R. v. T.B.M.

R. v. T.B.M.

Child's spontaneous out-of-court statements met necessity and threshold reliability and were corroborated by fresh peri-anal bruising and a recent anal tear consistent with forceful penetration; accused's denials were not credible in context; Crown proved beyond a reasonable doubt attempted or partial anal penetration and oral contact; convict Count 1 (sexual assault causing bodily harm), stay Count 2 (sexual interference) as duplicative under Kienapple/Prince, dismiss Count 3 as inapplicable.

Citation
2011 BCSC 1828
Parties
Crown: Regina; Accused: T.B.M.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
5 October 2011
Procedural Posture
Criminal Sexual Assault / Trial Judgment
Outcome
Convicted on Count 1; Count 2 stayed as duplicative; Count 3 dismissed
Legal Topics
Sexual Assault, Hearsay Admissibility (khan), Duplicate Convictions (kienapple/prince), Credibility Assessment, Publication Ban
Source Language
English
Criminal Law Evidence Child Protection Sexual Assault Hearsay Admissibility (khan) Duplicate Convictions (kienapple/prince) Credibility Assessment Publication Ban

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Parties

Regina

Crown

T.B.M.

Accused

Procedural Posture

Criminal Sexual Assault / Trial Judgment

Legal Issues

  1. 1 Whether the accused sexually assaulted the child causing bodily harm (anal penetration)
  2. 2 Whether the accused placed his penis in the child's mouth
  3. 3 Admissibility and reliability of the child's out-of-court statements

Ratio Decidendi

Child's spontaneous out-of-court statements met necessity and threshold reliability and were corroborated by fresh peri-anal bruising and a recent anal tear consistent with forceful penetration; accused's denials were not credible in context; Crown proved beyond a reasonable doubt attempted or partial anal penetration and oral contact; convict Count 1 (sexual assault causing bodily harm), stay Count 2 (sexual interference) as duplicative under Kienapple/Prince, dismiss Count 3 as inapplicable.

Court Disposition

Convicted on Count 1; Count 2 stayed as duplicative; Count 3 dismissed

Orders

  • Convicted of Count 1: sexual assault causing bodily harm (s.272(1)(c))
  • Count 2 (sexual interference, s.151) stayed as duplicative under Kienapple/Prince