2024 MBKB 29, 2024 MBKB 29

Date: 20240212 Docket: CP 22-05-00469 (Dauphin Centre) Indexed as: J.H. v. Michif Child and Family Services Cited as: 2024 MBKB 29 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: J.H., ) ) Norman H.

Sims, K.C. for the applicant applicant, ) ) - and - ) ) ) MICHIF CHILD AND FAMILY SERVICES, ) Debbie Buors ) Alyssa Cloutier respondent. ) for the respondent ) ) ) ) Judgment Delivered: ) February 12, 2024 RESTRICTION ON PUBLICATION: Please note that s. 75(2) of The Child and Family Services Act provides that no press, radio or television report of this proceeding shall disclose the name of any person involved in the proceeding as a party or witness or disclose any information likely to identify any such person. ABEL J.

Introduction [ 1 ] The Child Abuse Committee (the Committee) of Michif Child and Family Services (the Agency) issued a notice to J.H. (the applicant), pursuant to s. 19 (3.2) of The Child and Family Services Act , C.C.S.M. c. C80 (the Act ) advising of its intention to place his name on the Child Abuse Registry (the Registry). The applicant filed an application pursuant to s. 19(3.3) of the Act opposing entry of his name on the Registry. The applicant is alleged to have abused A.S.

The Allegation [ 2 ] It is alleged by the Agency that on or about March 7, 2020, the applicant attended his own residence, where he was residing with D.C. A.S. was already at the residence, as she was hanging out with D.C. in D.C.’s bedroom. [ 3 ] At the time, the applicant was 18 years of age, and A.S. was 13 years of age.

[4] It is alleged that D.C. left the bedroom, and the applicant attended the bedroom, and was alone with A.S. A.S. alleges that whileshe was lying on the bed, the applicant sat on the edge of the bed and told A.S. that she looked hot, and that she looked attractive. [5] It is alleged that the applicant then kissed A.S.’s neck, touched her breasts, touched or grabbed her buttocks, touched her vaginaand licked her vagina. Issue [6] The issue for determination is whether the applicant committed the acts as alleged.

If he did, then pursuant to the Act, he abusedA.S. [7] Section 19(3.7) of the Act states: The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and notsubject to appeal. [8] Abuse is defined in s. 1(1)(

c) of the Act, as meaning

an act where the act results in sexual exploitation of the child, with orwithout the child’s consent. Burden of Proof [9] Section 19(3.6)(

a) of the Act provides that the Agency has the burden of proof on a balance of probabilities. The Agency mustestablish on a balance of probabilities that the applicant abused the child. [10] There is one standard of proof in civil proceedings. As Rothstein J. stated in F.H. v. McDougall, 2008 SCC 53 atparas. 40, 45 and 46: [40] … I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proofon a balance of probabilities.

Of course, context is all important and a judge should not be unmindful, where appropriate, of inherentprobabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change thestandard of proof. … …. [45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that inless serious cases the evidence need not be scrutinized with such care.

I think it is inappropriate to say that there are legally recognizeddifferent levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in allcases, evidence must be scrutinized with care by the trial judge. [46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. … [11] This standard of proof was considered by MacPhail J. in L.O.G. v.

Child and Family, 2013 MBQB 170 (L.O.G.) at para. 24: Notwithstanding the fact that the normal rules of evidence do not apply and a child’s evidence in this type of proceeding is expresslyallowed by hearsay or other means, the court must still determine whether the evidence is “clear, convincing and cogent”. Children’s Evidence [12] Weighing the credibility of children’s evidence was addressed by the Supreme Court of Canada in the early 1990’s, byMcLachlin J. in R. v. W.(R.), (SCC), S.C.J.

No. 56 (QL) (W.(R.)). [13] McLachlin J. stated in W.(R.) that details important to adults, like time and place, may be missing from a child’s recollection. Any inconsistency should be considered in the context of the age of the witness at the time of the events to which she is testifying. [14] In this case, A.S. was born in 2006. She provided a video statement to the RCMP on March 9, 2020 (the video), when she was13 years of age. She testified in the criminal trial in Provincial Judge’s Court on August 4, 2021 (the trial), when she was 15. At thetime of this hearing, she was 17 years of age and did not testify.

Analysis and Decision The Applicant’s Evidence [15] The applicant testified, and denied touching A.S. as alleged, or at all. The burden of proof remains with the Agency. Theapplicant need not prove that the abuse did not occur. However, if I accept the evidence of the applicant regarding his denial, the resultis that the Agency will have not met its onus. However, for the reasons that follow, I do not believe the applicant’s evidence. [16] The applicant testified as follows: i. in March of 2020, he was residing with D.C., having just moved in a couple of weeks earlier;

ii. he arrived home around 10:30 or 11:00 p.m., having returned from his father’s residence. When he arrived home, D.C. and A.S. were in the apartment; iii. at the request of D.C., the applicant went into the bedroom to look after A.S. while D.C. went to the washroom. A.S. was on the bed, the applicant sat on the corner of the bed; iv. the applicant said hi to A.S., A.S. responding with a groan.

The applicant asked A.S. what she liked to do, A.S. again responding with a groan; v. the applicant did not recall saying that A.S. was hot, or that she was attractive; vi. the applicant went back to the living room, when he later heard a commotion from the bedroom.

When he went to the bedroom, he saw A.S. in the closet, and D.C. trying to calm A.S. down; and vii. at that point, A.S. said to get the fuck out of the bedroom, which the applicant took was directed at both he and D.C., and so he left the bedroom. [ 17 ] The applicant testified that he did nothing to A.S., and did not touch her as alleged, or at all. [ 18 ] The applicant testified that he was in the bedroom, as a result of D.C. asking the applicant to watch over A.S.

The applicant confirmed that he never asked D.C. why he had to watch over A.S. [ 19 ] The applicant confirmed that he told the RCMP during his interview that he was looking after A.S. because D.C. was annoyed with her. When asked why D.C. was annoyed, the applicant testified that it was not fun to deal with it. When asked to provide details as to what D.C. was dealing with, the applicant did not know.

The applicant confirmed in cross-examination that D.C. might have said annoyed, but the applicant did not know for sure. [ 20 ] The explanation of the applicant as to why he was in the bedroom with A.S., alone, is inconsistent with his earlier statements, lacks details, and given those inconsistencies, is not plausible. [ 21 ] The applicant testified that upon hearing the commotion from the bedroom, he went to see if everything was okay. Despite wanting to see if everything was okay, upon entering the bedroom, and seeing A.S. in the closet, upset, he just stood there, not offering any help.

His explanation is inconsistent with his behaviour. [ 22 ] The applicant confirmed that he sat on the bed next to A.S., and could see how she was lying, where her arms were, and could see her feet. Yet when asked if A.S. was wearing boxers, the applicant stated he did not know.

In what appeared to be an attempt to minimize his behaviour, the applicant stated that it would have been rude to stare at A.S., in answering why he did not know whether she was wearing boxers. [ 23 ] Lastly, during the interview of the applicant with the RCMP, the applicant is asked if there was a reason why the RCMP might find the DNA of the applicant somewhere that was not his person. At this point, the applicant is aware that he is being interviewed regarding the sexual assault allegations of A.S.

The explanation provided by the applicant as to why his DNA might be found, is because he spits a lot. [ 24 ] The explanation of the applicant again is not credible given the nature of the allegations, being that he licked the vagina of A.S. [ 25 ] As argued by the Crown, the applicant has a version of events that he attempts to provide to explain the events of March 7, 2020. However, when that version of events is questioned, or challenged, and the applicant is forced to go “off-script”, his story falls apart.

I agree with the Crown’s characterization of the applicant’s evidence . [ 26 ] Accordingly, I do not believe the evidence of the applicant . Strength of A.S.’ s Evidence [ 27 ] A.S. did not testify, which is contemplated and permitted pursuant to the provisions of the Act . [ 28 ] As noted in M.B. v. Child and Family Services All Nations , 2021 MBQB 188 at para. 25 , the receipt of child evidence, by way of hearsay, requires that the evidence be necessary and reliable.

The Act in dispensing with the need for necessity in contested child abuse registry cases did not dispense with the need for the evidence to still be reliable. [ 29 ] In this case, the evidence of A.S. was received by way of the video, and the transcript of her evidence at the trial.

A.S. adopted her evidence in the statement, as part of the trial, and provided further details regarding the allegations during her viva voce evidence at the trial. [ 30 ] In circumstances where a victim does not testify and evidence is received by way of hearsay or other means, although permitted by the Act , that evidence needs to be scrutinized to ensure it provides clear, cogent and convincing evidence that abuse occurred. [ 31 ] With respect to the statement, there are concerns regarding the manner in which the interview was conducted. [ 32 ] In D.L. v.

ANCR , 2022 MBQB 109 ( D.L. ) , the Court had the opportunity to comment on the manner in which a child was interviewed, for the purpose of a disputed child abuse registry matter. The Court referred to the “ Step-Wise Protocols ”, commencing at para. 42 of its decision. [ 33 ] As noted at para. 43 of D.L. , the S tep-Wise Protocols set out proper investigative interview guidelines for social workers, police officers and other professionals interviewing children for court and administrative hearings. The Step-Wise Protocols are designed to

elicit evidence from a child in a way that will minimize trauma that the child may experience during the interview, maximize the amount and quality of information obtained from the child and maintain the integrity of the investigative process for the agencies involved. The Step-Wise Protocols have been cited by various courts across Canada in cases where the court is required to assess the weight to be attached to a child’s hearsay statements in child protection and criminal cases involving abuse claims. [ 34 ] The Court at paragraph 45 of D.L. noted the key principles of the Step-Wise Protocols .

For the purpose of these reasons, the following protocols are relevant: … Step 2 – Building Rapport : basic questions, such as the child’s age and school, may be asked of the child, both to settle the child in and give the child comfort and allow the interviewer to assess the child’s language skills and memory; … Step 4 – Establishing the Need to Tell the Truth: the interviewer is to ask the child to describe the meaning of truth and the consequences of telling a lie. The length and style of this will vary with the age of the child; ….

Step 7 – Open Questions: only after the free narrative from the child is complete, should the interviewer then ask open-ended questions designed to obtain more details about the event disclosed during the free narrative. These questions should be done in a non-suggestive manner. Only once the child has exhausted their free narrative, then the interviewer may ask questions designed to assist the child in recalling more details about the incidents.

The purpose of open questions is to obtain more detail and it is absolutely imperative that the interviewer let the child know that “No, I don’t remember” is a perfectly acceptable answer; and Step 8 – Specific Questions: the purpose of this step in the interview is for clarification and to allow the child to extend previous answers. This must only be used when there was insufficient information provided earlier in the interview to assess the credibility of the allegations.

It is important to avoid offering multiple specific answers and answers are only to be suggested after the proper non-leading questions are first asked without any success. If leading questions are asked, then the protocols indicate that more than two alternatives should be given to the child being questioned. Further, later on, the question should be repeated changing the order of the alternatives; … [ 35 ] In this case, many of the Step-Wise Protocols were not used by the interviewing officer. No rapport was built between A.S. and the officer. The officer asks A.S. what she did today, to which A.S. responds.

The officer then asks if A.S. wants to “chit chat a little bit more” or “like dive right in”. Essentially, the officer dove right in, developing little rapport with A.S. [ 36 ] The officer did not ask A.S. to describe the meaning of truth and the consequences of telling a lie. The fact that A.S. was 13 at the time does not dispense with the need for establishing the importance of this step.

While the length and style of how the child is questioned regarding this step will vary depending on the age of the child, there is still a need to establish the child’s understanding of the importance of telling the truth. [ 37 ] The Agency argues that this failure was somewhat remedied by A.S. adopting the statement during the trial, having agreed that what she said in the video was the truth. [ 38 ] While this acknowledgment by A.S. that she was telling the truth permits the admission of the video pursuant to s. 715.1 of the Criminal Code , R.S.C. 1985, c.

C-46 (the Code ) to form part of the trial evidence, it does not address the fundamental concern, at the beginning of the statement, regarding the child’s understanding of the importance to tell the truth for this matter. [ 39 ] The officer did begin the interview in the video by asking open-ended questions, allowing A.S. to provide her own version of events.

However, during the interview, the officer asked several leading questions intertwined with the open-ended questions. [ 40 ] In concluding the interview, the officer said to A.S. that she wanted to do a “rerun”, and proceeded to ask a series of leading questions of A.S. [ 41 ] Given that the process as set out in the Step-Wise Protocols was not always followed, the Court does have concerns regarding the evidence provided by A.S. in the video. [ 42 ] A.S. does confirm in the video that the applicant : a. sat on the bed, and said that A.S. looked “hot” and was attractive; b. touched “her ass”, and then started to come up and kissed her neck; c. touched her breasts and then moved down and started to touch her vagina; d. then licked her vagina; and e. then asked A.S. “do you want me to stop” and A.S. said yes, to which the applicant responded “ but I don’t want to”; f.

A.S. then said to get off me or to get away from me, and to “get the fuck outta the room” and then went and cried in the closet for

an hour. [ 43 ] A.S. testified at the trial, adopted the contents of the video, and also provided more viva voce evidence regarding what had happened. [ 44 ] During her viva voce evidence in direct at the trial, A.S. could not recall how many times the applicant grabbed her buttocks, could not recall how long the applicant kissed her neck, and could not recall how long until the applicant was out of the room before he returned when A.S. was in the closet. [ 45 ] Although there are inconsistencies, or lapses of memory, I place no significance on those, considering the nature of the allegations, and what A.S. could not recall.

The passage of time, or the number of times an event happened, given the nature of the allegations, and given the age of A.S., are matters where there might be a lack of specific recall or a lack of specification. [ 46 ] During her direct evidence at the trial, A.S. provided no further evidence or details regarding her vagina being touched, or her vagina being licked.

The evidence regarding those allegations is available solely from the video. [ 47 ] However, there is a concern regarding A.S.’s evidence, elicited during cross-examination at the trial, specifically as to whether the applicant touched A.S.’s vagina. [ 48 ] Before addressing the specific responses of A.S., I note that the cross-examination of A.S. during the trial was not lengthy, nor was it aggressive in the nature of the questions posed.

Counsel for the Agency argued that the Court did little to assist A.S. during the cross-examination, with which argument I do not agree. [ 49 ] The Court did not permit the cross-examination of A.S. to become abusive, or repetitive. In fact, the Court did ask A.S. if she wanted a break. [ 50 ] Specifically, when asked in cross-examination if the applicant touched her vagina with his hand, A.S. answered “probably”.

When asked if she was sure, A.S. responded “no, it didn’t happen yesterday, it happened a year ago”. [ 51 ] While some matters might be considered periphery and not central to the issue, that cannot be said as to whether the applicant touched A.S.’s vagina. The statement by A.S. that she was not sure if her vagina was touched, as the incident happened over a year ago, causes the Court to have concern regarding the entirety of the evidence of A.S.

This is especially so given that the Agency bears the burden of proof, with evidence that cannot be tested by way of cross-examination at this hearing. [ 52 ] Given the manner in which the interview in the video was conducted, and given the inconsistencies of the evidence of A.S. from the trial, the Court has concerns regarding the reliability of the evidence to substantiate a finding of abuse, recalling that the evidence needs to be clear, cogent and convincing. [ 53 ] Accordingly, on the evidence before me, I find that the Agency has not met its onus to establish that the applicant has abused A.S. within the meaning of abuse in the Act . [ 54 ] As a result, the applicant’s name shall not be placed on the Registry. __________________________J.