R. v. E.J.T.M.

2015 BCSC 982 R. v. E.J.T.M.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. E.J.T.M., 2015 BCSC 982 Date: 20150323 Docket: 39211‑2 Registry: Prince George Regina v. E.J.T.M. Restriction on Publication: Pursuant to 486.4(2) C.C.C. Before: The Honourable Mr. Justice Parrett Oral Reasons for Judgment Counsel for the Crown: C. Malfair Counsel for the Accused: E. K. Jones Place and Date of Trial: Prince George, B.C. March 9, 10, 11, 12, 13, 2015 Place and Date of Judgment: Prince George, B.C. March 23, 2015 [1] THE COURT: The accused, is charged on a four‑count indictment with two counts each relating to two separate complainants. [2] Counts 1 and 2 charge the accused with counts of sexual assault against S.P. between January 1, 2003, and November 30, 2004 (Count 1), and M.S. between January 1, 2003, and July 18, 2006 (Count 2). Both of these offences are alleged to have taken place at or near Prince George, in the Province of British Columbia. [3] Counts 3 and 4 are parallel counts which charge the accused with touching for a sexual purpose each of the two complainants who were under the age of 14 years. These offences under s. 151 of the Criminal Code are said to have occurred in the same geographic location and over the same time period as Counts 1 and 2. [4] During the course of this trial, four witnesses were called; three of these were called by the Crown in the body of their case. These

witnesses were the two complainants, S.P. and M.S., and V.J., who is the mother of M.S. and the aunt of S.P. The accused was called and gave evidence at this trial and, as a result of his evidence, the Crown was permitted to recall V.J. to give rebuttal evidence. [5] The accused and V.J. met while they were students at the College of New Caledonia in 2002 or 2003. After a short dating relationship, the two moved into rental premises they occupied in the City of Prince George, Province of British Columbia. In late January or early February 2003, the two moved into a three‑bedroom apartment which they occupied, together with V.J.'s daughter, M.S. In May of 2003, V.J.'s niece, S.P., moved in with them in the apartment. [6] S.P. was born on May 5, 1995, and had just turned eight years old when she began living with them at the apartments. M.S. was born on July 19, 1994, and at the time they moved into the apartment was also eight years old, and shortly thereafter turned nine. [7] The four of them resided in this apartment until the end of October 2004, and on November 1, 2004, they moved into a townhouse complex in Prince George where they remained for approximately a year, before moving to duplex in Prince George sometime during 2005. [8] In approximately 2006, after they had been in the duplex for "maybe a year", the two girls packed up and left and went to the Native Friendship

Centre, where they were interviewed before being placed in separate group homes. At the time they left the duplex residence, S.P. was 10 or 11, and M.S. was 11 or 12. Neither girl ever returned to live with either V.J. or the accused, and since leaving the duplex residence, their contact with V.J. and the accused has been extremely limited. Both girls testified that they did not want any contact and that they avoided it. [9] It is clear from the evidence that at the time of the events they described, these two complainants were very young. At the time they testified, M.S. was 20 years old and S.P. was 19. The events they described, which form the basis for the present charges, took place at a time when they were between the ages of eight and 11. [10] M.S. describes the living arrangements in the apartment as having three bedrooms, one of which was occupied by her mother and the accused, and S.P. and herself sharing one of the other bedrooms most of the time. She described a household in which her mother and the accused constantly fought, and in which the accused was regularly drinking alcohol and her mother was constantly smoking marihuana. [11] M.S. testified that while they were living in the apartment, which she referred to as the green apartments, the accused touched her. She described the event as being on or near a holiday, either Easter or Thanksgiving. She testified

that she and S.P. were "painting windows" with decorations when the accused came out of his bedroom and told her to come with him back to the bedroom. She testified that he told her to lie on the bed. She said she was wearing black jeans and a white T‑shirt, and he told her to pull her pants down and her panties down around her knees. He then pulled his own pants down, while lying beside her, and touched himself with one hand while fondling her vagina, both inside and out, with the other. She described him rubbing her in a circular motion and rubbing her "in and out". The incident ended, she testified, when he went to the washroom and she returned to her window painting. [12] M.S. testified that the accused told her to be quiet and on many occasions that her mom was not to be told. She went on to describe herself as being confused, because she was only eight or nine years old. She went on to testify that the accused touched her in a similar manner in that apartment and that at times she would wake up to it happening in her room at night. She testified she knew it was the accused on these occasions, because of his voice telling her to be quiet and the fact that she could see him in the light from her night light. [13] She testified that she learned to be quiet because "what could I do, I probably weighed 60 pounds." She described a series of these type of incidents which "were

pretty much the same routine." The bulk of these incidents, she testified, happened in the apartment, although it also happened a couple of times at the townhouse. She testified that when they moved to a duplex, her aunt A.J. and a couple of cousins were living with them, and that the accused did not touch her at that location. [14] When asked in cross-examination if V.J. and the accused had talks with her and S.P. about good and bad touching, she flatly denied that this ever took place. She went on to testify that they never had regular meetings, and that there was never much structure or function in their house, and nothing like regular meetings. She also went on to deny being told what S.P.'s complaints against the accused were or even discussing the specifics of them with her or discussing her own complaints with S.P. [15] S.P. had more difficulty with her evidence. She did not appear as scheduled and presented herself as sick and tired. She became both aggressive and abusive as time went on, particularly towards defence counsel. Nevertheless, there was, as Crown counsel suggested, a much different demeanour evident in the initial phase of her evidence. Her evidence in this portion of her testimony was much more concise and factual, as she described her relationship to various people and places. [16] She confirmed that she first shared accommodation with V.J., the accused,

and M.S. in the apartment, and that she shared the room with her cousin, M.S. She described the constant fighting between V.J. and the accused, and how it did not make her feel safe. She testified that one night in that apartment, she was in her pyjamas and her bed when she was awakened by the accused licking her leg and inner thigh near her privates, and touching her with his hands. She testified that she started kicking him and then began screaming. She went on to testify that when she started to scream, the accused put his hand over her mouth and told her to shut up. She went on to say that he told her that if she ever told her aunty, he would hurt her. [17] S.P. went on to testify that after this incident, the accused never touched her again. She went on to say, however, that she woke up on another night and saw the accused on the other bed with M.S. She testified that she rolled over and went back to sleep. [18] S.P. also denied ever telling M.S. what had happened to her or discussing their complaints with her. She testified that the incident continued to bother her and she eventually gave the police a statement concerning these events at the Smithers Detachment of the RCMP on March 22, 2012. [19] V.J. was the other Crown witness called during this trial. I found V.J. to be a less‑than‑satisfactory witness. While she was able to fill in the timeline of dates and provide

addresses and locations, as well as identifying some documents, I found that her overall interest appeared to be defending her actions as a parent and guardian, to the extent of exaggerating, if not outright fabricating, events to portray herself in a better light. [20] At times she gave evidence that amounted to nothing more than rampant speculation which was completely unfounded in fact. One example of this was her initial evidence that her niece S.P. did not move into the apartment with them until October 2003, which she eventually conceded was wrong, it was actually May of 2003. Another more significant example was her evidence about the day she awoke and eventually found that M.S. and S.P. had left. She testified that she woke up and was fed up with all the freeloaders who were staying with them and told them all to get out. She testified that the girls' cousins had walked them over to the Native Friendship Centre. Within very short order, it became patently clear that this was untrue and that she had, in any event, no factual basis whatsoever for suggesting that. She then conceded that after she kicked everybody out, she went downstairs to awaken the girls and found that they were gone. She then described herself as freaking out and running up and down the street trying to find them. [21] In my view, it was clear that V.J.'s priority was her personal interest in

portraying herself in a favourable light. Telling the truth or accurately reciting the facts was far less important to her. [22] During the course of her evidence, and specifically during her cross-examination, she was asked and agreed with defence counsel that the accused had told her while they were dating, and before he moved in, about his sexual abuse convictions. She went on to say that she had discussions with both girls about good and bad touching and how they should protect themselves and to whom to report it. Both M.S. and S.P. denied that any such conversation took place. [23] I simply do not believe her evidence in this respect, which I found to be self‑serving and contrived. In every respect, I prefer the evidence of M.S. and S.P. to that of V.J. on this point. [24] Despite the difficulties with V.J.'s evidence, there were portions of her evidence which were useful and highly revealing, in my view. V.J. described one occasion in the morning when she went to the girls' room and discovered the mattress had been pulled from the bed and dragged behind the door on the inside to block entry to the room. V.J.'s response to this was, according to her, "to have it in the back of her mind as being strange, but she never raised it with either of the two girls or asked about it." [25] She also testified that although "we all got along and enjoyed each other's company in the

beginning, as time went on, M.S. got more and more distant and was angry a lot for no apparent reason." She also said she did not like the accused to touch her. S.P., as time went by, became moody and seemed to suddenly burst into tears for no apparent reason. These things, she said, bothered her in the back of her mind, but she never asked either of the girls about them or discussed them with them. [26] As I mentioned earlier, the accused testified at this trial. He is 45 years old and was born on March 31, 1969, at Terrace. In 1974, at the age of five, he apparently moved to New Aiyansh, where he lived with his grandparents. He testified that he was abused as a child, and when he complained to his grandmother, she "ragged out on him and told him it was a family secret". [27] The accused testified that he had been convicted of sexually assaulting the 10‑year‑old daughter of his common‑law spouse on May 5, 1994, and was subsequently convicted of sexual interference and two counts of making indecent phone calls on June 6, 1997. The complainant in this case was the same one as in the first conviction. The accused testified that when he met V.J. at the College of New Caledonia in the fall of 2002, he told her about his sexual convictions and, according to him, told her how important it was to set up "extra eyes and ears". He went on to testify that he and V.J. sat down and talked

to the girls about good touching and bad touching, and how important it was to yell and scream and fight back. [28] He went on to testify how V.J. treated him and how she would throw his sexual abuse allegations in his face. He described her conduct as "just cruel". When asked about the allegations made by M.S. about him fondling her, he testified that these things never happened. He, in response to S.P.'s allegations, said that never happened and that, because of his background, he never entered their room without being invited. [29] During cross-examination, the evidence of the accused became even more extreme. He, on his evidence, carried an awful load. In addition to being a full‑time student, he did all the laundry and dishes. His contact with the two girls became less and less, to the point where he appeared determined to show he had no contact. Portions of his evidence included the following: [30] The girls dressed themselves. The girls got themselves to bed by themselves mostly. Aunty A.J. lived with us and she bathed the girls. A.J., when we were at the apartment, was sleeping in the girls' room the entire time we were there. [31] He went on to say that, "To me, A.J. was extra eyes and ears." He went further, however, indicating in his evidence, "I felt if I ever assaulted these girls, they would go and talk to her." [32] A measure of how far he was prepared to go in

his evidence was shown by the lengths he went to try and establish that he never entered their room. When asked where A.J. slept in the girls' room, he replied, "I believe she slept in the bunk bed, but I never investigated it." [33] Other quotes included: "I set up the room, I believe we had bunk beds. It was their room. They kept it clean. I walked by. They were pretty tidy. I recall them having a bunk bed, one, I think. Because of my criminal record, I stood back and kept my distance at all times. They left their laundry by the door and I collected it from there." [34] As cross-examination continued about A.J., his evidence about her changed: "I don't know where she kept her stuff." "When she showed up she had nothing." "Over a year or so, I assumed she collected more clothes, I don't know where she kept them. It could have been in the playroom." "I assumed she kept her toiletries in the bathroom." "When she got older, she was drinking and used to take off all the time." "No, I did not go into their bedroom at night." "I did not go into their bedroom to do inspections." "I did not take them to their bedroom at bedtime." [35] One piece of his evidence was particularly interesting. What he said was that, "Having eyes and ears was my defence." What is interesting is he did not apparently view it as a protection for the girls, but a defence for himself. [36] V.J. was recalled by

the Crown to give rebuttal evidence, as much of the accused's evidence had never been put to the Crown witnesses. In rebuttal, V.J. testified that she did indeed have a sister A.J., but that A.J. moved in to stay with them just before they moved to the townhouse at the end of October 2004, and that before that she was living in an assisted living residence. In the time they were in the apartment from February 2003 to the end of October 2004, A.J. stayed occasionally with them for perhaps a total of two or three weeks, and slept either in the girls' room or in the living room. It was V.J.'s evidence that her sister A.J. never lived with them full‑time while they were at the apartment, and she never slept in the girls' room full‑time while they lived there. She also testified that the accused went into the girls' room at least once a week to collect their laundry and from time to time to make sure they were awake. At night, she recalled him packing the girls to bed and from time to time giving them piggy‑back rides to bed. [37] The Crown sought in this case to have the evidence in each count used as similar fact evidence with respect to each other count. This application was not contested by the defence, who, in addition, advised that on the evidence they were not arguing collusion. In this case, identity is not in issue and, as a result, the issue is whether the evidence is

admissible to show that the accused committed the actus reus of the offences alleged for the purpose the Crown seeks here. [38] R. v. Handy, 2002 SCC 56, at paragraph 78 deals with that proposition. This is a case where the situation is that considered by our Court of Appeal in R. v. P.E.L., 2013 BCCA 542, at paragraph 30. The evidence is not admissible to show a general propensity to engage in sexual misconduct, but rather to show a specific propensity to assault young daughters of his live‑in girlfriend. Such was the case in R. v. B.(R.), 77 O.R. (3d) 171, at paragraph 11. [39] I find, considering the various factors listed by the court at paragraph 82 of R. v. Handy, that the evidence is admissible as similar fact evidence in this case. Not only is there no evidence of collusion, the evidence overwhelmingly supports the finding that the complainant's evidence was not tainted in any way by the evidence of the other complainant. Inconsistencies in the evidence of the complainants are, in my view, minor in nature and readily attributable to their age at the time and the passage of time since the events. The proper approach to their evidence is that recognized by our Court of Appeal in R. v. Curtis, [2000] B.C.J. No. 2449, at paragraphs 8 and 9, and the unique perspective of children approach considered by the Supreme Court of Canada in R. v. W.(R.), [1992] 2 S.C.R. 122, at

paragraph 25. [40] I do not accept the evidence of V.J. and the accused that they held discussions with the complainants about good and bad touching. Such a precaution was not only strongly contradicted by the complainants themselves, it is wholly out of keeping with the dysfunctional operation of the household itself. [41] The defence acknowledged that this is a W.(D.) case, plain and simple. I quite agree. Both complainants are credible and candid in their evidence concerning the assaults they say they endured. Though S.P.'s evidence suffered from other difficulties, and most notably her attitude, the central core of her evidence remained untouched. I accept and believe the evidence of both complainants. The issue then turns to a consideration of R. v. W.(D.), [1991] 1 S.C.R. 742, where Cory J. at page 758 outlined the proper considerations to be left with the jury: a) First, if you believe the evidence of the accused, obviously you must acquit. b) Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. c) Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether or not, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [42] In R. v. H.(C.W.), 1991 CanLII 3956, (1991), 68

C.C.C. (3d) 146, our Court of Appeal considered this set of instructions. Wood J.A. gave the judgment for the court. His remarks and judgment have been considered by many commentators and characterized as either a gloss on the test outlined by Cory J., or an additional fourth step. Whichever you consider it to be, writing for the court, he observed at page 155: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [43] I accept and apply this as simply expanding the test touched on and described by Mr. Justice Cory. [44] I accept the complainants' evidence and reject the accused's denials of the acts alleged. I further conclude, after careful consideration, that his evidence and the evidence of V.J. does not raise a reasonable doubt. In considering the accused's evidence, I am persuaded that: a) His evidence, on important matters, was exaggerated, false, and in some cases contrived. In particular, his evidence that over the time period from February 2003 to November 1, 2004, he never entered the girls' bedroom and was uncertain about its layout and contents, is unreasonable, fanciful, and contrived. This was a small three‑bedroom apartment with an area of something approximating 500 square feet, and the bathroom

with the only shower or bathtub was at the end of the hallway past the girls' bedroom. In addition, given his active role in both laundry and cleaning, I simply do not accept his version of events. Finally, V.J.'s rebuttal evidence directly contradicts his evidence in material ways, as does the evidence of the complainant, in particular M.S. b) The accused's evidence about not entering the girls' room lacks any credibility, but his evidence that A.J. Joseph lived with them the entire time they were living in the apartment was clearly concocted to offer a seemingly independent difficulty with the events unfolding as the complainants described. The problem with this evidence is that it is fabricated and untrue. His evidence on the point during cross was both inconsistent, fanciful, and lacking in any credibility. c) On the subject of A.J.'s living with them the whole time, his evidence varied considerably, even amongst only his evidence, and at different times he described it in very different language. d) On the subject of whether he ever entered the girls' room, once again his evidence changed significantly over the course of his own evidence. e) The accused's use of the extra eyes and ears concept from his sexual offender course may sound good, but there is nothing in the evidence to suggest it was ever put into effect, and not a single one of the seemingly innumerable people

he had constantly transitioning through their residence was ever called to testify concerning it. [45] I do not accept his evidence, and neither his evidence nor the evidence as a whole leaves me with a reasonable doubt. [46] I am satisfied that the Crown has proven beyond a reasonable doubt each and every element of all four offences charged. [47] Ms. Malfair, what is the Crown's position with respect to the entry of guilty verdicts? [48] MS. MALFAIR: My Lord, we would say that -- suggest that the sexual assault counts, which are Counts 1 and 2, are Kienapple'd by Counts 3 and 4. Given that the counts of sexual interference, perhaps not then, but now has a statutory minimum, of which sexual assault does not, it is the view that that is the more serious of the offences, and we would ask for a conviction to be entered on Counts 3 and 4, with a stay on Counts 1 and 2, please, My Lord. [49] THE COURT: Mr. Jones? [50] MR. JONES: I have no submissions to make with respect to that, My Lord. [51] THE COURT: Well, in my view, and the reason I have given the final portion of my reasons in the way I did, is my view, preliminary, subject to hearing from counsel, was that these offences are -- and I am referring to Counts 1 and 2 and Counts 3 and 4 -- are clearly Kienapple offences. [52] MR. JONES: Yes. [53] THE COURT: Not only are they Kienapple, they are virtually the identical Kienapple

offence considered in Kienapple, which was rape and having carnal knowledge with someone under the age of 14. The Supreme Court of Canada considered virtually the identical elements across those offences. [54] Very well. The accused, will you please stand, sir. [55] I find you guilty on Counts 3 and 4. My understanding is that the Crown has or is about to stay Counts 1 and 2. [56] MS. MALFAIR: Stay Counts 1 and 2, please, My Lord. "Parrett J."