IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160201

Docket: S62485

Registry:
Nanaimo

Between:

T.M. by her
litigation guardian A.M.

Plaintiff

And

G.M.

Defendant

Before:
The Honourable Mr. Justice Josephson

Reasons for Judgment

[1]            
The infant plaintiff was sexually assaulted by the adult defendant while
the plaintiff was in and near the residence of the defendant and his wife
playing with his son. He pled guilty to criminal charges of sexual assault and
was sentenced. The issue in these proceedings is the assessment of damages
flowing from eight incidents of sexual assault.

[2]            
The only witness at trial was A.M., the mother and litigation guardian
of the infant plaintiff. As well, a written report of psychiatrist, Dr. Elisabeth
Zoffmann is in evidence.

[3]            
The bulk of the evidence is contained in an agreed statement of facts in
which the defendant admits the details of the eight incidents as follows:

1.         The Plaintiff, T.M., was born on March 7, 2003.

2.         The Defendant, G.M., resided in [Nanaimo, British
Columbia].

3.         T.M.’s grandparents lived across the street from
the Defendant.

4.         In the summer of 2008, T.M. became friends with
the Defendant’s son, and by late 2008 or early 2009, T.M. would go to the
Defendant’s house to play with the Defendant’s son.

5.         During several of these visits, the Defendant
committed several acts of a sexual nature upon T.M.

6.         The Defendant has admitted to sexual contact on
eight occasions:

The First Incident

a.         The first incident was in the Fall of 2009.

b.         T.M. was at the Defendant’s house, playing with
the Defendant’s son.

c.         The Defendant sent his son downstairs, picked up
T.M.,- and brought her into the main upstairs bathroom.

d.         While inside the bathroom, the Defendant asked
T.M. if he could see her vagina in exchange for candy.

e.         T.M. declined, but the Defendant persisted and
T.M. allowed him to pull her pants and underwear down.

f.          The Defendant looked at T.M.’s vagina and touched
her bum.

The Second Incident

a.         The second incident took place in the Defendant’s
kitchen.

b.         T.M. asked if she could have some candy.

c.         The Defendant said that T.M. could have some candy
if she showed him her vagina.

d.         The Defendant asked his son to go outside, then
pulled down T.M.’s pants and underwear and looked at her vagina for
approximately 20 or 30 seconds.

The Third Incident

a.         The third incident occurred in the master bedroom
of the Defendant’s house.

b.         The Defendant asked T.M. to show him her vagina
and bum in exchange for candy.

c.         T.M. resisted, but eventually agreed to do so.

d.         The Defendant asked T.M. to bend over, and then
the Defendant pulled down her pants and underwear.

e.         The Defendant had a video camera hidden in the
room, which he produced after T.M. was bent over.

f.          The Defendant video-recorded images of T.M.’s
exposed vagina from behind while T.M. remained bent over.

The Fourth Incident

a.         The fourth incident occurred in Summer 2010, when
the Defendant lifted T.M. into a fruit tree to pick fruit.

b.         The Defendant lifted T.M. with one hand holding
her body, and the other placed on her clothed vagina and rear.

The Fifth Incident

a.         The fifth incident occurred when the Defendant
told T.M. and his son that if they needed to use the washroom, they were to use
the en suite master bedroom bathroom.

b.         T.M. used that washroom.

c.         The Defendant hid a video camera in a wicker
basket in the washroom, and video recorded T.M. sitting on the toilet, pulling
her pants up, and walking out.

d.         The video recording captured images of T.M.’s
face.

The Sixth Incident

a.         The sixth incident occurred when T.M., T.M.’s
sister, and the Defendant’s son were having a water balloon or water gun fight
in the Defendant’s back yard.

b.         The Defendant saw T.M. sitting on a fort-style
playset by herself.

c.         T.M. started to come down from the playset, but
the Defendant picked T.M. up.

d.         The Defendant held T.M.’s shoulders and ribcage
with his left hand, and with his right hand he slipped his hand under T.M.’s
bathing suit and grabbed her behind.

e.         T.M. said “Please don’t, the other kids might see”
and the Defendant removed his hand, and placed T.M. back on the ground.

The Seventh Incident

a.         The seventh incident occurred in a spare bedroom
in the Defendant’s house.

b.         The Defendant placed a video camera under the bed.

c.         The Defendant asked T.M. to show him her vagina in
exchange for candy.

d.         T.M. first declined, but then agreed to do so
after a brief discussion.

e.         The Defendant placed T.M. on the floor in front of
him and positioned his body so that the bedroom door could not be opened.

f.          The Defendant then pulled down T.M.’s pants and
underwear, exposing her vagina.

g.         The Defendant produced the video camera from under
the bed and video-recorded her vagina up close.

h.         While video recording, the Defendant placed his
fingers on the outside of T.M. s outer labia and spread her labia for the video
recording.

i.          The video recording captured partial images of
T.M.’s face.

j.          The incident occurred over approximately 45-60
seconds.

The Eight Incident

a.         The eighth incident occurred in the upstairs of
the Defendant’s home.

b.         The Defendant’s son and T.M. were playing in the
Defendant’s son’s bedroom.

c.         The Defendant asked his son to go downstairs.

d.         The Defendant then stimulated his penis to an
erection under his shorts while in the presence of T.M.

e.         The Defendant asked T.M. to come to the master
bedroom.

f.          T.M. did so and positioned herself on the bed.

g.         The Defendant then kneeled down at the end of the
bed, exposing his erect penis to T.M.

h.         The Defendant then masturbated in front of T.M.
for approximately one or two minutes before ejaculating.

i.          The Defendant asked T.M. to get Kleenex for him,
which the Defendant used to clean himself.

j.          The Defendant then sent T.M. downstairs to play
with his son.

Police Investigation

7.         In September 2010, the Defendant was arrested and
released as part of an RCMP investigation into inappropriate sexual contact.

8.         On December 22, 2010, T.M. disclosed to her mother
that there had been sexual contact by the Defendant.

9.         T.M.’s mother reported to RCMP that her daughter
had been sexually assaulted by the Defendant.

10.       The RCMP interviewed T.M. and T.M.’s parents on
more than one occasion following the report.

11.       On approximately January 7, 2011, the RCMP arrested
and charged the Defendant with various charges of a sexual nature.

The Video Tapes

12.       The Defendant stated that he viewed the video tape
referenced in the third, fifth and seventh incidents approximately four or five
times.

13.       The Defendant stated that the videotapes were
destroyed.

The Criminal Proceedings

14.       On January 18, 2012, the Defendant pled guilty to
sexually assaulting T.M. between January 1, 2009 to June 30, 2010 in Nanaimo.

15.       The Defendant was
sentenced to 6 months of incarceration, less a day, to be served under a
Conditional Sentence Order in his home, to be following by a period of
probation of three years, which probation order continues.

A.M.

[4]            
The infant plaintiff, born March 7, 2003, was 6 years of age when the
incidents began and 7 years of age when they ended. The grandparents of the
infant plaintiff resided near her school and she was cared for by them after
school. The defendant and his family resided across the street. The infant
plaintiff frequently went to the residence of the defendant to play with his
similarly aged son.

[5]            
She described her daughter as exceptionally smart. She had behavioral
concerns as the infant plaintiff was “very distracted and impulsive”. As an
example, she testified that if the infant plaintiff saw a butterfly, she would
follow it onto a road. She would also go up to and talk to strangers. This
caused her and the school to wonder if the infant plaintiff was suffering from
attention-deficit hyperactivity disorder, but a pediatrician eliminated that
possibility. However, distraction problems continued at school and at home.

[6]            
The witness testified that she observed changes in the behavior of the
infant plaintiff beginning in grade one. She had been a happy child, but
“turned inward” and had constant “melt downs” at school. She played by herself
and was “no longer the happy kid I knew”. There were meltdowns prior to that in
kindergarten, but they were “nothing significant” and usually related to “kids
stealing toys”.

[7]            
The infant plaintiff also started “keeping things inside”. Meltdowns at
home were less frequent as she felt comfortable there. Similar problems
continued in grade two with stress and anxiety leading to meltdowns. Until
grade 5, the infant plaintiff isolated herself and was not able to make
friends.

[8]            
After the disclosure of the sexual assaults by the defendant, the infant
plaintiff “became a very angry child” and would lash out at kids at school. At
home as well, the infant plaintiff exhibited much anger.

[9]            
When these incidents were disclosed, the whole family reacted with shock
and emotional distress, understandably so. The infant plaintiff was emotionally
upset that she had been “lying” to her parents about the incidents for so long.

[10]        
Wisely, the family took the infant plaintiff to a sexual abuse
counsellor once or twice a week for some six months. The mother also took part
in the counselling to learn how to deal with her daughter after the sexual
abuse. In September of 2014, similar counselling continued for four sessions
only, interrupted by the mother’s need for medical treatment. The mother plans
to continue this counseling when possible. The focus of those sessions was to
assist the mother in communicating with her daughter as she enters puberty.

[11]        
The mother testified that the infant plaintiff’s anger lessened a year
after the disclosure, but she remains isolated and is “still not a happy bubbly
child”. This has improved at the present time, but remains a problem.

[12]        
After disclosure, the mother observed that the infant plaintiff acting
out in school in a sexually inappropriate manner, resulting in increased
isolation. The mother also described that the plaintiff developed an obsession
with candy during grade one, which continues unabated.

[13]        
The infant plaintiff also exhibited guilt and embarrassment, feeling
that she had done something wrong. Counselling has assisted in that regard.
Anger issues have lessened.

[14]        
The mother agreed in cross-examination that the infant plaintiff’s
kindergarten teacher noted that she had anger and defiance issues, but that
they were lesser concerns than what she observed in grade one. The meltdowns
and isolation worsened in grade one.

[15]        
The mother was and remains angry with the sentence imposed on the
defendant because “he’s still living at home while we are trying to deal with
the aftermath”.

Dr. Elisabeth Zoffmann

[16]        
Dr. Zoffmann’s report of October 29, 2014 is in evidence. Dr. Zoffmann
was not called as a witness. She was retained by the plaintiff to offer
opinions regarding any psychiatric or psychological conditions caused by the
sexual assaults, as well as a prognosis and treatment recommendations for any
such condition.

[17]        
At page 6 of the report, in describing her interview of the infant
plaintiff, Dr. Zoffmann stated:

She states that she feels that
the offender did not hurt her but that his behaviour was quite weird. She
denies having any intrusive unwanted recollections of the behaviour. She does
not have nightmares about the behaviour and states quite frankly that she finds
discussing the incidents quite boring.

At page 8:

[T.M.] presented as an
articulate youngster who was able to express herself fully. Her emotional
expression in the interview seemed happy and unanxious. There is no evidence of
anxiety or fear or disgust at discussing the issue of the sexual assaults.

At page 9:

It would probably be helpful for [T.M.] as well as her family
for her to receive some simple cognitive behavioural education on normal sexual
development and expectations between men and women or consenting partners of
any kind. In spite of the legal process and ensuring counseling, [T.M.] remains
quite naïve about this area of her development and this will become an issue as
she grows older.

1.         I do not believe that there is a specific
diagnosis at the present time. One might be tempted to characterize her
detachment as alexithymia or an exceedingly mild presentation of Asperger’s
syndrome but I am of the opinion that her current level of functioning places
her within the normal range and should not be pathologized unless she
experiences functional problems in the future related to this apparent
detachment.

2.         The prognosis with respect to the sexual
interference incidents is an open question. With the advent of sexual
maturation and physical development [T.M.] may find that the experiences will
affect her ability to relate to others in a sexual manner but this cannot be
predicted based on the current interview where she feels that the incidents
really have not affect her.

3.         [Mrs. M.] gives a history of increased anger and
acting out behaviour in the year or so after the disclosure of the sexual
assaults. The present recreational endeavors and enjoyment of life are
restricted as [T.M] prefers not to engage in child-centered activities and
prefers to spend a great deal of time with computer games. Future limitations
on recreational endeavors cannot be predicted unless there are restrictions on
activities predicated by her parents’ concern about her safety.

4.         I have no future
treatment recommendations but would advise that [T.M.] be exposed to common
sense teaching about normal physiological development and sexual interactions
between consenting individuals. This would certainly help to arm her against
insidious seductive behaviour in the future.

General/Aggravated Damages

[18]        
To the credit of the infant plaintiff, she appears to be a very
resilient young child.

[19]        
In all the cases cited by plaintiff’s counsel, the general and
aggravated damage awards of around $100,000 fitted scenarios where the
plaintiffs suffered pronounced psychological injury lasting into adulthood and
where the sexual assaults were more intrusive.

[20]        
In suggesting a range of $20,000 to $25,000 under this heading, the
defendant submitted the following authorities:

a)    R.D. v. G.S.,
2011 BCSC 1118 – the step father of the plaintiff began sexually touching her
since age 8, took nude photos of her, which were subsequently discovered by
her; the plaintiff suffered psychological injury and she received $35,000
for general and aggravated damages.

b)    T.O. v.
J.H.O., 2006 BCSC 560 – the plaintiff was sexually assaulted by his brother
who was four years older than him, so the defendant was between the ages of
eight and sixteen when the assaults occurred; it was not fully clear to what
extent the plaintiff’s current troubles were caused by this childhood abuse,
the Court awarded $40,000 as compensation.

c)     A.B. v.
C.D., 2011 BCSC 775 – the teenage plaintiff’s high school teacher sexually
assaulted by sexual touching; the plaintiff suffered psychological injury,
court ordered $50,000.

[21]        
T.O. v. J.H.O., is not of much assistance given the highly
unusual nature of its facts. The other two cases are from British Columbia and serve
as a more reasonable guide to begin the assessment of damages. Adjustments must
then be made to account for the injuries experienced by the infant plaintiff
caused by the sexual assault in this case.

[22]        
The plaintiff’s apparent relative ambivalence to the sexual assaults, as
reported by Dr. Zoffmann, does not lead to a conclusion that she was not
significantly and adversely affected. In cases cited by the plaintiff’s counsel,
the full extent of the damage was not revealed until adulthood. Here, the mother’s
evidence is that the infant plaintiff experienced behavioural deterioration in
grade one, which coincided with the sexual assaults. She experienced guilt,
embarrassment and anger.

[23]        
The full extent of how these assaults have affected her and her future
sexual relationships remains unknown. Her current preference to be alone and
detached from others is difficult to attribute to the sexual assaults alone.

[24]        
Nonetheless, she is still entitled to compensation as there has been a
violation to her right to personal autonomy. For sexual battery, she is
entitled to damages whether or not she suffered any provable injury as a
result.

Ad Hoc Fiduciary Relationship

[25]        
I accept the plaintiff’s submission that there was an ad hoc
fiduciary relationship between the infant plaintiff and the defendant and that
it was breached. Applying the test from Alberta v. Elder Advocates of
Alberta Society, 2011 SCC 24: there was an implied undertaking to act in
her best interests; she is part of a class of people vulnerable to his control;
and he could through his exercise of discretion or control adversely affect her
substantial practical interests, namely her health and safety in this instance.

[26]        
The defendant points out that the plaintiff (a 7 year old girl) came to
his home on “her own volition”; that he had nothing to do with setting up the
playdates; and that he never undertook to look after her. The defendant submits
that the defendant was merely the “parent of a playmate” of the plaintiff who
opportunistically took advantage of her in his home. This submission ignores
his position as the adult in his home and the infancy of the children.

[27]        
I accept the plaintiff’s submission that, in allowing the infant
plaintiff into his home to play with his child, there was an implied
undertaking of reasonable care and supervision, consistent with her best
interests. It is reasonably foreseeable that, at the vulnerable age of 7 years,
she may require some supervision and/or care.

[28]        
I will fix quantum of damages under this head after discussing the claim
for punitive damages.

Punitive Damages

[29]        
There is no issue that a criminal penalty is not a bar to awarding
punitive damages, especially where the criminal charge did not encompass all
the allegations in the civil case.

[30]        
However, the purpose of any punitive damage award is not to remedy any
perception, as the mother acknowledged, that the criminal sentence imposed on
the defendant was not sufficiently punitive.

[31]        
The plaintiff’s strongest submission under this head of damage is that
“the defendant has admitted to various acts that were not specifically punished
by the criminal system”. Most notable is that he was not punished for the
creation of what was essentially child pornography as defined in s. 163.1 of
the Criminal Code.

[32]        
The creation of child pornography occurred in three of the eight
incidents of sexual assault, which the defendant admits to accessing and
viewing. Fortunately, there is no suggestion of the pornographic images of the
infant plaintiff having been distributed to others.

[33]        
I find myself unable to distinguish a case advanced by the defendant, a
decision of L. Smith J. in R.D. v. G.S., 2011 BCSC 1118 [R.D. v. G.S.].
This case also involved a relatively milder form of child sexual assault and
the creation and use of child pornography by the defendant. In that
case, the defendant only pleaded guilty to one incident where there were in
fact multiple incidents, and he received no criminal penalty for use of the
plaintiff’s image or for creating the child pornography. The defendant in that
case denied all but one incident, an incident he attempted unsuccessfully to
minimize. The Court rejected his evidence and accepted that of the plaintiff.

[34]        
The Court concluded at para. 224 and 225 as follows:

There is no absolute rule that punitive damages cannot be
awarded if there has been a criminal penalty:  E.D.G. v. Drozdzik
at para. 30. However, if the defendant has been punished criminally, or
has suffered punishment in other ways, the purpose of punitive damages has been
fulfilled and such an award will be unfair and inappropriate.

The defendant pleaded guilty and
was sentenced to a 12-month conditional sentence order followed by a one-year
term of probation for the possession of child pornography and touching for a
sexual purpose charges. He has lost his marriage and his family, and gave
evidence as to his reduced financial circumstances. I have concluded that an
award for punitive damages is not appropriate in this case.

[35]        
The circumstances are markedly similar to those before me. The defendant
in this case was sentenced to a conditional 6 month sentence together with
probation. Whether or not a defendant experiences loss of job or marriage
should not, in and of itself, be sufficient to either award or refuse punitive
damages. Nevertheless, the court may simply be cognizant of such losses. In
this case, counsel represented that the defendant lost both similar to the
defendant in R.D. v. G.S.

[36]        
While the sexual touching of a child is firmly denounced by society and
the courts, the actions of a defendant thereafter must also be considered. Here
the defendant endeavoured to minimize any additional harm caused to the infant
plaintiff by pleading guilty to the criminal charges, waiving her examination
for discovery in these proceedings and making extensive and detailed admissions,
thus obviating the need for her to testify in this trial.

[37]        
There is no valid basis to depart from the reasoning in R.D. v. G.S.
pursuant to Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590. I
decline to award punitive damages.

Future Care

[38]        
While further counselling and sex education is recommended by Dr. Zoffmann,
there is no clear evidence as its anticipated frequency, length or cost. While
the defendant’s submission that $2,000 would be sufficient is not unreasonable,
considering the significant contingencies that exist, I will award $5,000 under
this head of damages.

Conclusion Regarding Non-Pecuniary/Aggravated Damages Quantum

[39]        
R.D. v. G.S is also of guidance in this regard. The Court awarded
damages of $35,000 under this heading. The breach of trust was greater in that
case as the defendant was the step father of the plaintiff. The resulting harm
to the victim appears greater. The defendant in that case, except for the one
incident which he minimized, denied the allegations at trial.

[40]        
I must also consider that that amount was fixed almost five years ago.

[41]        
I will award the plaintiff $33,000 under this heading.

Summary

[42]        
The plaintiff is awarded the following:

1.       Non-Pecuniary/Aggravated
Damages: $33,000

2.       Cost of Future Care: $5,000

[43]        
The plaintiff is entitled to her costs, with leave to apply.

“Josephson J.”