2024 MBKB 15, 2024 MBKB 15

Date: 20240125 File No.: CP 22-01-17853 (Winnipeg Centre) Cited as: O.R.P. v. The Director of Child and Family Services Indexed as: 2024 MBKB 15 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: O.R.P., ) ) K. Knudsen for the applicant applicant, ) ) -and- ) ) THE DIRECTOR OF CHILD AND FAMILY SERVICES, respondent. ) ) ) ) ) K.

Janovcik for the respondent ) Judgment Delivered: ) January 25, 2024 RESTRICTION ON PUBLICATION: Pursuant to subsection 75(2) of The Child and Family Services Act , no press, radio or television report of a proceeding shall disclose the name of any person involved in the proceedings as a party or a witness or disclose any information likely to identify any such person. THOMSON J. introduction/background [ 1 ] The applicant seeks an order that his name not be entered on the Child Abuse Registry pursuant to subsection 19(3.3) of The Child and Family Services Act , C.C.S.M., c.

C80 (“ The Act ”). [ 2 ] The “Notice of Intended Entry on Child Abuse Registry” (“NIE”) served upon the applicant pursuant to s. 19(3.2) of The Act alleges: That on, about or between July 03, 2018, in the Province of Manitoba, you, [O.R.P.] (b.d…. 1998) did sexually assault [ACV] (b.d…. 2005) by forcing her to fondle your penis and fondling her breasts underneath her shirt, thereby committing abuse against a child under the provisions of The Child and Family Services Act and Regulations. [ 3 ] The applicant has satisfied all procedural requirements in bringing his application for relief to the court.

No jurisdictional issues are asserted to exist by either party, or otherwise arise in this case.

this trial proceeding [ 4 ] At the commencement of the trial, by agreement, the court received a documents book which was marked as an exhibit. That book contains a RCMP Occurrence Report and a statement of the alleged child victim (“the ACV”) given to an officer on July 12, 2018.

It also contains two transcripts of court proceedings in connection with a criminal charge laid against the applicant, containing the sworn testimony of the ACV from a preliminary inquiry in Provincial Judges Court, which proceeded on February 8, 2019, and from a trial which commenced in the (then) Court of Queen’s Bench on November 25, 2019, where she was the complainant. [ 5 ] Counsel agree that t he trial in the (then) Court of Queen’s Bench was not completed as, after the ACV testified, the Crown Attorney prosecuting the case entered a stay of proceedings against the applicant (the accused), conditional upon his entering into a peace bond of one year’s duration. [ 6 ] In addition to the evidence contained in that documents book, each of the ACV (who will be 19 years of age next month) and the applicant testified before me.

No other witnesses gave evidence. [ 7 ] The basic allegation the ACV testified to in this trial, and in the prior criminal proceedings, is that the applicant abused her sexually while alone with her in his vehicle, as further particularized in the NIE. The applicant has disputed, and continues to dispute, that this is true. He denies any sexual contact or even dialogue. [ 8 ] However, as between the ACV and the applicant, there is a great deal that is not in dispute regarding their communications, and their time spent alone together, that day.

A number of facts and certain of the surrounding circumstances are clear and uncontested: - they are first cousins who, as of July 3, 2018 (the date set out in the NIE), fairly regularly saw each other at family gatherings, but had never spent any time alone together; - the ACV was then aged 13 years, and the applicant was 20 years old; - they had been on good terms as of, and prior to, that date; - since the alleged incident subject of the NIE, they have had no contact with each other; - the ACV was experiencing emotional upset, if not turmoil, in the immediate time period due to the recent separation of her parents, which was known to the applicant, and had been diagnosed with depression, and prescribed medication by her doctor; - specifically, on the date of the alleged incident, she said she felt an urgent need to leave her family home due to an argument, and first contacted another family member to pick her up, but he was unavailable to do so (he later acted as her “support person” when she testified at the preliminary inquiry); - the ACV then contacted the applicant by text message, and he soon after arrived at her residence in his vehicle; - the ACV and the applicant then spent between 1.5 and two hours in his vehicle, after which the applicant dropped her off back at her home; and, - the ACV and the applicant were consistent in their evidence about some of the subjects they spoke about in the vehicle, such as the recent breakdown in her parents’ marriage, and the ACV’s request that the applicant purchase her some vape juice (which he declined to do). [ 9 ] Of course, there are a number of other aspects of the ACV’s and the applicant’s respective narratives of their time together that day, which are in dispute on the evidence I heard. [ 10 ] The ACV testified that in their initial text communications, the applicant sent her a picture of him naked.

She said there was also written sexual content in his text. She did not take it seriously. The applicant denied that any of this was true. The features of the electronic application used for these communications do not permit recovery of the content. [ 11 ] The ACV described in detail how the applicant engaged in a series of efforts to persuade her to engage in sexual activity while in his vehicle, while periodically stopping during their journey over rural roads.

The applicant denied all of this, and in particular disputed that he ever brought his vehicle to a stop at any point in the 1.5 to two hours he was with her. [ 12 ] As already stated, the applicant at trial denied each and every particular of the ACV’s account of the sexual abuse she says he perpetrated upon her, including exposing his penis to her by lowering his pants, putting her hand on his penis, and touching her breast. [ 13 ] The ACV also said that the applicant warned her not to tell anyone what he had done to her; that if she did, he would tell her parents she secretly vaped, and was being sexually intimate with her boyfriend.

She said she feared reprisals from him if she disclosed. analysis and decision [ 14 ] Section 1(1) of The Act states:

1(1) In this Act "abuse" means

an act or omission by any person where the act or omission results in (

a) physical injury to the child, (

b) emotional disability of a permanent nature in the child or is likely to result in such a disability, or (

c) sexual exploitation of the child with or without the child's consent; 1(1) Les définitions qui suivent s'appliquent à la présente loi. mauvais traitements » Actes ou omissions d'une personne qui :

a) causent lésion corporelle à l'enfant;

b) causent ou causeront vraisemblablement un déséquilibre émotionnel permanent chez l'enfant; ou

c) constituent une exploitation sexuelle de l'enfant, avec ou sans le consentement de celui-ci. ("abuse") [emphasis added] [ 15 ] No issue is taken that if the allegations set out in the NIE are accepted by the court, the definition is satisfied. [ 16 ] In this proceeding, it is the respondent who bears the onus to prove that the applicant abused the ACV, as alleged, and must satisfy the court on a balance of probabilities that the abuse occurred. The Act states: Rules for hearing 19(3.6) At a hearing, (

a) the agency has the burden of proof on the balance of probabilities; (

b) all parties may be represented by counsel and shall, subject to clauses (

c) and (d), be given full opportunity to present evidence and to examine and cross-examine witnesses; (

c) the court is not bound by the rules of evidence in relation to the evidence of a child who the agency alleges was abused by the applicant and may receive the child's evidence through hearsay, by way of a recording, a written statement, or in any other form or manner that it considers advisable; and (

d) a child who the agency alleges was abused by the applicant shall not be compelled to testify. Règles d'audience 19(3.6) À l'audience :

a) l'office a le fardeau de la preuve selon la prépondérance des probabilités;

b) toutes les parties peuvent se faire représenter par avocat et, sous réserve des alinéas

c) et d), ont la possibilité de présenter des preuves ainsi que d'interroger et de contre-interroger des témoins;

c) la Cour n'est pas liée par les règles de preuve à l'égard du témoignage d'un enfant qui, selon l'office, aurait subi de mauvais traitements de la part du demandeur, et elle peut accepter le témoignage de l'enfant par ouï-dire, par voie d'enregistrement, par voie de déclaration écrite ou de toute autre façon qu'elle considère comme acceptable;

d) les enfants qui, selon l'office, auraient subi de mauvais traitement de la part du demandeur ne peuvent être tenus de témoigner. Decision of court 19(3.7) The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and not subject to appeal.

Décision de la Cour 19(3.7) La Cour détermine si la personne a infligé des mauvais traitements à un enfant et consigne les motifs de sa décision, laquelle est définitive et ne peut faire l'objet d'aucun appel. [ 17 ] As previously identified, the only witnesses to testify at trial were the applicant and the ACV. While there is much common ground concerning their activities during the 1.5 to two hours they were in his vehicle, there is none regarding the alleged sexual contact.

Counsel, accordingly, generally focused their final submissions upon the “credibility contest” between the two and sought to persuade the court that one or the other of the applicant and the ACV was the more reliable, more credible, and more believable, witness. [ 18 ] The applicant’s counsel argued that there were many instances where the ACV’s testimony differed from her statement to the RCMP, and from her evidence in the earlier criminal proceeding. It is true that there were some instances; the issue is what I make of any inconsistencies and/or their impact upon the evidence as a whole.

[19] I note first that at least some inconsistencies in the ACV’s evidence ought probably to be anticipated in this particular case. Thispoint was emphasized by the respondent’s counsel in argument, in part due to the ACV’s age, at least when she was dealing with theRCMP, and when she testified in the criminal proceedings, on three distinct occasions, over a span of roughly 18 months. He asked thecourt to be mindful of the requisite principles endorsed by the Supreme Court of Canada regarding proceedings where children aredeposed. (See: R. v. B.(G.), (SCC), [1990] 2 SCR 30; R. v.

W.(R.), (SCC), [1992] 2 SCR 122; F.H. v.McDougall, 2008 SCC 53.) Of course, I am also cognizant that the ACV is now an adult, and was when she testified before me. [20] I observe as well that, in gauging the relative testimony of the two witnesses, the opportunities for inconsistencies in priorstatements to arise is unequal. [21] The ACV spoke with police who came to her home some days after she had first made a limited disclosure to a YMCA supportworker. RCMP later returned to her home and took her to the detachment offices where she gave a formal statement.

As was his right, theapplicant declined to provide a statement to police. The ACV was also required to testify in court, twice, thereafter. Again, as was hisright, the applicant did not give evidence at either the preliminary inquiry or at the trial. The first and only occasion when he has givenhis version of the events at the heart of the NIE was at this trial. His testimony in direct examination was, as noted, consistent with thatof the ACV, up to the point of the alleged sexual allegations, all of which he summarily denied.

As a consequence, there was certainlyless opportunity for any incongruences or inconsistencies to emerge in his case. [22] I am mindful that, with the effluxion of time, any expectation of perfection in the ACV’s memory of all details is unreasonableand unexpected. The events of that day at issue transpired some five–plus years ago, and what she described to the RCMP and intestifying in the criminal case was provided when she was 13 and 14 years of age. [23] The ACV testified in a calm, certain manner. She presented as articulate and intelligent. She appeared to carefully respond to thequestions posed.

Her evidence of the events that day, and her contact with the applicant, presented as cogent and clear. There werematters on the periphery of the critical events which were isolated and attacked by the applicant’s counsel, as inconsistent with aspects ofher previous statement to police and of her previous testimony in the criminal courts. Such inconsistencies, in my view, were of minorimport, not essential or grave issues.

In other instances, the ACV readily and properly made concessions, acknowledging that hermemory was no longer exact on certain details. [24] However, with respect to the core and fundamental details she gave the court respecting the actions of the applicant and his abuseof her, she has been substantially clear and consistent.

For example, the applicant’s counsel’s questions as to whether the applicant hadexposed his penis to her on one occasion, or several times; she identified a misunderstanding between her and the RCMP officer, asbetween the number of times the vehicle stopped and the number of times he exposed himself. The transcript, when read in the light ofher explanation, does not reveal an inconsistency to me.

Her testimony in that regard, and in most, had a “ring of truth” to it. [25] Regarding the ACV reaching out to the applicant for support at a time when she felt “beat down” (her words), it is important torecall her age at the time. She was a child. She went with the applicant in his vehicle despite the sexual innuendo in the textcommunications she received from him. Her decision in this regard was that of a girl of 13 years.

The applicant was no stranger, or mereacquaintance; she had known him as a first cousin her whole life, from when she was a small child, and the applicant was himself a boy.Her vulnerability arose not simply from her age, but from her particular emotional and family situation at the time. [26] The applicant’s counsel, as required, put certain propositions to the ACV in cross-examination – that the ACV had lied to theRCMP and to the court (on all three occasions) and had manufactured the sexual abuse allegations against the applicant because she wasangry with him for not allowing her to drive his vehicle, and for refusing to purchase her vape juice.

She denied these suggestions. [27] In his testimony, in addition to his denial of the truth of the ACV’s evidence, the applicant accepted both counsels’ invitations tospeculate or to theorize about why the ACV might make such malicious, false allegations against him. He offered that she was angrywith him for his unwillingness to purchase vape juice. Alternatively, he suggested that her accusations of sexual abuse wereattention-seeking behaviours.

No real context or elaboration was offered by the applicant about either of these propositions. [28] The first suggestion seems at odds with his testimony that there was never any animus demonstrated towards him by her. Healso offered that they were not close, as of the date in question, and that he thought it “a little bit” odd that she had reached out to him.

Inhis direct examination he was asked how the ACV reacted to his refusal to buy the juice and said merely that she was “a little upset aboutit.” [29] Moreover, the evidence as a whole seems inconsistent with the second theory that the ACV was hungry for attention from others,and sought satisfaction by making an allegation of sexual abuse against the applicant. The ACV testified that she shared limited detailsof the abuse with only one person some days afterwards.

She had been involved in YMCA programming and spoke spontaneously to asupport worker with whom she was working, who had enquired about how she was doing. The ACV said she unburdened herself bytalking briefly, but had no desire for any action to be taken. She did not seek out anyone else to disclose the abuse. But some days laterthe police came to her home because of contact initiated by that support worker, not by her. She was then first questioned about herdisclosure by a person in authority.

If, as the applicant wishes the court to surmise, the ACV sought the attention of others by contrivingan incident of abuse to disclose, why did she not disclose it to her parents or family? Why did she delay disclosure? What of herreluctance to have the matter pursued? [30] The propositions promoted by the applicant are not plausible on the evidence.

There is a gross disproportion in an accusation ofsexual abuse against a cousin whose emotional support was sought as retribution for refusing to purchase vape juice, or to simply attractthe attention of others; I do not accept that the ACV would or did craft a false allegation for these reasons, or at all. [31] Where I do find serious frailty, and an absence of credibility, is in a critical aspect of the applicant’s testimony which bearsdirectly on the allegations of sexual abuse made by the ACV and which, in my view, provides reinforcement of the ACV’s evidence on ahighly relevant disputed fact. [32] Regarding the pants the applicant was wearing that day, and which he lowered to abuse the ACV, the ACV was questioned very

closely by both counsel and asked to describe them in detail. Characteristically, she did so with care, as to style and colour. [ 33 ] In the applicant’s direct examination, he categorically denied wearing such pants of the type and colour the ACV described that day.

Moreover, his counsel took care to elicit from the applicant that he had never in his life even owned such pants of the specific style and colour at issue. [ 34 ] However, in cross-examination the applicant was confronted with photographs he posted on his Facebook page clearly showing him wearing pants consistent with the ACV’s description, and in contradiction to his initial testimony.

The photographs were posted on two specified dates, one before and one very shortly after the incident of alleged abuse. [ 35 ] I note that the respondent’s counsel had been very slow and deliberate when approaching this point in his cross-examination. He asked questions of the applicant which were broad and deep, in the lead up to his presentation of these photographs to the applicant. In short, he ensured that the applicant was absolutely unequivocal in his denial not just of wearing, but of ever possessing, pants of the sort, style and colour described by the ACV.

When presented with the photographs he had personally posted on his own social media account, the applicant was quite clearly flummoxed in the witness box – unable to provide any meaningful explanation or to account for his inconsistent testimony. He was able only to reiterate weakly and without elaboration that he never owned such a pair of pants and offered that, perhaps, he had borrowed the pants from a friend.

I conclude the ACV was accurate in her testimony in describing the pants the applicant was wearing when she says he sexually abused her, and that the applicant was untruthful in his. [ 36 ] I am also convinced that the evidence in totality presented to me at trial establishes clearly on the requisite standard that the ACV was abused by the applicant on July 3, 2018, including by his placing the ACV’s hand on his penis, after lowering his pants, and by fondling her breast. That evidence includes the material contained in the agreed book of documents, as well as the sworn testimony of the ACV.

I have rejected the applicant’s testimony wherever it departs from that of the ACV, having concluded that he was not a consistently truthful witness. [ 37 ] The notice of application is therefore dismissed. costs [ 38 ] Costs may be addressed, if there is no agreement. J.