R. v. Green, 2017 BCPC 435

Citation: R. v. Green 2017 BCPC 435 Date: 20171123 File No: 207864-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KHOURI LAMAR GREEN Ban on Publication Under

Section 486.4(2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: M.J. Stacey Counsel for the Defendant: G.K. Lee Place of Hearing: Surrey , B.C. Dates of Hearing: May 4, 5, 8, 25, 26, 29, September 25, 26, 27, October 20, 2017

Date of Judgment: November 23, 2017 1. THE CHARGES [1] Mr. Khouri Lamar Green is charged on information 207864-2-C with two charges: Count 1 Khouri Lamar GREEN, on or about the 30th day of July, 2013 at or near Surrey, in the Province of British Columbia, did break and entera dwelling house situate at [deleted] and commit an indictable offence therein, theft, contrary to Section 348(1)(

d) of the Criminal Code. Count 2 Khouri Lamar GREEN, on or about the 30th day of July, 2013, at or near Surrey, in the Province of British Columbia, committedaggravated sexual assault of M.S, contrary to Section 273(2)(

b) of the Criminal Code. 2. BRIEF OVERVIEW OF THE CASE [2] As is often the case in trials, there are two completely different versions of events. A. The Crown’s Case [3] The case for the Crown is largely founded upon the evidence of the complainant. In the most simplified

summary, M.S.testified that on July 30, 2013, she was sleeping in her bed when she was awoken by an intruder in her home. She is clear that she neverhad met this intruder until that night. She told the court that this stranger came into her bedroom and had forced oral sex and intercoursewith her and stole a small amount of cash and two rings from her. [4] In hopes that she might ascertain his identity, when he was leaving, she gave him her phone number and first name. She hopedhe would contact her and she would be able to find out who he was, and then the police could arrest him.

She says he then gave her akiss on the cheek and left her residence. [5] The evidence is clear that on July 31, 2013, the accused did attempt to call her a number of times. Not only did he attempt tocall, but the accused even spoke with her, texted her, and tried to friend her on Facebook. [6] M.S. was able to see pictures on Facebook and was able to identify the accused in a number of them. She provided thisinformation to the police and the accused was arrested. B.

The Defence’s Case [7] The accused testified that he and M.S. had been in a multiple month long intimate relationship that had stopped about twomonths prior to the allegation. He said during the course of their relationship he had never known where she lived. In short, he says hebroke it off and she is really just making the story up to somehow intentionally hurt him. [8] He testified that someone he knew had given him her address and told him that he could ‘score some weed and money there’ asit was a drug dealer’s house.

The accused was clear in his testimony that he sometimes ‘ripped off people.’ In this case, it was his intentto break in and take any drugs and money and, as he described it, split the take with the person who gave him the address. [9] The accused told the court he was “totally surprised” that he somehow coincidentally broke into the home where his ex-girlfriend lived. He testified he told her “my bad” and was about to leave. He then described what happened next. [10] When attempting to leave, the accused said M.S. basically pushed him on the couch and forced intercourse on him.

Hedescribes M.S. as being upset that he had previously broken up with her. He eventually was able to push her off and leave the residence. He admits to having intercourse with her, but says she was the one that wanted to have sex. He denies kissing her on the cheek on hisway out, but agrees that he took her name and phone number. The proposition was put to him that he, in fact, was the one who wassexually assaulted, to which he basically agreed. [11] Once more there are two vastly different versions of events.

What seems to be agreed upon is that he broke into her house withthe intent to commit theft, that they had some notion of sex, at least intercourse, and that she suffered significant injuries as a result of theintercourse. 3. THE LAW Burden of Proof and Standard of Proof [12] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actusreus and mens rea. When the main issue is credibility, I am particularly aware of the dangers of shifting any burden onto an accused.

Iinstruct myself that at no time does an accused person have to prove or disprove anything. [13] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard ofproof applies to the evidence as a whole, but generally not to individual facts. [14] The test for reasonable doubt, which must be applied in every case, was stated by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742:

First, if [I do] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask myself whether, on the basis of the evidence which [I]do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [15] I recognize that I must consider a number of related but separate principles. An accused’s lack of credibility does not prove hisor her guilt.

I may accept some of an accused’s testimony while disbelieving other parts. I must consider all of the evidence in decidingwhether there is any reasonable doubt, and any reasonable doubt must be resolved in favour of the accused. [16] It is not a question of who is telling the truth. That is, I mean to say, it is not a credibility contest where I must choose betweentwo versions or different theories of what took place. [17] If I believe certain aspects of a person’s testimony, I should ask myself why I believe them on these points.

Equally if I forsome reason do not believe them, then I should also ask myself why. As well, does the evidence make sense? Even if I believe certainaspects of a person’s testimony, I still must be satisfied that the evidence is cogent and logical. [18] In R. v. C.W.H. (1992), (BC CA), (3d) 146 (B.C.C.A.), the late Mr.

Justice Wood said of assessingcredibility: If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [19] There can also be a reasonable doubt based on the absence of evidence or a simple failure of evidence to persuade the judgebeyond a reasonable doubt. [20] In this case, credibility is an important issue that I must consider. I believe it is fair to say that credibility is the central issue inthis case. R. v. B.P. (unreported) at paragraphs 71 and 72, referring to R. v. T.O.H., 2016 BCPC 438 , examines some of thelaw with respect to credibility.

SINCERITY, CREDIBILITY AND RELIABILITY [17] In my view, it is important to understand the difference between credibility and reliability. [18] As to the meaning of credibility, it is necessary to separate the truthfulness of a witness, sometimes referred to as “credit”, fromthe factual accuracy of his or her evidence, sometimes referred to as reliability or the potential for error. See R. v. Formales, 2011 BCPC257 at para. 99, Rideout J. [19] The credibility of a witness is not the same as the reliability of a witness.

Credibility has to do with a person's veracity ortruthfulness, whereas reliability deals with the accuracy of the witness's testimony. Accuracy involves consideration of the witness'sability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not creditable cannot givereliable evidence on the same point. On the other hand, a finding that a witness is credible does not translate automatically into a findingthat what that witness says about an event is accurate and reliable. That is, a credible witness may very well give unreliable evidence.

See: Edwards (Litigation guardian of) v. Stroink, 2015 BCSC 1318 at para. 37, Gaul J. [20] In the criminal context, R. v. H.C., 2009 ONCA 56 at para. 41, in deciphering differences between sincerity, credibility andreliability, puts it this way: 41 Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of thewitness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: See R. v. Morrissey, (ON CA), (On. C.A.) [21] “Reliability” is a term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensic process,but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurateinformation. See: R. v. Fitzpatrick, 2015 ONCJ 612 at para. 41, Dechert J.P. [22] R. v.

Parent, 2000 BCPC 11 , I consider to be an excellent guiding authority with respect to credibility. In that case, TheHonourable Judge Rounthwaite of the Provincial Court of British Columbia writes at paragraphs 4 and 5 of that decision: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately; 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted?

3. its internal consistency. Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful; 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive when assessing an accused's testimony; 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. 4. THE ISSUES A. What is Not In Issue i. Admissions [ 21 ] There are 42 paragraphs of admissions.

There are also some unchallenged facts when examining the evidence given by M.S. and the accused. I will not set out all the points which are agreed upon as the admissions are quite detailed. However, the events listed below are generally accepted by counsel as true. ii . Events of July 30, 2013 [ 22 ] M.S. lived in Surrey, B.C. The accused broke into her residence by either sliding a window open and entering her residence or gaining access through a door. By the testimony of both M.S. and the accused, sexual intercourse took place.

This unchallenged position is corroborated by the fact found at paragraph 7 of the admissions that “Both the Accused’s DNA and M.S.’s DNA was present” on each of the External Genital Swab and the Vaginal Swab. iii. Communications from July 30, 2013 to July 31, 2013 (

a) Phone [ 23 ] Through combining the admissions regarding details around phone, text and internet usage with the testimony of M.S. and the accused, certain facts about communications are not in issue. Specifically, the accused called M.S. four times. M.S. taped a conversation, wherein she gave a fake name to the accused, who also gave a fake name to her. (

b) Text Messages [ 24 ] The accused also used an application to obtain a ‘unique telephone number’ to text M.S. He used a girlfriend’s email address to do this. His girlfriend’s name was Randip Grewal. In total there were four text messages: The Text Messages 7:01 PM, Jul 30 U said u weren’t going to call cops N u did anyway I killed the guys that sent me. I didn’t know it would b a girl inside DA said I guy I’m really sorry 7:08 PM, Jul 30 Y did u call dem 7:12 PM, Jul 30 Hello us said u swear on baba id sal 4:50 AM, Jul 31 Hey (

c) Facebook [ 25 ] Lastly, he tried to have contact with M.S. through Facebook. M.S. was then able to search pictures as a result of the request to be ‘friended’ and was able to identify the accused through some pictures. B. What Is In Issue

i. Was there a theft ? [ 26 ] With respect to Count One: did the accused commit theft of anything, such as money or rings after he broke into the home? On this issue, I note that defence counsel submitted that this count was basically not contested. While perhaps not required, there is a gap between the complainant’s testimony who says money and rings were actually taken versus the accused who denies taking either of these things.

In the end, I believe I need to make findings of fact with respect to this issue in order to properly consider the elements of the break and enter and commit theft, as is detailed in the information versus simply finding that there was a presumed intention. ii. Consent [ 27 ] With respect to Count Two: was the sexual intercourse consensual or not consensual? I will also have to determine whether the elements of an aggravated sexual assault have been proven beyond a reasonable doubt. iii. Credibility [ 28 ] Once more, the main issue that I need to resolve has to do with credibility. 5. THE EVIDENCE A.

Testimony of M.S. i. The Intruder [ 29 ] M.S. testified. She told the court that on July 30, 2013, she was a 24-year old customer service representative who lived in Surrey, B.C. [ 30 ] The Crown asked her to “go through what happened in as much detail as possible.” M.S said she had come back from the gym and gone to sleep in her bedroom. At this point she told the court, “I heard noises. I didn’t think much of it. I thought maybe my dishes moved in the sink.” [ 31 ] She testified that she woke up and saw a person standing right in front of her bedroom door.

She described the intruder as around 5’6’’, in his early twenties, with his face covered, wearing a black hat, black hoodie, red Adidas track pants with stripes, black runners and black gloves. [ 32 ] She remembers he said, “Your ex sent me for money and weed.” She confirmed this recollection a number of times throughout her examination and cross-examination. ii. Money and Rings [ 33 ] At this point, she said the accused searched her room. He went through a purse that had her wallet in it.

While he did not find any money in the wallet, she remembered she had fifty dollars hidden in it and she located it and gave it to him. [ 34 ] There was a search of her closet. Specifically, he asked her to enter her closet where she shuffled through her clothes and then came back out of the closet. She recalled she had two rings in a jewelry box and gave them to him. She testified that during these interactions she was “very scared for her life and was trying to get him out of there asap.” iii. The Sexual Acts [ 35 ] M.S. then describes what the accused did.

She said, “he pulled my tank top down; and I knew what was going to happen next … I begged and cried to him.” She told him it was against her culture and that she tried to convince him that she was a virgin. She provided a detailed description. The details are found on pages 13 to 21 of the transcript of her testimony from the trial.

It is my view that these details do not need to be included in this Judgment, but they are detailed and descriptive of how she alleges oral and vaginal sex was forced on her. [ 36 ] M.S. recalled him threatening that if she tried to be loud there were ten others outside and he would call them inside. She also recalled him asking her if she had a condom and telling her he “was about to cum.” [ 37 ] She recollected how she felt. Found at page 21 of the transcript: Q = Question from Crown A = Answer from M.S. Q: Okay. And how were you feeling at that point?

A: I couldn’t understand why this had happened to me, but I knew that the damage was done, whatever needed to be done and from that point, I had made up my mind, that no matter what happens, I’m not going to let this person get away. Q: Okay. And did you have that conversation with him? A: I did, I told him, I don’t recall word for word, but I do remember telling him that he was on the wrong path to life, that I assured him that I will not call the police and I wrote down my name and number for him so that he contacts me, so I don’t lose contact with him. Q: The -- you said that you would not contact police?

A: Yes Q: Why did you say that to him? A: Because I -- at that point -- at that time, whatever I felt was right, that’s what I did.

He had come in -- the way he had broken in and came into my room and had done everything, he was fully prepared at that time, I was -- I was thinking about Maple Batalia’s murder and how long it took for her to get justice and for her murderers to be tracked and I -- I couldn’t just fully trust the police with this and then eventually find out they couldn’t gather enough evidence, so at that point, I did whatever I did to make sure that this person, I can somehow stay in contact with him and assure him that if I don’t reach out to the police, that he can -- he can feel like he can still contact me.

Q: Did you have any, kind of, personal knowledge of that Maple Batalia murder? A: I did actually. My best -- my best friend was her best friend… [ 38 ] She then testified that he apologized to her, kissed her on the cheek and “ran out my door towards the left hand side of the house.” iv. Identity [ 39 ] There was detailed evidence both in-chief examination and cross-examination concerning how clearly she could see the person throughout the interaction. There were questions about how his face was covered, whether he was wearing a mask or some sort of neck warmer and even what the lighting conditions were.

She said she could see this person “very clearly.” [ 40 ] While identity in this trial was not expressly admitted, the accused does admit he was present in the home on July 30, 2017. He also admits to having sexual intercourse with M.S. He is not arguing that this is a case of mistaken identity. He is not arguing that he has an alibi. I find that identity has been proven beyond a reasonable doubt. He does, however, say that the sexual intercourse was forced on him.

Specifically, that M.S. forced him to enter her vagina with his penis against his will. [ 41 ] At first, as the trial Judge, I did not know the purpose of the detailed cross-examination with respect to what he was wearing, whether his face was covered and whether she could see his eyes. I now understand that discrepancies between what she may have said to the police in her statement versus what she said in court were elicited to call into question her credibility and memory of the events, thus questioning her reliability as a witness versus the related, but much different, issue of identity. v.

M.S.’s Conduct Immediately After [ 42 ] According to the telephone records at Tab 2 of the Admissions, M.S. started making telephone calls in rapid succession starting at 5:05.28 a.m., until her 5:28 a.m. phone call to 9-1-1. She called her dad, her landlord and another number. vi. The Police [ 43 ] M.S. testified that she assured him that she would not call the police. She even said she used the phrase “baba ji di saun,” which she described in the Punjabi language to mean she was basically swearing on her God that she would not call the police. [ 44 ] However, she did call the police.

The police came and she told them what happened. She said, “I told them that somebody broke into my home and I was raped.” M.S. was then transported to the hospital, where she was examined by a nurse. vii. The Nurse’s Examination [ 45 ] MacKenzie Lister testified as an expert in sexual assault nursing examinations and the mechanism and process of injury. She was the nurse who examined her. She explained the process of examination and results of the examination. By ‘flaring’ the right side of M.S.’s cheek she concluded that there was a foreign material present.

It was her conclusion that the foreign material could have been saliva, amongst other things. On this point, while the foreign material could be saliva and thus consistent with M.S.’s explanation that her cheek was kissed by the accused, the evidence is not certain enough for me to find beyond a reasonable doubt that this is the only reasonable inference that I can make. As such, I find that I am unable to determine with any degree of certainty that the foreign material is a result of a kiss. [ 46 ] There was also a bruise on M.S.’s right shoulder and an abrasion on her right knuckle.

M.S. also had a 4 centimeter by .5 centimeter laceration located on her vagina. It was the nurse’s conclusion that the laceration was caused by significant force being applied that caused a shearing or tearing of the tissue. It was Nurse MacKenzie’s testimony that the particular site of the injury is most common for injuries that arise from intercourse.

She further concluded from her experience that, “the injury was quite large compared to others that she had seen and would have required a significant amount of force.” She said the injury, “would have caused a significant amount of pain, similar to child labour.” [ 47 ] After being discharged from the hospital, M.S. stayed with her friend in Abbotsford for the next couple of days. viii. Communications - Post-incident

a) Phone [ 48 ] While at her friend’s, C.R., M.S. received a phone call for someone looking for ‘Ricky.’ A few minutes later she received another phone call and she immediately recognized the voice to be of the person, to use her words that “broke into my home and raped me.” She taped the conversation: Excerpts from call F = female/M= Male

M: yo is this M.? F: No, who is this? M: Who’s this? F: It’s Sabrina M: Sabrina? F: Yup M: Oh F: Who is this? M: Where where’s M.? F: This isn’t M.’s number M: It’s Tyrone M: Um? F: Who’s Tyrone? M: Ah this is the number she gave me F: I’m so sorry I think you have the wrong number M: Um, ok well fuckin’ if you ever figure who which who’s M. ah just a shit I don’t even know ah. … M: Just ah, I thought this was M. I was going to give her a message cuz she gave me this number. F: … This isn’t M. M: No? F: No this is Sabrina M: Oh F: Sabrina from Mission M: Um? F: This is Sabrina from Mission M: From Mission?

F: Yeah M: Oh, you’re in Mission right now? F: Yup M: Oh shit … M: that’s cool. I just had ta I just had to tell M. something … M: That’s all. I was I did some I was going to do her a favour … [ 49 ] With respect to this recording, the accused admits the details. He also said that he knew that it was M.S. speaking to him, but did not tell her that and that he gave a fake name because she gave a fake name. This explanation makes no sense.

b) Facebook [ 50 ] Shortly after the phone call M.S. received a ‘friend request’ on Facebook. Very quickly after opening the request she testified

that she “recognized all the pictures as the individual who sexually assaulted” her. The name associated to the pictures was “Kyd MyllzDa Goon Kmgd.” She also recognized a number of people she knew. She was of the view that she and her attacker had friends incommon.

c) Text Messages [51] The text messages were from a “Randip Grewal.” Previous to this day, and since this day, M.S. has never received any textsfrom a person by this name. I have set out some of the texts above. d) 9-1-1 [52] M.S. confirmed twice that she told the 9-1-1 operator she “was robbed and raped.” Only upon putting the transcript of the callto her in cross-examination did M.S. then agree that she never mentioned it. M.S. said she had not reviewed any of the materials in preparation for court.

She said “I would never want to sit there and remember what happened to me on July 30th for the rest of my life.” [53] It has been implicitly suggested that any person that was sexually assaulted would have surely and immediately mentioned thisto the 9-1-1 operator.

While not reviewing her statement for the trial might not be the best way to prepare for a trial, I accept M.S.’stestimony that being in a state of shock from a traumatic event could easily explain the lack of detail to the 9-1-1 caller. [54] She was also questioned as to why she did not scream or run away or fight back, and why she gave the accused her phonenumber. [55] I appreciate that defence counsel was not trying to suggest that there need be a ‘hue and cry.’ For example, whether she yelledand screamed, as she said she did, might have been heard by the neighbours as there were many people living in the same house.

So, ifshe did yell and scream, why was no one alerted? I understand this is the question that was being probed by defence counsel’s question -one of credibility. Nonetheless, as Crown has submitted, we have no details as to the structure of the house, how close neighbours wereor even if they are light sleepers. [56] To be absolutely clear on the topic of the idea of her yelling, fighting back or trying to run away, guessing and predicting howone should or should not act after being sexually assaulted is not a useful path in deciding issues of credibility.

In short, I agree witheach submission made in the Crown’s written submission found at paragraphs 16 to 22 and quote from their submissions, referring to theAlberta Court of Appeal in R. v. A.D.G., 2015 ABCA 149 , [2015] A.J. No. 470 (C.

A) at para. 33, 22. No inference should be drawn regarding a complainants’ credibility that is based on assumptions about how a victim of sexualassault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided“without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R. v.Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R. v.DD, 2000 SCC 43 at para 63, [2000] 2 SCR 275.

It cannot be assumed that sexual assault victims will react to abuse in any objectivelyidentifiable way. B. Cross-Examination of M.S. [57] Defence counsel proposed an alternative theory of events to M.S. It was suggested that she met the accused over a year ago andwas in a relationship for a number of months until the accused broke off the relationship a couple of months before the incident. M.S.strongly disagreed and said, “That is not correct.” Defence counsel points to a number of, what he labels as, inconsistencies.

I will notaddress all of them. [58] There were approximately twelve points that defence counsel would like me to consider when I assess the credibility of M.S. Some are overlapping and I will not address them all; however, I wish to make the following observations with respect to some of themain ones. i. Face Covered [59] M.S. testified in direct examination that the individual that came to her house was fully covered up. Specifically, that his facewas covered up. It is contended by defence counsel that this is new information that was not mentioned in a previous statement.

Assuch, it is argued that this is an inconsistency that should be considered in assessment of her credibility. A review of the video-tapedstatement shows that there was some reference to the idea that his face was covered. In light of this, to me, her testimony is neither‘new’ nor inconsistent. ii. Timing of Sexual Assault [60] It is argued that M.S. first said the assault took place immediately after going into the closet versus in cross-examination shetold the court it took place after he went through a dresser.

Specifically, defence contends that this information is different or ‘new’ andinconsistent, and not previously mentioned in her prior statements. I agree there is a difference, but these details are minor andinsignificant. I will discuss memory later in these reasons. iii. Paper with Name and Number on it [61] Defence submits that M.S. first testified that the accused did not ask for the name and number, but she told the police in anearlier statement that the accused actually had asked for her name. In response, she said, “Right now I do not remember.” [62] Clearly, there is an inconsistency.

However, does it matter? One way or the other she was clear and unshaken in her evidencethat she gave a piece of paper with her name and number on it to the accused.

[ 63 ] She was asked why she gave him her real name. In direct, M.S. said, “The only thing on my mind was that I was not going to let this person go; I always wanted to be a police officer and I did what I did to make sure that I got the justice - so he would call and I could trace his number and record whatever he had to say to me.” She also said, “It wasn’t to pursue a friendship with him it was to track him down.” She recalls he was not surprised when she handed him the paper.

It was her impression that “he actually thought we could be friends.” [ 64 ] Defence counsel argues that the idea of a victim to a sexual assault giving her real name and number on a piece of paper is too far-fetched to be believed. I have two comments to make. First, even if the act itself did not make sense, I rely on the law that I covered earlier on the topic of how victims of sexual assaults act. Everyone is different. Sometimes people do act rationally or in a manner that does not make sense to someone else.

Second, in this case, M.S. provided a clear, detailed and consistent explanation as to why she did what she did. I also agree with the Crown submission at paragraph 63 of their written submissions that the giving of her number was an act of an “intelligent young woman who was thinking on her feet in incredibly challenging circumstances.” iv. Tank Top [ 65 ] M.S., at one point, said she had a tank top tied around her mouth, that it was taken off while the accused forced oral sex on her, then put back on her face.

At another point in a statement she said after the oral sex “he didn’t bother putting it back on.” Defence argues that this is a ‘glaring inconsistency.’ In court she adopted the idea that it was not put back on when she said, “I don’t think he put it back on.” I agree that her answers were inconsistent. On this point though, does it really matter whether he put the top back on her face or not?

Certainly this discrepancy might be important if identification was an issue, but otherwise, I am not certain the differences are probative of any other issues other than her general memory of the events, which I will discuss below. v. Order of Movements in Room [ 66 ] M.S. was professionally, carefully and thoroughly cross-examined as to the details of her exact movements in relation to the accused’s movements. In my view, these potential discrepancies of who went where first, or who came out of the closet first are hard to give full consideration.

I do not have a reference point as to how big or small these areas are. It would have been useful to have a video of the residence in order to place the movements within an actual context. vi. Lack of Corroboration [ 67 ] M.S. says the sexual assault took place in her bedroom. The accused said the consensual sex took place in the living room and that he never even went into the bedroom. She described many things that may have come into contact with the accused, such as sheets, bedding, and different objects that were touched by the accused’s hands.

Defence says there is no independent identifiable proof that corroborates her version of events. For example, no DNA or fingerprints of the accused were found inside the bedroom. While true that no corroboration exists, the law does not require it. Further, not even the complainant’s fingerprints or DNA were found in the bedroom, and she lives there. Simply stated, just because you touch something does not mean there will be fingerprints or DNA. As a side note, I would also point out that no fingerprints or DNA were found in the living room.

Equally, the accused’s testimony does not require any corroboration either. vii. Gold [ 68 ] M.S. was clear on a number of occasions that the accused asked for ‘money and weed.’ In cross-examination, M.S. said that “he asked for gold.” The inconsistency was admitted to and M.S. explained that she was simply going on her memory of an event that took place four years ago. C. The Evidence of the Accused [ 69 ] For reasons that will become clear, I will not repeat in any detail the evidence of the accused.

I laid out the foundation of the defence case earlier in these reasons. [ 70 ] In direct examination, the accused said he is a 25-year-old male born in Ottawa. He moved to British Columbia when he was 14 and has one older brother, two younger brothers and two younger sisters. [ 71 ] As for employment he said that he was “involved in the music business.” His cousin, Clayton Gabriel - stage name Juvy Dizzle - hired him as a ‘hypman.’ He was asked where he performed and he told the court that he performed in over 40 venues.

When asked to provide names he said “I believe some would be in Chinatown, the Vogue Theatre … I don’t really remember.” i. Details of M.S. [ 72 ] He was asked if he had a girlfriend in 2013 and he told the court that he was on and off with Randip Grewal and that he had other girlfriends at the time. One was M.S., although he said, “he can’t remember every single one of them.” [ 73 ] He testified that he had met M.S. in 2012 at a party, a few more times after that and at a club in Vancouver. At first he said he did not really talk to her, that it was more of a just “Hi/Bye” but that she knew most of his friends.

Eventually, he says things developed from there and after one show “she came over to my condo.” His counsel asked him, “What did you talk about?” and he said, “Nothing; just how are you.” [ 74 ] He described the condo as belonging to his cousin. He recalled that M.S. came over with three or four of her girlfriends. Her friends left and M.S. stayed the night. Then he described what happened next. She probably stayed a few hours, they had sexual intercourse and she went home and had a shower. I pause here to point out that he did not help the court understand how he somehow knew she went home and had a shower.

I will also pause to attempt to describe how incredulous his recounting of these events was. As is the case with much of his testimony, it simply appeared he was making up the story as he went along. It almost appeared that he did not even care whether he was consistent or not in his recollections. On occasion he would change his testimony without even being

prompted. I will discuss this further later in this judgment. [ 75 ] He testified that M.S. had been over to his cousin’s condo a number of times. They “watched movies, comedy shows, stuff like that and we would go out.” [ 76 ] Tayvin Gabriel was called on behalf of the accused. He is the cousin or maybe even half-brother that the accused said had met M.S. It is also his condo that he says M.S. was at a number of times. Whether Mr. Gabriel is a cousin to the accused, or his half- brother, he was not able to say with any degree of certainty that he had ever met M.S.

To the contrary, he said he never saw M.S. at the condo. When a photo of M.S. was put to him, he said he thought the photo looked familiar but was unable to say where he may have seen her. He has an extensive criminal record, that has on it crimes of dishonesty.

However, I do not need to make any assessment of his credibility as he was not able to tell the court any details that supported the accused’s testimony. [ 77 ] As time went on, the accused explained to the court that he did not want to be in a relationship with her and “broke it off.” He was clear that she was relentless in her pursuit of him to the point that he even had to get a new phone. He said that “I went to perform and she kept following me around.” On one occasion, she showed up really drunk and he offered to pay for her cab home because he was worried about her.

They got into a taxi and ended up staying in a motel in Surrey, where they had sex. [ 78 ] While the relationship was finished in mid-summer 2013, he said they had met up on one occasion. He said he “believed we bumped into each other; I was almost home and she gave me my new phone number.” His answers were often nonsensical. I can only assume he meant to say that they bumped into each other and he gave her his phone number or she gave him her phone number. I simply cannot tell what he was trying to convey.

He testified they had met near an elementary school and when asked if he could remember which one he said, “there is a street and its right there.” [ 79 ] He told the court that they were sitting down and one thing led to another and “we were almost having sex.” At this point of the interaction he said he stopped it and walked away when he heard her say “something like you’re going to pay for this.” According to the accused, this is the last time he saw her until he broke into her residence on July 30, 2017. ii. How He Got to the Residence [ 80 ] The accused explained how he got to the residence.

He explained that he would rob grow-ops. He said a guy named “Jay” told him that he knew of a guy who sells drugs, and told him there should be some money and weed there. The plan, according to the accused, was to “rob the guy of money and weed” and split the proceeds with the person who gave him the information. This of course differs from M.S. who clearly remembered him saying, “Your ex sent me for money and weed.” iii.

Confronting M.S. - The Accidental Intrusion [ 81 ] After going into the residence through the window and looking through some cupboards, he decided to go towards the bedroom to wake the person up. To his surprise, he saw a female, who he did not immediately recognize because of the lighting. After a moment, he recognized it was the complainant, M.S. He said that this is the conversation that took place: M.S.: “Hey kid, what are you doing here?” Accd: “Oh M., you live here?

Homey told me that this guy sells weed” M.S: “Oh, that’s my neighbour” [ 82 ] At this point the accused said that he remembers thinking that “this is the strangest coincidence in the world.” According to the accused, he had never been to M.S.’s place before. [ 83 ] At paragraph 87 (

J) of the Crown’s written submissions, they contend that, “It is wholly unbelievable that he would randomly break into a house of a girl that he recently broke up with - it is not an extraordinary coincidence - on this point alone his evidence should be rejected.” [ 84 ] I agree that the coincidence is truly unbelievable. However, I do not fully agree that the analysis should stop here. On the other hand, while not examined by counsel in any detail, there are other explanations that could explain the accused being present in the home that day.

Apparently, there was a neighbour that may have somehow been involved in the drug trade. There is nothing to support this suggestion, but it has been suggested. So there is a possibility that the accused simply showed up at the wrong door. Second, the accused and M.S. apparently have some overlapping acquaintances, which include M.S.’s ex-boyfriend. Somehow the address could have been passed from one person to another for some other purpose.

I do not wish to make any finding with respect to these points; as to me, there is not a proper foundation and to reach any particular conclusion smacks of pure speculation. iv. Sex [ 85 ] The accused then testified that, “I was trying to leave and she was stopping me from leaving; she would grab my sweater, pull me back, block me from leaving.

I was on a chair and she said ‘I thought you loved me’ … I already told you; then I was backed up on the couch.” He recounted that M.S. also said things like, “why don’t you want to be with me” and “why don’t you leave your girlfriend.” [ 86 ] At some point, according to the accused because ‘he was short and skinny,’ M.S. pushed him on the couch and got on top of him, pulled out his penis and sat on top of him.

He said while this was happening he kept telling her “we can be friends, but if we can’t there’s nothing.” At some point he explains that he pulled her off, pulled up his pants and told her “no.” I have the distinct advantage of seeing both the complainant and accused at the time of the trial. No evidence has been led to help me understand what either of them may have looked like at the time of the allegations. However, I would not describe the accused as frail. Nor would I describe the complainant as overly strong looking.

I mention this simply to illustrate that it was my impression the accused was trying to somehow

minimize his physical ability to defend himself from the complainant. It was to me another example of how he would try to provide a narrative solely to support his version of events. [ 87 ] He denied ever entering her bedroom or doing any of the things that were alleged by M.S. in her testimony. v. Number, Calls and Police [ 88 ] At this point, he says she gave him her number and he left.

He recalls that she said, “call me,” to which he said, “Ya, I’ll do that.” It was at this point in their interaction that M.S. told him, “don’t worry I’m not gonna call the cops” to which he responded by saying, “I don’t care.” [ 89 ] His counsel asked whether he was wearing gloves the whole time. He said “if I had them on, then I would not have taken them off.” While somewhat surprising to me, it was obvious that the accused had no recollection at all whether he was wearing gloves that night or not. [ 90 ] He then explained that he went home and went to sleep.

When he woke he “remembered she said to call her, so I called her…” He also admitted to the other details of the communications which are corroborated by the phone logs. [ 91 ] He said he called her because he was “trying to move forward and be friends or not and leave it at that.” After speaking to M.S.’s boyfriend, he realized the police had been called and then the “main focus was to figure out the situation between me and her.” He thought that maybe she called the police because he was breaching his curfew. [ 92 ] He explained that he tried to communicate with her on Facebook.

He said, “When I was calling her I remembered her name, so I just put it in my Facebook.” The main reason for this was, “just to figure out our standards and where we were to see if we were going to be friends or not.” One question that I am not able to answer is why would he ‘have to remember her name’ if he had been dating her for so long? As well, why after supposedly trying to avoid her for so long was he now worried about whether they were going to continue to be friends or not?

These competing portions of his testimony are extremely difficult to reconcile. [ 93 ] In cross-examination, he confirmed his testimony that he and M.S. were dating for three or four months, that they used to go out and eat, watch videos together, comedy shows and go out with friends. vi. Statement of the Accused to Police [ 94 ] On December 12, 2013, there was a five-hour long statement given to the police that was 361 pages long. Crown asked him whether he reviewed it.

The accused seemed uncertain but said, “I believe I had reviewed it.” [ 95 ] He agreed that at no time did he tell the police any of the details of this alleged relationship. He also agreed that he did not tell the police that he broke into M.S.’s house and did not tell them that they had intercourse. [ 96 ] He said he did not remember the names of the people he had met with M.S and agreed that he had made no efforts to track any of them down. [ 97 ] He said during the course of their relationship they would call each other and text each other.

He was not able to recall any of the numbers he may have used and admitted that he had no record or any evidence showing that they knew each other prior to the date of the allegation. [ 98 ] This evidence must be considered, along with the evidence of Cpl. Barret who was actually called by defence counsel. He was the main investigator in this case and when cross-examined by the Crown he testified that this was an extensive investigation that generated over 3,000 pages of disclosure.

He testified that during the course of the investigation he found no evidence that the accused and M.S. knew each other prior to July 30, 2013. In this era of technology, I find it difficult to believe that there would not be some digital fingerprint showing somehow that the accused and M.S. were in touch with each other by some electronic means. Certainly the lack of this digital fingerprint supports M.S.’s version of events. vii. Meeting at School [ 99 ] He said that he and M.S bumped into each other. He said it was around 7:00 p.m. mid-June.

He said, “we started having sexual intercourse,” then he said, “we can’t do this.” Crown pointed out he said in direct that they “almost” had sex, and now he was saying they did have it.

In an attempt to clarify, the accused said, “I don’t remember what I said; but now I say we started to have sexual intercourse.” The Crown then asked, “did you have sex or not?” To which the accused said, “just some oral or not; doesn’t oral count as intercourse?” The accused at one point said it was daylight, then dark and, ultimately, when reminded that June 21 st is the longest day of the year and it would probably have been light at 7:00 p.m., landed on, “I don’t remember if it was daylight or dark.” [ 100 ] In cross-examination, he was asked many questions about the similarities of the school incident he told the court about versus one that he described to the police with a person he knew as Shanti.

He was asked to explain why he told the police one story about ‘Shanti’ and the court another about “M.S.” and why the stories are extremely similar in their detail. [ 101 ] In short, the accused’s testimony on this topic seemed absolutely made up. It was day. It was dark. We had sex. We did not have sex. It was Shanti to the police. It was M.S. to the court. He often would change his answer without even being prompted by a further question. viii. Breaking it Off [ 102 ] He confirmed that he told her repeatedly that he did not want to have anything to do with her.

He changed his phone, asked friends to let him know if she was around, and on numerous occasions told her that it was finished. Yet he either phoned her from his

home phone, friend’s phone, a newly created phone number, texted her, and had Facebook contact with her eight times immediately after the break and enter - allegedly in hopes to establish whether they could just be friends or not. ix. The Details [ 103 ] When asked to confirm his recollection of any words that were spoken, the accused simply seemed to make up fake conversations.

For example, at one point he testified that he said, “I will call you tomorrow and we can discuss whether we are going to be friends.” New information in cross was that she said to him, “fuck you bitch, you are going to pay,” but then a minute later in his testimony he said she “was just swearing at me as usual” and then calmly said to him, “just call me tomorrow.” x. Police [ 104 ] He then clarified that he did not say “I don’t care,” as he told the court in direct, when M.S. said she was going to call the police.

Instead, he denied that she said anything about calling the police and what he meant to say was “I wouldn’t care” if she called the police.” [ 105 ] He did not recall her saying anything in Punjabi. However, he did admit that he understood the phrase ‘baba ji di saun.’ He, at first, did not seem to admit he sent the text with the ‘baba’ reference. He looked puzzled when asked by the Crown why it was sent. In fact, the Crown asked, “Why do you look puzzled?” He said, “I don’t remember what I sent.” He was asked if he remembered whether M.S. swore on ‘baba’ and he said I don’t remember. Then he says she did not.

That is when he finally agreed he sent the text, that she did not swear on ‘baba,’ and that he was actually sending the text to a different person and he was not talking about ‘baba’ but that must have been autocorrected by his phone. [ 106 ] In

summary, when asked to explain why this strikingly similar phrase was in one of his texts received by M.S., his response was twofold. First, that it was some sort of autocorrect on his phone, that he was, in fact, trying to text something different. Second, that this particular text was meant to be sent to someone else, not M.S., and somehow without him attempting to do it, it mistakenly was sent to M.S. To me, his explanation for this particular text is fantastical. His stories to the police were not consistent with his testimony to the court.

Equally, his testimony in court was often very inconsistent with other parts of his testimony that he provided to the court. [ 107 ] In his police statement he said that maybe he did have sex with her, referring to a person in a photo, then maybe he did not. [ 108 ] He was asked why he basically told the police all of these things - most of which were absolutely inconsistent with his testimony in court.

He said, “I don’t know man, I was just lying until now.” He explained that “my stories did change about M.S. many times because I lied to them and didn’t want to go to jail … I would lie to the officers and tell you guys the truth now.” [ 109 ] To be clear, there were many other parts of his testimony that simply did not make sense; I have only covered a few of them. CONCLUSIONS [ 110 ] While normally reluctant to fully agree with one side or the other without providing further explanations, I would like to repeat portions of paragraphs 100 and 101 of the Crowns written submissions: 100.

In conclusion, M.S. was a candid, honest and forthright witness. She made no attempt to bolster her evidence and she readily admitted if she made a mistake or if her statement differed slightly from what she said in court. Most importantly, her evidence is corroborated in significant ways by the independent evidence. 101. In contrast, the Accused’s evidence was full of lies, major inconsistencies and contradictions. His story changed over and over again, depending on what he thought would get him out of trouble at any given moment.

It cannot possibly be believed …. [ 111 ] I fully agree with these submissions of the Crown. In an effort to be clear, this is not at all a situation where I am unsure of the guilt of the accused. The Crown bears the sole responsibility of proving the elements of the offence beyond a reasonable doubt. I am fully and completely satisfied that the charges have been proven beyond any reasonable doubt. [ 112 ] The evidence of the accused was wholly unbelievable. I reject his evidence on almost every point, unless the particular point is supported by the agreed statement of facts.

For a simple example, I am not even certain if his supporting witness was his brother or cousin. Since this point is not covered in the agreed statement of facts, I do not even accept his evidence on this simple, non- controversial point. His testimony does not raise any doubt whatsoever, let alone a reasonable doubt. Mr. Khouri Green attempts to mislead, come across as the victim and, otherwise, explain facts with fantastical explanations that have no connection at all to reality. [ 113 ] I fully accept the evidence of the complainant. It was consistent, both internally and externally, and made sense logically.

There were a few inconsistencies, but she was a strong witness. She was a believable witness. She was a consistent witness. [ 114 ] The evidence outside of what M.S. was able to provide was clear and consistent. [ 115 ] I am more than satisfied that, based on the totality of the evidence, that the Crown has proven beyond a reasonable doubt that: 1. The accused broke into the home of M.S. on July 30, 2013 and committed the indictable offence of theft. 2. He sexually assaulted her by forcing M.S. to perform oral sex without her consent. 3.

He sexually assaulted her by forcing M.S. to have vaginal intercourse without her consent. 4. During the course of the sexual assault, the accused caused injuries to M.S. by wounding her by causing a tear in her vagina. [ 116 ] Khouri Green I find you guilty of:

Count 1 That you, Khouri Lamar GREEN, on or about the 30 th day of July, 2013, at or near Surrey, in the Province of British Columbia, did break and enter a dwelling house situate at [deleted] and commit an indictable offence therein, theft, contrary to Section 348(1) (

d) of the Criminal Code . Count 2 That you, Khouri Lamar GREEN, on or about the 30 th day of July, 2013, at or near Surrey, in the Province of British Columbia, that you did commit aggravated sexual assault on M.S., contrary to Section 273(2) (

b) of the Criminal Code . [ 117 ] That concludes these reasons. The Honourable Judge A.M. Wolf The Provincial Court of British Columbia