R. v. L.W., 2022 MBKB 237

Date: 20221219 Docket: CR 21-15-01172 (Thompson Centre) Indexed as: R. v. L.W. Cited as: 2022 MBKB 237 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) Appearances: HIS MAJESTY THE KING, ) ) David Mudge - and - ) for the Crown ) L.W. ) Kaitlynn Porath accused. ) for the accused ) ) ) JUDGMENT DELIVERED: ) December 19, 2022 BAN ON PUBLICATION : Pursuant to s. 486.4 of the Criminal Code , any information that could identify the person described as the complainant in this judgment shall not be published, broadcast or transmitted in any manner. BOCK J. I.

Introduction [ 1 ] The accused, L.W., is charged with two counts of sexual assault and two counts of sexual interference. The Crown alleges that the offences were committed by the accused against his great-niece, the complainant, between June 1, 2018 and September 1, 2019 (for counts 1 and 3) and between October 22, 2017 and March 1, 2020 (for counts 2 and 4). [ 2 ] The complainant was born in October 2012. She gave a video-recorded statement to police in January 2021, when she was eight years old.

In her testimony at trial she could not remember the incidents that give rise to the charge. [ 3 ] The accused denied the allegations. He submits the complainant’s testimony is unreliable, and that the evidence as a whole fails to prove his guilt beyond a reasonable doubt. [ 4 ] For the reasons that follow, I am not persuaded that the accused’s guilt has been established beyond a reasonable doubt. II. The law [ 5 ] The accused is presumed innocent of all charges against him, and that presumption remains in place at all stages of the trial even where, as here, the accused testifies.

The Crown bears the onus of proving those charges beyond a reasonable doubt, and it is a heavy burden.

[6] This trial is not a credibility contest between the complainant and the accused. All of the evidence must be considered indetermining whether the Crown has proved its case against the accused beyond a reasonable doubt. [7] If I believe the accused’s evidence, an acquittal must follow. But even if I disbelieve the accused’s evidence, I must considerwhether, considered in the context of the evidence as a whole, the accused’s evidence has nevertheless left me with a reasonable doubt asto his guilt.

Finally, even if the evidence of the accused is not credible, I must satisfy myself that the evidence that I do accept proves hisguilt beyond a reasonable doubt. (See R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.) and R. v. Menow, 2013 MBCA72, 294 Man. R. (2d) 236) [8] The complainant is a child. I must therefore be mindful that inconsistencies in a child’s evidence may be of less importance inassessing credibility than in the case of a reasonable adult (R. v. B.(G.), (SCC), [1990] 2 S.C.R. 3 (S.C.C.)). I mustalso consider that children may lie, and false complaints do happen.

Furthermore, there is no burden on the accused to prove thecomplainant had a motive to fabricate the complaint (R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22 – 23). [9] In this case there was some delay between the events which lie at the heart of the complainant’s complaint and her statement topolice. There is no presumptive negative consequence to a complainant’s credibility where disclosure is delayed, nor is there anypresumptive rule as to how a victim of child sexual abuse ought to behave (R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, paras. 62 -63). III.

The Evidence [10] What follows is a

summary of the relevant evidence. A. The Crown’s evidence [11] The complainant gave a video-recorded statement to police in January 2021, in which she described the acts complained of. TheCrown applied to tender that statement pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46, and the accused raised noobjection. The threshold for admissibility is low: the Crown must establish that the statement was taken “within a reasonable time afterthe alleged offence” (a period measured from the date of the most recent incident complained of and the statement: R. v. Archer, (ON CA), [2005] O.J.

No. 4348, 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 75), and the witness, while testifying, mustadopt the contents of her statement and confirm she was trying to be truthful when making the statements (R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183, [1997] S.C.J. No. 89 (QL)). [12] Although the complainant adopted the contents of her statement in the course of her testimony, and confirmed that she was tryingto be truthful when she made it, she also testified that she could no longer remember the events she had described in her statement.

Whatfollows, therefore, is drawn primarily from the complainant’s statement to police. [13] The interview lasted about 40 minutes. The officer who met with the complainant appropriately limited her interview to simple,open-ended questions. [14] The complainant’s parents did not live together during the time in issue.

The complainant lived primarily with her mother inThompson, but would regularly visit her father in Nelson House, where he lived in a house with his grandmother, D.W. (thecomplainant’s great-grandmother), and the accused. [15] The complainant told the officer about the two incidents that form the basis of the charge against the accused. Each incidentgives rise to one count of sexual assault and one count of sexual interference. Both incidents occurred at her father’s house. [16] The first incident described by the complainant involved a visit to her father in Nelson House.

On this occasion the accused triedto “hump” her in his bedroom, doing “what a dog did”. She pretended to need the washroom and ran to the safety of her father’sbedroom. [17] The complainant’s mother testified that the complainant’s visits to her father in Nelson House commenced at the age of five andcontinued until the onset of the COVID-19 lockdowns.

Hence, the offences associated with the first incident are alleged to have beencommitted between October 22, 2017, when the complainant turned five years old, and March 2020, with the start of the COVID-19lockdowns. [18] The second incident described by the complainant also involved a visit to her father in Nelson House, this time in the summer. According to the complainant, the accused came upon her outside, in the back yard. He held her by the shoulders and pushed her intosome nearby bushes. In the bushes he “started doing the same thing”. He touched and rubbed her shoulders, arms, and chest beneath hershirt.

He touched her butt and crotch, and grabbed her stomach. He pulled off his pants, leaving him in his underwear. The accused wasbehind the complainant, who was on her knees. The accused held her by the shoulders and was “humping” her. D.W., who was in thehouse, saw what was happening. She came outside, “yelling and swearing”, telling the accused to “put your pants on.” The accused ranto his friend’s house. [19] It is not clear from the complainant’s statement whether this second incident happened in the summer of 2018 or 2019.

Hence,the offences associated with the second incident are alleged to have been committed between June 1, 2018 and September 1, 2019. [20] The complainant said that she reported each event to her father after it happened, but that her father did not believe her. Eventually she reported what happened to her older sister, who in turn informed their mother, so leading to the complainant’s statementto police in January 2021. [21] In her statement the complainant identified two other girls as victims of the accused.

At one point she says, “… he did the samething to my cousin, [identified as C.]” At another point she says, “He did the same thing to my friend [identified as M.]. Now my friendnever wants to visit me.”

[ 22 ] In her statement the complainant described the accused as “an old guy with, he’s deaf … he has one blind eye and he just looks creepy.” She positively identified the accused in court. [ 23 ] Under cross-examination the complainant admitted it was possible she was mixed up about what had happened. She also admitted it was possible the accused did not try to hump her, because she can no longer remember the events in question.

Upon re- examination, the complainant confirmed that she had understood all of the questions put to her on cross-examination, and that she understood the meaning of the word “possible.” B. The Accused’s evidence [ 24 ] The accused was born in October 1971. During the time at issue he lived in a small, three bedroom house in Nelson House with his mother, D.W., and his nephew, the complainant’s father. [ 25 ] The accused recalled that the complainant would visit her father for two weeks in the summer, and would also visit him on weekends.

According to the accused, during these visits the care and supervision of the complainant would be left to her father or, if he was away working, to D.W. He denied ever being left alone with the complainant, or touching her. He denied that the events described by the complainant in her statement had occurred. [ 26 ] Under cross-examination, the accused admitted that he liked the complainant’s visits. He confirmed his hearing impairment, and that he has “one bad eye”. He again denied having ever been alone with the complainant, even briefly, and denied having ever touched her, even inadvertently.

That said, he acknowledged that he was sometimes alone in his bedroom, and sometimes alone outside, and therefore out of D.W.’s sight. [ 27 ] D.W. testified by video-conference from Nelson House. She was 77 at the time of her testimony. She recalled the complainant, her great-granddaughter, visited her father on weekends. She denied that the complainant was ever alone with the accused, and denied ever seeing the accused touching the complainant. D.W. specifically denied the complainant’s account of the incident in the bushes by the house.

She testified she did not know why the complainant would say the things she did. [ 28 ] Under cross-examination D.W. admitted her love for her son, and that she would do anything for him, but not a “dirty thing”, which I interpret to mean a dishonest thing, like lying for him in court. She admitted being aware at the time that the accused was subject to a court order concerning children, and said she made efforts to ensure he complied with that order. She denied her reason for never leaving the accused alone with the complainant was out of concern that the accused might do something inappropriate.

She conceded there might have been times when the complainant and the accused were both at the house but out of her sight. IV. The parties’ positions [ 29 ] The accused argues that even if the complainant was a credible witness, she was not a reliable one, given her inability at trial to recall the events in question. Her inability to recall these events prejudiced the accused, because it left him without any meaningful ability to cross-examine her on the matters that give rise to the charge against him.

The evidence of the complainant’s mother was largely irrelevant because she had no first-hand knowledge of any of the events described by the complainant in her statement. The accused, on the other hand, had denied any wrongdoing, and was unshaken on cross-examination. D.W., whom the complainant said witnessed the incident in the bushes, denied seeing anything untoward. Viewing the evidence as a whole, the Crown had failed to prove guilt beyond a reasonable doubt. [ 30 ] The Crown submits the charge against the accused has been proven beyond a reasonable doubt.

The complainant’s description of events in her statement is too precise and sophisticated to be the product of an eight year old’s imagination. Her obvious fear of the accused while she testified was also a telling indicator of her veracity. The evidence established that the accused had an unhealthy interest in the complainant, and had had opportunities to be alone with her. To the extent his evidence and the evidence of D.W. suggested otherwise, it ought to be rejected as self-serving and too improbable to be believed. V. Discussion and disposition [ 31 ] I do not accept all of the accused’s evidence.

For instance, his suggestion that he was never alone with the complainant, even briefly, and never touched her, even inadvertently, defies belief given the frequency of the complainant’s visits to her father. By his own admission, the accused was sometimes inside his bedroom alone, and sometimes outside alone. The complainant’s father was sometimes at work, and D.W. could not and did not keep him in view all day. The house was small.

In the circumstances, common sense leads me to conclude that there probably were times when the accused inadvertently touched the complainant, and was alone with the complainant. [ 32 ] However, the accused did deny the allegations against him, and his evidence in that regard remained unshaken during cross- examination.

Similarly, D.W. was consistent in her denial of seeing the accused ever touch the complainant, including in the bushes by her house. [ 33 ] In short, while I do not wholly believe the evidence led by the accused, it does leave me with some doubt as to his guilt. [ 34 ] That doubt is not dispelled by the Crown’s evidence. I accept that the complainant was attempting to be honest and truthful in the statement she gave to police. During her testimony I also observed her to be genuinely fearful of the accused.

Indeed, the trial process was clearly challenging for her, and in my view she demonstrated admirable strength in meeting that challenge. Nevertheless, the Crown’s evidence adds to my doubt, for several reasons.

[ 35 ] First, the complainant candidly admitted under cross-examination that she might be mixed up and confused about what she said the accused did to her, and that it was possible that he did not hump her. The questions put to her on this point were asked by counsel gently and clearly. I am satisfied the complainant’s answers were not the result of intimidation, confusion or misunderstanding. [ 36 ] Second, there was evidence to explain why the complainant might be fearful of the accused apart from the incidents she described in her statement.

The accused had frightened the complainant on prior occasions at her father’s house. She recalled the accused once calling for her in the house in a way that made her uncomfortable and fearful. On another occasion she recalled the accused opening the shower curtain while she and her cousin, C., were playing in the shower.

She also said that the accused had done similar things to her cousin, C., and her friend, M. [ 37 ] Third, while I share the concern raised by the Crown with respect to the degree of detail in the complainant’s description of events in her statement, this may be explained by evidence of her own knowledge and experience at the time. For instance, in her statement she said that she always closes her eyes “when there are butts in movies”, which indicates that she had seen movies which depict such images, despite finding such images repellent. Her statement also indicates that she knew how dogs mate.

And, of course, she claimed that something similar had happened to her cousin, C., and to her friend, M. [ 38 ] This leads me to the final reason for my doubt about the accused’s guilt, namely, his inability to test the complainant’s version of events through effective cross-examination because she no longer remembers the incidents in question. [ 39 ] The evidence as a whole leaves me with a reasonable doubt as to the accused’s guilt. The accused is therefore acquitted of the charge against him. J.