IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This case underscores the sadness and challenges facing families when poverty and addiction are central to their existence.

[2]           The accused, D.K., entered a plea of not guilty to an allegation of sexually assaulting his daughter C.D.  A trial was held where, C.D., her mother, and the accused testified.  

[3]           This Court must determine if the accepted evidence proves the accused’s guilt beyond a reasonable doubt.

[4]           In August of 2014, C.D. was 12 years old and living in Powell River with her family.  According to C.D. she spent the majority of that summer around the home with her family. 

[5]           C.D. described the home as having 2 levels with the living room and kitchen on the lower level and three bedrooms and a bathroom on the upper level.

[6]           C.D.’s bedroom was in the master bedroom.  She shared this room with her younger sister.  They slept on beds that were pushed together thus making one large bed.  Across the hall were two rooms.  One was where C.D’s two brothers slept and the other was where her parents slept.

[7]           Prior to the day of the allegation, C.D.’s experience with alcohol was limited.  She had tried fruit cider and a single shot of tequila in the presence of her parents.  She had these drinks at her mother’s (A.D’s) suggestion.  It was C.D.’s belief that her mother did this because she did not want her daughter to drink.

[8]           It was C.D.’s recollection that her father drank every other day to every third day.  She testified he typically drank beer, Palm Bay, or alcohol with fruit juice and when he would come home from work, C.D. would typically make him a “screw driver” by mixing orange juice with vodka.

[9]           C.D. believes her father worked at the mill which shut down in the summer of 2014.  She does not recall him working at the local hotel.  She believed that when her father worked at the mill, he would leave the home at around 4 a.m. or 6 a.m. and return around 6 p.m.

[10]        As for her mother, C.D. testified her mother worked at a local hotel during the summer of 2014.  When her mother worked, she would typically leave the house around 11:00 a.m. and return home around 9:30 p.m.

[11]        On the day of the allegation, C.D. believes she woke up at her usual time which was 12 p.m. or 1 p.m.  She recalled her mother was at work and her father was home.

[12]        C.D. does not recall what she did during the day.  She recalls noticing her father was drinking Captain Morgan spiced rum.  C.D. does not recall what time it was when she made this observation, but knows it was bright outside and that the younger kids were at the local park.

[13]        According to C.D. her father was drinking from a shot glass that was about two inches tall.  She stated the glass came with a bottle of Crown Royal that came in a box with a purple velvet bag.

[14]        While C.D. and her father were in the kitchen he poured her a shot glass full of spiced rum and that she drank it quickly.  She testified she drank it this way because that was how her father was drinking.  She thinks her father might have been drinking a beer as well.

[15]        After having a drink of rum, they left the kitchen and went into the living room.  C.D. does not recall what they talked about or what they did while in the living room, nor, does she recall why they went back to the kitchen.  She recalls her father saying that she had to keep up with him.  As such and upon their return to the kitchen they had another drink of rum and returned to the living room.

[16]        According to C.D. the pattern of going into the kitchen, drinking and then going back to the living room occurred a few times.  She estimates she had at least four shots of rum and she does not recall how much her father had to drink.  C.D. guessed they were drinking for a few hours.

[17]        C.D. recalls the drinking ended because she went upstairs.  She said the rum made her feel off balance, and that she could not walk without falling down.  As such she crawled up the stairs.  As she did, her vision was blurry with the exception of having a very small area where she could see clearly.  As C.D. headed up the stairs she thought her father was in the kitchen because she could hear him talking.

[18]        Once on the upper level C.D. went into her bedroom and fell asleep on the bed.  She does not recall what she was wearing when she went to bed but knows she was wearing a bra and a shirt and probably shorts.

[19]        C.D. next recalled her father waking her up and telling her to sleep in his bed.  C.D. got up and went to her father’s bed and fell asleep.  For reasons unknown to C.D., she woke up and when she did she could feel that her bra was unhooked and her father’s hand under her shirt, feeling her breast and lightly pinching her nipples.  C.D. testified she was lying on her right side and that her father was lying behind her and touching her with his left hand.

[20]        According to C.D. the touching did not go on for very long because she felt sick and she needed to vomit.  C.D. tried to get up and she felt her father tense up.  She told him she needed to get up and he released her.

[21]        C.D. made her way to the bathroom and she sat in front of the toilet and vomited.  She recalls her father coming into the room and checking on her.  As C.D. was leaning over the toilet her father started to run the shower and he told her to get undressed.

[22]        C.D. got undressed.  She is uncertain if her father was in the room when she got undressed.  She believes he went downstairs and retrieved a cup.  She recalls him in the bathroom and filling a cup with water which he handed to her and told her to dump some over her head and to drink it.

[23]        C.D. could not recall if her father helped her get undressed or if he helped balance her while she got undressed.  She also could not say if he would have helped her get undressed.

[24]        While C.D. was in the shower, her father sat on the floor and he coughed while asking for a 30 second feel up.  According to C.D. she responded by saying, “Dad no, your drunk.”

[25]        C.D. thinks her father went downstairs when her mother got home.  She also believes the other kids were home at this time.  Shortly after C.D.’s mother got home she came upstairs and into the bathroom.  According to C.D. she was still in the shower when her mother came in and she does not believe they had a conversation at that time.

[26]        C.D.’s mother went back downstairs and she could hear what sounded like an argument between her mother and her father.  C.D. believes her mother was upset because she had smelled alcohol in C.D.’s vomit and she noticed the empty bottle of spiced rum.  C.D. heard her father say something to the effect of he had been drinking and that C.D. was ill because she had picked meat from the fridge.

[27]        C.D. confirmed she moved into her Nanna’s home around October or November and she believes her parents separated around this time. 

[28]        C.D. explained she did not tell her mother what had occurred because she was afraid her mother would get mad.  Further, C.D. did not want to disappoint her mother and she was afraid that her mother would think that it was her fault.  C.D. was also reluctant to share what had happened because she was afraid she would be teased.

[29]        Eventually C.D. told her mother’s boyfriend.  C.D. testified she told him when they were ranting about random things and it slipped out.  A few weeks thereafter C.D. went with her mother to the police.

[30]        In cross examination, C.D. acknowledged knowing her parents used crack cocaine.  She testified her parents would send the kids upstairs while they used crack cocaine on the lower level.  According to C.D. her parents would use crack every pay-day.

[31]        Counsel asked C.D. about the boy she was dating around the time of the events.  C.D. confirmed she was seeing a boy and her mother was not happy about it.  She also confirmed she told her parents that she knew they were using crack cocaine and according to C.D. it was easier to speak with her dad about things.

[32]        C.D. was asked about the videotaped statement she gave to the police and she confirmed she told the police her father’s arm was around her and she made a motion on the video showing his arm was below her chest.  C.D. agreed she did not mention in her statement that her father touched her breasts or pinched her nipples.  C.D. explained she was too embarrassed to speak to the police about it.

[33]        C.D. does not recall if her father helped her into the shower or if he helped her balance when she got undressed.  She denied having vomited on the stairs.

[34]        Counsel cross examined C.D. about the time that she woke up at on the day of the incident, as well as the amount of time that passed between her getting up and beginning to drink.  C.D.’s response about when she woke up seemed to be based on her routine and not on her actual memory.  She could not recall how much time passed before she started drinking.

[35]        With respect to making it from the bedroom to the bathroom, C.D. believes she walked to the bathroom.  She does not recall if she asked her father for help.

[36]        As to the events later in the evening, C.D. recalled the family sleeping in a tent.  She specifically recalled having to place a bowl in the tent should she become ill again.

[37]        Counsel for the accused presented to C.D. copies of Facebook communications between herself and her father.  These communications show that in and around April 18, 2015, C.D. and her father were getting along and by May 25, 2015 that C.D. was angry with her father.

[38]        In their communication the accused asked C.D. why she was mad at him.  In her response, C.D. mentioned that the accused came to her school to pick up his new girlfriend’s kids and that he did not say “hi” to her.  She also stated: “…and I’m done with waiting for u [you] to even provide a dime for ur [your] kids wake up dad you have officially lost me.”

[39]        In response to the above, the accused inquired if he had done something wrong and if so what it was.  C.D. responded by advising she was done with him.  The accused then gave an explanation as to why he did not say hi to C.D. at the school.  C.D. responded:

[40]        In re-examination, C.D. was asked if the family court proceedings contributed to her making allegations against her father and she stated, “No.”

[41]        A.D. is the mother of the accused’s four children, including the complainant C.D.  In August of 2014, A.D. was living with the accused and she was working long and variable hours at a local establishment.  A.D. testified that she did not think the accused worked during this summer.

[42]        With respect to the allegations, A.D. recalls coming home from work in August of 2014 and giving some cider to the accused.  She went upstairs and she saw C.D. on the floor of the bathroom.  She described C.D. as half sitting and half lying down.  She stated that C.D. was over the toilet and sick.

[43]        A.D. recalls seeing vomit and she described it as being pinkish and smelling like fruity alcohol.  A.D. got angry with C.D. because she thought C.D. had been drinking with her friends.  She recalls screaming at C.D. and C.D. crying.  A.D. then helped C.D. to her feet and to her room.  A.D. could not recall if C.D. was naked or if she was dressed at the time.  She stated this was because she was so angry and did not pay attention.

[44]        A.D. then went downstairs and asked the accused what was wrong and he indicated that C.D. must have had food poisoning from the meat that she had eaten from the fridge.

[45]        The next day and prior to leaving for work, A.D. went into C.D.’s bedroom to check on her.  At that time A.D. could smell fruity alcohol on C.D’s breath and she noted that C.D. appeared to be hung-over.

[46]        A.D. was questioned about her drug use and she acknowledged using crack cocaine; however, when responding she frequently included the accused in any drug use.  She did this despite defence counsel making it clear that the questions were about her usage and not the accused’s.

[47]        Questions were also asked about the family court proceedings.  In this regard, A.D. acknowledged they separated in January 2015, following which there were court applications in February, March and June 2015. 

[48]        The manner in which A.D. responded to questions made it apparent that she wanted the court to form a negative opinion about the accused.  In this regard, she volunteered negative information that was not responsive to questions.  For example, she stated he never visited the kids, and he showed up drunk.

[49]        The accused is 32 years old.  He confirmed he was married to A.D and they have four children.  They separated in January of 2015 and up until March 2015 he would have visits with the kids.  After March and as per a court order his access was limited.  He recalled C.D. coming over to his place a few times and her spending the night on two occasions.

[50]        As for his work, the accused testified he worked during the summer of 2014 and that he and A.D. were working at the same location for the same business.  He believed his work ended in September of 2014.  Further, and for the pay period between August 10 and August 24, he worked 98.7 hours.

[51]        Despite working many hours, there were occasions in the summer of 2014 when A.D. would be working, thus leaving the children in the accused’s care.  On these occasions he would cook, do the dishes and the laundry.

[52]        The accused was questioned about drinking with C.D. and he acknowledged giving her alcohol.  He stated when this happened that A.D. and C.D. had argued about C.D.’s boyfriend.  Apparently, this argument was just before A.D. left for work.  He said that C.D. was upset by the argument.  Then around 2 or 3 p.m., the accused decided to have a shot of spiced rum.  While doing so he had a discussion with C.D.  During this conversation, he offered C.D. a shot of spiced rum.  He testified they drank ounce one shots and that they would have a shot every 20 minutes or so.  He testified he had between 2 and 4 shots and that C.D. had 3 shots.

[53]        He stated it was at this time that C.D. also started talking about his and her mother’s cocaine addiction.  In doing so, she expressed confusion over the fact they used crack cocaine and yet she could not have a boyfriend.

[54]        As for offering the alcohol to C.D., the accused expressed his regret.  He stated that it was wrong and he should have been a parent and not a friend.

[55]        After a period of time the accused decided to go upstairs and take a nap.  When he went upstairs the bottle of rum was half full and in the kitchen and C.D. was watching television.  Once upstairs the accused went into his room and went to sleep. 

[56]        The accused does not know how long he slept for when C.D. woke him up.  She was at the door to his room calling to him.  At this stage she was staggering.  The accused got up and helped C.D to the bathroom.  Once there she threw up in the toilet.  He started to run a cold shower and at one point C.D almost fell over when she tried to stand up.  He grabbed her by the hand, helped her undress and then helped her sit in the tub.

[57]        With respect to seeing C.D. naked, the accused testified that this was out of the ordinary and that it was not something he chose to do; however, given that C.D. had almost fallen he was worried that she would hurt herself.

[58]        The accused then left C.D. in the tub telling her he had to go get the kids who were still at the park.  He then left C.D. in the bathroom and while going down the stairs he discovered vomit so he quickly cleaned it up.  Prior to leaving for the park, the accused entered the kitchen and he noticed that the bottle of rum was empty.  He then went towards the park and called for the kids to come home.

[59]        When the kids came home, the accused gave C.D.’s sister a change of clothes and a towel and he asked her to take them to C.D.  The accused then went to the kitchen where he started washing the dishes and preparing the evening meal.  While performing these tasks the accused would take the occasional break in order to play a video game with his son.

[60]        The accused recalls C.D. coming downstairs when he was preparing dinner and returning upstairs.  When dinner was ready the accused encouraged C.D. to eat but she declined and stayed in her room. 

[61]        When A.D. came home she went upstairs and spoke to C.D.  The accused heard yelling and A.D. became upset.  He heard C.D. state she had eaten food from the fridge; a comment he understood to be an explanation for her being ill.  A.D. then asked the accused if C.D. had been drinking and the accused was not truthful.  He went along with C.D’s story.  He stated he did this because he was afraid of A.D.’s temper.

[62]        As for his statement to the police, the accused confirmed he was not truthful when he told the police that he never drank with C.D.  He explained this was because he was in shock, he had never been in an interrogation room and he could not comprehend the charges.  Further, the accused testified that he did not want to be looked at as a person who gave alcohol to his daughter and in the context of the allegations he got scared.

[63]        The accused denied ever bringing C.D. to his bed or ever touching her breasts.

[64]        In cross examination the accused confirmed his crack cocaine use.  He also acknowledged that he was not honest with people when he was using cocaine and there were times where he was living two lives.

[65]        The accused was questioned about events leading up to him drinking with C.D.  In this regard, he testified A.D. probably left for work between 10 and 10:30 and that prior to leaving she had had an argument with C.D about C.D’s boyfriend. 

[66]        The accused recalled the other kids asking to go to the park.  He does not have a specific memory of what he did during the day.  In this regard, he testified it was a routine day.  He speculated he likely made the meals, did the laundry and washed dishes.

[67]        As for where everyone slept the night of the incident, the accused testified that, shortly after A.D. got home, the family went out to the yard and slept in a tent.

[68]        Counsel for the accused argues the Crown has failed to prove the allegations beyond a reasonable doubt.  In this regard, counsel points out C.D.’s gross intoxication combined with the passage of time impacts her reliability.  Counsel points to the significant gaps in C.D’s memory and to significant inconsistencies.  In this regard, counsel highlights, A.D. testified C.D. was out of the shower when she got home, whereas, C.D. testified she was in the shower when her mother got home.

[69]        With respect to the accused’s evidence, his counsel asserts he was a credible and reliable witness.  In support, counsel points out the accused testified in a straightforward manner.  He was not evasive during cross examination and he readily admitted to things that were contrary to his interests.  In summary, counsel argues the accused was believable and there is no reason to reject his evidence.  Accordingly counsel submits he should be acquitted.

[70]        The Crown argues C.D was a clear and concise witness whose evidence proves the elements of the offence beyond a reasonable doubt.

[71]        As for the accused’s evidence, the Crown argues it does not raise a reasonable doubt.  In support, the Crown points to the accused lying to the police and lying to C.D. on significant issues that form the foundation of the allegations.  In essence, the Crown submits that the accused’s evidence is not trustworthy and should be rejected.

[72]        A fundamental principle of the criminal law, is an accused person is presumed to be innocent.  This presumption can only be displaced (absent a plea of guilt) if the trier of fact is satisfied beyond a reasonable doubt that the accused is guilty: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at paragraph 36, and R. v. Star, 2000 SCC 40, at paragraph 231.

[73]        The burden is on the Crown to prove the accused’s guilt beyond a reasonable doubt.  At no time does the burden shift to the accused: Lifchus, supra., Starr., supra.  It must be remembered that a reasonable doubt must be based on reason and common sense.  It must not be based on sympathy or prejudice.  Further, it must be logically linked to the evidence or lack of evidence: Lifchus, supra., Starr., supra. 

[74]        Finally, it must be appreciated that proof beyond a reasonable doubt does not require proof to the degree of absolute certainty.  Nevertheless, proof beyond a reasonable doubt is proof to a high degree and therefore a verdict of guilty cannot be sustained if it is founded on a suspicion that the accused is guilty or a belief that the accused is likely or probably guilty.  Rather, a finding of guilt can only occur if a trier of fact who, after considering all of the evidence, is satisfied that the evidence proves the accused’s guilt beyond a reasonable doubt: Lifchus, supra., Starr., supra.

[75]        Given C.D. and the accused have testified to different versions of events, this court is required to consider their credibility and reliability.  In this regard, the court is not to engage in choosing between the evidence of C.D. and the accused: R. v. Vuradin, 2013 SCC 38 at para. 21.  Rather, their evidence must be considered in the context of all of the evidence that is accepted.  As such, I must analyze the evidence according to R. v. W.(D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at p 757 which I summarize as follows:

[76]        Mr. Justice Wood, in R. v. C.W.H, (1992) 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (BCCA) added a further point to be considered and it is as follows:

[77]        I place little weight on A.D.’s evidence.  Her anger and animosity towards the accused was palpable.  She deliberately tried to create a negative impression of the accused.  In this regard, it was not believable when she testified she could not remember if the accused worked in the summer of 2014.  This is particularly troubling given they were working at the same place at the same time. 

[78]        I also find it unbelievable that A.D. would remember the smell of fruity alcohol in the vomit and yet she failed to noticed if C.D. was naked when she first saw her in the bathroom or when she helped her walk to her room.  In the context, such lack of recall is not believable.

[79]        A further difficulty with A.D’s evidence is her claim that when she woke C.D. up the next day that C.D. looked hung over.  Given that the family spent the night in a tent, it would not have been possible for A.D. to have woken C.D. up in the manner she described.

[80]        As for C.D.’s evidence, I remind myself that she was almost 13 in August 2014 and because of her age I appreciate that recall, articulation and understanding will be less than that of an adult.  With this in mind, I found C.D. to be a bright articulate young woman and although she was 15 years old when she testified she conducted herself in a manner suggestive of someone with greater maturity. 

[81]        Despite the positive impression that C.D. left with the court, I have concerns regarding the reliability of her evidence.  There were several times in her evidence where she simply could not recall things.  She could not recall the accused helping her undress.  She could not recall how she got out of the shower; she had little recollection of what she did prior to her first drink, and she had little recollection of her father working during that summer.

[82]        A further area of concern with C.D.’s evidence was wherein she commented that she said to the accused, “No, dad your drunk,” when he apparently asked for a thirty second feel up.  It seems unusual for her to recall this, particularly when she had no recollection of her father helping her remove her clothes or helping her into the shower.  Moreover, there was nothing from her observations to support such a conclusion.  In essence, her claim that her father was drunk was inconsistent with her description of him and how much he had to drink.

[83]        Finally, the Facebook correspondence is unusual and troubling.  C.D. was clearly angry with father and when he asked her what he had done wrong C.D. did not mention or allude to anything related to the allegations.  I make these comments with full appreciation that there are many circumstances where an accuser will not confront the offender.  However, in this case, and given the entire context, I am troubled by the lack of comment.  This is because C.D. had severed ties with her father, she was angry with him, she had the safety of communicating via social media, she felt he had moved on to another family and she had the courage to tell him to “fuck off”. 

[84]        For the reasons stated, C.D’s evidence is concerning and it fails to prove beyond a reasonable doubt that the accused touched her for a sexual purpose.

[85]        Despite my findings above, I make these separate observations regarding the accused’s evidence.  I have given careful consideration to his evidence and I recognize he was untruthful to the police and to A.D.; however, I am sensitive to the context in which he was untruthful.

[86]        It will be recalled, when questioned by A.D. about C.D., the accused supported C.D.’s story that she had eaten bad food.  Moreover, he did not volunteer that he had given alcohol to C.D., nor did he share his belief that C.D. had consumed the remaining rum when he was upstairs sleeping.  In the context and after listening to the previous tensions between C.D. and her mother, I can understand, without condoning, why the accused chose not to disclose the drinking.

[87]        As for his interaction with the police, the accused was not truthful when he denied giving C.D. alcohol.  The accused testified he lied because he was panicking, that he had never been an interrogation room, and that the allegations shocked him.  I also expect the Family Court proceedings scheduled for the day of his interview might have had some impact on his decision to deny drinking with his daughter.  I accept his explanation for not having been truthful with the police.

[88]        When I consider all of the accused’s evidence, I found him to be a straight forward witness.  He did not shy away from evidence that placed him in a negative light.  Specifically, he admitted giving alcohol to C.D., he acknowledged using crack cocaine and he admitted selling the kid’s toys to buy cocaine. 

[89]        I also note the accused was not evasive and although his answers were occasionally less than concise, I do not find this to be an indicator of lack of credibility, rather, I attribute it to his background and nerves. 

[90]        There were minor trivial inconsistencies in the accused’s evidence but these are to be expected, given the passage of time and their peripheral relevance to the main allegations. 

[91]        Finally I note the accused did not shy away from evidence which in the context of the allegations might appear troubling.  In this regard, the accused testified when he was in the bathroom he helped C.D. take her clothes off.  Such frankness in the context of an allegation of sexual assault is refreshing, particularly when it is appreciated that C.D. did not recall this happening and therefore he was the only source of this information.

[92]        In summary and after considering all of the evidence, I believe the accused when he testified that he did not bring C.D. into his bed.  I also believe him when he testified that he did not touch C.D.’s breasts.  As such, and given that I believe the accused, I find him not guilty.