



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Hernandez-Lopez,









2020 BCCA 12




Date: 20200114

Docket: CA45577

Between:

Regina

Respondent

And

Milton Gilberto
Hernandez-Lopez

Appellant

Restriction
on publication: A publication ban has been imposed under
section 486.4 of the
Criminal Code
restricting the publication, broadcasting
or transmission in any way of evidence that could identify the complainant
and witness referred to in this judgment by the initials AD. This publication
ban applies indefinitely unless otherwise ordered.




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fisher




On appeal from:  An
order of the Supreme Court of British Columbia, dated
August 3, 2017 (
R. v. Hernandez-Lopez
, 2017 BCSC 2555,
New Westminster Docket No. X079453).




Counsel for the Appellant:



M.E. Sandford, Q.C.

A. Tolliday





Counsel for the Respondent:



J.R.W. Caldwell





Place and Date of Hearing:



Vancouver, British
  Columbia

September 3, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2020









Written Reasons by:





The Honourable Mr. Justice Groberman





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Madam Justice Fisher




Summary:

The appellant, who was
supervising a daycare, was alleged to have engaged in sexual touching of AD, a
four-year-old child. The only evidence dealing with the touching came from AD;
the appellant did not testify. The judge did not hear expert evidence on the
assessment of child evidence, nor was any academic literature on that issue
referred to by counsel. In his reasons, however, the judge referred to a law
review article that made observations with respect to the evidence of children.
He found ADs evidence convincing. In doing so, he noted that ADs answers to
open-ended questions were more detailed and more probative than her answers to
leading questions. He also commented on the witnesss demeanour. He convicted
the appellant. Held: Appeal dismissed. The law review article made observations
with respect to the evidence of children, but was not used as expert evidence.
The judge used it as a convenient summary of common-sense observations with
respect to child evidence, and such use was not improper. The judges
assessment of the weight to be given to particular answers and his observations
of the witnesss demeanour were within his purview, and did not give rise to
reversible error. Finally, the judges comment that the accused might have
masturbated after the event was unnecessary, but was not used to draw an
inference of guilt.

Reasons for Judgment of the Honourable
Mr. Justice Groberman:

[1]

Mr. Hernandez-Lopez appeals from his conviction on one count of
sexual touching of a person under the age of 16, contrary to s. 151 of the
Criminal Code
, R.S.C. 1985, c. C-46. The offence was alleged
to have occurred at a time when he was supervising a residential daycare
operated by his wife. The victim, AD, was under five years old at the time of
the offence and seven years old at the time of trial.

[2]

The allegations against Mr. Hernandez-Lopez are that, after getting
AD alone within the residence, he licked his finger and inserted it into the
childs vagina. After he withdrew his finger, it is alleged that he left the
child and went into a washroom.

[3]

The only direct evidence of the touching was given by AD. Other evidence
presented at the trial showed that Mr. Hernandez-Lopez was present at the
daycare and alone with the children for approximately 30 to 45 minutes on the
day in question, and that the victim suffered from inflammation of the labia
majora that was consistent with the events that she described, though also
consistent with other causes.

[4]

Mr. Hernandez-Lopez did not testify. The judges finding of guilt
turned on his assessment of the reliability and credibility of ADs evidence.

[5]

On this appeal, Mr. Hernandez-Lopez contends that the judge made
four errors in his assessment. First, he says that the judge erred by
improperly consulting and relying on a law review article that set out bases
for assessing the evidence of children. Second, he contends that the judge
erred in applying a principle that a child witnesss answers to open-ended
questions deserved greater weight than answers to leading questions. Third, he
argues that the judge placed too much reliance on the demeanour of the child in
making his assessments of credibility and reliability. Finally, he says that
the judge erred in drawing an inference for which there was no evidence: the
inference that the accused went into the washroom to masturbate after the
touching incident.

[6]

For reasons that follow, I would dismiss the appeal. In terms of the
four issues raised, it is my view that:

a)

the judges
reference to the law review article was not inappropriate;

b)

it was open to
the judge to find that certain answers given by the child in cross-examination
were of limited assistance and his findings were not the result of the adoption
of any erroneous principle;

c)

the judge
was entitled to consider the witnesss demeanour, and did not, in this case,
place undue reliance on demeanour in assessing credibility and reliability; and

d)

while the judge
did, in finding that the accused masturbated after touching the child, draw an
inference without an evidentiary foundation, the improper inference did not
play any role in the verdict.

The Law Review Article

[7]

Counsel at trial did not provide the judge with any case law or legal
articles dealing with the evidence of children, though they did make some
common-sense observations and made suggestions as to how the judge should go
about assessing ADs credibility and reliability. The primary issue on this
appeal concerns the judges use of a law review article that he came across on
his own.

[8]

The judge recognized that the evidence of young children must be
evaluated differently from the evidence of adults. He quoted from four
authorities that discuss the special approach that should be taken to the
evidence of children:
R. v. E.(A.W.)
, [1993] 3 S.C.R. 155;
R. v. L.(D.O.)
,
[1993] 4 S.C.R. 419;
R. v. F.(C.C.)
, [1997] 3 S.C.R. 1183; and
R. v. B.E.M.
, 2010 BCCA 602. The portions of those cases that
he cited also included references to
R. v. B. (G.)
, [1990] 2
S.C.R. 30;
R. v. (W.R.)
, [1992] 2 S.C.R. 122. Finally, the
judge referred to
R. v. Ceal
, 2012 BCCA 19.

[9]

After referring to these cases, the judge discussed an article published
in the Alberta Law Review. I quote his discussion in full:

[30]      I also refer to Bala et al. Judicial Assessment of
the Credibility of Child Witnesses (2005) 42 Alta. L. Rev. 995-1017 in which
the learned authors refer to psychological research on child witnesses in
addition to a review of Canadian legal authorities. Included in their
publication are the following statements, which are apt in the case at bar:

13  A major concern with child
witnesses is their potential suggestibility. As a result of repeated or
misleading questions, the memory of a witness may become distorted. It is
possible for a person who has been subjected to repeated, suggestive
questioning to develop memories of events that did not in fact occur. While
children, especially young children, are more suggestible than adults, there is
great variation between individuals of the same age in suggestibility and in
resistance to suggestion. There is a large body of experimental research about
the suggestibility of children, as well as some research about the
suggestibility of adults.

14  The way in which children are
questioned can also greatly affect what they are able to communicate. Research
studies reveal that children and adults generally provide more information in
response to specific questions rather than to the open-ended questions that are
typically posed during direct examinations of witnesses. Children, especially
young children, may lack the cognitive capacity to provide meaningful and
consistent answers to questions that involve frequency of events, time or size,
or that require explanation of motive (why questions), though if asked they
will usually try to answer. In addition, yes or no questions are problematic
as children, especially young children, may have a bias to produce yes
answers, and when asked such questions by unfamiliar adults, young children
will rarely respond with I dont know.

15  Children, especially young
children, are socialized to provide responses to questions, even if they do not
fully understand what is being asked. Children who are asked questions that
they do not fully understand will usually attempt to provide an answer based on
the parts of the question that they did understand, so that a childs answer to
a question may seem unresponsive or may even be misleading.
[1]
The authors comments about
childrens inability to estimate the frequency of events, time or size, as well
as their tendency to try to answer questions that they may not fully understand
might have affected AD and her responses to questions at trial. For instance,
AD was unable to answer questions posed to her by defence counsel during
cross-examination about what month she started attending or left the daycare,
approximately how far the daycare was from her house or how old young SH was
when the offence occurred. Defence counsel sometimes posed confusing questions,
such as thats probably not what happened, isnt it? to which ADs answers
may have seemed unresponsive, such as I dont remember.
[10]

Mr. Hernandez-Lopez argues that the judges reliance on this
article was improper. He characterizes the article as extraneous expert
opinions that were not properly admitted or tested at trial. He suggests that
this case is like
R. v. Bornyk
, 2015 BCCA 28, in which a trial judge
independently researched publications on fingerprint evidence, and then relied
on the expert evidence contained in those publications in preference to the
evidence before him at trial.
[11]

In my view, this case is not analogous to
Bornyk
. The judge in
Bornyk
was dealing with a highly specialized and technical area, in which opinions
could only reasonably be drawn with the assistance of witnesses possessing
specialized training and experience. The judge improperly used published
articles as substitutes for expert opinion evidence. In contrast, the judge in
this case was dealing with a subject very much within his own purview: the
assessment of the credibility and reliability of a witness.
[12]

I do not suggest that a judge is entitled, when assessing the veracity
of a witnesss testimony, to rely on expert evidence that is not properly
before the court. Not every reference to a publication, however, amounts to
reliance on outside expertise. Sometimes, a judge may refer to a publication
because it provides a concise and easily understood discussion of a concept, or
because it provides an accessible illustration of the judges thinking.
[13]

A judge, for example, may explain why an overstated denial lacks credibility
by quoting Queen Gertrude in Shakespeares
Hamlet
: The lady doth
protest too much, methinks (see, for example, Hardinge J. in
Shandro v.
Central Guaranty Trust
, [1992] B.C.J. No. 1220, 1992 CarswellBC 1889;
G.C. Weatherill J. in
Siddall v. Bencherif
, 2016 BCSC 1662 at para. 189).
It cannot be said that Shakespeare is being used as an expert witness in those
cases. Rather, the reference simply furnishes an illustration of a concept that
is widely understood.
[14]

The use of the Bala article in this case falls somewhere between the
clearly inappropriate use of published material in
Bornyk
, and the
clearly innocuous references to
Hamlet
that I have referred to. The
judge in this case was not referring to the Bala article merely as a literary
analogy; neither, however, was he relying on it to furnish critical evidence.
[15]

The Bala article appears in a law review, but it does not restrict
itself to legal analysis. It is interdisciplinary in nature, jointly authored
by a law professor, two psychology professors and an articling student. The
main part of the article (which was not relied on by the judge) presents the
results of two studies: a) an empirical study that attempted to determine how
well judges and other professionals are able to assess the honesty and
reliability of child witnesses; and b) a study of how Canadian judges perceive
child witnesses. The article includes references to and reports of experimental
data and empirical studies. Parts of it lie within the realm of specialized
expertise. Those parts could not properly have been relied on by the trial
judge in this case, and he did not rely on them.
[16]

The judges reference to the article is to an introductory portion
headed Psychological Research on Child Witnesses. That portion of the article
deals with commonplace knowledge. The authors preface it with the following
paragraph:
There has been a significant
amount of psychological research about the memory, suggestibility and
communication capacity of children, and the discussion offered here is only
intended to summarize a large and complex body of literature.
[17]

While the authors mention a number of studies in footnotes to the three
paragraphs referred to by the trial judge, the paragraphs, themselves, do not
refer to any particular empirical study. They simply describe generally
accepted propositions that apply to the evidence of children.
[18]

The excerpts of the Bala article cited by the judge do not contain any
information that is not already generally known by any person who has contact
with young children. The ideas contained in those excerpts must, of necessity,
be part of the basic toolbox that any judge hearing a case involving child
witnesses must employ.
[19]

Indeed, if one parses the paragraphs quoted by the judge, it becomes
apparent that the statements they contain are, for the most part, already
reflected in judicial commentary and practice. The phenomenon of child
witnesses being suggestible is well known. For example, this Court noted
concerns with respect to the suggestibility of a child witness in
R. v.
Horswill
, 2018 BCCA 148 at para. 49. The idea that repeated
suggestions to a child can implant memories was referred to in
R. v. E.A.L.
(1998), 130 C.C.C. (3d) 438 (Ont. C.A.) (appeal dismissed
R. v. Lance
,
[1999] 3 S.C.R. 658). Forensic interviews of children where sexual abuse is
suspected must be conducted in such a way as to avoid this difficulty.
[20]

The frequent inability of children to describe, with precision, the time
and place of an event or even its details has been commented upon in numerous
cases, among them
R. v. F. (C.C.)
at para. 47 and
R. v. B.E.M.
at
para. 35, both of which were cited by the trial judge.
[21]

I do not read the judges reasons as suggesting that he relied on the
Bala article as an instruction manual for assessing the evidence of children.
Rather, he used the three quoted paragraphs of the article as a convenient
summary outlining generally-understood and common features of the evidence of
children. The concepts that the judge relied on did not lie outside of the
general knowledge that judges are required to apply in assessing the evidence
of witnesses.
[22]

In short, the judge reached his conclusions as to how he should assess
the childs evidence based on his own experience and knowledge, as well as on
his reading of case authorities. His citation of the Bala article simply
collected a number of observations in a clear and concise summary, and showed
that the observations are generally known and accepted.
[23]

The use of published academic literature to show that certain concepts
are generally accepted is not uncommon. The Supreme Court of Canada often
refers to social science literature for that purpose (see, for example,
R.
v. Oickle
, 2000 SCC 38 at paras. 3436). A judge must
exercise caution in making such use of articles, however, to ensure that trial
fairness is not compromised.
[24]

Given the very general nature of the observations in the part of the
article cited by the trial judge, and the notoriety of the information
conveyed, I can see no possibility that trial fairness was compromised. It is
safe to conclude that the judges reference to the Bala article was only for
the purpose of providing a convenient summary of generally-known concepts that
he was bringing to bear on the case.
[25]

In the result, I am not persuaded that the judge made any error in his
use of the Bala article.
The Judges View that Answers to Leading Questions
Deserved Less Weight
[26]

The second ground of appeal concerns the judges preference for certain
answers given by the complainant in her interview and in direct examination
over answers given in cross-examination. This preference is first suggested in
his summary of the Crown position:
[32]      The Crown submits that the following elements of
ADs testimony, both in the statement given to Cst. Ellis and in her evidence
at trial, reveal its credibility and reliability:
a)   The most weight should be given
ADs answers to open-ended questions posed by Cst. Ellis and on direct
examination at trial as opposed to her answers to leading questions posed
during cross-examination. The Crown submits that AD gave direct and clear
answers to open-ended questions when she was not being prompted and submits
that such answers are more trustworthy than her answers given to leading
questions, which suggested particular answers. During submissions, the Crown
gave several examples of the differences in ADs answers to such questions. My
review of the transcripts supports the Crowns submission in this respect.
[27]

In his conclusions, the judge remarked that he was impressed by ADs
responses to open-ended questions. Mr. Hernandez-Lopez, in his factum,
takes issue with the judges assessment of the evidence:
It is submitted that the trial judges approach was
erroneous. Answers to leading questions posed in cross-examination are not
inherently of less weight or less trustworthy than answers to non-leading
questions in direct or questions asked in an open-ended manner in a police
interview of a child complainant.

The approach taken unfairly
skewed the assessment of credibility and reliability in favour of the Crown.
The adversarial system has incorporated cross-examination as an essential tool
in the fact-finding process. In the oft-cited description of Wigmore it is the
greatest legal engine ever invented for the discovery of truth. If the trier
of fact approaches the assessment of the evidence from the starting point that
answers to leading questions posed in cross-examination are of lesser weight
and are less trustworthy than those given in response to open-ended questions
asked in direct, or open-ended questions asked in a police interview, that the
latter two are in effect the best evidence, then that engine is deprived of
its most effective fuel.
[28]

I do not quarrel with the proposition that a judge is required to fully
consider the quality of the evidence given in both examination-in-chief and in
cross-examination. I also agree with the proposition that a judge must not
approach the assessment of the evidence with a pre-disposition to accept
answers given in direct examination over answers given in cross-examination.
This does not mean, however, that a judge is precluded from reaching an honest
assessment to the effect that a particular witnesss responses to open-ended
questions are more reliable than that witnesss answers to leading ones.
[29]

Not all witnesses react the same way to questioning. Some are
forthcoming and careful in their answers. Others are reticent to give
information, or are imprecise. Suggestibility is a problem for some witnesses,
while others are excessively suspicious of agreeing with any proposition put to
them.
[30]

While it is not true of all witnesses, some are more cogent when they
are responding to open-ended questions, giving clearer and more detailed
answers to such questions.
[31]

Leading questions, on the other hand, can sometimes be ineffective in
eliciting useful evidence from witnesses who are nervous, suggestible, or
easily confused. In the case of child witnesses, these frailties are not
unusual. While leading questions are permitted in cross-examination,
cross-examination need not consist of
only
leading questions. An
effective cross-examination will usually combine leading questions with
questions that do not suggest an answer.
[32]

I do not read the judgment in this case as suggesting that the judge
adopted a principle of favouring answers given in direct examination over those
given in cross-examination. Rather, the judge simply found that ADs answers in
direct examination and in response to direct questions in cross-examination
were more helpful than her answers to leading questions.
[33]

A perusal of the transcript reveals that many of the questions put in
cross-examination were complex, and some were convoluted. The child was asked
questions that included the probability of events occurring, and questions
that juxtaposed events in a confusing manner. It is evident that the childs
intellectual capacity was not up to answering at least some of the questions.
It is not surprising, then, that the judge did not find those answers useful.
[34]

The judge did not apply a principle that answers by a child to
open-ended questions should be given more weight than answers to leading
questions. Rather, he found that the answers that AD gave to certain leading
questions in this case were of limited value, a finding that was open to him. I
am not persuaded that the judge made any error in the relative weight that he
gave to ADs answers to questions posed in direct examination and those posed
in cross-examination.
The Judges Treatment of Demeanour
[35]

The third ground of appeal relates to the judges comments on ADs
demeanour in giving evidence. At para. 37 of his reasons, the judge said:
Both in her statement to Cst.
Ellis and in her testimony at trial, AD was clear and direct in her answers,
consistent in describing the offending conduct of the accused and unambiguous
when faced with open-ended questions. Especially during the statement, she was
very consistent in describing the conduct of the accused, referencing him
wetting his finger and placing it in her parts. She never varied from that
description. It was also apparent that she was very anxious towards the end of
her cross-examination and upon being told she was free to leave, raised her
arms and looked up in apparent relief. Her demeanour suggested to me that she
may have agreed with some of defence counsels suggestions out of sheer
exhaustion.
[36]

While the paragraph appears under the subheading demeanour, most of it
is devoted to a discussion of the consistency and clarity of the witnesss
evidence and not with demeanour,
per se
. Only the portion dealing with
the exhaustion of the witness is directed towards demeanour.
[37]

It is the judges role to analyse the testimony of witnesses, and
observing their demeanour is a part of that role. The judge did not emphasize
demeanour to the exclusion of other considerations, nor did he give undue
weight to demeanour as a factor in assessing the evidence.
[38]

The trial judges description of AD agreeing with some of the defence
counsels suggestions out of sheer exhaustion may have been overstated given
that ADs testimony was not long (having been completed within one afternoon).
However, the judge was dealing with a seven-year-old witness, not an adult, and
the transcript records him observing that AD looked happy at the conclusion
of the questioning. It is apparent that the judges view that AD was becoming
exhausted with the questioning arose not only from her rather equivocal
reaction when advised that she was free to leave, but also from the manner in
which she answered questions. The judge had an opportunity to observe the
witness and did not err in using his observations in assessing the weight to be
applied to her answers. I do not see that this Court is in a position to
second-guess his assessment.
[39]

In short, I am not persuaded that the judge erred in his use of the
witnesss demeanour as a factor in assessing her credibility and reliability.
The Inference that the Accused Masturbated after Touching the Victim
[40]

AD gave evidence that after the accused engaged in sexual touching, he
went into a washroom to urinate. The judge referred to that evidence as
follows:
AD also volunteered that the
accused went to the bathroom after he touched her parts which again I find
would be a description that only someone who had seen it would come up with. He
likely at that point was masturbating in the bathroom as submitted by the
Crown.
[41]

The accused contends that the judge improperly drew the inference that
the accused masturbated and then used that inference to support a guilty
verdict to the offence of sexual touching. I agree that if the judge had
engaged in such reasoning, it would have been an error. Only if the judge was
already convinced that the accused had engaged in sexual touching would there
be any basis for an inference that he masturbated when he entered the washroom.
[42]

As I read the judges reasons, however, he did not draw an inference
that the crime was committed from the fact that the accused entered the
washroom. Rather, the quoted excerpt of the judgment does no more than comment
on the detailed nature of ADs account of events and on its plausibility.
[43]

The judges comment on the probability that the accused masturbated was
unnecessary and improper speculation, but nothing in the judgment suggests that
he used that speculation to infer that the accused was guilty of the crime
charged.
[44]

The judge convicted the accused based on his analysis of the evidence,
and, in particular, on his finding that the evidence of AD proved the offence
beyond a reasonable doubt. He did not base his finding on speculative inferences.
[45]

Accordingly, this last ground of appeal must also fail.
Conclusion
[46]

As the trial judge made no error in finding the accused guilty of sexual
touching, the appeal should be dismissed.
The Honourable Mr. Justice Groberman
I AGREE:
The Honourable Chief Justice
Bauman
I AGREE:
The Honourable Madam Justice
Fisher



[1]
The paragraph numbers used by the trial judge do not appear in the article as
published. The judge omits reference to the articles footnotes. The quoted
paragraphs appear at pp. 999-1000 of the published article.

