R. v. B.A.R., 2010 BCSC 1806

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. B.A.R., 2010 BCSC 1806 Date: 20101126 Docket: 57337-2 Registry: Chilliwack Regina v. B.A.R. Restriction on Publication: by Court order made under s. 486.4(1) of the Criminal Code there is a ban on publishing information that may identify the person described in this judgment as the complainant. This version of the Reasons for Judgment complies with the existing publication bans. Before: The Honourable Mr. Justice Joyce Oral Reasons for Judgment Counsel for the Crown: J.R. Lester Counsel for the Accused: G.P.

Dickin Place and Date of Trial/Hearing: Chilliwack, B.C. November 26, 2010 Place and Date of Judgment: Chilliwack, B.C. November 26, 2010 [ 1 ] The accused is charged with a number of offences arising out of a "date" between the accused and a young prostitute, during which the Crown alleges the accused seriously assaulted the complainant. [ 2 ] The accused is charged with: Count 1: Aggravated sexual assault, contrary to s. 273(2) of the Criminal Code . Count 2: Sexual assault using a weapon, contrary to s. 272(2)(b). Count 3: Assault with a weapon, contrary to s. 267(a).

Count 4: Unlawful confinement, contrary to s. 279(2) of the Criminal Code . [ 3 ] The Crown's case consists primarily of the testimony of the complainant, a number of formal admissions made by the accused under s. 655 of the Criminal Code , R.S.C. 1985, c.

C-46; DNA evidence, and a recording by a 911 operator of conversations between the accused and the complainant immediately after the alleged offences were committed. [ 4 ] I found the complainant to be a credible witness and I accept her evidence with regard to the essential matters. [ 5 ] I find the facts to be as follows. [ 6 ] On the evening of February 1, 2010, the accused picked up the 20-year-old complainant in downtown Chilliwack and asked her if she knew where he could purchase crack cocaine.

She indicated that she could assist and asked the accused if he was interested in having a "date", that is, engaging in sex for money. [ 7 ] The complainant got into the accused's pickup truck and called her dealer to arrange to buy some crack cocaine. They drove to the dealer's residence where the complainant purchased $40.00 worth of crack cocaine for the accused which he smoked in the parking lot outside the dealer's residence. [ 8 ] The accused then wanted to buy more cocaine so he drove to a nearby bank and got some more cash from the ATM.

The complainant once again purchased some crack cocaine for the accused, and bought $20.00 worth of heroin for herself. The complainant injected the heroin while they were in the parking lot, and the accused smoked some of the crack cocaine. [ 9 ] The accused wanted still more cocaine but did not have enough money in his bank account so arrangements were made with the dealer to accept electronics in exchange for drugs.

The accused and complainant went to a Future Shop where the accused used his credit card to purchase three LG model cellular phones: two for the dealer and one that he purchased for the complainant as part of the payment for the date they intended to have. The accused and complainant received $40.00 worth of cocaine, $40.00 worth of heroin and $20.00 in cash from the dealer in exchange for the cell phones.

[ 10 ] The accused then drove to a secluded area in Chilliwack where the complainant suggested they have their date, but the accused said he was not comfortable with that location. The complainant said he could take her to wherever he wanted to have their date. [ 11 ] He drove to a Forestry Service road near Cultus Lake. When they arrived, the complainant was already undressed, having taken her clothes off at the first location. She told the accused to pull down his pants and she began to perform fellatio. However, the accused could not get an erection.

He suggested doing a "69" but the complainant refused, saying that was too personal. She also rebuffed him when he tried to insert his fingers in her vagina. [ 12 ] The complainant's evidence of what ensued is basically as follows: the accused said "Hold on a second", reached back, retrieved a length of nylon rope from behind the back of the seat of the pickup truck and began to wind it around her legs. He told the complainant to stay calm, not fight back, do what he said, and she would not be hurt. He then began to wrap the rope around her wrists.

The complainant agreed that the accused did not actually tie the rope but wrapped it around her legs and arms. The complainant panicked and became frightened. I am satisfied she did not consent to his using the rope to bind her. The complainant said she then offered to allow him to use his fingers or do a "69" to try to appease the accused but he said "No, just shut up". [ 13 ] The complainant said that the accused seemed to snap out of it and she tried to loosen herself from the rope, but he once again began to truss her with the rope, this time using more force.

She begged him not to leave her there or rape her in the anus. He said he would not hurt her and told her to be quiet. He then snapped out of it again and got out of the truck and went to the rear of the truck. [ 14 ] The complainant testified that it was at this time that she was able to use the new phone that the accused had purchased for her to place a 911 call. She said that she whispered "Cultus Lake" and then put the phone at the bottom of the seat. [ 15 ] While there is no doubt that the complainant called 911, I believe she was mistaken concerning which phone she used.

An LG cellular telephone and separate battery were subsequently found on the ground in the area where this incident took place. That model of phone corresponds to the one that the complainant said was purchased from Future Shop. Another cellular telephone, this one a Samsung model, was later found in a police car in which the complainant was transported. I believe it was the Samsung phone that the complainant used to make the 911 call since that call was made during a time after they had left the scene.

The Samsung phone is likely the phone that the complainant used earlier in the day to call her dealer. [ 16 ] Returning to the events of that night, the complainant testified that the accused, having left the truck, then came back to the passenger side of the truck, grabbed something and struck her on the head with it. She described it as a wrench of some sort. The accused then pulled the complainant out of the cab of the truck. At some point during this incident, the complainant sustained a cut on her right index finger.

She testified this occurred at some point before she was pulled out of the truck but could not say precisely how the cut occurred. [ 17 ] The complainant said that when she was removed from the truck the accused had the rope in his hands. She ran and the accused chased her. The accused pushed her and she fell and rolled on the gravel road. The accused raised her to her feet using her hair and dragged her back to the passenger side of the truck where he wrapped the rope around her neck and choked her until she nearly blacked out.

He then snapped out of it again and said, "What am I doing?" He apologized and said he was “a monster”. [ 18 ] The complainant asked the accused to drive her back to town. She offered to drive, but the accused insisted on driving. She said that during the drive back to town the accused repeated a number of times that he was sorry. He asked her where she wanted to go and she said she wanted him to take her home.

The accused in fact dropped the complainant off near her home and drove away. [ 19 ] Returning to the 911 call, I believe that the complainant is likely mistaken as to when in the series of events the call was placed. Based on the length of the call and its content, I believe that the call was placed shortly before or when they began driving down the road heading towards Chilliwack. [ 20 ] The quality of the 911 recording is very poor and much of the conversation cannot be made out, but in it the accused is heard apologizing several times for what he did.

In my view, it clearly contains the accused's admission of criminal wrongdoing towards the complainant. Some of the portions of the recording that are understandable include the following remarks by the accused: Oh God, what did I do? What the fuck did I do? I'm sorry, [A.S.], I fucking lost my mind. Oh my God, I've lost my mind. Oh God [A.S.], I'm so fucking sorry. What can I do? What can I give you so you won't fucking put me in jail. Oh my God, I'm a monster. I lost my fucking mind, I'm sorry. Dear God, you know me like 99 percent of the time I'm a nice guy, right? I don't know what happened to me.

I'm sorry with all my fucking heart. I'm sorry. [ 21 ] The complainant's mother testified that when the complainant came home that night, she was pale and there was blood dripping from her head. The complainant ran into the bathroom, removed her clothes and sat on the toilet. It was 15 to 20 minutes before she was able to speak about what happened.

The complainant's mother took the complainant to the hospital in Chilliwack where she was interviewed by police officers and photographed. [ 22 ] Constable Hayward, who interviewed the complainant and took some of the photographs, described her as being quite stressed, cooperative, and frustrated with the process. [ 23 ] The photographs taken of the complainant show a laceration to her forehead from which blood had flowed into her hair and onto her face, a cut on the inside of her right index finger and various scrapes on her shoulders and back.

The complainant was transported to Abbotsford Hospital for a sexual assault examination. By the time the examination was completed, the wound to her finger was beyond the six-hour time limit for suturing and it was therefore left open to heal on its own. The emergency physician described the cut as a four centimetre gaping laceration. [ 24 ] The police who investigated the scene found and seized a number of items including a length of rope, an LG model cell phone without a battery, a separate LG battery that fit the cell phone, a locket belonging to the complainant, and a large torque wrench.

[25] The police obtained a warrant to search the accused's pickup truck and in the truck they found and seized some items,including the accused's wallet containing the Future Shop credit card that was used to purchase the cell phones. [26] The formal admissions made by the accused are as follows: 1. identity of the accused as the person who was with the complainant during this incident; 2. that the complainant's DNA was found on the rope recovered from the scene and on a jacket found in the accused's truck; 3. that the injury to the complainant's finger was caused by a sharp-edged object and that the injury constitutes both a wound and amaiming; 4. the admissibility of the doctor's report; that the accused and the complainant purchased three cell phones from Future Shop onFebruary 1, 2010; 5. the continuity of all the exhibits seized; and 6. the authenticity of the 911 recording. [27] Turning then to the counts charged in the Indictment. [28] Defence counsel advised me at the outset of his submissions that he was instructed to concede that the evidence establishedthe offence of aggravated assault.

In particular, he conceded that on the evidence tendered, I ought to find the accused guilty ofaggravated assault in that the blow to the forehead with the wrench constituted a wounding. He did not concede that the evidenceestablished that the accused cut the complainant's finger with a sharp object.

The principal defence submission was that the Crown hadnot proven that this was an aggravated sexual assault. [29] I am satisfied that the assault committed by the accused amounts to an aggravated assault, not only because of the blow to theforehead with the wrench, but also because I am satisfied beyond a reasonable doubt that the accused cut the complainant's finger whichconstituted both a wounding and maiming as admitted by the defence. [30] The complainant did not have a cut on her finger before she went on the date.

There are only three possible explanations forthe cut: 1. the accused did it intentionally; 2. the accused did it accidentally; or 3. the complainant accidentally cut herself. [31] There is not a shred of evidence to support the second or third possibility.

There is no direct evidence that the accused cut thecomplainant's finger in that the complainant was unable to testify how she suffered the cut. [32] At trial, she testified that she saw an X-ACTO knife in the console in the front seat of the truck and believes that must be theinstrument that was used to cut her but she said she had no recollection of the accused using it to cut her finger. She agreed at thepreliminary inquiry she testified she had no recollection of seeing an X-ACTO knife but at trial said she had that recollection.

She alsoagreed the photograph of the truck did not show any console. [33] In any event, and despite this inconsistency, I am satisfied that she suffered the cut during the course of the attack on her bythe accused. In my view, the only rational conclusion to be drawn from the circumstantial evidence is that the accused inflicted the cutduring the course of the assault. [34] As to whether the aggravated assault was an aggravated sexual assault, I begin by dealing with what is meant by a sexualassault. [35] In R. v.

Chase, (SCC), [1987] 2 S.C.R. 293, the Supreme Court of Canada defined sexual assault and set outthe test to be applied in determining whether or not an assault was a sexual assault. At para. 11, Mr. Justice McIntyre said: 11 ... Sexual assault is an assault within any one of the

definitions of that concept in [then] s. 244(1) of the Criminal Code which iscommitted in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied indetermining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all thecircumstances, is the sexual or carnal context of the assault visible to a reasonable observer" ….

The part of the body touched, the natureof the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surroundingthe conduct, including threats which may or may not be accompanied by force, will be relevant …. The intent or purpose of the personcommitting the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct issexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor indetermining whether the conduct is sexual.

It must be emphasized, however, that the existence of such a motive is simply one of manyfactors to be considered, the importance of which will vary depending on the circumstances. [Internal citations omitted.] [36] Defence submits that the aggravated assault in this case occurred after the accused and complainant had engaged in sexualactivity when the accused struck the complainant on the head with the wrench. He submitted that the aggravated assault was independentof, and not associated with, any sexual activity and did not involve a violation of the complainant's sexual integrity.

[37] The fact that the act of an accused that amounts to a wounding, maiming, disfigurement or endangerment of life does not,when viewed in isolation, have a sexual aspect to it, does not necessarily mean that it is not an aggravated sexual assault. All of thecircumstances must be considered. [38] In R. v. Larue, 2003 SCC 22, the victim returned to a friend's home after a night of heavy drinking and fell asleep intoxicated.When she awoke, the accused was on top of her holding a knife. The victim was naked below the waist but it was not clear that theaccused had removed her clothing.

At one point he said, "I'll kill you". A struggle ensued and the accused slashed the victim's throat withthe knife. He was charged with aggravated sexual assault. At trial, he was acquitted of aggravated sexual assault and convicted ofaggravated assault. In a three-to-one decision, the acquittal was upheld by the Court of Appeal. The Supreme Court of Canada allowedthe appeal and convicted the accused of aggravated sexual assault. The Court agreed with the reasons of the dissenting judgment ofMadam Justice Prowse, found at R. v. N.E.L., 2002 BCCA 448, in which she said the following at paras. 22 and 23: 22 ...

I find it inconceivable that the sexual aspect of the assault would not have been obvious to the reasonable observer referred toin Chase. Mr. N.E.L., armed with a knife, was "on top of" the complainant who was lying on a mattress wearing no pants or underpants.Moments later, she was observed by another resident of the house (who had not been drinking) naked below the waist with her brahanging out of her blouse and bleeding from the wounds to her throat. 23 In my view, any non-sexual

interpretation of this evidence must have been based either on speculation, or on a misguidedacceptance of the two-stage scenario advanced by defence counsel at trial. According to the latter theory, Mr. N.E.L.'s slitting of thecomplainant's throat was divorced from whatever sexual interaction may have gone on between the complainant and Mr. N.E.L. prior toit.

In other words, the aggravated assault was portrayed as an isolated act without regard to the circumstances leading up to it. [39] Continuing at paras. 26 and 27 of the reasons of Madam Justice Prowse: 26 One of the authorities referred to by the Crown in support of her submission in this regard is R. v. Alceus (2000), (QC CA), 40 C.R. (5th) 322 (Que. C.A.). There, the accused was charged, amongst other things, with one count of sexual assaultfor striking the complainant twice after she refused to perform fellatio on him. The trial judge convicted the accused of the lesserincluded offence of assault.

The Quebec Court of Appeal allowed the Crown's appeal and substituted a conviction for sexual assault. Atp. 328 of the decision, Mr.

Justice Fish, speaking for the court, stated: The bedroom setting, the ongoing sexual activities, the words accompanying the assault, and the undisputed nexus between the sexualgratification demanded and the refusal to "deliver the goods" persuade me that "the sexual or carnal context of the assault [is] visible to areasonable observer." I am satisfied as well that the respondent assaulted the complainant "in circumstances of a sexual nature, such that the sexual integrity ofthe victim [was] violated". 27 If the Crown's

interpretation of the trial judge's reasons is correct; namely, that he drew an artificial line between the eventsleading up to the assault and the assault itself, I agree with the Crown that he erred in law in so doing. [40] In this case, defence in effect seeks to have me dissect the attack on the complainant into discrete parcels, some of which mayconstitute sexual assault but not aggravated assault, and some of which may constitute aggravated assault but not sexual assault.

Theinitial use of the rope when the accused's invitation to engage in other sexual activities was refused may have been a sexual assault, but itwas not an aggravated sexual assault, so goes this theory. Thereafter, the defence asserts, the events lack sexual connotation and did notinvolve the violation of the complainant's sexual integrity. [41] In my view, the defence submission would involve my taking too narrow a view of what occurred here.

I view the attack onthe complainant began immediately after she denied her consent to the sexual activity in which the accused wanted to engage as onecontinuous assault, all of which took place in a sexual context. When the complainant rebuffed the accused's invitation to engage in a"69" and his attempts to digitally penetrate her vagina, the accused took the rope and began to wind it around her naked body.

I amsatisfied he did so as part of his desire for some sort of sexual gratification which he had been unable to achieve by the complainantperforming fellatio on him. [42] Clearly, in my view, wrapping the rope around the complainant's naked body without her consent was a violation of her sexualintegrity. Although the accused seemed to briefly snap out of it, he very quickly resumed his attempts to bind the complainant with therope using even more force.

He once again snapped out of it briefly, then struck the complainant on the forehead, dragged her from thevehicle, chased her when she ran, dragged her back to the vehicle, took the rope and, this time, wrapped it around her neck and began tochoke her. [43] In my opinion, the sexual context of this assault would be obvious to any reasonable observer in light of the followingcircumstances: 1. the assault was preceded immediately by sexual activity that had failed to give the accused an erection; 2. the complainant denied her consent to other sexual activity which the accused suggested or attempted; 3. the accused used the rope to bind the still naked body of the complainant; 4. the assaultive conduct continued interrupted only by brief periods when the accused seemed to snap out of his apparent frenziedattack; and 5. there was no other possible reason for the attack other than ultimate sexual gratification. [44] I am satisfied that the Crown has proven beyond a reasonable doubt that the accused is guilty of aggravated sexual assault as

charged. I am also satisfied that the Crown has proven Count 2, sexual assault with a weapon. I am further of the view that the principlein R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 (S.C.C.) (Kienapple) does not apply as between Counts 1 and 2, and thatseparate convictions should be entered. [45] The same issue arose in R. v. Walsh, B.C.S.C., April 23, 2009, Chilliwack Registry No. 55701, in which the accused wasfound guilty of aggravated assault and assault using a weapon. Both charges arose out of a single stabbing incident. Madam JusticeArnold Bailey referred to R. v. Foster, 2008 BCSC 1368, in which Mr.

Justice Ehrcke held at para. 14 that: 14 ... the rule in Kienapple does not bar the entry of convictions for both aggravated assault under s. 268(2) and for assault with aweapon under s. 267(a). Each offence has an additional element not found in the other. Neither element is a particularization of the other. [46] I adopt and apply that reasoning in the present case.

Convictions will therefore be recorded on both Counts 1 and 2. [47] I will, however, enter a conditional stay of Count 3 in accordance with the principle in Kienapple, because it is a lesserincluded offence of Count 2. [48] Finally, I consider Count 4: unlawful confinement, contrary to s. 279(2) of the Criminal Code. [49] In R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) leave to appeal to the Supreme Court of Canada refused, [1985]S.C.C.A. No. 119, Mr. Justice Cory adopted, with one qualification, the following definition of unlawful confinement set out by DupontJ. in R. v.

Dollan and Newstead (1980), (ON SC), 53 C.C.C. (2d) 146 at para. 43, where Dupont J. stated: 43 Without attempting to define the interpretative limits of the term, I have concluded that a total physical restraint, contrary to thewishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to movefrom one place to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way ofphysical application of bindings. [50] The qualification to this definition given by Mr.

Justice Cory was that the deletion of the word "total" since there is nothing inthe charging

section which would require the total physical restraint of the victim in order to constitute the offence. [51] In R. v. Niedermier, 2005 BCCA 15 Madam Justice Rowles summarized the essential elements of unlawful confinement.With regard to the mens rea, she said at para. 46: 46 ... The required mens rea or mental element is the intention to confine but, as LeBel J.A. [in R. v. Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86 (Que.

C.A.)] pointed out at 92: "the intent to forcibly confine a person can be inferred from all ofthe accused's actions." [52] Further, as Madam Justice Rowles noted confinement need not be present at the beginning of the contact between the accusedand the complainant; it may develop over time. At para. 47 she said: 47 Moreover, a state of confinement may develop over time, as LeBel J.A. observed, at 92: The forcible confinement must have lasted a significant period of time.

However, in order to find forcible confinement, the Crown is notrequired to show that the victim was prevented from moving from one place to another as of the very first moment that the victim is inthe presence of the accused. The existence of initial liberty can be followed by the development of a state of forcible confinement. [53] As to the elements of the actus reus, Rowles J.A. said at para. 48: 48 The actus reus of the offence requires proof of: (1) a confinement, (2) the confinement is without lawful authority, and (3) a lackof consent by the complainant to the confinement.

Proof of the first two elements is objective; the third, subjective. [54] Defence argues that for there to be unlawful confinement, the victim must be constrained against her will for some significantperiod of time; more than merely restraint that constitute the acts of assault. He refers in this regard to R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195. In that case, the issue was whether the accused was guilty of first degree murder because it wascommitted in the course of an unlawful confinement of the victim.

At para. 24, the Court said: 24 The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to herwishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2). [55] The Crown submits that the actus reus of unlawful confinement is made out in the present case by the actions of the accusedin (

a) wrapping the rope around her legs and arms while she was in the truck; (

b) pulling her out of the truck; (

c) pushing her to theground; (

d) pulling her by her hair back to the truck; and (

e) choking her with the rope. [56] In my view, the only acts that might be capable of being seen as acts of confinement sufficient to ground an independentoffence of unlawful confinement are the use of the rope in the truck that started the assault, and wrapping the rope around thecomplainant's neck as the final act of assault.

Pulling the complainant from the truck, pushing her to the ground, and dragging her back tothe truck are all acts of violence, but they do not, in my opinion, amount to confinement of the complainant. [57] It is my opinion that the initial use of the rope as an instrument to be used in unwanted sexual activity which was brief and didnot involve actually tying up the complainant falls short of the sort of confinement that s. 279(2) was intended to address.

Likewise,choking the complainant with the rope is clearly a violent act sufficient to ground an assault, but I am unable to view it as a confinementthat is other than the assault itself. I do not view it as sufficient to constitute a separate event of unlawful confinement. [58] Further, and in any event, I am not satisfied beyond a reasonable doubt that any of these acts relied upon by the Crown asconstituting the actus reus of unlawful confinement were accompanied by an intention on the part of the accused to confine the

complainant in the sense of restraining her from moving from one place to another. [ 59 ] Accordingly, I find the accused not guilty of Count 4 on the Indictment. “B.M. Joyce J.”