that the boys did not report it at first and that is why she does not know when it actually happened.

I accept that K.K. is mistaken about how soon he disclosed the incident to Ms. O. This accords with Ms. P.’s assessment that she noticed no difference in the way the boys played together following Easter. However, I do not accept that the incident happened two months prior to disclosure. Ms. O. bases that timing on assumptions about when it must have occurred, which assumptions are not based on the facts related by K.K. [ 35 ] I cannot accept that because K.K. lied about R.J.A.P.’s apology during the wrestling match he is therefore lying about this incident.

His recollection is clear and his testimony was credible. I cannot assume that because a little boy would lie about something trivial and transient that he would also lie about something so significant and upsetting. [ 36 ] Although it is disturbing that K.K. has witnessed such inappropriate video games as True Crime, there is nothing about that game which would suggest he has been influenced by it to make this allegation.

I accept that the game has sexualized K.K.’s perspective somewhat, but cannot accept that this means he has a sexualized view generally or that it has therefore affected his behaviour or his recollection, or led to him concocting this incident. [ 37 ] In the end, it is the adults who have made certain assumptions about what transpired and when.

I find that those assumptions are not borne out by the credible recollection of K.K. [ 38 ] I find that the Crown has proved beyond a reasonable doubt that K.K. was sexually assaulted by R.J.A.P. in the manner he described, and that the sexual assault happened a while after Easter closer to the disclosure time at the end of May. I do not find that K.K.’s evidence has been manipulated or coerced. Quite the opposite. He was a careful witness who was quick to clarify and correct when appropriate.

I find that it is reasonable for a child of K.K.’s age to be less certain on matters such as dates, the number of visits after the incident occurred and the timing of events, such as disclosure. I am satisfied that he has a credible, reliable recollection of the incident, and that the recollection is his own. [ 39 ] I find that the Crown has proved its case beyond a reasonable doubt and convict R.J.A.P. of Count 1 of touching K.K., a person under the age of 16 years, with a part of his body for a sexual purpose and Count 2 of sexually assaulting K.K. ____________________ S.D. Frame Provincial Court Judge