R. v. Caplette, 2021 BCPC 294

Citation: R. v. Caplette 2021 BCPC 294 Date: 20211125 File No: 92764-2-KC Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BLAINE JONATHAN CAPLETTE PUBLICATION BAN Pursuant to

Section 486.4(1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: S. Thompson Counsel for the Accused: J. Krueger Place of Hearing: Abbotsford , B.C. Date of Hearing: September 29, October 15, November 19, 2021 Date of Judgment: November 25, 2021 Overview [ 1 ] Blaine Jonathan Caplette is charged with the following offences: Count 1: that he confined K.M.H. between November 23 rd , 2020 and November 24 th , 2020 contrary to s. 279(2) of the Criminal Code .

Count 2: that he sexually assaulted K.M.H. using a weapon between the dates November 23 rd and 24 th , 2020, contrary to section 272(2) (

b) of the Criminal Code . Count 3: that he uttered a threat to K.M.H. between the dates November 23 rd and 24 th , 2020 contrary to s. 264.1 of the Criminal Code . Count 4: that he assaulted K.M.H. causing bodily harm between November 16 th and November 24 th , 2020, contrary to s. 267 (

b) of the Criminal Code . Count 5: that he disobeyed the order of Judge McQuillan between the dates October 4 th , 2020 and November 24 th , 2020 contrary to s. 127(1) of the Criminal Code . [ 2 ] The Crown has proceeded in this instance by indictment, and Mr. Caplette has elected to be tried in Provincial Court. [ 3 ] At the outset of the trial the Crown amended Counts 2, 3 and 4 to, in his words, narrow the focus of the allegations that the accused faced. The result of these amendments dealt with the dates and therefore timeframe of the various allegations against Mr. Caplette.

Defence counsel consented to the amendments. [ 4 ] The defence has also admitted identity and jurisdiction. As well, the defence admits that Mr. Caplette was bound by the order of Judge McQuillan as set out in Count 5, and as such concedes that the Crown has established sufficient proof of the offence. [ 5 ] Based on the evidence heard in this trial, the Crown seeks a conviction in Count 2 for the included offence of sexual assault, simpliciter , rather than the offence charged. [ 6 ] By way of brief overview, K.M.H. and Mr. Caplette were in a relationship at the time of the allegations.

The Crown’s theory is that the relationship was marked with such violence and threatened violence, that is, Mr. Caplette assaulted and threatened K.M.H. so frequently that on November 23 rd , 2020, K.M.H. was incapable of voluntarily choosing to be with Mr. Caplette and therefore was forcibly confined. The Crown maintains that K.M.H. then either expressly did not consent to sex with the Accused; or, because of their history, was coerced into having sex with him, and therefore did not voluntarily agree to the sexual activity. [ 7 ] Mr.

Caplette, who gave evidence in his defence, agrees that the relationship was tumultuous, but on this specific date, he maintains K.M.H. went with him of her own free will; indeed it was she who asked Mr. Caplette to pick her up and agreed to go back to his home. There, Mr. Caplette says the two of them eventually engaged in consensual sex which K.M.H. initiated. Mr.

Caplette maintains that while no specific words were spoken by K.M.H. to indicate her consent to the sexual activity, she communicated her consent by her conduct. [ 8 ] As is obvious from this brief description, credibility is the main issue at play in the analysis of the matter before me. The Evidence [ 9 ] The Crown called four witnesses, consisting of three police officers and the complainant K.M.H. Detective Lisa Faria was the first witness called by the Crown. She has been a member of the Abbotsford Police Department for 25 years.

On November 23 rd , 2020 she had been dispatched to [omitted for publication] in Abbotsford to check on the welfare of a female. Once there, she learned from a number of other officers who were already on scene that the accused and his father had refused to open the door for the police. [ 10 ] She testified that for 20 minutes she tried to negotiate with the accused to bring the female inside to the door of the suite.

Finally, she told the accused she was giving him one more minute to comply before the police would enter by force. [ 11 ] Suddenly, while the officer was positioned on the steps leading down to the door of the suite, the accused pushed K.M.H. out. The officer testified that the accused then slammed the door shut and locked it. [ 12 ] The officer observed that despite the cold, damp weather, K.M.H. had no shoes on and was not wearing a coat. She described K.M.H. as being terrified and shaking as she was brought to a police vehicle.

Although lighting was low, the officer was able to observe a pronounced black eye on K.M.H. [ 13 ] Despite asking the accused and his father to open the door, the officer testified that they refused. The suite’s door was then breached, and Mr. Caplette and his father were both arrested. [ 14 ] Cst. Page was another officer who attended the [omitted for publication] address on November 23 rd , 2020. His testimony aligned with much of Det. Faria’s. He described breaching the suite’s door because of the uncooperative nature of the two males inside. He too, described how K.M.H. had been pushed out of the suite.

He observed a bruise under her right eye. [ 15 ] Cst. Pranskevich also attended at the scene on the date in question. When she arrived with another officer she encountered the accused’s father who she described as being evasive. She testified that shortly after midnight she saw K.M.H. pushed out of the suite. She observed her to be wearing a grey sweater and that she had no shoes on. [ 16 ] This officer took K.M.H. to the hospital where she was able to observe a number of injuries to K.M.H.’s body. She said that K.M.H. had a black right eye, as well as other bruises to her face.

Indeed the officer described K.M.H. as having bruises everywhere on her body including her legs and glutes. She said that K.M.H. had what appeared to be bite marks that had turned purple on her chest. [ 17 ] The officer testified she photographed some, but not all of these injuries. A booklet of 16 photographs has been entered as Exhibit 2 in these proceedings. Photos one through three appear to have been taken at the scene and show the complainant to be in distress. She appears to have tears on her face in one of the photos. The others from this group show a black bruise under her right eye.

The right side of her face appears to be swollen compared to her left. In these photos she can be seen wearing a grey sweater.

[ 18 ] The remaining photographs of K.M.H. were taken at the hospital. Here she is wearing a hospital gown which has been lifted or removed to show different areas of her body.

I note a number of bruises and a scratch on her left arm; a large bruise on her right shoulder; some discoloration to her right clavicle; several large bruises on her left buttock; several bruises including a large bruise on her left thigh, slight discoloration on her left calf; and large bruises on her upper and lower right leg as well as some redness. [ 19 ] I will now highlight what I view as the most significant aspects of K.M.H.’s evidence both in chief and cross-examination. My intent in taking this approach is to achieve some economy in setting out these reasons.

To be clear, however, I have carefully considered the entirety of her testimony, and indeed all witnesses, and instruct myself that it would be an error not to do so. [ 20 ] K.M.H. described that she and Mr. Caplette had been dating on and off for approximately the last two years. In November of 2020, her home was in Pitt Meadows, while Mr. Caplette’s was in Abbotsford. She said she spent the night of November 22 nd , 2020 at Mr. Caplette’s, but took an Uber back to her place the next day because, in her words, Mr. Caplette was not being his best. [ 21 ] Once back at her home on the 23 rd , she testified that Mr.

Caplette then tried to take her back to his house multiple times. On the first occasion, he came to her home and “freaked out” at her. She described how he grabbed her, including by the throat and bit her, saying, “That’s what he would do.” She said she picked up her cat at one point to put something between herself and Mr. Caplette, but she ended up falling. She testified that Mr. Caplette told her she had to come to his house. She stated that she did not want to go there because she was terrified of him. She said, “I know what happens at his place.” She also described how Mr.

Caplette called her a cheater and a whore. Eventually, Mr. Caplette left without K.M.H. She testified that she told him she would take an Uber back to his place, but said that was in fact a lie. [ 22 ] Mr. Caplette came back to K.M.H.’s home a second time, and at around 6:00 or 7:00 pm drove her back to his home in Abbotsford. Once there K.M.H. described Mr. Caplette “freaking out” at her for making him take two trips to Pitt Meadows. She said he shoved and pushed her and that eventually they ended up in his bedroom where he locked the door. Once there she testified that Mr.

Caplette forced her head down while she performed oral sex on him. She testified she did not want to, and told him no many times. She said Mr. Caplette did not ask, and that “he just wants what he wants”. [ 23 ] After the oral sex finished she testified that he then had vaginal intercourse with her in which she was positioned on top of Mr. Caplette. She said Mr. Caplette pulled off his own pants, as well as hers, and that she was left wearing only a sweater. [ 24 ] The following exchange occurred in chief: Q: Did you want to have sex with him? A: No, not at all. Q: Did you tell him that? A: Yes.

Q: Did he ask you if you wanted to have sex? A: No, he just said I’m his girlfriend, I have to and stuff. [ 25 ] In describing the oral sex, K.M.H. testified that she told Mr. Caplette not to force her because her mouth was swollen from when he had hit her in the face some days earlier. She then described how Mr. Caplette had hit her multiple times since they had started dating again on September 29 th , 2020, and that on this last occasion he had hit her hard enough to split her lip. She said that he had hit her many times including once in October that resulted in her having to go to the hospital.

On another occasion he hit her causing her lip and nose to bleed “all over his house”. She testified that on November 10 th and 16 th Mr. Caplette had hit her with a metal pole in her face, stomach and crotch, specifically the inner side of her vagina. [ 26 ] She also testified that Mr. Caplette told her he would “fucking kill me” and that he would kill himself. She specified that he told her he would kill her when she was at his place earlier on November 23 rd , 2020, which was why she said she left and went back to her home in Pitt Meadows. When she told Mr.

Caplette she was leaving, she testified to the following exchange: A: I’m going to show up at your place before you do. I’m like I might go to my dad’s. And he’s like I know where your dad lives too. And he would threaten suicide if I didn’t come back. [ 27 ] After intercourse, K.M.H. said she wanted to leave. In the past she said she would ask Mr. Caplette if she could go home afterwards but that was when the physical abuse would start. He would accuse her of cheating and being a whore she said if she did not want to spend the night with him. [ 28 ] As I understand K.M.H.’s evidence in chief she then gave Mr.

Caplette her debit card so that he would leave his home and pick up some food. At around 10:00 or 11:00 pm she testified that she texted a friend to get him to call the police. K.M.H. then remembers the police banging on the door. She described Mr. Caplette’s father then coming into the bedroom and saying, “the police are fucking looking for her”. She remembered Mr. Caplette going to the door and hearing him tell the police he had not been in contact with her. She said that Mr. Caplette then returned to the bedroom and started looking through her phone to see if she had called the police.

He told her to shut the fuck up and lie down because the police were near his bedroom windows. Eventually, she said Mr. Caplette grabbed her without her belongings or shoes and shoved her out the door. She testified that she then fell into a police officer. [ 29 ] K.M.H. testified that the injuries she sustained included sore spots and bruising over her arms, legs, back, butt and face. She said she had been bitten hard enough to break her skin. The pain she said lasted until December and that she still has some marks on her body.

She remembered one of the police officers taking photographs of her at the hospital on November 24 th . She testified that she also took

photos within seven days of the incident which she sent to a police officer. Exhibit 1 contains seven photographs of K.M.H. depicting dark bruising below her right eye; bruising around the right side of her mouth; bruising to the left side of her chin; and swelling on the left side of her face. [ 30 ] The cross-examination of K.M.H. focused on a number of apparent inconsistencies between her testimony in chief and statements given to the police shortly after their attendance on November 24 th .

Firstly, it was put to K.M.H. that in describing the assault that occurred at her residence on the first occasion the accused attended on November 23 rd , she maintained that among other things when Mr. Caplette grabbed her and threw her to the floor she said she struck her face; yet, in her statement to the police, she described only her “leg and butt” hitting the ground. Eventually, K.M.H. conceded that her head did not hit the ground on the 23 rd . [ 31 ] It was then suggested to her that she was exaggerating what had taken place on the 23 rd . She answered with the following: A: I know what happened that day.

I know exactly what happened. I just get overwhelmed, but I constantly tried to break-up with him and I just end up being abused. [ 32 ] It was also put to K.M.H. that contrary to her testimony in chief of being forced to go with Mr. Caplette when he came to her residence the second time, she in fact freely went with him. She agreed with her previous statements that she carried some of her bags herself to his vehicle.

She also agreed that she told police officers that she went with the accused because he made her feel guilty. [ 33 ] It was pointed out to K.M.H. that although she described being struck with a metal pole on the 23 rd in her evidence in chief, her statements to the police do not include that detail. She agreed that it was in fact something that had happened on a different date. [ 34 ] It was also put to her that despite testifying to asking Mr.

Caplette to go out for food after the sexual activity, which provided her with the opportunity to text her friend, her statements to police suggest that the food run occurred before the sexual activity. She commented on the interaction between her and the investigators as follows: A: I said he gets physical. I wasn’t comfortable yet talking about it. [ 35 ] Regarding the photographs that she took of herself and which were marked as an exhibit, K.M.H. acknowledged that she testified in chief they were taken by her after November 24 th , 2020.

In her statements to police, it was shown to her that she told officers they had been taken sometime before November 23 rd . She eventually agreed they were and acknowledged being confused about the date. It was also pointed out to her that she testified the photos showing the bruise beneath her eye had been caused by Mr. Caplette when he struck her in the face on the 23 rd . She conceded that the bruise in the photos was in fact caused by a different incident in which Mr. Caplette struck her. Eventually, she conceded that she was not struck in the face by Mr.

Caplette on the 23 rd . [ 36 ] With respect to the sexual activity, K.M.H. agreed that she testified in chief that she told Mr. Caplette she did not want to perform oral sex on him. It was then pointed out to her that in one of her statements to police when she was asked whether she said anything to him at that time, she replied no. I note that K.M.H. then explained that the question the police actually asked her was whether she said anything to Mr. Caplette, or whether Mr. Caplette said anything to her. She explained that her response was in answer to whether Mr. Caplette had said anything to her.

She emphasized that he had grabbed her hair at the time and forced her head down. Indeed, counsel read the following answer from her statement: A: When he was pulling my hair I was saying no, and then while I was doing it I was stopping. And he would be like just a little, and I was like it hurts and he would be just a couple more seconds and I would keep doing it. [ 37 ] Regarding the sexual intercourse, K.M.H. acknowledged stating the following in answer to the police regarding consent: A: I feel like the sex was consensual. I was informed that that’s not consensual.

I thought it would be because we’re boyfriend and girlfriend. [ 38 ] In re-examination Crown Counsel confirmed that in this same statement, K.M.H. went on to say: A: The blow job, I didn’t want to do it because of the pain in my mouth, and I did say no and try to stop it like a couple of times. So I don’t believe that was fully consensual. But the sex was because I never like said no or try to stop it. [ 39 ] Mr. Caplette gave evidence in his defence.

It has been admitted that during the timeframe set out in the indictment he was bound by court order to have no contact with K.M.H., and was subject to a 10:00 pm court ordered curfew. He testified that he and K.M.H. had woken up together at his home on November 23 rd , and that she then took an Uber back to her home in Pitt Meadows. He said that the two of them had made plans for him to pick her up later that day and bring her back to his home, and then drive her to a job interview in Langley the following day. He remembered telling K.M.H. to leave her door open for him when he arrived.

Once there, he recalled sitting on K.M.H.’s bed and using his phone. He said that K.M.H. became upset with him because he was not paying attention to her. He testified that they began to argue and that eventually K.M.H. told him to leave. In the course of the argument Mr. Caplette said he grabbed K.M.H.’s foot and that she slipped and fell. He said he helped her up and apologized. She told him to leave, he explained, and he did. [ 40 ] Mr. Caplette then described receiving text messages from K.M.H. in which she apologized, for what he called “one of her little moods”.

She told him she would take an Uber to his place, but eventually, because it did not show up, he agreed to come back and pick her up. He testified that he was upset with her for making him come all the way out a second time to pick her up. He said he took the long way to get to her place, in order to give her time to get ready. Despite that, he said she still was not ready once he got there, but also said that she was upset with him for taking so long. He said she then accused him of cheating on her. He told her they had to hurry because of his curfew.

At K.M.H.’s request, he took her backpack with him back to his vehicle, and waited for her to eventually join him, bringing another bag, her purse and laptop with her. Mindful of his curfew, Mr. Caplette testified he began driving back to his home.

[ 41 ] Along the way, Mr. Caplette testified that K.M.H. asked him if he wanted to drink. He told her that it was up to her. He said he agreed and so stopped at a liquor store. He said she gave him her debit card and he went in to make the purchase. [ 42 ] He testified that the two of them arrived back at his place at 9:35 pm. He said that he then took his dog out for a walk, and that when he returned K.M.H. had taken all of her belongings as well as the alcohol with her and was now in his bedroom. He said that she then told him she wanted some food. He recalled that at around 9:40 he went out on his own to KFC.

He testified that he had kept her debit card in his wallet from when he had made the earlier purchase at the liquor store. He said he was “observant” about his 10:00 pm curfew at this point, and that while he was at KFC he texted K.M.H. to ask her what she wanted. He said she told him she was on the phone with her sister, but eventually told him what she wanted. He said it was 10:05 when he got back home, five minutes after his curfew. [ 43 ] Mr. Caplette testified that he took the KFC to K.M.H. in his bedroom where the two of them decided on a movie to watch.

When asked whether he ate anything, he said he barely touched it because he was still mad at her. He was asked why he was mad, and explained that it was because she often complained that he was always belittling her, and also because he had to go back and forth twice before taking her back to his home. He said these things made him “kinda upset with her”. He said he was “kinda upset as well” because when he returned from his food run he saw that K.M.H. had consumed some of the alcohol he had purchased earlier. [ 44 ] In his room, he could not remember if he had closed his door, saying it was probably open.

He said K.M.H. finished eating the KFC and that he put it on a side table. He remembered his dog was begging, and that K.M.H. then put his dog out of the bedroom and shut the door. Mr. Caplette said he let the dog back in, but that K.M.H. put him out again, and that that “kinda irritated” him, and that K.M.H. knew that irritated him. [ 45 ] Mr. Caplette testified that throughout the time K.M.H. ate her food she would frequently stop to kiss him in order to “suck up to him”. He said that eventually after she finished her food, the two of them then “ended up having sex”.

He testified that it started with K.M.H. putting her hand on top of his pants on his crotch. She proceeded then to put her hand under his pants. He said he then pulled his pants down and K.M.H. then gave him a “blow job”. He testified that she moved herself into the position to perform the oral sex. Mr. Caplette could not remember saying anything to K.M.H. while she gave him the blow job. He remembered that she stopped after a couple minutes and said that her jaw was sore. He then said that he told her “just a couple more seconds”. She continued, but eventually stopped.

He said that she then took her own pants off and that he took his off. He described her getting on top of him and taking her sweater off. He said she was not wearing bra. He recalled K.M.H. removed his t-shirt, but could not remember the exact order. He said the two then had sex with her on top while he stayed on his back, holding her breasts. He remembered that when K.M.H. got on top of him, she put his penis inside her vagina.

He said the intercourse lasted maybe five minutes and that afterward K.M.H. got off and that the two cuddled and had another drink. [ 46 ] After about twenty minutes of cuddling and watching a movie, Mr. Caplette said his father came to the bedroom door and told him the police were there. He believed it was for a curfew check. He testified that he put some clothes on and went to the door and saw a male and female officer, which he described as odd. He initially testified they asked them if K.M.H. was there, which he said he also found odd.

He then corrected himself and remembered them asking when the last time was that he had seen K.M.H. He testified he told them, “I hadn’t seen her in months because of our court ordered condition”. They then asked if she was in the residence, to which he replied no. He said the officers then went back to their car, while he went back to his bedroom. [ 47 ] Mr. Caplette was asked why he thought the officers were at his residence. He testified to do a curfew check. He added that they did it two to three times a week, and that they had done it on other occasions when K.M.H. was there.

He was also asked why he told the officers he hadn’t talked to K.M.H. in months and that she was not presently there. He answered, to avoid a breach. [ 48 ] He said he returned to his bedroom and resumed cuddling and drinking with K.M.H. He remembered then his father coming his door a second time and telling him the police were still there. He testified he went to his door again and saw that there were more police officers present.

He was told by them that they knew K.M.H. was in his home, but he said, “I didn’t know what was going on.” He said he felt threatened and scared because they had their guns drawn and that he had had a friend “murdered” by the police. [ 49 ] He said he then went back to his room, and heard the police continue telling him to open the door and that they were going to come into his house. He remembered the police telling him they had “pinged” K.M.H.’s phone and that it was in his house. Mr. Caplette testified he told the police that that was impossible.

He said the police told him they were going to kick his door down. He then remembers telling K.M.H. she had to go outside and talk to them. He recalled then opening the door and that K.M.H. walked out. He said he “kinda escorted her out”. Afterward, he said he shut the door and locked it. [ 50 ] When asked to summarize why he did not cooperate with the police he said it was because K.M.H. was there and he did not want be breached.

He also said they had no right to be in his house. [ 51 ] When asked whether he hit or threatened K.M.H. on November 23 rd or 24 th after they had returned to his residence, he replied no, and that the only physical contact they had was the cuddling and sex. He said during this period, “We didn’t argue or anything.” [ 52 ] In cross examination Mr. Caplette acknowledged that on November 23 rd and 24 th he was bound by a court ordered condition to have no contact with K.M.H.

He also admitted that he “lied” to the police on several occasions that night, and denied them entry when they requested to enter to check on K.M.H. He said he did so to avoid being breached, but also said he would have cooperated with them if they had said they were doing a welfare check of K.M.H. Still, he testified that he did not know why the police were at his residence. [ 53 ] He agreed he did not ask K.M.H. if she wanted to have sex, but that “it was just like any other night”, and that “we were in a relationship”.

He said he did not think he had to ask; that she never said no; and that he would have stopped if she did say no. Ultimately, he said he did not force K.M.H. to have sex with him. [ 54 ] Mr. Caplette also denied that he pushed K.M.H. out of his door when the police were there on the 23 rd and 24 th . He said he gently guided her out and that she was not upset at the time, nor crying.

[55] Mr. Caplette acknowledged that he grabbed K.M.H. when he was at her home on the first occasion, but that at no other time on November 23rd and 24th did he use any force against her, or threaten her. In the end, he disagreed with K.M.H.’s version of the events“100%”. Legal Framework [56] Before turning to the law as it pertains to the individual counts, I observe that overall this trial demands that the court undertake acredibility analysis. This is especially so since the accused in this instance gave evidence in his defence. Recently, in R. v.

Manuel, 2021BCSC 1763, Devlin J. provided a helpful outline of the considerations at play in trials where the Accused testifies: [9] It is important to remember that this framework, the W.(D.) framework, was never intended to be a statute and should not beread like one. Many courts have commented that the framework is not some magic incantation, but what is important is that theprinciples underlying the W.(D.) framework are applied. Judge Paciocco of the Ontario Court of Appeal discussed these underlyingprinciples extensively in a recent article.

He identified the principles that drive the W.(D.) framework as these: 1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; 2. A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; 3. Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whether thatevidence is true, there is a reasonable doubt and an acquittal must follow; 4.

Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and 5. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. David M. Paciocco, “Doubt and Doubt: Coping with R. v. W.(D.) and Credibility Assessment,” 22:1 Can. Crim. L.

Rev. 31. [57] I am also mindful in conducting my credibility analysis that it is the Crown that bears the burden of proof throughout the trial,and that it never shifts. It is critical to remember this because even if I were to find the accused’s account to not be credible, nor capableof raising a reasonable doubt, I may only convict him if the evidence I do accept proves the offences beyond a reasonable doubt. [58] I am also aware as I approach my analysis that criminal trials, particularly ones such as this that involve opposing accounts, arenot credibility contests.

In other words, the rejection of the accused’s account does not lead inevitably to acceptance of thecomplainant’s. In R v. E.A.G., 2020 BCSC 1691, Warren J. provided this helpful commentary: [185] Sexual assault cases often involve “he said/she said” scenarios, where the complainant and the accused are the only witnesses tothe alleged criminal conduct. In these kinds of cases, it is vitally important that judges do not decide that an accused is guilty merelybecause the judge concludes that the complainant’s version of events is more likely to be true.

In other words, a criminal trial is not acredibility contest in which an accused must present a more credible version. Deciding a “he said/she said” case merely on the basis ofwhich version is more likely to be true would misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt.The correct application of the burden of proof requires the judge to acquit the accused if the evidence as a whole raises a reasonabledoubt about guilt.

In other words, it is possible that a judge might find the complainant’s version of events to be more believable but stillhave a reasonable doubt about what actually happened. In that situation, the benefit of the doubt must go to the accused. [59] In approaching the task of assessing the credibility of witnesses in this and in any trial, the following insights of Dillon J. inBradshaw v.

Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 298 are particularly helpful: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, [1952] 2 D.L.R. 152(B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of theevidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existenceat the time (Farnya at para. 356). [60] Turning to the individual counts, the actus reus of the offence of uttering a threat requires proof that a reasonable person awareof circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm.

The mens rea for theoffence is made out if the accused intended the words uttered to intimidate or to be taken seriously. [61] The offence of assault causing bodily harm requires proof that the accused intentionally applied force to another person withouttheir consent, and caused bodily harm. “Bodily harm” is a defined term in the Criminal Code meaning any hurt or injury to a person thatinterferes with the health or comfort of the person and that is more than merely transient or trifling in nature. [62] The offence of forcible confinement was described by Cory J.A. in R v.

Gratton, (1985), 18 C.C.C. (3d) 462 as follows: 29. It was argued that the foregoing definition of confinement omitted a number of essential attributes of that term. Reliance was placedupon Regina v. Dollan and Newstead (1980), (ON SC), 53 C.C.C. (2d) 146 at p. 154 where Dupont, J., stated:

Without attempting to define the interpretative limits of the term, I have concluded that a total physical restraint, contrary to the wishes ofthe person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from oneplace to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physicalapplication of bindings. 30. This definition of confinement is excellent with one reservation.

In my view the word “total” should be deleted, for there is nothingin s. 247(2) which would require the total physical restraint of the victim in order to constitute the offence. [63] The mens rea for forcible confinement requires the Crown to prove the accused intended to deprive the complainant of herfreedom to move from one point to another. The actus reus will made out by actions taken by the accused to effect the intended purpose. [64] Regarding the offence of sexual assault, the Supreme Court of Canada provides this helpful analysis in the case of R v.

Barton,2019 SCC 33: [87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that theaccused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touchesanother person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consistsof the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”(R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42). [88] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.[6] It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para. 31),and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., atpara. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43).

Further, ass. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, whichencompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does notinclude “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” (R. v.Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57). [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainantin her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on thecomplainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies thatshe did not consent, and the trier of fact accepts this evidence, then there was no consent - plain and simple (see Ewanchuk, at para. 31).At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, for the actusreus to be established (see J.A., at para. 37). [90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicatedconsent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the]sexual activity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”(ibid., at para. 47). [65] In advancing the defence of honest but mistaken belief in consent the Supreme Court of Canada in Barton makes it clear that trialcourts must examine how such consent was communicated: [92] …This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoidinadvertently straying into the forbidden territory of assumed or implied consent. [66] The court goes on to caution: [94] However, great care must be taken not to slip into impermissible propensity reasoning (see Seaboyer, at p. 615).

The accusedcannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her morelikely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the “twinmyths”, which is prohibited under s. 276(1)(

a) of the Code. [67] I am also especially mindful that in assessing the evidence of the complainant particularly as it relates to the issue of consent, Imust be careful to avoid drawing adverse inferences that are based on rape myths or stereotypes. Such caution, however, cuts both ways.In R v. C.M.M, 2020 BCCA 56 the Court of Appeal commented: [138] I will note, in passing, that when assessing credibility, trial judges must keep in mind that speculative reasoning relying on“common sense” propositions that are not grounded in the evidence can give rise to reversible error. See, for example, R. v.

P. (T.), 2007ONCA 585. [139] The law is also clear that a negative assessment of credibility based on an unfounded stereotype constitutes an error of law: R. v.A.R.D., 2017 ABCA 237 at paras. 28, 50, 57, aff’d on appeal, 2018 SCC 6; Lacombe at para. 33. Moreover, this principle applies to bothcomplainants and the accused. Rejecting an accused’s testimony based on a “stereotypical assumption or generalization lacking in anevidentiary foundation” can necessitate a new trial: R. v. Kodwat, 2017 YKCA 11 at para. 41. See also R. v. Thompson, 2019 BCCA 1 atparas. 52–69; R. v.

Quartey, 2018 ABCA 12 at paras. 2, 21, aff’d on appeal, 2018 SCC 59. Analysis [68] Turning first to the evidence of Mr. Caplette, I can say without hesitation I find him to be neither credible, nor am I left in anydoubt by his evidence. Mr. Caplette’s level of dishonesty and obstruction when dealing with police officers who came to his door clearlydemonstrates his willingness to lie and obstruct when challenged about his interactions with K.M.H. His explanation for why he lied,

makes it impossible for me to accept his account of the events as either truthful or reasonably capable of belief. Moreover, his claim thathe would have opened his door for police officers if they had told him they were conducting a welfare check of K.M.H. is contradictedby his own evidence in chief and elsewhere in his cross-examination. To also maintain that he did not know why the police were at his home on the 23rd and 24th of November is patently absurd. The police could not have made their intentions clearer. This emerges notonly from the evidence of the officers, but from Mr.

Caplette himself. [69] I also consider Mr. Caplette’s claim that he gently escorted K.M.H. out to the officers who stood by his door. Here I accept theevidence of the police witnesses called by the Crown who described how K.M.H. was practically shoved out of the door by Mr. Caplette. [70] I note as well in Mr. Caplette’s evidence that he claimed that K.M.H. was not upset nor crying as she left the residence. Againthis evidence is contradicted by the attending officers who described K.M.H. as terrified and shaking.

Her upset is readily apparent whenI view the photographs contained in exhibit 2, which also depict her crying. [71] In arriving at these conclusions I am cognizant that I am not to engage in a credibility contest. Rather, in this instance my analysisis contextual. In R v.

Redden, 2021 BCCA 230 DeWitt-Van Oosten, J.A. discussed this approach by a trial judge below: [80] In deciding whether he believed the appellant, or, even if he did not believe him, whether the appellant's evidence raised areasonable doubt, the judge was entitled (and indeed obliged) to consider the appellant's testimony in the context of the other evidencebefore him. [81] A court does not assess the evidence of an accused in isolation: R. v. Wanihadie, 2019 ABCA 402 at para. 31.

As a result, therewill be cases where a denial, defences that rely heavily on the testimony of the accused, or hypothesized inferences are rejected outright"based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence": R. v. D. (J.J.R.)(2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53, leave to appeal ref'd, [2007] S.C.C.A. No. 69. Thisdoes not mean that the trial judge has erroneously chosen between competing narratives, simply preferring one to the other. To do sowould constitute reversible error.

Rather, it represents a finding that the testimony of the accused cannot stand in light of the cogency ofthe other evidence. [72] Having found Mr. Caplette’s evidence generally is neither credible nor capable of raising a reasonable doubt, I find there is no air of reality to his claim that K.M.H. communicated consent to sexual activity on November 23rd and 24th.

When I consider how Mr.Caplette is demonstrably untruthful about the most critical aspects of his interactions with K.M.H., I do not find his evidence credible norcapable of raising a reasonable doubt that she initiated the sexual activity or in any way communicated her consent to the sexual activityin question. [73] Before turning to the evidence called by the Crown in support of proof of the offences charged, I remind myself that rejecting theevidence of Mr. Caplette does not automatically lead to acceptance of the account offered by K.M.H. Adair J. helpfully stated in R v.

J.D,2018 BCSC 2236: [69] Lack of credibility on the part of an accused does not equate to proof of his or her guilt beyond a reasonable doubt: see R. v.J.H.S., 2008 SCC 30, at para. 13. If, after a careful consideration of all the evidence, the trier of fact is unable to decide whom to believe,the accused must be acquitted: see R. v. H.(C.W.)(1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), at p. 155, andJ.H.S., at para. 11. Where there are two seemingly irreconcilable versions of events, it is important to focus on the third alternative givenin W.(D.).

It is not a matter of simply weighing the evidence of the accused against the evidence of the complainant. An accused can beacquitted even if the trier of fact does not believe the accused’s evidence, provided the trier of fact is left with a reasonable doubt aboutthe guilt of the accused on the evidence that it accepts: see R. v. Avetysan, 2000 SCC 56, at paras. 21 and 22.

Here, even if J.D.’sevidence does not raise a reasonable doubt, I must still consider whether, on the whole of the evidence, the Crown has proved its casebeyond a reasonable doubt. [74] As I alluded to above, I accept the evidence of the officers who attended Mr. Caplette’s residence on November 23rd and 24th,2020. I consider them to be neutral in interest and objective in their recollections. Indeed, their accounts were not seriously challenged bythe defence. Accordingly, I accept that as described, Mr.

Caplette was resistant and in fact obstructionist with the attending officers whowere clearly at his home to check on the welfare of K.M.H. I accept that Mr. Caplette essentially shoved K.M.H. out of the door to hisresidence and then locked it behind her. I find that K.M.H. had no shoes on, and only wore a sweater despite the November cold. I alsoaccept that K.M.H. was terrified, crying and had obvious injuries to her face when Det. Faria first saw her. [75] Turning to the evidence of K.M.H. I find her to be credible, albeit not completely accurate about every aspect of herrecollections.

As will become evident shortly, I find any difficulties that might exist with the accuracy of her recollections actually addsto my overall sense that she is a credible witness. To put it as succinctly as I can, I find that K.M.H. was so frequently brutalized by Mr.Caplette throughout their relationship that any imprecision regarding the detail of these incidents only serves to underscore how oftenthey were occurring. [76] Reflecting on K.M.H.’s evidence regarding the allegations of assault contained in Count 4, I note that the offence as framed is alleged to have occurred between November 16th and 24th, 2020.

I acknowledge that K.M.H. testified in chief to being assaulted by Mr. Caplette by being struck in the face with his hands as well as a metal pole on November 23rd, 2020; yet she apparently informed thepolice in statements that those incidents happened sometime before that date. This discrepancy causes me little concern when I considerthe injuries depicted in the photographs in both Exhibits 1 and 2. I note as well that K.M.H. was only seriously challenged in cross- examination about her account regarding the assaults she described on the 23rd.

No real challenge was made to her evidence regardingthe frequent and serious assaults she described that occurred before that date. [77] It follows that I am also not concerned about the discrepancy that emerged in K.M.H.’s evidence with respect to when she tookthe photographs of herself in Exhibit 1. Since I find that the assaults that produced the injuries were so frequent and obviously serious, it makes no material difference whether they occurred on the 23rd or some earlier date. K.M.H. was unshaken in her account that Mr.

Caplette caused the injuries in those photographs. The assaults that produced those injuries did, without question, occur during the timeframe that was alleged. [ 78 ] I also note that Mr. Caplette’s evidence included the admission that he grabbed K.M.H.’s leg on the first occasion he was at her home on November 23 rd and 24 th . Additionally, Mr. Caplette was only asked in chief whether he assaulted and threatened K.M.H. on November 23 rd .

His answer, perhaps conveniently, failed to address any period before that date. [ 79 ] I also find K.M.H.’s evidence as it relates to the Count of uttering a threat similarly trustworthy. In this instance, however, no challenge was presented to K.M.H. in the form of contradictory accounts contained in statements she gave to police. If I am in error in this observation there was certainly no challenge to K.M.H.’s general recollection that such threats were a virtual constant feature of her relationship with Mr. Caplette It is clear from K.M.H.’s evidence that whenever conflict arose between herself and Mr.

Caplette he would resort to making such threats. On both K.M.H.’s and Mr. Caplette’s evidence there were numerous occasions on the 23 rd when more intense conflict between them occurred. I therefore have no difficulty in accepting K.M.H.’s evidence that Mr. Caplette threatened death to her on at least one, and likely on many other occasions in the timeframe alleged. [ 80 ] Looking now at the evidence relating to the count of forcible confinement, it should be apparent from my discussion above that K.M.H. was in a highly coercive relationship with Mr. Caplette.

However, when I consider her evidence that emerged in cross- examination in which she agreed she took out some of her belongings to Mr. Caplette’s car when he came to drive her to his place, I cannot be fully satisfied that her freedom of movement was overborne by Mr. Caplette. To be clear I find there is little question that overall Mr. Caplette intimidated K.M.H. by his assaultive and threatening conduct. Indeed, I particularly note K.M.H.’s evidence that she went with Mr. Caplette “because I’m just tired of fighting”.

However, when I consider the standard of proof required in criminal trials, I find that the Crown has not proven Count 1 of this indictment beyond a reasonable doubt. [ 81 ] Moving now to the evidence of K.M.H. regarding Count 2, I acknowledge that a number of inconsistencies arose in K.M.H.’s evidence in cross-examination. Overall, however, I find she gave credible evidence with respect to the core components of this allegation. Any inconsistencies that did I arise, I regard as immaterial.

Moreover, I am satisfied that they were explained by the obvious trauma K.M.H. experienced, as well as the challenge she faced in recounting intimate details of her experience to police officers, firstly, and then later in a courtroom setting. MacLeod J. in R v. J.L ., 2019 ONSC 7574 provides the following helpful comment: [14] A complainant in a sexual assault case is entitled to a respectful and careful hearing of the evidence. She is entitled not to have that evidence rejected simply because it might not match with prohibited myths masquerading as common sense (see R. v.

A.R.D. , 2017 ABCA 237 ; aff’d 2018 SCC 6 ) and in particular that evidence admitted pursuant to s. 276 of the Criminal Code does not stray into “twin myth” reasoning. I would add that in assessing this evidence, the court should not overemphasize minor frailties relative to peripheral details. Allowance must be made for the effect of trauma, the passage of time and ordinary human difficulty in recounting events with precision. This does not however reverse the burden of proof.

Ultimately the evidence of the complainant must be sufficiently robust when considered in the context of all of the other evidence that it persuades the trier of fact beyond a reasonable doubt. [ 82 ] Turning more specifically to K.M.H.’s evidence that relates to this count, I note that while some inconsistency arose in her evidence in chief in which she said she emphatically told Mr. Caplette she did not want to engage in sexual intercourse and the account she gave to the police in one of her statements, I find that no similar discrepancy was highlighted in her evidence regarding the oral sex.

I am satisfied therefore that she clearly told Mr. Caplette she did not want to perform oral sex on him. In no way did she communicate her consent. In fact I find not only that she clearly said no to Mr. Caplette, I also accept her evidence that he grabbed her head and forced her to perform the sexual act. To suggest then that somehow K.M.H. would be required to express her unwillingness to engage in vaginal intercourse would invoke an odious and offensive rape myth.

If I am in error in this respect, I find based on the evidence I do accept, any acquiescence to sexual activity by K.M.H. does not equate to consent, and cannot be relied on as communication that amounts to a defence. Accordingly, I am satisfied that the Crown has met the burden of proof required in Count 2. [ 83 ] To summarize I find Mr. Caplette not guilty of forcible confinement in Count 1; guilty of the included offence of sexual assault in Count 2; guilty of uttering a threat in Count 3; and since I find the injuries suffered by K.M.H. meet the definition of bodily harm, I find Mr.

Caplette guilty of Count 4. Mr. Caplette has conceded his guilt in Count 5, and a conviction will be recorded to that offence as well. ________________________________ The Honourable Judge D.H. Silverman Provincial Court of British Columbia