R. v. Arychuk, 2022 BCPC 217

Citation: R. v. Arychuk 2022 BCPC 217 Date: 20221006 File No: 263444-1-K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. ZACHARY BLAKE HADIKIN ARYCHUK PUBLICATION BAN Pursuant to s. 486.4(1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: E. McCormick Counsel for the Defendant: J. Stowe Place of Hearing: Vancouver , B.C. Dates of Hearing: May 31, June 1, July 4, 6, 2022 Date of Judgment: October 6, 2022

INDEX I. INTRODUCTION .. 2 II. ISSUE .. 3 III. DETAILED BACKGROUND .. 3 (

i) The Complainant 3 (ii) S.R. 7 (iii) The Accused . 9 IV. ADMISSIONS .. 14 V. POSITIONS OF THE PARTIES .. 14 (

i) The Accused . 14 (ii) The Crown .. 15 VI. LEGAL FRAMEWORK .. 16 VII. ANALYSIS AND FINDINGS .. 21 VIII. DISPOSITION .. 32 I. INTRODUCTION [ 1 ] Zachary Arychuk (the “accused”) met L.R.Y., also known as S.R.Y., (the “complainant”) in the summer of 2017. The relationship developed to a point in the summer of 2018 where they moved in together at the accused’s residence in Vancouver (the “[omitted for publication]”). [ 2 ] During the course of the relationship, the complainant attended the University of British Columbia, she worked part-time at a veterinarian’s office, and part-time for the Federal Government.

Around this time, she also began working as a pole and feather dancer at a nightclub called [omitted for publication] in 2021. [ 3 ] The accused testified that her job as a dancer did not “fly” with him and the relationship deteriorated. The parties mutually agreed to separate. The complainant moved out of the [omitted for publication] on or about August 19, 2021. [ 4 ] On August 29, 2021, at or around 8:30 AM, the accused accessed the complainant’s Instagram account. He discovered that she was posting pay-for-viewing feather and pole dancing videos on a website called OnlyFans.com.

He downloaded some of the videos to his device as it was his intention to confront the complainant that day as he believed she had been either escorting behind his back or had a new boyfriend during their relationship. [ 5 ] Following a series of text messages, the parties met. The complainant testified that they went to the [omitted for publication] where the accused forced the complainant into his apartment and physically attacked her. [ 6 ] The accused testified that the complainant became amorous in his car outside of the [omitted for publication] and it was his hope that he was going to get “lucky”.

He testified the complainant willingly “skipped” up the stairs into his apartment when she suddenly turned and punched him in his nose. He denies any physical assault of the complainant. [ 7 ] The accused has been charged with the assault of the complainant by choking, suffocating or strangling her contrary to s. 267 (

c) of the Criminal Code (the “ Code ”). [ 8 ] The accused has also been charged with confining the complainant without lawful authority contrary to s. 279(2) of the Code . II. ISSUE

[ 9 ] Has the Crown established beyond a reasonable doubt the essential elements of the offences? III. DETAILED BACKGROUND (

i) The Complainant [ 10 ] In direct examination, the complainant testified that she considered the relationship with the accused to be over in August of 2021, though they continued to be in touch with each other mostly through texting. [ 11 ] When she moved out of the [omitted for publication], she left behind some personal property both within the apartment and in the storage locker at the [omitted for publication]. [ 12 ] Recovering her personal property was the main reason she planned to meet the accused on August 29, 2021.

She worked at [omitted for publication] the evening of August 28, 2021, and described being very tired when she woke up on August 29, 2021. When she woke up on August 29, 2021, she noted that the accused sent her a string of text messages. [ 13 ] Shortly before noon of August 29, 2021, the accused picked up the complainant at her residence.

As they were driving to the [omitted for publication], they had a conversation concerning their friendship and also discussed her personal property she left behind at the [omitted for publication]. [ 14 ] When they arrived at the [omitted for publication], she recalled that they had a long conversation in the car about their friendship, how it would proceed and “chances of the relationship happening again”: Transcript, May 30, 2022, at p. 5, ll. 26-41. [ 15 ] After this long conversation in the car, they proceeded to go to the accused’s apartment.

She described what happened after they left the car and entered the apartment: A And then we -- when we got out of the car, things -- the conversation got a little intense. He asked me some questions that I felt uncomfortable about, such as if I was escorting, and he asked some other personal questions that I didn't feel comfortable about. And we were -- as we were walking upstairs, the apartment, and when we got to the door -- it just happened really fast. He grabbed both my wrists. I remember seeing a blanket close to the door hanging, like -- just like a second door.

And I was just being dragged inside by the wrists. And once we got through the blanket, it was kind of like an open space with a bed and it -- there was just a lot of things set up. Like, there was rope-looking wire, nooses. And there was, like, a clear tarp over the bed. So the first thing I thought was if I'm going to die here.

And I just kept struggling to get out of that, and we both struggled. (Transcript, May 30, 2022, p. 6, ll. 7-26) [ 16 ] She described seeing objects she had never seen before at the apartment, including: a clear plastic tarp over top of the bed; a camera on a tripod mounted in front of the bed that appeared to her to be set up for filming; looped wires attached to fasteners at the four corners of the bed; and, what appeared to be a noose hanging down from the ceiling to a position of approximately one foot from the pillows. [ 17 ] As she struggled to break free of his grip, she related the following exchange took place: A I was trying -- I was trying to pull away and he was pulling me towards the bed.

Q How was he pulling you towards the bed? A He was dragging me by the wrists. Q Was he saying anything? A Yeah. One of the things he said was "it's too late." Q And did you know what he meant by that? A I'm not exactly certain, but I think it was because he was asking me about whether I was escorting or if -- and also if I was dating someone else. And I said no to both things, and he said I was lying.

And he -- when he said "it's too late," he meant it was too late now to tell the truth or, like, now that we're in this situation and now that we're in the house. ( Ibid , p. 7, ll. 25-40) [ 18 ] She testified that the accused forced her onto the bed and straddled her as he tried to attach her wrists to the wires that were attached on the fasteners of the bed. The complainant resisted by kicking and screaming.

The accused was unable to attach her wrists to the wires and he then choked her with both his hands for 15 to 20 seconds making it difficult for her to breathe. [ 19 ] He only loosened his grip after she punched him twice with a closed grip fist to his nose and eyes. However, the accused continued to physically struggle with the complainant and she continued to resist by kicking and flailing with her arms and legs. [ 20 ] As a result of the continuing struggle, the complainant’s upper body moved partially off the bed. The accused then grabbed her by her wrists and pulled her back up-right onto the bed.

[ 21 ] In the following exchange, the complainant described how the physical assault came to an end: A The next thing I remember was I -- I went into a panic attack and I was hyperventilating. Q Are you still standing when this is happening? A I -- I don't remember. I just remember one part where I was leaning forward, like, almost squatting because I was breathing a lot and hyperventilating. Q And what happened when you were almost squatting?

A That was just before I threw up saliva and [omitted for publication] started to loosen his grip on my wrists. ( Ibid , p. 13, ll. 28-37) [ 22 ] The complainant testified that she was “crying heavily” and was so scared that she began to discuss their relationship and whether he still loved her to calm him down. She told him that she had plans to meet her friend, S.R., at around 4:00 PM and she did not want her friend to be worried if she was late. [ 23 ] The accused walked her through the apartment and told her that he had set up the camera to record, but did not explain what he wanted to record.

He also pointed out one of her sex toys, but did not explain what he intended to do with it. He also told her that he mounted the blanket from the ceiling about a foot and a half away from the front door to prevent neighbours from hearing any screams. [ 24 ] The attack by the accused lasted for about 20 minutes. During the course of the attack and until she left the apartment to go to see her friend she felt that she was unable to leave the accused’s apartment. [ 25 ] She testified that the accused appeared anxious as they drove to S.R.’s place.

When they arrived at S.R.’s place, she was unable to recall the entire conversation with the accused but remembered him asking her if she was going to tell S.R. what happened. She could not recall her response. [ 26 ] When she met up with S.R., she showed S.R. her wrists. S.R. took photographs of the complainant’s wrists: Exh. 3, Tab 1.

The complainant described the marks depicted on her wrists as, “redder, pinkish” resulting from the accused pulling her by her wrists. [ 27 ] Her neck was really sore for approximately one week and her wrists were sore for approximately a day and a half. [ 28 ] She drew a diagram of the accused’s apartment as it appeared to her on August 29, 2021: Exh. 2. She also viewed a series of photographs taken by the police of the accused’s apartment on August 31, 2021: Exh. 3, Tab 3.

She viewed the photographs taken by the police after she had drawn her diagram of the accused’s apartment: (Emphasis added). [ 29 ] She testified the photographs did not accurately depict the layout of the apartment as illustrated in her diagram, nor accurately reflect the layout of the apartment when she was living with the accused, including that: • The black noose hanging from the ceiling down to the bed was missing. • The wires looped around the metal fasteners attached to the bed were gone. • The metal fasteners attached to the bed frame were not there prior to August 29, 2021. • The tripod mounted at the foot of the bed with the camera was gone. • The camera she observed mounted on the tripod was located on an Ikea chair. • The plastic cover was no longer on the bed. • The blanket mounted close to the front door entrance was gone. • The dresser had been moved to a different angle than when she was living with the accused. • The bed that was originally placed in an east/west configuration when she was living with the accused had been moved to a north/south configuration at the time she was attacked by the accused. [ 30 ] The complainant was extensively cross-examined.

The impact of the cross-examination on her credibility and reliability as a witness will be assessed in the Court’s Analysis and Findings. (ii) S.R. [ 31 ] The complainant’s friend, S.R., was called as a witness by the Crown. [ 32 ] S.R. has been friends with the complainant for many years. On August 29, 2021, they planned to get together around 3:30 PM. However, the complainant did not show up until 4:00 PM. [ 33 ] When the complainant showed up, it appeared to S.R. that her friend was in “shock”.

She described her friend’s physical presentation as follows: A What I observed was she was very stiff and had a lack of life in her eyes and not really comprehending what had just happened.

Like a dazed and confused look. ( Ibid , p. 28, ll. 29-32) [ 34 ] The complainant then showed her wrists to S.R. and began to sob “hysterically”. S.R. had never seen her cry like that before.

S.R. took photographs of her friend’s wrists. [ 35 ] In cross-examination, S.R. confirmed that the complainant had various jobs, including working as a silk and feather pole-dancer at nightclubs. [ 36 ] S.R. is a dance instructor but not a performer. [ 37 ] In the following exchange in cross-examination, she was asked whether scarf dancers or pole dancers would use their wrists to support their weight: Q When you -- when someone is doing scarf dancing, they're supporting their weight largely with their wrists. Is that not true? A That's incorrect.

They're largely supporting their weight with the back muscles and their shoulders. That's where they should be supporting their weight, and she is a very strong individual. She would -- if you supported yourself with your wrists, you would definitely hurt yourself. Q I see. And the same goes for the pole dancing you're saying as well. A Yes.

It's primarily back muscles and shoulders. ( Ibid , p. 32, ll. 9-20) [ 38 ] Though the complainant was hesitant, S.R. “convinced” her to go to the police. [ 39 ] S.R. was aware that the complainant was producing videos at the [omitted for publication], but she was unaware of whether the accused knew she was producing these videos.

She was also unaware if the complainant was posting any videos online. (iii) The Accused [ 40 ] In direct examination the accused testified that he is 35 years of age and does not have a criminal record. [ 41 ] He attended both the British Columbia Institute of Technology and also the Emily Carr School of Art. [ 42 ] He moved into the [omitted for publication] in 2015. The [omitted for publication] caters to residents who are involved in the art field. From the Book of Photographs, he identified tools and equipment that he had in the apartment for completion of various artistic projects.

Approximately 30% of his apartment is dedicated to living quarters and the remaining 70% is dedicated to a workshop. [ 43 ] In February of 2016 he was injured in a motor vehicle accident. He was prescribed Tylenol 3 and OxyContin. He began to abuse the prescribed medication. His drug use escalated and he began to use Heroin and Fentanyl.

His illicit drug use became an addiction. [ 44 ] He realized his addiction was a problem so he entered into an opioid replacement therapy program that involved the use of Methadone and Kadian maintenance programs. [ 45 ] He stopped taking Kadian around the “time of the incident” with the complainant, when he switched to a substitute drug. He continues to be involved in a Methadone maintenance program at the direction of his doctor. [ 46 ] He met the complainant in the summer of 2017.

The relationship developed and in the summer of 2018 they moved in together at the [omitted for publication]. [ 47 ] They lived together at the [omitted for publication] until the complainant moved out in August 2021. [ 48 ] During the course of the relationship the complainant became involved in pole dancing. Her pole dancing performances included the use of silks and aerials. The accused helped the complainant install a pole at the [omitted for publication].

He “figured” at the time that the pole dancing was “like women’s fitness kind of only gyms for girls…She seemed to have friends in it and stuff like that”: Transcript, July 4, 2022, p. 14, ll. 14-22. [ 49 ] The accused testified that the complainant became “big into pole dancing” and in the summer of 2021 she expressed an interest in working at a local strip club called [omitted for publication].

She was “eager” to work at this establishment. [ 50 ] He described feeling “pretty shitty” about this circumstance and told her if it was her intention to work at [omitted for publication] that “wasn’t going to fly” with him.

She decided to work at [omitted for publication] and that ended the relationship as far as the accused was concerned. [ 51 ] It was decided that the complainant would stay at the [omitted for publication] until she moved out on August 15, 2021. [ 52 ] Once she found a place to live the accused helped her move some of her personal property to her new residence. [ 53 ] The accused then went on a fishing trip from August 21 through August 24, 2021. While he was waiting at the airport the complainant texted him to advise that she would be coming by the [omitted for publication] to collect her personal property. The

complainant had a set of keys for the [omitted for publication]. The accused reminded her that she had personal property in the storage locker at the [omitted for publication], which she would need to move. [ 54 ] When he returned from his fishing trip on August 25, 2021, he noted the complainant left a “ton of stuff” in his apartment. [ 55 ] On August 29, 2021 at approximately 8:30 AM the accused discovered that the complainant had an online webpage registered through a website called OnlyFans.

He described the site as an “online blog where people could pay money to be a member of her private site where she, like, put videos and pictures of her doing illicit things on it”: Ibid , p. 21, ll. 10-16. [ 56 ] The accused described feeling “curious” about her site so he paid a $5.00 fee to access it and was “shocked” by what he saw. He decided to take some screenshots of what she posted.

He believed she was in a relationship with another man, and not him, because she posted a comment that she was, “quote/unquote, “dessert” for a special meeting with somebody”: Ibid at p. 22, ll. 9-13. [ 57 ] Before the accused discovered the complainant’s webpage on OnlyFans, he identified a series of text messages exchanged between the accused and the complainant starting at 11:47 AM on August 28, 2021 and concluding at 11:11 PM on August 28, 2021: Exh. 9, pp. 1-8. [ 58 ] The first text message was sent by the accused to the complainant inquiring if she found someone new because he did not want to try to get her back, if it would embarrass him: Transcript, supra , p. 25, ll. 11-17. [ 59 ] The text messages were exchanged over several hours before they agreed to meet the following morning as the accused wanted to talk to the complainant about some unresolved “stuff”. [ 60 ] The accused identified a series of text messages he sent on August 29, 2021 to the complainant commencing at 3:22 AM: A I figure you most likely working tonight…is tomorrow morning realistic?: 3:22 AM A I can’t sleep.

Im feeling super anxious….: 3:23 AM A Hey Hope you had a good rest.: 8:26 AM A Wakeywakey: 9:02 AM A Oh your killing me! I’m soo anxious. I home something that will make your whole day/week+(: 9:13 AM A Honestly don’t make me come get you up and out of bed for this.: 9:24 AM C I worked I’m just waking up: 11:29 AM (Exh. 9, p. 9) [ 61 ] The accused testified he drove to the complainant’s residence at or around 2:30 PM and picked her up.

They returned to the [omitted for publication] and had a long conversation in the car about how the relationship ended and he also questioned whether she was “escorting” in the following exchange: Q So you asked her questions about whether or not she was escorting? A I just asked her, and I expected her to just tell -- to tell me the truth. I asked her about the website and asked her, you know, and she did -- denied it. I asked her about, you know -- Q She denied what? A Any website and any escorting or whatever she was up to online. Q Did you ask her if she was in a relationship with somebody else? A I did.

Q And what was her answer? A She said no. ( Supra , p. 34, ll. 14-27) [ 62 ] He described that during this conversation they began kissing each other which he found to be totally unexpected. He believed this was an opportunity for him to get “lucky”, so they went to his apartment.

When they entered his apartment he went to kiss the complainant when she “socked” him in the nose. [ 63 ] After that the accused became extremely frustrated as the complainant denied escorting or having a relationship outside of their relationship and he felt that she was not even his friend anymore so he began screaming and yelling at her in the following exchange: Q What did you yell at her? A I screamed at her.

Q No, but what did you say? A I showed -- I showed her all the screenshots I had taken off of the website on OnlyFans that morning. Q Her website? A Yeah Q You showed her that? A I showed it to her. Q And what happens next? A She started sobbing uncontrollably. Like she couldn’t even contain herself. It was -- ( Ibid , p. 36, ll. 1-12) [ 64 ] He denied he attacked her in the manner she described in her testimony as she was somebody he cared about. [ 65 ] He denied that he hung a blanket near the front door to suppress noise or that he hung a noose along the front of the headboard to the bed.

He stated that the prior owners of the bed installed the metal fasteners to the bed frame which they used to suspend the bed from the ceiling. [ 66 ] He denied that he set up a tripod with a camera to record their interactions. He claimed the camera located by the police in his apartment is the complainant’s camera. [ 67 ] He admitted there was some plastic sheeting rolled up in his apartment, which he used to protect the bed when he was working with metal or wood.

He did not think there was any plastic covering the bed on August 29, 2021. [ 68 ] He admitted he had steel wire in the apartment but “absolutely” denied he used any steel wire to try to tie up the complainant. [ 69 ] He testified they were in his apartment for no more than five minutes from the time she punched him in the nose until they left to go to S.R.’s residence arriving shortly after 4:00 PM. They talked in his car for probably 15 minutes before she left. [ 70 ] The accused was extensively cross-examined.

The impact of the cross-examination on his ultimate credibility and reliability as a witness will be assessed in the Court’s Analysis and Findings. IV.

ADMISSIONS [ 71 ] Pursuant to s. 655 of the Code , Admissions of Fact dated May 30, 2022, were filed which included the following admissions: • That the accused was arrested at his place of employment in North Vancouver at 1726 hours on August 30, 2021; and, • That police investigators maintained continuity and security of the accused’s apartment at the [omitted for publication] commencing at 1714 hours on August 30, 2021, until a search warrant was executed at 0240 hours on August 31, 2021. V. POSITIONS OF THE PARTIES (

i) The Accused [ 72 ] The accused submits the complainant’s memory of many aspects of her relationship with the accused calls into question the reliability of her testimony in relation to the incident on August 29, 2021. [ 73 ] The other submissions of the accused can be summarized as follows: • That there is a lack of any confirmatory or corroborative evidence to support the allegations of the complainant; • That the case for the Crown is largely dependent upon the testimony of the complainant and therefore her credibility and reliability when one examines inconsistencies in her evidence renders a conviction unsafe; • That in assessing the demeanour of the complainant that evidence provides little, if any assistance, in assessing her reliability; • That her testimony that she was in the accused’s apartment for two to three hours, including approximately twenty minutes during which she alleges that she was attacked by the accused, is inconsistent with the text messages and therefore unreliable (Exh. 9); • That no blanket, noose or tripod were found at the accused’s residence during the course of the police search; • That S.R. only observed some markings on the wrists of the complainant.

She did not observe anything of note in the area of the complainant’s neck; and

• That the complainant testified that, leaving aside the incident on August 29, 2021, on no previous occasion did she feel unsafe or uncomfortable around the accused. [ 74 ] The accused referenced a number of case authorities that largely dealt with the approach to be taken in assessing credibility and reliability in the context of a sexual assault. [ 75 ] He also referenced a number of the cases involving the approach to be taken in assessing the credibility and reliability of young witnesses in the absence of other corroborating evidence. (ii) The Crown [ 76 ] The Crown submits that the complainant’s evidence was internally consistent, did not vary from direct examination through cross-examination and was externally consistent with the photographs taken by S.R. of the marks on the complainant’s wrists. [ 77 ] The Crown’s further submissions can be summarized as follows: • That the complainant’s testimony was consistent with the text messages (Exh. 9); • That while she could not remember certain events in the history of her relationship with the accused such lapses of memory were inconsequential; • That in direct examination she gave a detailed account of her encounter with the accused in his apartment; • That she was candid and not prone to exaggeration in identifying other marks on her body that were not attributed to her encounter with the accused; • That she did not express any animosity toward the accused prior to August 29, 2021; • That S.R. has known the complainant for several years and has never seen her in such a distressed state as she presented at her residence the afternoon of August 29, 2021; • That any doubt concerning timeline issues on August 29, 2021 can be reconciled from the time and date stamps on the text messages; • That the accused’s version of events that they kissed in his car, he grabbed her “ass” and then they went to his apartment believing he was going to get “lucky”, after he confronted her for being an escort, or for having a relationship with someone else made no sense whatsoever; • That he was reluctant to admit that he was jealous that the complainant was working at [omitted for publication] yet explicitly or implicitly he must have been jealous because that occupation was not going to “fly” with him – it was a “deal breaker”; • That it was inconsistent that he did not feel he had to apologize to the complainant for yelling at her before he dropped her off at S.R’s residence, yet sent two text messages apologizing to her for scaring her and “freaking” her out; • That he minimized overall his feelings about what happened leading up to and during the course of his encounter with the complainant on August 29, 2021 and his version of events is a fabrication; and • That he failed to put to the complainant material particulars of his version of events contrary to the rule in Browne v.

Dunn , (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) (“ Browne & Dunn ”). VI. LEGAL FRAMEWORK [ 78 ]

Section 267 (

c) of the Code reads as follows: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on

summary conviction who, in committing an assault, … (

c) chokes, suffocates or strangles the complainant. [ 79 ] An assault is defined by s. 265(1) (

a) of the Code : 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; … [ 80 ] Section 279(2) of the Code reads as follows:

(2) Every person who takes a person hostage is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to

imprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishmentof imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [81] The essential elements of the offence of unlawful confinement were succinctly summarized by the British Columbia Court ofAppeal (“BCCA”) in R. v. Niedermier, 2005 BCCA 15, at para. 44 (“Niedermier”): 44 What constitutes unlawful confinement was considered in R. v. Gratton (1985), 18 CCC (3d) 462 (Ont. C.A.), leave to appeal tothe Supreme Court of Canada refused [1985] 1 S.C.R. viii.

In that case, Cory J.A., as he then was, approved the following definition ofunlawful confinement, at 473: ... physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving theperson of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Suchconfinement need not be by way of physical application of bindings. [82] The mens rea of the offence is the intention to confine, which may be inferred from all of the actions of an accused.

The actusreus consists of three elements: 1) a confinement; 2) the confinement is without lawful authority; and, 3) a lack of consent by thecomplainant: R. v. Heinze, 2018 BCPC 256, at para. 89 (“Heinze”). [83] The confinement must last for a significant period of time in which the complainant was coercively restrained or directedcontrary to the wishes of the complainant: Ibid at para. 90. [84] The meaning of a “significant period” of confinement was discussed in R. v.

M.S., 2014 ONSC 5157, at para. 95 (“M.S.”): 95 A number of cases have dealt with the length of time of confinement required to make out the offence. See R.v. Velauthan (1997), (ON CA), 117 CCC (3d) 477 at para. 6 (Ont. C.A.) and R.v. Mullings, 2005 CanLll 24763 (Ont. S.C.). It is clear thatthe period of confinement, while unable to be definitively defined, must be "significant", more than "de minimus" but that brief periodsof confinement can still qualify as confinement so long as there was a clear restriction of the person's movements.

It is also possible thatthe existence of initial liberty can in the individual circumstances of a case develop into a state of forcible confinement (see R.v.Tremblay, supra). [85] The meaning of a “confinement” was discussed in R. v. E.B., [2006] O.J. No. 1864 at para. 119 (“E.B.”): 119 The prosecutor is not required to prove that the confinement of J.B.(2) took place for the entire period specified in the count.

What isrequired of the prosecution is proof that J.B.(2) was fully restrained contrary to her wishes so that she could not move about from placeto place for some significant period within the time alleged in the count. See, R. v. Gratton, above, at p. 475 per Cory J.A. [86] Lastly, the unlawful confinement must be independent or apart from any other offence, such as an assault as is the case beforethis Court: Heinze, at para. 93. [87] Both the complainant and the accused testified in this case.

Their testimony on the events that transpired on August 29, 2021, arein stark contrast. [88] It was the essence of the testimony of the complainant that she was attacked at the accused’s apartment during the course ofwhich she was choked and physically restrained. [89] It was the essence of the testimony of the accused that when he was at his apartment with the complainant he thought he wasgoing to “get lucky” in a sexual way with her and then when they entered his apartment it was him who was suddenly attacked by thecomplainant when she punched him in the face. [90] In light of this stark contrast in their evidence the credibility and the reliability of both parties must be determined. [91] Credibility and reliability are different evidentiary concepts.

Credibility concerns the veracity of a witness while reliabilityinvolves the accuracy of the witness. Accuracy engages the ability of the witness to “observe, recall and recount”: R. v. Khan, 2015BCCA 320, at para. 44. [92] In assessing credibility, a court should not embark upon a credibility contest. Nor should a court decide guilt on which version ofevents is preferred. Rather, the decisive question is whether, considering all of the evidence, the Crown has proven the guilt of theaccused on the specific charge(

s) beyond a reasonable doubt: David M. Paciocco (as he then was), Doubt about Doubt: Coping with R. v.W.(D.) and Credibility Assessment, (2017) 22 Cdn. Criminal LR at p. 6. [93] Since the accused advanced an exculpatory defence his credibility must be determined by applying the framework set out by theSupreme Court of Canada (“SCC”) in R. v. W.(D.), 1991 CanII 93. [94] The BCCA in R. v. Tyers, 2015 BCCA 507 at para. 13 repeated the steps required in the W.(D.) analysis: 13 The W.(D.) three-step analysis involves consideration of the following three questions:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [95] In his cross-examination, the accused did not confront the complainant on the specifics of matters of substance in which theaccused and the complainant part ways in their evidence as to what transpired in the apartment contrary to the rule established in Browne& Dunn. [96] Browne & Dunn requires that if an opposing party is going to challenge the credibility of a witness by calling contradictoryevidence, the witness must be provided the opportunity to answer the matters of substance designed to impeach their credibility in cross-examination as there has been no suggestion that the evidence advanced by the witness is not accepted: R. v.

Henderson, (ON CA), [1999] O.J. No. 1216 (O.C.A.), at para. 18; R. v. McNeil, (ON CA), [2000] O.J. 1357 (O.C.A.), atpara. 44. [97] In a case where it is established that there has been a breach of the Browne & Dunn rule a court must consider a number offactors in determining the appropriate remedy. These factors include, but are not restricted to: 1. the seriousness of the breach; 2. the context of the breach; 3. the timing of any objection; 4. the position of the offending party; 5. any request to commit recall of a witness; and 6. the availability of the impugned witness for recall: R. v.

T.T., 2020 ONCJ 368 at para.124. [98] In this case the accused is being tried by a judge alone. No jury instruction is required to overcome any prejudice resulting from abreach of the Browne & Dunn rule. A court in a judge alone trial has a broad discretion in determining whether or not to apply a remedyfor a breach of the rule. [99] The impact, if any, of a breach of the Browne & Dunn rule will be addressed in the Analysis and Findings of this judgment. VII.

ANALYSIS AND FINDINGS [100] It was the accused who elected to end the relationship with the complainant after she told him that she was going to perform at[omitted for publication]. Her decision to work at [omitted for publication] “wasn’t going to fly” with him. [101] They remained together as roommates until she moved out of the [omitted for publication] on August 15, 2021. [102] After the complainant moved out of the [omitted for publication] the accused struggled with the breakup. On August 28, 2021 theaccused initiated the following text exchange with the complainant: A Have you found someone new?

I would understand more I think if you did… I just want to know if you did and moved onbecause I don’t want to be that guy who continues to try and get his ex back and just ends up embarrassing himself… I feel like youwould tell me if I asked this… thank you: 11:47 AM C No. People suck. I don’t want anything to do with anyone right now: 12:16 PM (Exh. 9, p. 1) [103] The accused sent a further three text messages in response to the complainant’s text message she sent at 12:16 PM.

It was histhird text message that generated a response from the complainant in the following exchange: A I’d hope you would talk with me sometime. I think that there is some stuff to resolve. Would you be open to that? When you areready…: 1:24 PM C Sure I’m just saying how I feel. I kinda suck too all the time: 5:32 PM A Okay wow thank you I was actually about to text you… I am here at the party… its just not fun anymore. It means everything tome that you will talk with me and give me a chance to listen to because I know that there is some unfinished business between us. Am Iright?

I never abused you did I or yelled at you. The only person who I abuse has been myself. Who’s gonna save you from drowningwhen u go on a boat? Who’s gonna keep me safe from snakes when I go out for a walk in the woods… who is gonna watch a strangerthings with me…even if its not sitting with me but at least with me in the room. I need my friend and I to tell you some things and it isjust not right to let you go into have you not hear me say it: 5:43 PM (Ibid, pp. 5 & 6)

[ 104 ] The complainant texted the accused and agreed to get together to “talk”. It was agreed that they would meet the following morning for breakfast or a coffee. [ 105 ] There is nothing in this string of text messages from the complainant to the accused suggesting that she wanted to rekindle the relationship with the accused. To the contrary, she made it clear that she did not want to have anything to do with anyone at this stage though she was prepared to “talk” to him. [ 106 ] The accused testified in cross-examination that he only slept for “probably like an hour” the morning of August 29, 2021.

At 3:22 AM he texted the following message to the complainant: A I figured you most likely working tonight… is tomorrow morning realistic?: Ibid , p. 9. [ 107 ] One minute later he sent a further text message to the complainant: A I can’t sleep. I’m feeling super anxious : Ibid . (Emphasis added). [ 108 ] Around 8:30 AM he accessed the complainant’s Instagram account and her OnlyFans website. [ 109 ] In the following exchange in cross-examination he was asked if he was mad that she had made website postings: Q So you were probably mad at this point, right? A I wasn’t mad.

I felt -- I felt a bit sad that she couldn’t be honest to me, and she felt like she had to hide something like that. Yeah. Q You were surprised that she felt she had to hide it from you? A Yes. Q Because you’re so accepting of these activities? A No, because I believe in honesty. Trust in a relationship. Q And in your mind at this point she’s lied to you, right?

A She had lied to me. (Transcript, supra , p. 62, ll. 35-47) [ 110 ] He testified that the complainant’s posts on OnlyFans made him feel “a lot better” and less anxious to meet with her because, in his mind, it was not his fault the relationship failed: Ibid , p. 64, ll. 38-47 and p. 65, ll. 1-9. [ 111 ] Between 8:26 AM and 9:24 AM the following four text messages were sent to the complainant: A Hey Hope you had a good rest.: 8:26 AM A Wakeywakey : 9:02 AM A Oh your killing me! I’m soo anxious.

I have something that will make your whole day/week+ (: 9:13AM (Emphasis added) A Honestly don’t make me come get you up and out of bed for this.: 9:24 AM (Exh. 9, p. 9) [ 112 ] The accused struggled to admit that he sent the four text messages to the complainant: Q Did you text her that? A It looks like it, yeah. Q No, I’m asking, did you text her that? A It’s -- that’s what it says. Q I’m asking whether - - not what you see on the paper, did you text her that or do you not remember? A I -- I -- I probably did text her that, yeah.

I don’t remember a hundred percent, but I -- I’m willing to say that it’s on here and I did text her that. I don’t remember everything I said. THE COURT: But that document refreshes your memory? A Yeah. ( Ibid, p. 65, ll. 32-45) [ 113 ] I find it is ominous that the accused sent a cheery “Wakeywakey” text to the complainant at 9:02 AM after he discovered her

posts on the OnlyFans website. [ 114 ] I find he clearly wanted to meet up with the complainant once he uncovered her posts but did not want her to torpedo the meeting. He needed something to set the hook and that something was his text message at 9:13 AM in which he tells her that he has something that will make her “whole day/week+(”. [ 115 ] He was asked what the “something” was. He testified he had a “bunch of stuff” in his apartment that he wanted to give back to her, which would make her whole day or even her week. He described the “bunch of stuff” as, “some letters from her sister.

That’s about it”. [ 116 ] While the letters were intended to make her whole day, or even her week, he did not give the letters to her. He agreed with the Crown that he was too busy thinking about getting “lucky”: Transcript, supra , p. 82, ll. 11-30. However, the existence of the letters remains unknown, as this was not put to the complainant during cross-examination. [ 117 ] He took screenshots of her webpage and brought them for his meeting with the complainant. He hoped that she would admit to creating the images on her website.

However, it is clear that he intended to confront the complainant over her website if she did not admit to its creation in the following exchange in cross-examination: Q And you were going to confront her with those? A I was going to ask her for -- yeah, that was my plan to just ask her and see if she would tell me. THE COURT: To ask her or confront her? If you -- A: Just to ask her. I wouldn’t – I just wanted to ask her about it. THE COURT: Okay. A I wasn’t prepared to con -- I -- I hadn’t planned to confront her yet. Yeah.

I thought I’d give her the option of the -- the chance to be honest with me. ( Ibid , p. 67, ll. 1-11) [ 118 ] The accused sent a text message ending with a smiley face emoji to the complainant at 12:13 PM on August 29, 2021, and told her he was brewing some coffee for her. However, at 1:53 PM he sent a text message telling her that he forgot her coffee and he was “an anxious mess today”: Exh. 9, p. 9. [ 119 ] I find that his range of emotions after he discovered her website establishes that he was “an anxious mess” before he met up with her.

This is consistent with his own testimony in which he admits that he suffers from a “generalized anxiety disorder”: Transcript, supra , p. 69, ll. 9-13. [ 120 ] He testified that when they arrived at the [omitted for publication] they talked for almost one hour in the car. He denied confronting her over her OnlyFans website or showing her the screenshots of her webpage.

It is after he asked her if she was escorting that she initiated a kiss, though he could not “remember exactly” what led up to the kiss. [ 121 ] After he admitted his discovery of her website was a “big event” he was asked again if he could provide greater detail surrounding the kiss in the following exchange: Q So you can’t give us any more detail about the kiss? A Our lips touched. Q Who kissed who? A Mutual. I leaned in and she met me halfway. Q And -- but you’ve testified that you’re done with her at this point, right? A Oh, yeah. Q But you don’t mind kissing her if she wants to kiss you?

A No, I also grabbed her ass, if that helps. (Emphasis added) THE COURT: How did you do that in the car? A My right hand. THE COURT: Your right hand? A Yeah, reached over. She was in the driver’s seat. CNSL E. MCCORMICK: Q Was that during the kiss?

A Yes. Q And how did she react when you grabbed her ass? A She continued to kiss me. Q Would you characterize it as making out? A What would you classify making out as? (Transcript, p. 71, ll. 25-46) [ 122 ] It is troubling that the accused characterized his grabbing of the complainant’s “ass” as helpful. I find his testimony on this point a self-serving attempt to enhance his credibility and reliability that the kissing actually took place.

Keep in mind this version was not put to the complainant by the accused. [ 123 ] The accused claimed the complainant took the initiative by “skipping” up the stairs ahead of him and entering his apartment. He entered his apartment in the expectation that they were going to continue to kiss when the complainant suddenly turned and punched him in the nose. [ 124 ] He described being in shock. After a couple of seconds he began yelling at her demanding to know why she punched him. He does not remember her response.

He continued to yell at her and confronted her over her OnlyFans website which brought her to tears “for a little bit”. [ 125 ] He believed his encounter with the complainant in his apartment lasted for no more than five minutes, which includes him getting her a glass of water after he stopped yelling at her and she stopped crying. [ 126 ] They then left for S.R.’s residence. When they arrived at S.R.’s residence the complainant apologized for punching his nose. He did not think, at that time, that he owed her any apology for yelling at her: Ibid , p. 76 ll. 36-41.

This version was never put to the complainant by the accused. [ 127 ] At 4:29 PM on August 29, 2021, the accused sent the following text message to the complainant: I’m sorry I scared you. I’m gonna say this again. I would never do anything to hurt u. Just Please don’t feel like you have to keep secrets from me… (Emphasis added) I’m going to take everything you said from this and start putting it into action.

I got [omitted for publication] who knows all about n .a. and ill check out a meeting tonight. (Emphasis added) I’m a but crazy for you ic you haven’t gathered that… I’m not asking you to take me back and forget about everything. I just hope you won’t give up on the idea of us. I ain’t gonna give up on you or myself. (Exh. 9, p. 15) [ 128 ] On August 30, 2021 at 11:50 AM the accused sent the following text message to the complainant: Hey (waving hand emoji) hope your ok. I m sorry again for freaking you out. That said I think I have seen felt said and heard.

Everything that was preventing me from accepting what had happened. Anyhow I’m not asking for anything from you. Also u gave me a little shiner on my left cheek and eye. (Emphasis added) Oh and I haven’t forgotten what you said to me when leaving That you wanted some time and space and thats what u gonna get. ( Ibid , p. 17) [ 129 ] If he dropped the complainant off at S.R.’s place at or around 4:20 PM believing he did not need to apologize for yelling, then what motivated him to send a text approximately 10 minutes later to her apologizing for scaring her?

This was never explained. [ 130 ] It appears the accused continued to dwell on the need to apologize for his behaviour through to the next day when he sent another text to the complainant expressing his sorrow for “freaking” her out. [ 131 ] The complainant is not a child. She presents as a mature young woman. I cannot imagine that she would be scared or freaked out by a brief raised voice encounter suggested by the accused.

I find there must have been something much more alarming to scare her or to freak her out. [ 132 ] I find the accused’s admission in his August 29, 2021 text at 4:29 PM that he is going to take affirmative action in engaging Narcotics Anonymous and checking out a meeting that night is an over-reactive response to a brief raised voice encounter between the accused and the complainant. [ 133 ] I also find the accused’s testimony that the complainant “socked” him in the nose is inconsistent with his text message sent to the complainant on August 30, 2021 and a photograph taken of him by the police at the time of his arrest on August 30, 2021: Exh. 10.

[ 134 ] In his text message on August 30, 2021 he described receiving a “little shiner on my left cheek and eye”. In the photograph taken by the police of the accused there is no indication of any injury to the left cheek and eye. [ 135 ] At the end of his direct and cross-examination the Court asked the accused about the bed being moved in his apartment in the following exchange: Q Do you know the -- you have moved articles in this place before. Obviously, the bed was moved, as you can see from Exhibit 2, page 1, to a different configuration. A Yes. Q Correct? Did you move that bed? A I -- I turned the bed, yes.

Q Originally, it was up against the -- I’m going to call it the west wall? A Yes. Q When did you do that? A It would have been the 28 th , I think, the -- the morning of. Q Why? A Getting stuff -- she had stuff under the bed, so just I moved the bed. It hadn’t been cleaned under there for over two-and-a-half -- two years probably, so, yeah. (Emphasis added). ( Supra , p. 87, ll. 21-40) [ 136 ] The photographs taken of the bed establishes that there is very little clearance between the bed frame and the floor of the apartment.

Other than some clear plastic there is nothing else pulled out from under the bed by the police: Exh. 3, pp. 61-63. [ 137 ] I do not believe the accused that he repositioned the bed because the complainant had personal effects under it. Keep in mind, this was not put to the complainant by the accused. [ 138 ] Why the accused had the sudden urge to clean under the bed requiring a movement of the bed from an east-west configuration to a north-south configuration does not make sense. I find the interior of the apartment is a chaotic mess, including the area of the kitchen.

It simply does not make sense that he would give any priority whatsoever to cleaning under the bed when there were more obvious areas that required attention by way of upkeep. [ 139 ] The accused submits the complainant’s lack of memory undermines the reliability of her testimony. [ 140 ] I find there are many instances during her cross-examination in which she cannot remember details of her history with the accused.

However, I find her lapses in memory in relating details of her history with the accused inconsequential and not relatable to any material particulars that would undermine the reliability of her testimony. [ 141 ] I find she provided a cogent and detailed account of her encounter with the accused on August 29, 2021. I do not find that she embellished or exaggerated her encounter with the accused. [ 142 ] I agree with the accused that her testimony that they were in the accused’s apartment for several hours is not accurate.

However, they both agree that they were in his car for a significant period of time before they go into his apartment. I find any confusion on this issue is resolved by noting the time stamps contained in the text messages sent on August 29, 2021, between 2:19 PM and 4:29 PM: Exh. 9, pp. 13 & 14. [ 143 ] The complainant testified that the accused grabbed her by her wrists and attempted to tie her to the bed. She fought back. At one point the accused grabbed her by her neck and began choking her for 15 to 20 seconds.

She had difficulty breathing and threw up some saliva. [ 144 ] She confirmed from photographs taken of her wrists by S.R. some discolouration that she claims is a result of her encounter with the accused: Exh. 3, Tab 1. [ 145 ] I find that the discolouration on her wrists did not predate August 29, 2021. I find the discolouration corroborated the complainant’s testimony of her encounter with the accused. [ 146 ] The accused submits that if he choked the complainant then one would expect there would be some marking or bruising to her neck which is not evident in any of the photographs taken of the complainant.

I find this speculative absent any opinion evidence that choking of an individual’s neck will result in some marking or bruising to the neck. [ 147 ] I accept the evidence of the complainant that historically the accused never displayed any physical or verbal animosity towards her. Her harrowing account of what happened in the accused’s apartment establishes that this encounter was completely unexpected. [ 148 ] I find it is significant that the complainant drew a detailed diagram of the interior of the accused’s apartment as it appeared to her on August 29, 2021: Exh. 2.

She viewed the photographs taken by the police of the interior of the accused’s apartment after she prepared the diagram. The photographs reveal that the bed has been moved from an east/west configuration to a north/south configuration.

[ 149 ] The accused testified that the camera located on a chair in his apartment was the complainant’s camera. The complainant identified the same camera from the police photographs as the camera that was on a tripod during her encounter with the accused. [ 150 ] She did not testify that the camera was her camera.

Nor was it put to the complainant by the accused in his cross-examination of her. [ 151 ] Considering that the complainant posts online performances, it would not make sense that she would leave the camera at the accused’s apartment when she moved out. [ 152 ] It was never put to the complainant that she had romantic intentions in mind, including kissing, when she was in the accused’s car on August 29, 2021.

I find it is clear from her testimony and from her text messages to the accused on August 28 and 29, 2021, that she had no interest in a romantic relationship with the accused or with anyone else for that matter. In her text messages she told the accused that they can meet to “talk”. [ 153 ] It must be remembered that the accused was feeling “super anxious” in the early morning hours of August 29, 2021. He had very little sleep before meeting with the complainant.

After he discovered her website he testified his emotions ranged from anger, relief, jealousy, could not care less and feeling devastated. [ 154 ] To suggest he put all of these anxieties and emotions aside with the prospect that he was going to get “lucky” one last time with the complainant defies logic. [ 155 ] I agree with the Crown that the testimony of the complainant in both direct examination and cross-examination is consistent.

I find her credibility and reliability on her encounter with the accused at his apartment on August 29, 2021 was not undermined in cross- examination. [ 156 ] I find S.R. to be credible and reliable in her testimony when she described the complainant to be in a state of shock and then began crying hysterically when she arrived at S.R.’s residence after 4:00 PM on August 29, 2021.

She had never in the past seen the complainant in such a state. [ 157 ] I find S.R. to be credible and reliable when she testified that it was the complainant who held out her wrists and S.R. observed the discolouration on her wrists, which she photographed. The photographs clearly shows discolouration on both wrists: Exh. 3, Tab 1. [ 158 ] S.R. is a dance instructor. She denies in cross-examination that a performer doing scarf dancing or pole dancing supports her weight with her wrists. It is an individual’s back and shoulder muscles that bear the weight.

I find her evidence is both credible and reliable. [ 159 ] There are numerous occasions in this case where the accused failed to put to the complainant in cross-examination contradictory evidence contrary to the rule in Browne & Dunn . [ 160 ] It is likely that the complainant would deny contradictions as to what took place in the accused’s car and in his apartment on August 29, 2021.

However, there are areas that could have been clarified through cross-examination including, for example, the existence of the letters from her sister that was going to make her day or even her week. [ 161 ] I find there has been a breach of the Browne & Dunn rule in this case. However, I do not find that it is necessary that I apply a remedy for the breach as the disposition of this case turns entirely on findings of credibility and reliability without factoring in the rule. VIII.

DISPOSITION [ 162 ] I have found that the complainant gave a cogent and detailed account of her encounter with the accused on August 29, 2021. [ 163 ] I have found that the complainant did not embellish or exaggerate her encounter with the accused. [ 164 ] I have found the discolouration to her wrists did not predate August 29, 2021. [ 165 ] I find the complainant to be both credible and reliable in her testimony that the discolouration is as a direct result of the attempts of the accused to tie her to the bed in his apartment. [ 166 ] While there is clearly a significant disparity in both size and weight of the accused and the complainant, she is clearly very fit which allowed her to fend off the attack by the accused. [ 167 ] I have found S.R. to be credible and reliable in describing the complainant as being in a state of shock and crying hysterically when she arrived at her residence on August 29, 2021. [ 168 ] I reject the testimony of the accused’s version of his encounter with the complainant on August 29, 2021.

To suggest the complainant had any romantic intentions when she was sitting in the accused’s car outside of his residence is contrary to the language of the text messages exchanged on August 28, 2021.

She agreed to meet the accused to talk and nothing more. [ 169 ] I reject his testimony that they kissed in his car while he groped her before she skipped up the stairs into his apartment and then she suddenly turned on him and punched him in the nose. [ 170 ] I find the language in his text apologies to her after he dropped her off at S.R.’s reveal that something much more serious than just yelling at her took place during his encounter with the complainant in his apartment that caused her to be scared and freaking out.

[ 171 ] I find it was the accused who physically attacked the complainant in his apartment that caused her to be scared and freaking out. [ 172 ] I accept the testimony of the complainant to be credible and reliable in establishing beyond a reasonable doubt that she was physically restrained by the accused in his apartment against her will and thereby depriving her of her liberty to move about: Niedermier , at para. 44 . [ 173 ] I accept the testimony of the complainant to be credible and reliable in establishing beyond a reasonable doubt that the accused physically restrained the complainant for a significant period of time resulting in a clear restriction of her freedom of movement: M.S. , at para. 95 and E.B. , at para. 119. [ 174 ] I accept the testimony of the complainant to be credible and reliable in establishing beyond a reasonable doubt that her confinement by the accused is independent of the choking allegation: Heinze , at para. 93 . [ 175 ] I accept the testimony of the complainant to be credible and reliable in establishing beyond a reasonable doubt that during her encounter with the accused in his apartment on August 29, 2021 he choked her with both hands for 15 to 20 seconds, which caused her to experience difficulty in breathing. [ 176 ] I do not believe the accused’s testimony in his description of the “incident” in his encounter with the complainant at his apartment on August 29, 2021.

I am not left in a doubt by his testimony. [ 177 ] In considering the totality of the evidence led in this case I am satisfied beyond a reasonable doubt that the Crown has proven the guilt of the accused in relation to the choking charge contrary to s. 267(

c) of the Code and the confinement charge contrary to s. 279(2) of the Code . _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia