Citation:	R. v. R.D.Z.
	2020 BCPC 175
Date:		20200903
File No:		20517-1
Registry:		Western Communities

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

R.D.Z.

 

 

BAN ON PUBLICATION – SECTION 486.4 C.C.C.

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE E.C. BLAKE

 

 

 

 

Counsel for the Crown:	G. Merke and P. Cheeseman
Counsel for the Accused:	J. Watt and D. McKay
Place of Hearing:	Colwood, B.C.
Dates of Hearing:	April 23, 24, 26, 2019; October 21, 22, 2019; November 26, 2019; July 6, 2020
Date of Sentence:	September 3, 2020

INTRODUCTION

1.            sexual interference with a person under the age of 16 years, contrary to s. 151 of the Criminal Code;

2.            sexual assault, contrary to s. 271 of the Criminal Code; and

3.            exposure of his genital organs for a sexual purpose to a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code.

1.            a pre-sentence report with a Gladue component;

2.            a psychological assessment of the accused;

3.            a victim impact statement, setting forth the effects of the accused’s behaviour upon the complainant and her immediate family; and

4.            case authorities provided by both counsel.

1.            On the charge of sexual interference, there is a maximum term of imprisonment of 2 years less a day and a minimum term of imprisonment of 90 days.

2.            On the charge of sexual assault, there is a maximum term of imprisonment of 2 years less a day and a minimum term of imprisonment of 6 months.

3.            On the charge of exposing genital organs for a sexual purpose, there is a maximum term of imprisonment of 6 months and a minimum term of imprisonment of 30 days.

ANALYSIS

718.1. A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

1.            the generic seriousness of the offence(s);

2.            the particular circumstances surrounding the commission of the offence(s); and

3.            the circumstances of the offender.

a) The General Seriousness of the Offences

35. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valuable and our most vulnerable, asset, and as such they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36. In this respect, while there may have been a time many, many years ago when the offenders could have taken refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to this profound wrongfulness and harmfulness of sexual offences against children.

[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities.

Parliament has repeatedly increased sentences for sexual offences against children. These increases began in 1987 with Bill C-15. By abolishing the historic offences of indecent assault on a female and acts of gross indecency and creating the sexual interference offence, Parliament effectively doubled the maximum sentence from five to ten years for sexual offences against children that did not involve vaginal or anal penetration …. Parliament has repeatedly signalled society’s increasing recognition of the gravity of sexual offences against children in the years that followed. In 2005, Parliament tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation in cases in which the Crown proceeds summarily from six months to 18 months by enacting Bill C-2…. Finally, in 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. This statute increased the maximum sentences of these three offences and sexual assault where the victim is under the age of 16 from 10 to 14 years when prosecuted by indictment and from 18 months to 2 years less a day when prosecuted by way of summary conviction (ss.2-4). This statute also increased the maximum sentences for numerous other sexual offences against children as indicated in the Appendix to these reasons.

b) The Specific Circumstances of the Offences

60. Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship….

61. The ripple effects can cause children to experience damage to their other social relationships. Children may lost trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities.

Our daughter was a confident child, was very outgoing, was happy to play with friends and have sleep overs, she now struggles with nightmares, separation anxiety, and low self-esteem. Our daughter does not want to be alone with her thoughts at night and will often require one of us to lay with her until she falls asleep. [B] has spent the last year and a half in weekly therapy. I have been woken up many times in the middle of the night with crippling anxiety wondering how this will affect [B] as she grows up, will she trust men? What will happen when she has her first relationship?

c) The Circumstances of the Offender

d) The Case Law

53. At the core of the review exercise is the fundamental principle of proportionality. A proportionate sentence is one which is proportionate to the gravity of the offence and the degree of responsibility of the offender….This involves, in my view, an assessment of the circumstances of the offence at the time that it was committed. Evaluating the circumstances of an offence may well involve assessing changes in social circumstances, public knowledge, and changes in societal and judicial knowledge and attitudes about certain offences…..

54. Material facts about the public health crisis associated with fentanyl have been evolving rapidly in recent years. They have evolved significantly since Mr. Smith committed the offence in January 2015, I think that evolution is relevant to the question whether the sentence imposed on Mr. Smith is demonstrably unfit given the circumstances that existed at the time he committed the offence…..

5. What is yet to be determined is the point in time from which the adjusted sentencing range should be applied. The majority in Smith were of the view that public awareness of the danger of fentanyl distribution was still emerging in January 2015 (at par.60) when Mr. Smith committed the offence in issue. They concluded that for street-level fentanyl trafficking offences committed later than January 2015, particularly in late 2016, a sentence of less than 18 months in jail would be “demonstrably unfit” (para. 61), absent exceptional circumstances. Harris JA reasoned that for offences committed before the new range is to be applied, this Court must recognize the “considerable latitude” afforded to sentencing judges to discern the appropriate sentencing range in view of the judge’s assessment of the seriousness of the fentanyl problem at the time the offence was committed. (at para. 60).

We would decline the Crown’s invitation to create a national starting point or sentencing range for sexual offences against children. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence. The appropriate length and setting of sentencing ranges or starting points are best left to provincial appellate courts…. These courts “are in the best position to know the particular circumstances in their jurisdictions”.

28. Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence.

1.            With respect to the charge of sexual interference: 18 months.

2.            With respect to the charge of sexual assault: 15 months.

3.            With respect to the charge of exposure of genital organs for a sexual purpose: 5 months.

CONCLUSION

1.            With respect to sexual interference: 18 months.

2.            With respect to sexual assault: 15 months.

3.            With respect to the exposure of sexual organs for a sexual purpose: 5 months.

CONDITION 2104: Within 48 hours after the completion of your custodial term, you shall report in person to the probation office nearest the place of your release unless you have obtained written permission from your probation officer, before your release, permitting you to report at some other time or place, or by some other means. After your first report to the probation officer, you shall report thereafter as and when directed by the probation officer.

CONDITION 2201: When first reporting to the probation officer, you shall advise him or her of your residential address and phone number. You must not change your residence or phone number without first receiving written permission from the probation officer.

CONDITION 2202: You must have no contact or communication, directly or indirectly, with either C.P., J.T. or B.T. (The names represented by those initials will be set out in full in the probation order).

CONDITION 2205: You must not go to any place which you know to be the residence, school or workplace of either C.P., J.T. or B.T. (Again, the names represented by those initials will be set out in full in the probation order).

CONDITION 2501: You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer.

The following condition is not referred to in the pre-sentence report and counsel did not mention it, but in my view it is essential:

CONDITION 2304 (modified): You shall not be in the presence of any person who is or appears to be under the age of 16 years except as follows:

a)            with the written permission of your probation officer. If such permission is given, you must carry it with you while in the presence of the child, and it may be in electronic form; or

b)            in the immediate presence of a guardian of the child.

 

 

_____________________________

The Honourable Judge E.C. Blake

Provincial Court of British Columbia

R. v. R.D.Z.

Appendix “A”

Citation:	R. v. R.D.Z.
	2019 BCPC 370
Date:		20191126
File No:		20517-1
Registry:		Western Communities

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

REGINA

 

 

v.

 

 

R.D.Z.

 

 

BAN ON PUBLICATION – SECTION 486.4 C.C.C.

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE E.C. BLAKE

 

 

 

 

Counsel for the Crown:	Mr. G. Merke
Counsel for the Accused:	Mr. J. Watt
Place of Hearing:	Colwood, B.C.
Dates of Hearing:	April 23, 24, 26, October 21, 22, 2019
Date of Judgment:	November 26, 2019

INTRODUCTION

[1]           The accused is charged with three Criminal Code offences, all of which are alleged to have occurred between July 1, 2017 and November 22, 2017. The offences may be summarized as follows:

1.            sexual touching, contrary to section 151;

2.            sexual assault, contrary to section 271; and

3.            indecent exposure, contrary to section 173(2).

[2]           The alleged victim in each case is identified by the initials B.T. She is the step-granddaughter of the accused. She had her 8^th birthday during the time period referred to in the Information. She had reached 9 years of age the time she testified in this Court.

SUMMARY OF EVIDENCE

[3]           I will begin with a brief summary of the evidence presented at trial. This summary is not intended to be exhaustive. Its purpose is to place into context the analysis of the issues which follows later in these Reasons. During the course of that analysis, I will refer to certain parts of the evidence in more detail where it is necessary to explain my reasoning.

[4]           During the time period covered by the Information, B.T. lived with her parents. The accused, who is now 55 years of age, lived with B.T.’s paternal grandmother, as the grandmother’s common-law partner.

[5]           The accused and B.T.’s grandmother were in the habit of providing after-school care for B.T. two days of the week during most weeks of the school year. They had done so for at least a couple of years.

[6]           On infrequent occasions, the accused would provide care for B.T. on his own. This occurred, for example, when the grandmother was out-of-town or was indisposed through illness.

[7]           The Crown alleges that the accused engaged in sexual misbehaviour toward B.T. on a number of occasions when he was supposed to be providing childcare for her. Specifically, the allegations are that the accused engaged in the following misbehaviour:

1.            Pulling down his pants and underwear on several occasions and deliberately exposing his penis to B.T.;

2.            Pulling down B.T.’s pants on several occasions, sometimes pulling down her underwear at the same time. These actions would occasionally be accompanied by tickling; and

3.            On one occasion, touching B.T.’s vaginal area with his fingers, putting his hand inside her bathing suit in order to do so.

[8]           On November 22, 2017, B.T. disclosed to her father that she was uncomfortable with the way in which the accused had been acting toward her. Specifically, she told her father that she did not like the accused pulling down her pants. That disclosure led to B.T. providing a lengthy statement to the police the next day, outlining the specific allegations that I have mentioned above. B.T.’s statement to the police was audio-recorded and video-recorded.

[9]           At the trial, the Crown invoked the procedure contemplated by section 715.1 of the Criminal Code, seeking to introduce B.T.’s recorded statement into evidence. B.T. adopted the contents of the statement as her evidence and the statement was ultimately admitted into evidence without objection.

[10]        In her evidence, B.T. provided a common background for the incidents of sexual touching and indecent exposure. She described the accused engaging in both forms of behaviour within the home which he shared with B.T.’s grandmother. She said that the behaviour occurred at times when the grandmother had stepped outside or into the bathroom for a cigarette, or when the grandmother was engaged elsewhere in the home. She testified further that the accused said nothing when he engaged in these acts, but would sometimes hold up his index finger to indicate that B.T. should be quiet. He did not touch her private parts on any of these occasions. When the grandmother returned to the room, the accused would quickly cease his inappropriate behaviour and would act as if nothing had happened.

[11]        The third allegation, involving the accused touching the accused in her vaginal area, appears to be a separate, isolated incident. B.T. testified that the incident happened on the same day as the accused took her swimming at a nearby lake, in the summer of 2017. They apparently went to the lake because B.T.’s grandmother was not well that day and wanted to rest alone at home.

[12]        B.T. testified that after she and the accused had returned home from the lake, she was lying on the floor in her bathing suit watching television when the accused, pretending to urinate, poured cold water over her. Apparently, he considered it a prank, but not surprisingly she was surprised and upset. The accused attempted to comfort her. This led to him placing his hand inside her bathing suit and touching her vaginal area. The touching lasted for perhaps twenty or thirty seconds in her estimation, and ended with the accused removing his hand and returning to the video game he had been playing.

[13]        The accused gave evidence at trial. He denied his guilt on each of the charges, though the nature of his defences differed as between the charges.

[14]        The accused did not deny that he had pulled down B.T.’s pants on several occasions. He denied, however, that he had ever done so with any sexual intent. He said that it was a sort of practical joke and that he never pulled down B.T.’s underwear in the process.

[15]        The accused denied outright that he had ever pulled down his own pants in front of B.T. It follows that he also denied exposing his penis to her.

[16]        With respect to the incident that followed after his day at the lake with B.T., the accused agreed with B.T.’s recollection of the events right up to the point of the vaginal touching. He denied that that touching occurred.

THE ISSUES

[17]        The issue of credibility arises as a central issue with respect to all of the charges which the accused faces. The credibility of both B.T. and the accused must be carefully assessed.

[18]        A second issue of innocent intent arises, but only with respect to the charge of sexual touching. It is common ground that no issue of innocent intent can arise on the other two charges; the Crown will have made out its case on those charges if the acts themselves are proven beyond reasonable doubt to have occurred in the manner described by B.T.

ANALYSIS

[19]        I will begin my analysis by discussing the approach that must be adopted when assessing credibility in this case.

[20]        Issues of credibility between a complainant and the accused must be resolved in accordance with the fundamental principles of the criminal law involving the presumption of innocence and proof beyond reasonable doubt. In the well-known case of R. v. W.(D.), (1991), 1991 CanLII 93 (SCC), 63 CCC (3d) 397, the Supreme Court of Canada provided helpful guidance on the matter. W.(D.) directs that the trier of fact must determine whether the accused is to be believed, and then consider whether his evidence raises a reasonable doubt even if he is not believed. Even if the defence evidence raises no reasonable doubt, the trier of fact must go on to determine whether the evidence as a whole proves the charge beyond reasonable doubt.

[21]        Judicial interpretation has resulted in a number of refinements being made to W.(D.) over the last quarter-century: see, for example, the British Columbia Court of Appeal decision in R. v. C.W.H., 1991 CanLII 3956 (BC CA), [1991] BCJ No. 2753, dealing with a situation in which the trier of fact finds it impossible to determine which witness to believe.

[22]        One refinement to W.(D.) that is particularly relevant here concerns the sequence to be used by the trier of fact when assessing the evidence. It is now clear that the trier of fact is not required to necessarily follow the precise sequence of analysis which W.(D.) appears to contemplate. As Rosenberg, JA said in R. v. Minuskin, 2003 CanLII 11604 (ON CA), [2003] OJ 5253 (CA):

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to [the W.(D.)] formulas. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused’s evidence and then at the rest of the evidence. It should, however be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory, J. in W.(D.) at p.743, the trier of fact must acquit even if he or she does not believe the accused’s evidence because they have a reasonable doubt as to the accused’s guilt “after considering the accused’s evidence in the context of the evidence as a whole”.

[23]        The comments of Charron, J. in R. v. Dinardo, 2008 SCC 24, at paragraph 23 are to the same effect.

[24]        In this particular case, I do find it helpful to begin by considering the strengths and weakness of the Crown case, and particularly the evidence of B.T. The important qualification to note, though, is that it would be wrong to reach any final conclusions until all of the evidence has been considered. As Lambert, JA stated in R. v. P.W., [2003] BCJ 2447 (CA), at paragraph 19:

It is not the function of the trial judge to decide whether she believes the complainant and, having reached a conclusion in that, to go on and only then consider what the evidence of the appellant was on his own behalf. The consideration of both must be deferred until they can be looked at together and an overall conclusion reached on the basis of the whole of the evidence.

[25]        I will begin, then, by expressing my general views about B.T.’s credibility. I will not attempt a general assessment of the credibility of the accused immediately thereafter, but I will make that assessment in conjunction with my consideration of each of the specific charges. That seems more appropriate in a case where the accused raises different defences to each charge.

[26]        My assessment of B.T.’s credibility must begin with the recognition that there are special considerations that apply to the assessment of credibility of children generally. These considerations have been set forth in a number of court decisions over the years, but they are helpfully gathered together in the decision of R. v. D.W.L., [2018] BCJ No. 7179 (S.C.), at paragraphs 80 to 96. Focussing on those aspects of the matter which are particularly relevant in the present case, I would summarize the law in this way:

1.            The standard of proof required for conviction of an accused person is not lowered, nor is it changed in any way, by the fact that some of all of the relevant evidence comes from a child or children.

2.            Courts should not use the same tests for assessing the credibility of a child witness as for an adult. “Credibility and evidence must be assessed by reference to criteria appropriate to [the witness’s] mental development, understanding, and ability to communicate”. To put it another way, the courts should not adopt “hard and fast” rules for assessing the credibility of child witnesses but should proceed on a “common sense” basis, having regard to the particular circumstances of the child: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at 133-134.

3.            The evidence of child witnesses is particularly prone to flaws regarding time and location, and such flaws do not necessarily detract from the child’s credibility.

4.            Articulation may be especially difficult for children, and problems of articulation may be exacerbated by the stress of a courtroom or the unfamiliarity of an interview setting. Such difficulties may be associated with unreliability in adults, but that should not necessarily be the case with children.

[27]        Using this “common sense” method of analysis when assessing the credibility of B.T. in the present case, I must say that I found her generally to be a most compelling witness. She appears to be a bright, articulate and straightforward child who provided her recollection of the events to the police officer in a very matter-of-fact way. She was told at the outset of that interview that it was important to speak the truth and she indicated that she knew the difference between truth and lies. Subsequently, she gave her evidence in Court after promising to tell the truth and again demonstrating that she knew the difference between truth and lies.

[28]        B.T. was cross-examined at the trial about whether she has told lies in the past and in what context. She was asked the same sort of thing by Constable Krauss during the police interview. B.T. did not deny that she had told lies on occasion in the past, but the illustrations she gave suggested that she was really referring to the sorts of things that are often called “fibs” or “white lies”. She spoke of telling her parents that she had completed her homework when she had not, for example. There was nothing in the parents’ testimony on that subject which suggested anything that need concern me about lying on the girl’s part. Indeed, the fact that B.T. conceded that she had not universally told the truth in the past, coupled with her father’s confirmation that such was the case, probably added to B.T.’s credibility rather than detracting from it.

[29]        When assessing the credibility of B.T.’s accusations of misbehaviour concerning the accused, I was also impressed by the fact that she clearly bears him no animosity. On the contrary, during the course of her interview with the police officer she made it clear several times that she did not want to hurt the accused’s feelings or get him into trouble. For example, she explained that she made her disclosure to her father, rather than tell the accused directly to desist in his inappropriate behaviour, because she thought that she might hurt the accused’s feelings if she voiced her displeasure to him directly.

[30]        In somewhat the same vein, I was impressed by the careful way in which she appeared anxious to avoid exaggeration when telling the police officer about the number of times that the accused either pulled down her pants or pulled down his own pants in her presence. She was careful to point out that this sort of behaviour did not happen all the time when she was in the presence of the accused, but only sometimes. She also made the effort to tell the officer that the accused actually pulled down his own pants in her presence rather less frequently recently than he had done in the past. In summary, she appeared eager to ensure that the police officer did not take an overly harsh view of her step-grandfather.

[31]        My impression was that B.T.’s description of the relevant events was accompanied by exactly the level of detail that one would expect from a child of her age. The events that she described were not filled with improbable amounts of detail, but neither were her descriptions so limited as to be unduly vague or ill-defined. On some important matters, such as the sequence of events on the day when the accused allegedly touched her vagina, the details which she provided were actually corroborated by the accused himself. In the circumstances, that enhanced her credibility considerably.

[32]        B.T.’s evidence was not without its flaws. I must say that I was troubled by her repeated statements that the accused not only pulled down her (B.T.’s) pants but also pulled down her grandmother’s pants on occasion. That seemed a bizarre assertion and, not surprisingly, it was put to the grandmother during the course of her evidence. The grandmother’s response was to say that she did not recall any such thing occurring.

[33]        This part of the evidence was not as fully developed as it might have been. I note, for example, that the grandmother did not deny outright that any such thing had happened, but merely said that she did not recall it. Nor was B.T. asked to elaborate on her testimony in the sort of detail which might have teased out some greater context, clarified her meaning or ruled out the possibility that she had misinterpreted something that she saw. In the end, I can only repeat that this part of B.T.’s evidence was troubling. I do not really know what to make of it.

[34]        There were also certain details of B.T.’s testimony that were confusing and difficult to follow. When the police officer asked her to focus on a single incident, for example, she began her answer appropriately enough, but soon drifted into combining several incidents together.

[35]        B.T.’s estimates of time and sequence were erratic and unreliable throughout. She was interviewed by the police officer in the month of November, for example, but she seemed incapable of distinguishing the months of September, October and November from one another when she attempted to describe the events that the police officer wanted to discuss with her.

[36]        I am indeed mindful of these weaknesses in B.T.’s evidence but I am reluctant to conclude that they undermine her credibility about the central core of her testimony. Many of the flaws which are evident in her testimony match very closely the traits which appear often in the evidence of children, but which the authorities (as noted above) caution so strongly ought not to be necessarily taken as demonstrating an absence of credibility.

[37]        Those are my general comments regarding B.T.’s credibility. For the reason which I mentioned earlier, I think it will be best if I consider the reliability of the accused in the course of my discussion about the specific charges, rather than attempt to make a general assessment. I will turn now to a consideration of those specific charges.

[38]        The first charge arises from the allegation that the accused pulled down B.T.’s pants and underwear. B.T. was not clear in describing how many times that happened, but plainly she was referring to multiple occasions. She very carefully stated that sometimes it was just her pants that were pulled down, but that on other occasions her underwear underneath was pulled down as well.

[39]        The accused did not deny that he pulled down B.T.’s pants on four or five occasions, though he did deny that he ever pulled down her underpants. He testified that he just thought that it was a joke and was never intended to be sexual in nature.

[40]        In assessing the credibility of the accused on this aspect of the matter, it is important to note the parts of B.T.’s testimony that he either accepted as true or at least did not contest. I will list the various items:

•                     He accepted that he only ever pulled down B.T.’s pants at times when B.T.’s grandmother was not in the room with the two of them. Specifically, he testified in cross-examination that he “supposed” that to be true, although he claimed that he had never actually thought about it.

•                     He did not contest B.T.’s assertion that when B.T.’s grandmother returned to the room he pretended as if nothing had happened.

•                     He did not comment on B.T.’s testimony that on occasion he would hold up his finger to indicate that B.T. should not say anything while her pants were being pulled down.

•                     When asked to comment on B.T.’s testimony that she resisted his actions by trying to pull her pants back up, he did not deny it, but stated that he could not recall it.

[41]        I find the accused’s assertion that he never really noticed that he was alone in the room with B.T. at the relevant times to be implausible in the extreme. It becomes downright absurd when considered together with the uncontested evidence that he made a gesture intended to silence B.T. while he engaged in the activity. It is also inconsistent with the unchallenged evidence that he would attempt to act as if nothing had happened when the grandmother returned to the room.

[42]        I interject briefly to note the defence objection that B.T. never told the police interviewer that the accused would sometimes put up his index finger as a gesture intended to silence her while he pulled her pants down. My careful review of the interview shows that objection to be factually accurate, but also shows that B.T. was never asked a question that would elicit that specific answer. Constable Krauss did ask her if the accused said anything to her as he was pulling her pants down, but that was the extent of the inquiry. An adult who was asked that question might well interpret it as inviting a further response about gestures made by the accused, but it is not at all clear that an eight-year-old child would make that connection.

[43]        There are two other points that touch upon the credibility of the accused in relation to this charge.

[44]        The first point to note is that although the accused testified that he understood that pulling down the pants of another person was a common prank, he testified that he had never attempted any such thing upon anyone else at any time.

[45]        The second point, which is a good deal more telling in my opinion, concerns the response which the accused gave when he was first confronted by B.T.’s father, J.T., about pulling down the girl’s pants. His response at that time was unequivocal: “I wouldn’t do that.” In cross-examination, he agreed that he deliberately lied when he said that, but says that he did so because he perceived J.T. to be making an accusation of sexual misbehaviour against him.

[46]        I reviewed J.T.’s evidence very carefully in connection with the brief telephone discussion which he had with the accused in which he confronted the accused with B.T.’s complaint. It was my distinct impression that at that moment he was not sure what he was dealing with, and asked the question in a very open-ended, neutral fashion. It was not suggested to him in cross-examination that he had in fact approached the matter in any other way. From my perspective, the important point is that the accused recognized immediately that there is a potential sexual component arising when an adult pulls down the pants of an eight-year-old girl, and that he reacted so quickly with a lie in an attempt to rebut the accusation.

[47]        I cannot leave this aspect of the matter without addressing a point raised by defence counsel in closing submissions. Counsel submitted that I should bear in mind that his client’s response to J.T. on the telephone should be seen in light of the fact that J.T. was actually accusing him of both pulling down B.T.’s pants and pulling down his own pants to expose his penis, an accusation which he still denies.

[48]        With respect, counsel’s submission on this point is simply unsound on the evidence. I listened carefully to the recording of J.T.’s testimony to make sure that my notes were completely accurate. I was able to confirm that J.T. asked the accused specifically about pulling down B.T.’s pants. The matter of the accused pulling down his own pants did not arise.

[49]        My conclusion on Count 1 is this: Based on the fact that the accused corroborated significant parts of B.T.’s testimony, that parts of his own evidence were implausible in the extreme, and that he lied when confronted with the initial complaint, I do not accept for one moment the explanation which the accused has offered in answer to the charge. I do not find that his evidence comes close to raising a reasonable doubt in my mind. By then referring to the comments which I made earlier regarding B.T.’s credibility, I am now prepared to draw the various strands together and find that on the whole of the evidence which I accept, including the evidence that B.T.’s pants and underwear were pulled down together at times, the charge has been made out beyond reasonable doubt. I find the accused guilty on Count 1.

[50]        I will deal with the charge of indecent exposure next, although it is actually Count 3 on the Information.

[51]        The accused’s defence to the indecent exposure charge essentially involves what is sometimes called a “flat denial”. Of course, that categorization should not be taken as meaning that it is in any way an illegitimate defence. As the Alberta Court of Appeal said in R. v. McIntosh, 2010 ABCA 352 (CanLII), [2010] A.J. 1331 (CA) at paragraph 12, there are no doubt plenty of situations in which one might fairly ask what more an accused could possibly do beyond offering a denial under oath and offering himself up to cross-examination. That may be a particularly astute observation, it seems to me, in cases where sexual impropriety is alleged and the only two persons with knowledge of the relevant events are the accused and the complainant.

[52]        The “flat denial” does raise particular and difficult issues in the context of a credibility analysis, however. As Anderson, PCJ said in R. v. Rana, [2010] AJ 697 (PC), at paragraph 14:

The accused’s denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracity of a denial without more. The strength of a denial depends entirely on context.

[53]        Similarly, in R. v. J.W.A., [2010] AJ 149, the Alberta Court of Appeal said this at paragraph 22:

[T]he law has not elevated the requirement of W.(D.) to include a mandatory statement as to the precise reasons for rejecting the accused’s testimony in isolation before considering the testimony in the context of all the other testimony. This argument was advanced to the trial judge and properly rejected. Relying on R. v. JJRD (2006), 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, she concluded that the evidence of the accused must be considered not in isolation, but rather in the context of the evidence as a whole …. We agree.

[54]        Consideration of “the context”, as the Alberta Court of Appeal referred to it in the J.W.A. case, involves an in-depth assessment of all of the evidence presented, with special reference to the credibility of the complainant.

[55]        In this case, I have already set forth my general assessment of B.T.’s credibility. Some of the illustrations I gave in support of my conclusion arise from the evidence relating to both Counts 1 and 3 of the Information, since those counts are considerably intertwined. It would be helpful at this point, however, if I supplement my conclusions by referring to some parts of the evidence that relate specifically to Count 3 of the Information, the charge of indecent exposure.

[56]        B.T.’s evidence about the accused pulling down his pants and deliberately exposing his penis to her reveals a number of instances in which she minimizes his apparent wrongdoing out of feelings of affection for him. She was careful to volunteer, for example, that he did not always pull his pants down in front of her, but only did so “sometimes”. She pointed out that when he did so it did not last for long, probably “less than a minute” in her estimation, and that it had not occurred as much in the recent past as in the time before that. She described the penis in a perfectly unemotional, matter-of-fact way and said that she was never asked to play with it or do anything else with it. She was specifically asked in cross-examination if perhaps the accused was joking when he pulled his pants down and her answer was this: “Maybe, but it happened a lot”. That seemed to me to be a most telling answer coming from a 9-year old witness.

[57]        In summary, I found that the evidence given by B.T. on this charge was extremely persuasive. It was so persuasive in my view that it completely overwhelmed the denial offered by the accused. In the context of the whole of the evidence presented, I do not believe the accused’s denial and I do not find that it casts any doubt upon the validity of B.T.’s testimony. I find that the accused deliberately exposed his penis to B.T. on multiple occasions within the timeframe alleged in the Information and that he is guilty of the offence of indecent exposure as a result.

[58]        I found the analysis of the evidence on Count 2 of the Information, involving the allegation of sexual assault, to be the most difficult. I say that in large part because of the manner in which B.T.’s disclosure of the relevant events took place.

[59]        During the course of her interview with B.T., Constable Krauss spent considerable time reviewing with the child complainant her recollections of the accused both exposing himself to her and also pulling down her pants. It was only after perhaps an hour that had elapsed that the police officer changed the direction of the interview and began to ask if anyone had ever touched the girl’s private parts.

[60]        It is not clear to me whether Constable Krauss had some knowledge before the interview began about an allegation that the accused had touched B.T.’s private parts, or whether she was merely suspicious and anxious to cover all possibilities as the interview proceeded. Either way, it is apparent that the police officer was quite persistent in her inquiries when the girl initially denied that any such thing had ever happened.

[61]        When I first listened to the interview and read the transcript, I was troubled about the manner in which the police officer had engaged in questioning B.T. on this aspect of the matter. It appeared to me that the police officer had perhaps proceeded in a way that was inappropriately leading and aggressive, resulting in the possibility that B.T. may have felt obliged to come up with an instance of sexual assault whether or not it was factually accurate.

[62]        On further review and consideration of all of the evidence in the case, I have ultimately concluded that my concerns are not justified. I have concluded that the most accurate characterization of the questioning is that the police officer guided B.T. skilfully and persuasively into the area of discussion that she wanted to pursue -- reaching close to the border of what is appropriate, I think -- but that she let the girl proceed entirely on her own, without any improper influence being exerted, once the topic had been broached.

[63]        There are two factors which support the conclusion which I have reached on this aspect of the matter.

[64]        First, it is very clear to me on a review the whole of the police interview and the evidence which B.T. gave at trial, that B.T. seemed perfectly capable of resisting leading questions if she felt she was being led astray. I do appreciate that putting leading questions to a young child is risky at best and is downright taboo in many instances. At the same time, though, I noticed that there were several occasions in this trial in which B.T. either deflected such questions or outright rejected the assertions underlying the questions.

[65]        Early in B.T.’s cross-examination, for example, defence counsel put a passage to her from the transcript of her police interview, suggesting to her strongly that what she had told the officer could not possibly be accurate. To my surprise, the witness responded to that question by reading the passage carefully and saying that she did not remember what she meant when answering the officer’s questions. When defence counsel closed his cross-examination, as he was bound to, with the series of questions suggesting that his client never pulled his pants down in front of her, never pulled down her pants, and never touched her privates, she stood her ground solidly, twice saying that she disagreed with counsel and once saying simply “no”.

[66]        The second factor which eased my concerns about the manner in which Constable Krauss handled this part of the interview with B.T. is the fact that almost all of what she told the police officer was confirmed by other testimony. B.T.’s grandmother confirmed that there had indeed been a day in the summer of 2017 when she had been ill and the accused had taken B.T. to the lake to give her some rest. B.T. had not been sure if her grandmother’s illness had been the reason for her trip to the lake alone with the accused, but that was one of the possibilities that she raised.

[67]        More importantly, the accused himself corroborated the entirety of B.T.’s lengthy and detailed recollection of events, right up to the very moment of the alleged touching of B.T.’s vaginal area. In the circumstances, that corroboration tended to enhance B.T.’s credibility rather more than the accused’s, and greatly lessened my concern that the police officer had produced flawed statements from the girl.

[68]        With respect to this particular allegation, as with the other allegations, B.T. provided her account in a thoroughly plausible, matter-of-fact way. In describing the events to the police, she illustrated them physically to some extent, as if she was recalling them vividly. She described the accused dumping water on her, pretending that it was urine, and then proceeding to comfort her with physical contact that brought his hands ever closer to her private parts, and then into her vaginal area. At trial, she did not get emotional when being cross-examined about this and said that it ended quickly when she removed his hand and got up quickly to leave the room.

[69]        The accused conceded in his evidence that he poured water on the girl, pretending that it was urine. He testified that at the time he thought that this was an appropriate prank. He was then asked whether he still thought it was funny. My observation was that he was remarkably slow to concede that he had changed his mind about that. That part of his evidence left me cold, but I hasten to say that I recognize that an appallingly poor sense of judgment is not necessarily reflective of an absence of credibility.

[70]        The accused testified that he did indeed cuddle with B.T. in an attempt to console her, having so obviously upset her with his misguided prank. He simply did not agree that he put his finger under her swimsuit and into in her vaginal area. The question is whether his denial gives rise to a reasonable doubt.

[71]        In my view, there are not many cases in which a denial by an accused person fails to raise a reasonable doubt, except where the denial is patently absurd on its face (and that is not this case). In a case where there is little or nothing in the way of corroborative evidence, it requires extremely strong Crown evidence to override the accused’s denial. In this case, there certainly is corroboration of all of the background circumstances, but no corroboration regarding the specific illegal act that is alleged.

[72]        For all of the reasons which I have advanced, however, I am convinced of the accuracy of B.T.’s testimony after hearing and considering all of the evidence. To summarize once more concerning B.T.’s evidence, particularly as it relates to the charge of sexual assault:

1.            She testified in a straightforward factual manner and with an appropriate level of detail;

2.            She was not contradicted on any matter of substance. On the contrary, her testimony was corroborated to a large extent; and

3.            She did not demonstrate any hostile animus toward the accused, but on the contrary demonstrated her affection for him by making concerted efforts to keep her accusations within bounds and to limit the extent of his wrongdoing.

[73]        In the face of that strong evidence, I have no hesitation in saying that I do not accept the evidence of the accused on the sexual assault charge. I reject it and I find that it does not raise a reasonable doubt in my mind about what happened. On the whole of the evidence, the Crown has once more proved its case.

CONCLUSION

[74]        I find the accused guilty on all three counts.

[75]        I only wish to add one comment. I wish to emphasize that in arriving at my conclusion with respect to each one of the charges against the accused, I have specifically and deliberately given no weight at all to either of the following items of evidence:

1.            The evidence concerning an accusation of some sort of wrongdoing against the accused in the past involving children, which was apparently investigated by a social welfare agency and did not lead to criminal charges against the accused. The Crown apparently (but dangerously) introduced that evidence in hopes of demonstrating that any defence of innocent intent must be misplaced in the present case, on the assumption that the episode with the social welfare agency must have alerted him to the seriousness of engaging with children in doubtful ways. In my view, that evidence turned out to be altogether too vague and dated to be of any help whatever in the present circumstances.

2.            The evidence that the accused appears to have had a very odd perception of what is appropriate behaviour when dealing with an 8-year-old girl. As I said earlier in these Reasons, odd perspectives on life and reduced credibility do not necessarily go hand-in-hand. To equate the two seems to me to be dangerous in the extreme, inviting a tumble down a very slippery slope.

 

 

_____________________________

The Honourable Judge E.C. Blake

Provincial Court of British Columbia

R. v. R.D.Z.

APPENDIX “B”

(cases in chronological order)

R. v. R.S.H., 2005 BCSC 927. 62-year-old in the position of an uncle or stepfather to 7-year-old girl he sometimes babysat, engaged her in various sex acts over a period of 2 years. Misconduct often included masturbating the victim. Accused, with no previous record and a good work history, did not acknowledge any wrongdoing. Accused sentenced to 20 months of imprisonment for sexual assault. Additional charges of breaching probation and communicating with a prostitute resulted in consecutive sentences totalling 2 months in length. Sentence upheld on appeal: 2005 BCCA 566.

R. v. Louie, 2014 BCSC 552. 18-month jail term and probation term imposed upon 32-year-old Aboriginal man who committed offence of sexual interference upon 14-year-old girl over a period of several days, mostly while intoxicated by alcohol. Interference included 3 incidents of sexual intercourse. Serious impact upon victim. Accused on probation for sexual assault at time of offence.

R. v. J.H., 2014 BCSC 2028. 79-year-old offender convicted of 1 count of sexual touching 11-year-old complainant who visited him regularly and considered him to be a friend. Touching involved touching victim’s breasts, kissing her vagina and digitally penetrating her. Sentence of 9 months’ imprisonment imposed, to be followed by 2 years of probation. Court emphasizing lack of criminal record and declining health of accused.

R. v. P.D.W., 2015 BCSC 660. 15-month jail term and probation term imposed upon 49-year-old man with no previous record with respect to offences of sexual interference and invitation to sexual touching. Accused had engaged in extended graphic internet communications with 13-year-old friend of his stepdaughters, knowing her to be vulnerable. When victim at accused’s residence for sleepover, he invited her to his room, performed oral sexual upon her and penetrated her vagina with his finger. He invited her to engage in fellatio, which she declined.

R. v. Veinotte, 2016 BCCA 21. 1-year jail term and 1-year of probation imposed by sentencing judge upon a 29-year-old Aboriginal man with serious alcohol and drug addiction problems, which he appeared to have under control by the time of sentencing. The victim, a 13-year-old girl and family, had attended at his residence. The two engaged in talking outside, and eventually went to the accused’s bedroom. Sexual intercourse occurred. The accused had a “substantial criminal record” but no convictions for sexual offences. He acknowledged responsibility promptly and pled guilty. Crown sentence appeal dismissed.

R. v. G.R.L., 2016 BCSC 293. 3-year term of imprisonment imposed for sexual touching. 43-year-old accused had “very dated” criminal record and good work history. Accused had gone with his stepdaughter and “teenage” friend on a camping trip. Left alone with the friend, who was intoxicated with alcohol provided by the accused, he sexually attacked her, engaging in various acts of criminal wrongdoing, including vaginal and sexual intercourse, and cunnilingus. Serious psychological impact on victim and her family.

R. v. N.A.J., 2017 ABPC 115. Accused, at the age of 20, had sexually touched two of his stepsisters, when they were 7 years of age and 6 years of age respectively, outside their clothing in their vaginal area. He touched the older girl about 4 times and the younger girl between 5 and 10 times. The effect on each of the girls was devastating. The accused had a personality disorder and a previous conviction for harassment. A sentence of 18 months of imprisonment was imposed, followed by probation.

R. v. K.M., 2017 ONSC 4769. Accused, now 52 years of age and with no previous record, engaged in sexual touching of his two biological daughters. He touched the first girl perhaps 3 times per week over a 2 year period when she was between 6 and 8 years old. He touched the second daughter about once a week over a 10-year period, which began when she was 3 or 4 years old. In both cases, the touching involved the girls’ chest, vaginal area and buttocks. Each girl at times witnessed the other being touched. An effective sentence of 3 years of imprisonment was imposed, less credit for time spent in custody before sentencing.

R. v. Akumu, 2017 BCSC 1502. 36-year-old female with no previous record engaged 14-year-old family friend in sexual misbehaviour, having given the girl drugs and alcohol to render her intoxicated. Accused denied wrongdoing. Concurrent sentences of 2 years less and day imposed after jury trial on charges of sexual interference and invitation to sexual touching. Extensive review of case law.

R. v. Yanulik, 2018 BCSC 1361. Sentence of 4 years of imprisonment imposed upon accused who, at age 54, had taken 13-year-old victim (who was vulnerable because in foster care) to his home and engaged in “myriad sexual misconduct” her, including unprotected sexual intercourse. Accused video recorded incident and video record illustrated the increasing distress of victim throughout. Accused with dated record for assault.

R. v. Angel, 2018 BCSC 1751. 55-year-old accused connected with 14-year-old victim by social media. The two eventually met up at accused’s apartment where accused engaged victim oral and anal intercourse. Accused did not know age of victim. Accused with chaotic, dysfunctional background but no record. One year of imprisonment and 18 months’ probation imposed on charge of sexual interference.

R. v. Jaden, 2018 BCSC 1685. Accused was a 51-year-old man who had befriended the mother of the 15-year-old complainant. He had keys to the apartment where complainant and her mother lived and visited often, sometimes embracing and kissing the complainant. On the offence date, mother was not in the home when accused entered and engaged complainant in non-consensual sexual intercourse. Serious psychological impact on complainant. Accused had no record and good work history. 3-year sentence imposed upon guilty plea to charge of sexual assault. Extensive review of authorities.

R. v. Worth, 2019 BCSC 2201. 47-year-old Aboriginal man from a difficult background and with addiction issues pled guilty to sexual interference upon the 14-year-old victim. Accused met victim in a public place and shared drugs with her. They then went to a more private location where he digitally penetrated her and engaged her in oral sex. Accused expressed willingness to seek help for drug problems. After giving credit for 5 month in custody, court sentencing accused to 2 years less a day plus probation.

R. v. Williams, 2019 BCCA 295. Facts not relevant to present case, but explores sentencing case law at length in situations involving child sex abuse. Court endorses authorities to the effect that the range of sentence, for a prosecution by indictment, is in the range of 1 to 3 years, but may go higher (or lower) in exceptional circumstances.

R. v. A.L., 2019 BCSC 2118. Accused was a 21- (later 22) year-old extended family member who sometimes looked after 12- (later 13) year-old victim when victim’s mother was at work, or after school. He repeatedly touched her sexually over a 10-month period, despite her protests. Accused had no record and good prospects for future. 15-month sentence imposed, followed by 2 years’ probation

R. v. L.S.N., 2020 BCCA 109. 37-year-old Aboriginal offender engaged in sexual touching of his 11-year-old stepdaughter on 3 occasions over a period of months. Accused very drunk on two of those occasions, but not on the other. Accused had a recent previous conviction for the same offence, sexual interference, and was on probation for that offence. On Crown appeal from suspended sentence and probation, Court of Appeal increasing sentence to 2 years less a day, plus further probation, citing Friesen.

R. v. C.C.H., 2020 BCCA 162. 3-year prison sentence imposed upon accused who, in his mid-70s, began a period of sexually touching 19-year-old victim who was in his care. Victim vulnerable due to immobility in wheelchair. Accused pleading guilty to sexual exploitation, but situation analogous to child sex assault or sexual interference. Sentence upheld by appellate court, citing Friesen.

R. v. Caldwell, (BCPC, not yet reported, Vernon Registry No. 53726, June 10, 2020). Sentencing judge rejecting joint submission for sentence of 18 months’ imprisonment on guilty plea by 28-year-old accused to the offence of inviting sexual touching, prosecuted by indictment. Accused often stayed overnight with mother of 6-year-old victim, and on more than one occasion awoke victim at night and prevailed upon him to touch his penis. Significant impact upon victim and his family. Accused had serious and recent criminal record and was immersed in the local drug culture. Court citing Friesen as a significant factor in rejection of the joint submission, imposing instead an effective sentence of 2 years less a day (less credit for time already spent in custody) plus probation.