R. v. Cheema Date:, 2015 BCPC 340

Citation: R. v. Cheema Date: 20151130 2015 BCPC 0340 File No: 80237 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DILBAGH SINGH CHEEMA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: E.P. Sabourin Counsel for the Defendant: A.S. Sidhu Place of Hearing: Abbotsford , B.C. Date of Hearing: July 20, 21, October 21, 2015 Date of Judgment: November 30, 2015

Summary of Evidence [ 1 ] The Accused Dilbagh Singh Cheema is charged with two counts of sexual assault. The alleged victim of these offences was a tenant of the Accused and the offences are alleged to have occurred on or about September 9 and September 26 of 2013 in Mission, B.C. [ 2 ] The Complainant is an adult woman who is unable to work due to some significant health issues. She uses a mobility scooter to get around. At the time these offences are alleged to have occurred, she was living in Mission, B.C. with her niece before looking for her own residence.

Her search for a new residence took her to the Craigslist website, where the Accused was advertising a place for rent. The Complainant called the Accused and arranged to meet him. She believes that their first meeting occurred sometime around Labour Day of 2013.

The Complainant did not have her mobility scooter at the time and she testified that she asked the Accused if he would pick her up for their meeting and he agreed to do so. [ 3 ] The Accused picked her up at her niece’s home and the two of them went to a local Tim Horton’s restaurant where the Accused helped the Complainant to fill out some paperwork that was required by the government ministry that was helping to pay the Complainant’s rent.

She decided to rent the property that the Accused was offering to lease. [ 4 ] The Complainant testified that the Accused wanted matters regarding the renting of the premises to proceed promptly so on the next day he picked her up again and he gave her a ride to the ministry office to submit the necessary paperwork. The Accused told her that the previous tenant had not yet moved out, so he drove her to show her the suite from the outside. [ 5 ] A few days later, the Complainant moved into the premises. At first things seemed to be going well. At first she didn’t see the Accused very much.

He didn’t live in the same house, but his mother did. The Complainant testified that the Accused would sometimes enter her suite through a door in her kitchen that connected her suite with the rest of the house. The door was locked on the other side, but she did not have the ability to lock the door on her side. On one occasion he entered ostensibly for the purpose of checking the furnace.

Nothing untoward happened on that day, but the Complainant was concerned about her lack of privacy. [ 6 ] At that time it was the Complainant’s routine to help her niece and her niece’s children deliver flyers, and she testified that she did this regularly on Tuesdays and Thursdays. She testified that on one of these occasions, the Accused phoned her and wanted to see her at her suite. She believed that he was calling her to do a “move-in report.” On that occasion the Complainant knocked on the front door and she let him into her suite. The Complainant testified that on that occasion he “made advances” to her.

She described his actions as follows: C: He, uh, came up, and he kissed me at one point, and said I was pretty. And I kind of backed up from that. [ 7 ] The Complainant said that this took place beside her computer desk, near the front door to her suite. She said that she had told him that there was a closet door that needed repair in her bedroom. After he kissed her, she said that she stopped talking about the closet, backed off and froze. She said that after he said that she was pretty, he touched her breast. When asked how the Accused had touched her breast, the Complainant said that he grabbed her.

In cross-examination she said that he touched her on her left breast. She testified that there was no conversation about this. After the Accused did this, the Complainant said that she “just froze and backed up.” She was unsure what to do. She said that the Complainant’s action made her feel violated. [ 8 ] The Complainant said that she did not have any prior conversation with the Accused about him touching her in this fashion. She was not romantically interested in him and had never said anything to him to suggest that this was the case.

She said that in her initial meeting with the Accused when the two of them were discussing her renting the suite, the Accused had asked her if she had a boyfriend, and she told him she did not. She did not interpret this as any expression of romantic interest on his part and assumed it related to his concern about other people being in the suite. She testified that she had never been flirtatious with the Accused and just wanted to live alone. [ 9 ] The Complainant described a second occasion of inappropriate conduct on the part of the Accused.

On this occasion she saw the Accused outside looking at something on the property. He knocked on her door. She said that she had brought him into the bedroom to look at the closet that was broken. She said that on this occasion she and the Accused were in the bedroom and her niece’s children were in the living room area near the front door, playing on the computer. She testified that while she and the Accused were in the bedroom, he closed the door and then he kissed her. She testified that after he kissed her, she backed up and got out of the room.

She said that the kiss didn’t last very long and she couldn’t say if the Accused’s mouth was open or closed when he kissed her. She said that the Accused kissed her on her lips. The Accused left after that. [ 10 ] The Complainant believed that this first incident occurred around the third week of September of 2013. She reviewed the statement she made to police after she reported the incident. She said that she believed that one occasion happened on a Tuesday and another on a Thursday because she had gotten home from delivering flyers on the second occasion and her niece’s children were present.

She reviewed a statement that she gave to police of November 13, 2013. After some discussion about how the statement could be put to the witness, the witness testified that the two incidents occurred on September 9 and 26, 2013 respectively. [ 11 ] In cross-examination, it was pointed out to the Complainant that September 9, 2013 was a Monday and therefore this would not accord with her recollection that she had been delivering flyers on that day. This seemed to be a contradiction because she usually helped her family deliver flyers on Tuesdays and Thursdays.

She said that sometimes flyers were delivered on other days, but acknowledged that she may have been mistaken about this taking place on the same day that she was delivering flyers. [ 12 ] The Complainant was also cross-examined about how, in her statement given to police, she had said that she was alone on both occasions. In her testimony at this trial she said that the children were in the home on one of these occasions. The Complainant said that her evidence at trial was likely correct and she believed that in her statement to police, she meant that she was alone in the room with the Accused.

She acknowledged that she was finding the experience of having to give evidence in court stressful and that she may be mistaken as to collateral details.

[ 13 ] The Complainant said that these were the only two times that she had ever invited the Accused into her part of the residence. She said that on two other occasions he entered her suite without her inviting him in, and without her prior knowledge that he would be coming into the suite. [ 14 ] The Complainant testified that she was scared to report these incidents. After the second incident she told her niece and her niece suggested that she report it to the police. The Complainant testified that she was worried that if she did this, she would be evicted.

Having to move was a frightening prospect for her because of her disability. But she was convinced to report the incidents and she did in fact receive an eviction notice two days after she gave a statement to police about these incidents. [ 15 ] In cross-examination, counsel for the Accused suggested that the Complainant and the Accused had over 100 conversations and that some of these lasted for a considerable length. The following questions were asked and the following answers were given in cross- examination: Mr.

Sidhu: What if I was to tell you that in fact you and this gentleman, just on the phone alone had over 100 conversations? Complainant: I don’t recall having 100 conversations. Mr. Sidhu: What if I tell you that over that period of time you have over 100 conversations and some of them were of considerable length? Complainant: They were about the place. Mr. Sidhu: 100 times? Complainant: I didn’t call him 100 times. Mr. Sidhu: Did he call you 100 times? Complainant: No. [ 16 ] The Complainant testified that she did not recall speaking with the Accused as often as was suggested to her.

She said she only recalled a few calls with him. In the case presented for the Accused, David Mak, a representative of Rogers Cellular, gave evidence interpreting phone billing records on two different accounts. One of these accounts belonged to the Complainant, and another belonged to the Accused. The Complainant’s phone records showed that between August 25 th to October 13 th of 2013, 25 outgoing calls were made to the Accused’s phone number. Some 15 of these were made up to Labour Day (which fell on September 2 nd ), and only 5 of these were for more than one minute. Mr.

Mak testified that calls of one minute of less may have gone to voice mail. After Labour Day, 10 calls were placed and only 2 of these were for more than a minute. [ 17 ] The Accused’s phone records showed that the Accused placed 66 phone calls to the Complainant’s phone number between August 29 th and October 13 th . Approximately 42 of these were made up to Labour Day and of those, approximately 22 were for more than one minute. Approximately 24 calls were made after Labour Day and 15 of these were for longer than one minute.

It is difficult to know what if any inference to draw from these phone calls, other than the fact that they were not as frequent as was initially suggested by counsel for the Accused, but were more frequent than what the Complainant initially estimated. The records confirm that the Complainant was correct when she testified that the Accused did not call her more over 100 times and she did not call him over 100 times. [ 18 ] The Complainant was also cross-examined about whether or not her niece was residing with her in the residence that she was renting from the Accused.

She testified that initially her niece was only visiting with her, but that after she complained to police, she asked her niece to stay with her because she was scared to be in the residence alone. Initially her niece was only planning on staying for a week, but after the complaint to the police was made, the niece remained at the premises until the Complainant moved out. [ 19 ] The Complainant was also asked whether or not she had kissed or hugged the Accused on other occasions. She said that this never occurred.

On one occasion she had offered to make a meal for the Accused, but the Complainant testified that this offer was not made with any romantic intent. She said that it was something that she did for many people. She never ended up cooking for him. No evidence was called to contradict her evidence on this point. [ 20 ] Counsel for the Accused also suggested that the Accused and the Complainant had an intimate relationship and that the two of them had intercourse on one occasion. The Complainant adamantly denied this.

Despite having his counsel make this allegation in cross-examination, no evidence was ever presented to support this assertion. [ 21 ] Constable Joni Sidhu of the Mission Detachment of the Royal Canadian Mounted Police testified that this matter was brought to her attention by the Complainant’s niece, with whom the officer was dealing on an unrelated matter. The Constable spoke with the Complainant. The Complainant identified the person who had assaulted her as the Accused and she provided the Constable with the Accused’s phone number.

Constable Sidhu arrested the Accused and later, the Constable helped the Complainant move to a transition house as part of a safety plan. [ 22 ] The Complainant was cross-examined about a photo line-up that was put to her and whether or not she had identified the person who had assaulted her as being someone in the phot line-up other than the Accused. I am satisfied that this is not an issue in this case.

The Complainant has been clear in her evidence that the person who assaulted her was her landlord, and this has been confirmed not only by her evidence but also by Constable Sidhu that the Accused was the Complainant’s landlord. According to Mr. Mak, the person that the Complainant was calling as her landlord was the Accused. On the evidence before me, I am satisfied that the person who the Complainant states she was assaulted by has been satisfactorily identified as the Accused. Applicable Law

1. Sexual Assault [23] Sexual assault has been defined by the Supreme Court of Canada in R. v. Chase [1987] 2 S.C.R. 292 as an assault which iscommitted in circumstances of a sexual nature such that the sexual integrity of the victim is violated.

An assault is more fully defined insection 265 of the Criminal Code, and it includes the intentional application of force to a degree that is not de minimis and to which thevictim does not consent. [24] In certain circumstances, kissing someone without that person’s consent can amount to a simple assault and in othercircumstances, a kiss can amount to a sexual assault, depending on whether or not the kiss is made in circumstances such that the sexualintegrity of the recipient may reasonably be said to have been violated. In R. v.

Chase, supra, the Supreme Court described the test fordetermining whether or not an assault becomes a sexual assault as follows: The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in thelight of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per LaycraftC.J.A., at p. 269).

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gesturesaccompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied byforce, will be relevant…The intent or purpose of the person committing the act, to the extent that this may appear from the evidence,may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent thatthis may appear from the evidence, it may be a factor in determining whether the conduct is sexual.

It must be emphasized, however, thatthe existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on thecircumstances. (Emphasis added.) [25] In a number of cases where kissing has been found to form part of the act of sexual assault, the kissing has generally beenaccompanied by other acts such as touching of the victim’s breasts or buttocks, or in situations where a kiss by itself is very inappropriateby itself, such as when an adult kisses a child in a manner that goes beyond reasonable affection given the relationship that existsbetween the two. [26] The elements of the offence of sexual assault were described by Justice Major of the Supreme Court of Canada in R. v.Ewanchuk (SCC), [1999] 1 S.C.R. 330.

Justice Major wrote: 23. A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [27] In this case, if it is proven, beyond a reasonable doubt that the Accused kissed the Complainant and touched her breast in themanner that she described, without her consent, it is reasonable to conclude that this form of touching would be an unwanted form ofsexual touching that would meet the actus reus for the offence of sexual assault.

It is less clear if the incident described by theComplainant in which she was kissed, without any accompanying touching, would amount to a sexual assault. [28] The Complainant was clear in her testimony that the contact that she had with the Accused, during the two incidents shedescribed, was unwanted and non-consensual. In R. v. Ewanchuk, the court went on to discuss the meaning of consent within the contextof the actus reus of an offence.

Justice Major stated, at paragraph 27 of the decision, that in defining the term “consent”, within thecontext of the actus reus, it is what is within the mind of the complainant that is determinative. He wrote: 27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of thisconfusion has been caused by the word “consent” itself.

A number of commentators have observed that the notion of consent connotesactive behaviour… While this may be true in the general use of the word, for the purposes of determining the absence of consent as anelement of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concernedwith the complainant’s perspective. The approach is purely subjective. (Emphasis added). [29]

Section 271 of the Criminal Code seeks to protect everyone’s personal security from any non-consensual sexual contact orthreats of force. The court in Ewanchuk went on to state that while the complainant’s testimony is the only source of direct evidence asto his or her state of mind, credibility must still be assessed by the trier of fact, in light of all the evidence.

The court said (at paragraph29): “It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubtagainst her assertion that she, in her mind, did not want the sexual touching to take place. If, however… the trial judge believes thecomplainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [30] In order to prove that an accused has the requisite mens rea of the offence of sexual assault, the Crown must prove, beyond areasonable doubt: 1.

That the accused intended to touch in a sexual manner; and 2. That the accused knew of, or was reckless or wilfully blind to, a lack of consent on the part of the person touched. [31] When a complainant states that he or she did not consent to being touched sexually, the court must approach the issue ofconsent in two stages. In the first stage, the question is one of credibility, and whether the court is satisfied beyond a reasonable doubtthat the complainant did not consent to the sexual contact.

At the second stage, the court must decide whether the Crown has alsoproven beyond a reasonable doubt that the accused (

a) knew that he did not have the complainant’s consent to touch the complainantsexually; or (

b) was reckless or wilfully blind as to whether or not the complainant was consenting to the act. [32] An accused is reckless, within this context, when he or she ought to have been concerned about whether or not consent waspresent, but takes the risk and proceeds without taking reasonable steps to determine if consent is present. Wilful blindness exists where

an accused is or ought to be suspicious, to a point where a reasonable person would see the need to make further inquiries, butdeliberately chooses not to make those inquiries. 2. Credibility and Reliability [33] The Accused has put the credibility of the Complainant in issue. There are a number of considerations which a court can applywhen determining issues of credibility. Firstly, a court may consider evidence which pertains to the honesty and forthrightness of thewitnesses.

Evidence of character, background or other behaviour that bears on a person's honesty may be considered, such as a criminalrecord for crimes of dishonesty, or other dishonest conduct proven, such as false statements made to police in the course of theinvestigation. [34] A court may also consider the demeanour of a witness while that witness gives testimony, but I concur with those who believedemeanour to be one of the least accurate barometers of credibility, especially when one factors in cultural, educational andsocioeconomic considerations. [35] The credibility of a witness may be assessed by its internal consistency (that is by the presence or absence of any contradictionwithin itself).

It may also be assessed by its external consistency (that is by the presence or absence of any contradiction with theremainder of the evidence.) [36] A witness’s reliability is something different from his or her credibility. A witnesses may be honest (credible) but mistaken(unreliable) due to a number of factors including, for example, faulty observation, imperfect recall, a lack of understanding of thequestion asked, or a limited ability to communicate. 3. Reasonable Doubt [37] The Crown is required to prove all of the elements of this offence beyond a reasonable doubt. In R. v.

Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of the phrase “reasonable doubt.” The court said that areasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logicallyconnected to the evidence. It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt. It requires morethan the belief that an accused is probably guilty. [38] In R. v. Bachman 2013 BCSC 1028, the Honourable Mr.

Justice Brown explained the definition of “reasonable doubt” further,in paragraphs [74] to [79] of that decision. As he states in his reasons for judgement: [78] …Reasonable doubt must connect logically to the evidence, based on reason and on common sense. A reasonable doubt cannot befrivolous or unduly speculative.

The burden of proof the Crown carries applies to the evidence as a whole, not to individual items ofevidence. [79] In the range of levels of doubt that lie between probable guilt and absolute certainty of guilt, reasonable doubt lies much closer toabsolute certainty of guilt than it does to probable guilt… 4. Failure of the Accused to Testify [39] In this case the Accused did not testify on his own behalf. He is not required to do so and at trial he retains his right to remainsilent.

He has denied commission of these offences by his pleas of not guilty to each count, and no adverse inference should be madeagainst him by virtue of his failure to enter into the witness stand. In R. v. Noble, (SCC), [1997] S.C.J. No. 40, JusticeSopinka wrote: If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. In a situation wherethe accused exercises his or her right to silence at trial, the Crown need only prove the case to some point short of beyond a reasonabledoubt, and the failure to testify takes it over the threshold.

The presumption of innocence, however, indicates that it is not incumbent onthe accused to present any evidence at all, rather it is for the Crown to prove him or her guilty. Thus, in order for the burden of proof toremain with the Crown, as required by the Charter, the silence of the accused should not be used against him or her in building the casefor guilt.

Belief in guilt beyond a reasonable doubt must be grounded on the testimony and any other tangible or demonstrative evidenceadmitted during the trial. (Emphasis added). [40] The court went on to state that sometimes a reference to the silence of the accused by the trier of fact might not offend theCharter. For example, if in a trial by judge alone, the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, thesilence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt.

Where theCrown has proved the case beyond a reasonable doubt, and the accused does not testify, the Crown's case prevails and the accused willbe convicted. The court must not speculate that the accused may have some unstated defence. [41] What must be kept in mind is that the burden of proof always rests with the Crown to prove all of the elements of the offencebeyond a reasonable doubt. The silence of the accused should never be a factor in coming to the conclusion that the case has beenproven beyond a reasonable doubt. Position of the Parties [42] On behalf of the Accused, Mr.

Sidhu argues that the testimony of the Complainant is unreliable and should not form the basisof a conviction for sexual assault. He points to a number of differences in the testimony of the Complainant at trial and what she said inthe statement she gave to police when reporting the incidents. These include what day the offence may have occurred on, whether shewas alone or if her niece’s children were present and whether or not she had exchanged multiple phone calls with the Accused. Heargues that the Complainant had a motive to fabricate her evidence, that being to avoid her potential eviction.

He also argues that thevolume of the phone contact between the parties should give rise to doubt about whether or not the Complainant had any real fear of the

Accused. [ 43 ] With respect to count two, Mr. Sidhu argues that the Complainant gave very little context about the nature of the kiss, but from what context was given, there was nothing in the conduct to suggest that a reasonable observer would find that the sexual integrity of the Complainant ought to have been violated merely by the Accused stealing a kiss. [ 44 ] The foundation of counsel’s argument rests in the suggestion that there are too many inconsistences in the Complainant’s evidence on which to support a finding of guilt beyond a reasonable doubt.

He argues that the following comments of the Honourable Justice Brown in R. v. Bachman 2013 BCSC 1028 , at paragraph 140 , apply with equal force to this case. Justice Brown wrote: Minor inconsistencies in a case do not diminish the credibility of a witness. But a series of inconsistencies become a significant concern. This is especially so where… the Crown's chief witness testifies they have a horrible memory, and offer little in the way of secondary facts, to anchor their claimed memory of an event. [ 45 ] On behalf of the Crown, Ms.

Sabourin argues that vulnerability should not be viewed as synonymous with unreliability. She notes that the Complainant gave her evidence in a very straightforward manner, candidly admitting when she did not recall details. While the Complainant may have been uncertain about some of the collateral facts, she was clear on the central facts. Time and time again in her evidence, she did not waver from the fact that she had no romantic interest in the Accused, she never flirted with him, and she never consented to the Accused taking the liberties with her that he did. Ms.

Sabourin also notes that the suggestion that the Complainant fabricated these allegations in order to avoid eviction has less likelihood when one considers the evidence of Constable Sidhu that the Complainant was not the one pressing the matter. Analysis [ 46 ] If the Complainant’s evidence is accepted, the offence of sexual assault as set out in count one of the information has been made out. According to her evidence, the Accused kissed her and told her that she was pretty before grabbing her breast. She testified that he did this without her consent.

Under these circumstances, it is reasonable for a person in the Complainant’s position to feel that her sexual integrity was violated, and she testified that she did indeed feel violated. [ 47 ] As to the incident described in count two, the Complainant testified that the Accused once again kissed her briefly without her consent, but on this occasion he did not touch her anywhere else.

This conduct would not be such as to cause a reasonable person to think that the sexual integrity of the Complainant had been violated and I do not find that it would be sufficient to meet the definition of a sexual assault. [ 48 ] However this conduct would meet the definition of an assault within the meaning of

section 265 of the Criminal Code . It was an application of force applied to the Complainant without her consent. While it may have not amounted to the application of any significant physical pain at the time, I would not characterize it as trivial. The Accused was the Complainant’s landlord and was in a position of some power over her.

She was entitled to trust him not to make her living space unsafe for her, and it is reasonable to assume that someone in the Complainant’s position, with her physical disability and her economic disadvantage, would experience fear and anxiety from the Accused’s actions to a degree that would not be insignificant. [ 49 ] The issue then becomes whether or not I should accept the Complainant’s evidence or whether the inconsistencies referred to by counsel for the Accused should raise a reasonable doubt as to its accuracy.

On a review of the evidence, I find the evidence of the Complainant to be credible and reliable. Any inconsistencies between her testimony at trial and what was contained in her statement to police are on collateral matters, but on the key aspects of the offences alleged, the Complainant has been consistent. [ 50 ] I am unable to draw any adverse inference from the fact that after the Complainant became a tenant of the Accused, her having 17 phone conversations of more than one minute in duration over the better part of two months is anything out of the ordinary for a landlord-tenant relationship.

To read more into this would be highly speculative. She has testified, in a credible manner, that her relationship with the Accused was strictly that of a landlord and tenant and no evidence has been presented to contradict this. [ 51 ] I find that the evidence does not support the inference that the Complainant has fabricated her evidence to stave off eviction. If this had been the case, I would expect that the Complainant would have been the one to go to police, not her niece. I would not expect for her to be reluctant to make the complaint as the evidence suggests.

I would also expect that a fabricated complaint would have hurled more offensive allegations against the Accused than what the Complainant has testified to. [ 52 ] This case is different than that addressed by Justice Brown in R. v. Bachman , where the learned trial judge was considering allegations of historical sexual assaults made by an adult who was alleging conduct which occurred when that witness was a child.

There, Justice Brown stated (at paragraph 141): “A significant history of making false statements… is a factor than cannot be ignored.” This is not what I have before me in this case. [ 53 ] I accept the evidence of the Complainant as to the manner in which she was assaulted by the Accused on two separate occasions in September of 2013. I find that the Crown has proven the elements of sexual assault (in count one) and the elements of common assault (in count two) beyond a reasonable doubt. The only issue remaining is as to the dates of when these offences occurred.

I find that I accept the evidence of the Complainant about the dates to the extent that I am satisfied beyond a reasonable doubt that the incident alleged in count one occurred “on or about” September 9, 2013 and the incident referred to in count two occurred “on or about” September 26, 2013.

If this conclusion is in error, I am of the view that an amendment of the counts to encompass the entire month of September of 2013, as permitted under section 601(3) of the Criminal Code , would not have prejudiced the Accused in any manner. [ 54 ] For the foregoing reasons, I find the Accused guilty on count one of the information. On count two, I find him not guilty of the offence as set out in the count. I find him guilty of a lesser included offence, namely that on or about the 26 th day of September, 2013, at or near Mission, BC, he assaulted the Complainant contrary to

Section 266 of the Criminal Code .

Dated at the City of Abbotsford, in the Province of British Columbia, this 30 th day of November, 2015. ___________________________________ (The Honourable Judge K. D. Skilnick)