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Docket: |
CA027071 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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ORAL REASONS FOR JUDGMENT |
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Before:
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The Honourable Madam Justice Saunders
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September 27, 2002
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The Honourable Mr. Justice Smith
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The Honourable Mr. Justice Hollinrake |
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Vancouver, B.C. |
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BETWEEN: |
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REGINA |
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RESPONDENT |
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AND: |
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ER FENG GUAN |
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APPELLANT |
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W. Smart, Q.C. J. Austin-Olsen |
appearing for the Appellant |
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K. Gillett |
appearing for the Respondent |
THERE IS A PUBLICATION BAN PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE DIRECTING THAT THE IDENTITY OF A COMPLAINANT OR A WITNESS AND ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF THE COMPLAINANT OR WITNESS SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY
[1] SMITH, J.A.: The accused appeals from his conviction by a Provincial Court judge of the sexual touching of a person under fourteen years of age, contrary to s. 151 of the Criminal Code.
[2] These facts are not in dispute. The complainant was five years of age on November 20, 1998, when the material events occurred. The complainant’s mother was a friend of the appellant and of his wife. On November 20, 1998, the complainant and her mother had dinner with the appellant and his family, including his three year old daughter, at the appellant’s home. After dinner the complainant’s mother and the appellant’s wife left to go shopping leaving the complainant and the appellant’s daughter in his care. The appellant’s wife asked him to give their daughter a bath. While the women were gone the appellant placed his daughter in the bath and the complainant joined her. The appellant then went to the living room to watch television.
[3] Shortly, thereafter, the complainant called the appellant to come to the bathroom and told him that there were worms in the bathwater. The appellant entered the bathroom, lifted the complainant out of the bath, placed her on the toilet seat, and spread her legs apart. He knelt in front of her and looked at her vaginal area and then placed her back in the bathtub. He returned to watching television. About twenty minutes later he went back to the bathroom where he urinated in the presence of the two girls.
[4] The factual dispute concerns what happened while the complainant was seated on the toilet seat on the first occasion that the appellant entered the bathroom. The complainant testified that while she was seated on the toilet the appellant “put that thing in here for three times and stopped”. She indicated on diagrams that the “thing” was his penis and “here” was her vaginal area.
[5] The appellant, who testified, agreed with the complainant on everything that she said except with her description of the sexual encounter. He said that when he asked the complainant where she had seen the worms, she indicated her crotch; that he examined her on the toilet seat in order to allay her concerns, and that he placed her back in the bathtub and returned to watching television in the living room. He denied any sexual touching of the complainant. He said that he returned to the bathroom about twenty minutes later and urinated in the toilet, and that the two girls laughed as he did so.
[6] During her cross-examination, the complainant agreed with defence counsel’s suggestions that the appellant left the bathroom after the incident on the toilet seat and went to watch television; that he came back to the bathroom later while she was still in the bathtub; that he went to the toilet; that he took his zipper and took out “the thing that boys have and girls don’t have”; and that she saw “white stuff coming out and going into the toilet.”
[7] That evidence could be seen as supportive of the appellant’s description of the events. As well, it is significant in relation to the testimony given by the complainant’s mother and by a social worker, Ms. Lee, who spoke to the complainant after the mother had called the police.
[8] The complainant told her mother of the incident four days after it occurred. The complainant’s mother said that the complainant told her that “there was some whitish wet thing coming out of that place of uncle’s.” Ms. Lee, who interviewed the complainant the same day, shortly after her mother called the police, made a note that the complainant told her that “white stuff came out of where he went pee.” Constable Ennis, who was present when Ms. Lee spoke with the complainant, confirmed the accuracy of Ms. Lee’s note. Both the mother and Ms. Lee related the complainant’s reference to “white stuff” in the context of a description by the complainant of the alleged sexual touching.
[9] In addition to the statements to her mother and to Ms. Lee, the complainant provided a video taped statement the following day. All three statements were admitted into evidence without objection by the defence. In none of the statements did the complainant say anything about the appellant entering the bathroom a second time. As well, the complainant made no mention of “wet whitish thing” or “white stuff” in her testimony in direct, nor in the video taped statement. The only evidence of this came through her mother and through Ms. Lee.
[10] Following the Crown’s opening statement at the outset of the trial, the trial judge invited defence counsel to state his position. Counsel made it clear that the appellant accepted everything the complainant said except in respect of the sexual touching, which he denied, and that it would the defence position that the complainant conflated the two events, that is, a benign examination of the complainant for worms and a later act of urination. In other words, while the adults who spoke with the complainant after the incident believed that she was recounting a sexual touching, what she was in fact telling them was that she saw the accused urinate and that the “white stuff” that she described was simply urine.
[11] Defence counsel readily conceded that there was a body of evidence before the trial judge which, if properly considered and accepted, would support a conviction. However, he emphasized the opportunities for misunderstanding that were present in the case. The complainant was only five years old. She had never seen an adult penis and had never seen an adult male urinate before this occasion. As well, he said, she would have had difficulty expressing to the adults with whom she spoke what it was that she observed. Her vocabulary did not contain the requisite words. Accordingly, counsel submitted, the suggestion that she might have described urine as “white stuff” is not farfetched. Moreover, counsel submitted, the complainant and her mother spoke to each other in Cantonese, the complainant spoke to Ms. Lee and on the video tape in English, and the complainant and her mother testified in Cantonese with the assistance of an interpreter. As well, Ms. Lee’s notes of what the complainant told her were not made until two and one-half hours after the statement and, according to Constable Ennis, after she and Constable Ennis had discussed the interview. Further, Constable Ennis testified that before the interview with the complainant they spoke briefly with the complainant’s mother about what the complainant had told her. The possibilities of inaccuracies, miscommunications and misunderstandings were very real throughout, in counsel’s submission. Against this backdrop, he said, the proper assessment of the credibility and reliability of the competing versions of events given by the complainant and the appellant was crucial.
[12] Moreover, counsel pointed out, despite knowing the defence theory at the outset of the evidence the Crown made no attempt to lead evidence from the complainant about the appellant returning later and urinating or about the “white stuff”. Further, after cross-examination, during which the complainant agreed that the appellant had indeed returned and, that she had seen him go to the toilet and take out his “thing” and that she had seen the “white stuff come out and go into the toilet”, the trial judge asked Crown counsel if she wished to cross-examine. Crown counsel declined to do so. Thus, the Crown did not directly challenge through the complainant the defence theory that she was conflating the two events.
[13] The appellant’s primary ground of appeal before us is that the trial judge erred in his approach to assessing credibility. The appellant says that the trial judge weighed the complainant’s testimony in the light of the other supporting evidence, concluded that he believed her, and, for that reason, rejected the appellant’s testimony. In the appellant’s submission, the trial judge failed to apply the approach to conflicting evidence set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at 409:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, 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.
[14] The appellant complains that, by focusing on the credibility of the complainant, the trial judge neglected to consider the testimony of the appellant in the light of all of the evidence and to consider whether it raised a reasonable doubt. The appellant says that, in effect, having concluded that he believed the complainant the trial judge went directly to a conviction.
[15] This was not one of those decisions given expeditiously in the usual press of business in the busy Provincial Court. The trial judge reserved his decision after submissions for approximately two months and delivered considered reasons. Although the learned trial judge gave careful and articulate reasons for convicting the appellant, the focus of his reasoning was clearly upon the credibility and reliability of the complainant’s narration of the events. In my view, he fell into error in approaching his deliberations in that way.
[16] After summarizing the evidence presented by the Crown and by the defence, the trial judge began his analysis by noting that the complainant is a five-year-old child and by referring to the remarks of the Supreme Court of Canada in G.B., A.B., and C.S. v. The Queen (1999), 56 C.C.C. (3d) 200 and in R. v. C.C.F (1997), 120 C.C.C. (3d) 225 to the effect that the evidence of young children ought not to be subjected to the same exacting standard as that of adults. He said, in part:
While children may not be able to recount precise details and communicate the where and the when of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. The credibility of every witness who testifies before the courts must of course be carefully assessed, but the standard of a reasonable adult is not necessarily appropriate in assessing the credibility of young children.
[17] After instructing himself in that way, the trial judge remarked on his approach to the complainant’s testimony in these words:
As the trier of fact, I have had the opportunity to observe the manner and demeanour of C. and assess her personality, intelligence and reliability.
[18] The trial judge then set out his observations in favourable terms and at some length about the complainant’s testimony and about her mother’s testimony. In this section of his Reasons, which occupies approximately seven pages of transcript, he incorporated comments about what Ms. Lee wrote down after her interview with the complainant and he accepted her notes as accurate. The trial judge considered, as well, the video taped statement and expressly accepted it as reliable. It is clear from his comments that he based this conclusion on his observations of the complainant’s demeanour during the video taped interview.
[19] Next, the trial judge considered the testimony of the appellant. In approximately one and one-half pages of transcript he identified several improbabilities in the appellant’s version of the events and some post offence conduct of the appellant that he considered to be incriminatory as “consciousness of guilt”. He made no mention in this section of his reasons of the testimony of both the complainant and the appellant, that the appellant returned to the bathroom a second time and urinated in the presence of the complainant, nor any mention of defence counsel’s submission that what the complainant was describing when she referred to the appellant’s “thing” and to “white stuff” was that incident, and not an incident of sexual touching.
[20] Following his comments about the appellant’s evidence, the trial judge returned to the complainant’s evidence and devoted approximately two more pages to the discussion of what she said and of why he found what she said to be credible and reliable. He said, among other things, that a child of the complainant’s age was unlikely to have had any knowledge of sexual acts and that it was therefore unlikely that she would have concocted an untrue story. This observation he reasoned “imbues her statements … with its own particular stamp of reliability.” That could be so if she were describing an incident of sexual touching, as the trial judge found, but it takes no account whatever of the submission of defence counsel that she was, in fact, describing the appellant urinating rather than touching her sexually. The only allusion to the appellant’s version of events in the whole of these Reasons for Judgment was later in this section where the trial judge said:
8. [C.] referred in her statements to her mother and to Ms. Lee that she saw “wet white stuff” come out of the accused’s penis. In a normal healthy male person, urine is yellow and mostly clear, while “wet white stuff” is ejaculate. This leads to the conclusion that the accused, as [C] described him “wiggling” his penis, had masturbated.
[21] The trial judge did not explain why he rejected the appellant’s evidence or why he rejected defence counsel’s submission. Indeed, he did not refer to defence counsel’s submission at all. Moreover, in my view, he failed to consider the complainant’s evidence in cross-examination that she saw the “white stuff” on the second occasion. It is not likely that an adult would describe urine as “wet, white stuff”. However, how would a five-year-old child with a limited vocabulary, who had never seen such an event before, describe a “yellow and mostly clear” substance? It does not appear to me that the trial judge turned his mind to that question. In my view, the trial judge did not give any consideration to the evidence given on cross-examination by the complainant or to the submission made by defence counsel based upon that evidence and the evidence of the appellant.
[22] The next section of the trial judge’s reasons is entitled “Conclusions”. There, he said:
Conclusions
1. I have, I believe, carefully assessed the credibility of [C.], and while she may not have been able to recount precise details and always communicate them in an articulate fashion expected of an adult, I do not believe that she has misconceived what happened to her as she has best described it.
2. I am satisfied that there has not been any misinterpretation by Ms. Chen, by Stella C., nor by Ms. Lee, of what each had been told and shown to them by [C.]
In the result I find:
1. That the evidence of [C.] is reliable and truthful.
2. That the statements by [C.] to her mother, to Stella C., and to Ms. Lee, necessarily augment her version of events and are reliable.
3. Specifically, I find that the accused lifted [C.] out of the tub, placed her on the toilet seat, knelt down in front of her, spread her legs, and placed his penis, from which ejaculate had come, against her body.
4. I, accordingly reject the evidence of the accused where it is in conflict with that of [C.] and the other Crown witnesses.
[23] The trial judge’s statements in that passage that he “carefully assessed the credibility” of the complainant, and that he found her to be “reliable and truthful”, without any mention of having carefully assessed the credibility of the appellant in the context of the whole of the evidence in order to determine whether his evidence raised a reasonable doubt, suggest that he failed to approach his analysis of the evidence in the manner mandated by R. v. W.(D). The strength of that observation is amplified by his statement that since he accepted the complainant’s version he “accordingly” rejected the appellant’s evidence.
[24] In my respectful view, to reject the appellant’s evidence as a consequence of believing the complainant is wrong. The trial judge gave no explicit consideration to the theory of the defence. He relied entirely on his belief of the complainant’s evidence as he interpreted it and, at bottom, his belief of the complainant rested on his assessment of her demeanour. It appears from the reasoning of the trial judge that he simply chose the complainant’s version of events over the appellant’s version without considering whether, on a weighing of the whole of the evidence, the appellant’s evidence raised a reasonable doubt. In my view that is an error of law.
[25] As well, it is my view that the trial judge overlooked important relevant evidence when he reached his conclusion that the complainant had ejaculated during a sexual touching of the complainant without any reference to the evidence given by the complainant on cross-examination, which was at least capable of supporting the appellant’s exculpatory explanation.
[26] Accordingly, I would allow the appeal, set aside the conviction, and direct a new trial.
[27] SAUNDERS, J.A.: I agree.
[28] HOLLINRAKE, J.A.: I agree.
[29] SAUNDERS, J.A.: The appeal is allowed. The verdict of guilty is set aside and the matter is remitted to the trial court for a new trial.
“The Honourable Mr. Justice Smith”