R. v. Preuschoff Date:, 2011 BCPC 352

Citation: R. v. Preuschoff Date: 20111207 2011 BCPC 0352 File No: 116949-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. R. PREUSCHOFF REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: J. Lopes Counsel for the Defendant: M. Kajoba Place of Hearing: Surrey, B.C. Dates of Hearing: Oct. 3, 4; Nov. 3, 4; Dec. 1, 2011 Date of Judgment: December 7, 2011 [ 1 ] The accused, Mr. Preuschoff, is charged with sexual assault and unlawful confinement. [ 2 ] The complainant was working as a sex trade worker on February 10, 2001.

At the time, she was in her early 20's and had been working as a sex-trade worker for several years. At that time, she was using crack cocaine and heroin on a daily basis. [ 3 ] Her personal circumstances were set out at the beginning of her evidence; to reveal further details may inadvertently reveal her present identity. Suffice to say, since that time, she has made very positive changes in her life. [ 4 ] Just before 9 a.m. on February 10, she was working on the streets of Whalley, when she was approached by the Accused. There was conversation regarding money for sex.

They agreed on $100 for oral sex and intercourse. She then accompanied him back to his nearby apartment. [ 5 ] After they arrived, they sat and conversed for a few minutes. She recalls having a cigarette and a Pepsi, which he had poured into a glass while he was in the kitchen. She then performed oral sex upon him in the living room and then went to the bedroom where they had consensual intercourse. She was adamant, however, that she never agreed to being tied up. [ 6 ] After they finished, the Complainant felt extremely tired and he offered her a blanket.

She testified that she does not usually sleep at a customer's place but she recalls falling asleep quickly. Whether it was from the effect of narcotics or being sleep deprived is difficult to determine. [ 7 ] When she awoke, some minutes later, the Accused was on top of her and "he was inside of me." Although no clarification was really required, she added that his penis was inside her vagina. She discovered that her hands had been tied to all four corner posts of the bed with yellow rope and black electrical tape. [ 8 ] The Complainant told him to get off of her but he refused.

She said she never consented to being tied up. She then started yelling "Fire" because she didn't think anyone would respond if she yelled rape. Unfortunately, there was no response; she added that her screaming seemed to excite him.

[ 9 ] She initially demanded that he untie her but he said "Be quiet, let me finish." He then slammed his hand over her mouth. She testified that the more she tried to get away, the tighter the ropes seemed to get. [ 10 ] She said: "I would have said anything at that point to get him off of me." Eventually, she began to cry. In her words, "I thought he was killing me." Realizing her screaming was futile, she then tried to act as nice as possible. She apologized for screaming.

In her words, "I wanted him to think it was all okay, so he would allow me to leave." [ 11 ] She also said: "Why don't we just hang out a bit?" He told her that some other girls had ripped him off but he did agree to untie her. Shortly afterwards, they left the building through the main entrance on the ground floor. She then saw a police car that was coincidentally parked on the street. There were two officers inside the car, near the intersection of 132nd St and 105 Ave. The time was now 10:50 a.m. She immediately told them what happened. [ 12 ] Sgt. Kjemhus is now retired after 33 years of service.

After speaking with the Complainant, he arrested the Accused, who had been walking in another direction. The other officer, Sgt. Martin, testified that she was crying as she approached his side of the vehicle and seemed somewhat distraught. [ 13 ] Corporal Burrett then took over the investigation and took the Complainant to the hospital at 11:36 a.m. He took an audio statement from her that day. He observed rope burns on her wrists and later obtained a search warrant and attended the Accused's apartment.

He found yellow rope and black electrical tape attached to all four posts on the wooden frame of the bed. [ 14 ] Christine Dagenais, a toxicologist, also testified for the Crown. She analyzed the complainant's bodily substances on April 14, 2011. Due to the number of intoxicants found in her system at the time, Ms. Dagenais was unable to determine the level of intoxication at the time.

In her words, "I can't tell if that person was impaired by these drugs or to what extent." But she did say that she could safely conclude that the complainant was not awake when she was tied up. [ 15 ] The nurse, who was qualified as an expert in the field of sexual assault victims, stated that, in her opinion, injuries may or may not be present when there's an allegation of non-consensual sexual intercourse. This is attributable to the inherent flexibility of that part of the female anatomy. [ 16 ] Mr. Preuschoff was the only witness called by the defence.

He is now 57 years old and has worked as a steel row diemaker. He is now self-employed in Calgary. [ 17 ] He recalls picking up a prostitute around 7:30 a.m. that day. They walked back to his apartment. They had made an agreement for sexual intercourse and that it was going to be at his place. He cannot recall the price. [ 18 ] After they arrived at his place, he offered her a drink. He said they talked about kinky sex for a half hour. He asked her if he could tie her up and that she replied that would cost more. He says he doesn't recall if there was

an act of oral sex in the living room. [ 19 ] He said they had sex in the bedroom and, after she fell asleep, he covered her with a blanket. He said that because they had agreed to kinky sex, he tied her up while she was sleeping. In his words: "I wanted to see if I could tie her up without waking her up." He claims that she woke up when he was almost finished tying her up.

When she started to scream, he said: "I covered her mouth and told her I wasn't trying to hurt her." He denies having sex with her after she was tied up. [ 20 ] As to the issue of "kinky sex", he testified: "She agreed to it but we never discussed money." He claims her screaming didn't last very long because he didn't want the whole apartment building to hear her." He says that after she calmed down, he untied her.

He also testified that "Even though she agreed to me tying her up, I should have waited until she woke up." He also said that when they left the building, he intended to go to a bank machine to get more money for sex. He also stated that she wasn't upset when they left the apartment. [ 21 ] The Accused acknowledges that he was aware that there was a bench warrant for his arrest for nine years.

He made some initial appearances but never set a trial date and admits fleeing the jurisdiction because he couldn't get Legal Aid and he couldn't afford a lawyer. [ 22 ] On cross examination, the Accused admitted that he regularly uses prostitutes. He acknowledged that they expect to be paid in advance and that he would have to pay extra for kinky sex. He estimated that the Complainant had been tied up for 10 minutes. [ 23 ] As for not remaining in 2001 to face these charges, he says he couldn't afford $2,400 to retain a lawyer, so he took off.

He moved to Alberta and simply ignored it. [ 24 ] In his closing submissions, defence counsel argued that his client's version should be believed or, at least, raise a reasonable doubt. He argued that the Complainant did not suffer any observable injuries, other than those that were depicted in the photographs. [ 25 ] He pointed to her addictions at that time which could cloud her memory of the events in 2001. [ 26 ] He also submitted that her recollection was unreliable because she did not tell the attending nurse that she had taken drugs that day.

He also argued that his client had only tied up the Complainant for a few minutes, which counsel characterized as a "mistake." [ 27 ] The Crown has argued that the Accused's evidence is not credible and does not raise a reasonable doubt. He said that he crawled over top of the Complainant to untie her but she was obviously injured. He admitted that he never paid for "bondage services" but he tied her up anyway. I should add that during cross-examination, the Crown asked the Accused if he had been convicted of manslaughter in 1988.

That point was not pursued by the Crown any further; in any event, it is unrelated to the incident before me and plays no

part in my decision. [ 28 ] The Crown pointed to the convincing reasons why she would never consent to bondage. For her to simply fall asleep when she

had money in her hands was inexplicable. And, if she had consented on the second occasion, why would she wake up screaming and struggling? [ 29 ] I agree with the Crown that the evidence of the Accused is simply neither reliable nor credible. While on the witness stand, Mr. Preuschoff seemed to be tailoring his evidence to the case he had to meet. He knew that she had rope burns on her ankles and her wrists.

He also knew that, after his arrest, the police had searched his residence and found the ropes still tied to the bed. [ 30 ] Accordingly, he admitted that he had tied her up while she was asleep to see if he could do so without waking her up. If that was all so innocent, why did she wake up screaming? Even he admits that initially he placed his hand over her mouth to stop her from doing so.

If he had no intentions of violating her, why didn't he simply say that he was sorry and address her fears by telling her that he would untie her immediately, or words to that effect? [ 31 ] On the other hand, I found the Complainant to be a truthful and reliable witness. There was no real change in her demeanor during cross examination and she answered every question put to her without being evasive. [ 32 ] I accept her evidence that she would never agree to bondage within the context of that scenario (my words, not hers).

She was obviously street wise at that time and she recognized how vulnerable she would be if she agreed to let someone she had only just met an hour or two earlier to tie her up to his bed, in his residence. That would put a sex trade worker in a dangerous and terribly compromising position with one of her customers.

Having said that, I don't really have to deal with the fact that she had not even been paid for such a thing. [ 33 ] Furthermore, as she was leaving the building, she immediately approached the police cruiser and told them what happened, which is exactly what one would expect her to do in that situation.

And she did so even though she didn't have a particularly close relationship with the police at that stage of her life. [ 34 ] Most telling, at one point while giving her evidence, the Complainant said: "I never agreed to wake up with some asshole inside of me." That was the one and only time she resorted to profanity. And that statement had the raw, uncensored and brutally frank ring of truth to it.

I accept her version, i.e., that when she woke up, the Accused had not only tied her up, but he had penetrated her without her consent. [ 35 ] For the reasons I have stated, on the essential issue of whether or not the Accused had intercourse with her after she had been tied up, I reject his evidence as being self-serving and unworthy of belief. I am obligated to apply the test as set out by the Supreme Court in Regina v.

W.D . and say unequivocally that his evidence does not even raise a reasonable doubt. [ 36 ] Accordingly, I find him guilty of both counts on the indictment. __________________________________ The Honourable Judge D. R. Gardner Provincial Court of British Columbia