R. v. Hooper, 2023 BCSC 1871

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hooper, 2023 BCSC 1871 Date: 20231004 Docket: 184830-2 Registry: Victoria Rex v. Peter John Hooper Restriction on Publication: Pursuant to 486.4(2) C.C.C. Before: The Honourable Mr. Justice Brongers Oral Reasons for Judgment Counsel for the Crown: S. Bakken Counsel for the Accused: R.R. Drury Place and Date of Trial/Hearing: Victoria, B.C. September 11-15, 2023 Place and Date of Judgment: Victoria, B.C. October 4, 2023 THE COURT: I Introduction [ 1 ] Peter Hooper stands charged with two counts of sexual assault and two counts of sexual interference.

The four counts relate to two separate incidents involving the same complainant. [ 2 ] According to the indictment, it is alleged that at some point during the month of June 2018, Mr. Hooper did sexually assault J.G., contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 . It is also alleged that during this same period, Mr. Hooper did touch J.G.'s body with his body for a sexual purpose, at a time when she was under the age of 16 years, contrary to s. 151 of the Criminal Code .

These charges arise further to an incident that allegedly took place in a motorhome parked at or near Langford. [ 3 ] The other two charges in the indictment are also for the offences of sexual assault and interference, contrary to ss. 271 and 151 of the Criminal Code . They arise further to an incident that allegedly took place in a car parked at or near Saanich at some point during the month of October 2018. It is alleged that this incident also entailed Mr. Hooper sexually assaulting and interfering with J.G. at a time when she was under the age of 16 years. [ 4 ] Mr.

Hooper has pleaded not guilty to all four charges. [ 5 ] The Crown's primary witness is the complainant, J.G. The Crown also called the owner of the motorhome in which the first incident allegedly took place, and an investigating police officer. Mr. Hooper did not testify. The balance of the evidence consisted of a number of photographs. [ 6 ] The main issue in this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Hooper committed any of the alleged offences. Counsel for Mr.

Hooper submits that the Crown has not done so, particularly since the evidence of J.G. is said to be unreliable and was not corroborated. [ 7 ] In my reasons, I will first summarize the evidence presented and the governing legal principles. I will then apply these principles to my assessment of the evidence in order to determine whether the Crown has proven its case beyond a reasonable doubt. II The Crown's Evidence The Complainant

[ 8 ] J.G. testified that she was born on July 19, 2003. She was 14 years old at the time of the first alleged incident in June 2018. She was 15 years old at the time of the second alleged incident in October 2018. At trial, J.G. was 20 years old. [ 9 ] J.G. provided testimony about her challenging background, particularly in relation to her teenage years. She explained that she has autism and has been hospitalized a number of times, including for psychological issues after having experienced meltdowns. In late 2017, she started abusing drugs.

They included marijuana, Xanax, cocaine, crack, molly, and meth. [ 10 ] J.G. stopped going to school in March 2018 and began to spend time in downtown Victoria with others who were also using drugs. One of those persons was a man named "Randy", whom J.G. understood to be around 21 years old when they first met in 2017. Another was a girl named "Maddie", whom J.G. understood to be 13 or 14 years old in 2018. [ 11 ] J.G. testified that she met the accused, Mr. Hooper, in mid-June 2018.

She does not recall the exact date, but thinks it may have been June 12 or 13, 2018, since it was a couple of days after she got out of the hospital on June 9 or 10, 2018. On that day, J.G. was at Bastion Square in downtown Victoria with Randy and Maddie. Randy suggested that the three of them should go to Langford to get drugs from Mr. Hooper. At around 11:00 p.m., they took the bus to the Tim Hortons restaurant on Goldstream Avenue. J.G., Randy, and Maddie then waited for a couple of hours inside the Tim Hortons for Mr. Hooper to show up. [ 12 ] At approximately 2:00 a.m., a man whom Randy indicated was Mr.

Hooper arrived at the Tim Hortons. J.G. remembers the man as being white, bald, and heavier, with a big beer belly. While Randy had told J.G. that Mr. Hooper was 30 years old, J.G. felt that he looked older than that. J.G. indicated at trial that the accused in the courtroom was the same man she remembered being introduced to at the Tim Hortons in June 2018. [ 13 ] J.G., Randy, and Maddie got into Mr. Hooper's car, which J.G. described as small and dark coloured. Mr. Hooper drove, with Randy sitting in the front passenger seat. J.G. and Maddie sat in the rear where there was also a child's car seat.

While in the car, J.G. said that all four of its occupants were smoking meth from a bubble pipe. According to J.G., this was just the third time she had ever used meth. [ 14 ] The four of them then drove to downtown Victoria to purchase more drugs. They did so at two locations: (1) at a place in Fernwood, near the old Victoria High School; and (2) at a house on Shelbourne Street. At the first location, J.G. saw Mr. Hooper purchase what she believed was meth from an individual who came up to the car. At the second location, J.G. saw Mr.

Hooper go into a house where she believes he purchased cocaine before returning to the car. [ 15 ] Mr. Hooper then drove Randy, J.G., and Maddie to what J.G. understood was the residence of Mr. Hooper's girlfriend. At this stop, Mr. Hooper and Randy got out of the car and placed the child's car seat in the trunk. [ 16 ] Mr. Hooper then drove to Langford on the highway. J.G. recalls that Mr. Hooper was speeding very fast and that she and Maddie were scared. They made one more stop before reaching their final destination.

This was at a gas station near a Costco in order to buy cigarettes. [ 17 ] Finally, the group arrived at Bear Mountain in Langford. [ 18 ] J.G. described the area where they parked as grassy and surrounded by big trees. She saw two vehicles parked near each other that she referred to as "trailers". Photographs of the vehicles were tendered into evidence. They make it clear that the vehicle which J.G. entered is better described as a motorhome, since it appears to be capable of being driven independently and is not designed to be towed.

I will therefore reference the vehicle as a "motorhome" going forward. [ 19 ] J.G. testified that Mr. Hooper went into the motorhome first. Before following Mr. Hooper inside, Randy told J.G. and Maddie words to the effect that they did not have to engage in sexual activity with Mr. Hooper, and that Randy would protect them. J.G. also testified that she did not want to do anything sexual with Mr. Hooper, and understood that Maddie felt the same way because Mr. Hooper was too old.

That said, J.G. also understood that Randy and Maddie were in an existing sexual relationship. [ 20 ] J.G. testified further that Randy had told her to say that she was 17 years old if Mr. Hooper were to inquire about her age. However, it was also J.G.'s evidence that Mr. Hooper never asked about her age, and that she does not recall the matter being discussed at all. [ 21 ] Once inside the motorhome, the four of them smoked some more meth. In addition, Mr. Hooper prepared lines of cocaine on the surface of a board game, which J.G. then snorted along with Mr. Hooper. [ 22 ] At some point afterwards, Mr.

Hooper briefly left the motorhome. J.G. had overheard a conversation between Mr. Hooper and Randy which led her to believe that Mr. Hooper had left in order to get condoms. J.G. recalls that when he did return, Mr. Hooper had condoms with him. [ 23 ] J.G. could not remember exactly what she was wearing when she entered the motorhome, but said it was probably baggy clothing since that was what she usually wore. However, Randy had brought some lingerie to the motorhome with him.

At one point, Randy took J.G. to the motorhome's bathroom where she changed into the lingerie. [ 24 ] J.G. testified that she was sitting next to Mr. Hooper on the couch near the front of the motorhome when he unzipped his fly and pulled out his penis. J.G. also testified that Mr. Hooper put his penis inside her vagina, and had "intercourse" with her on the couch. Mr. Hooper had a condom on. J.G. testified that she was uncomfortable, and was not really reacting to what was happening. [ 25 ] J.G. said that Mr. Hooper did not ask her for permission to put his penis in her vagina.

J.G. said she did not want sex to happen with Mr. Hooper, but that she did not "fight him". [ 26 ] J.G. also testified that while Mr. Hooper was having intercourse with her, J.G. tried to get Maddie's attention by giving her a

"look" which she hoped would signal that she wanted help. She saw that Randy and Maddie were having sex with each other on a table that converted into a bed, but they later came over to be with J.G. According to J.G., the intercourse with Mr. Hooper ceased after he ejaculated. [ 27 ] Mr. Hooper left the motorhome later that night at a time that J.G. estimated to be 4:00 a.m. She said Mr. Hooper did so because he had to take his child to swimming lessons in the morning. [ 28 ] J.G., Maddie, and Randy decided to remain in the motorhome.

While it was tidy when they arrived, J.G. said that they were bored and started to go through its contents, thereby messing up the motorhome. [ 29 ] Indeed, J.G. had understood from Randy that the motorhome was abandoned; however, this was not the case. At around 10:00 a.m., a man opened the motorhome door. He wanted to know why J.G., Maddie, and Randy were there. The man also placed himself in the doorway in an attempt to prevent them from leaving. [ 30 ] A woman, whom J.G. thought was the man's wife, called the police. J.G., Maddie, and Randy then forced their way past the man and ran away from the motorhome.

Randy went off in one direction, while J.G. and Maddie went off in another. J.G. and Maddie were later stopped and questioned by the police at a bus stop. They were not arrested. Afterwards, they took the bus home. [ 31 ] Photographs of the motorhome that were taken by the police of its exterior and interior were shown to J.G. at trial. She confirmed that the photos reflected the motorhome she had been inside with Randy, Maddie, and Mr. Hooper, after they had messed it up. [ 32 ] J.G. testified that she next saw Mr. Hooper in late July 2018 at Victoria's Centennial Square.

She remembers the approximate date because it was around the time when she was hospitalized again. Mr. Hooper was with Randy, and Mr. Hooper briefly said hello to her. [ 33 ] J.G. also saw Mr. Hooper in August 2018 when she was living with "Alyssa", J.G.'s friend. J.G. did not want to interact with Mr. Hooper and would try to hide when he came over to Alyssa's house, but J.G. nevertheless caught a glimpse of him in the kitchen. [ 34 ] The final occasion J.G. says she saw Mr. Hooper outside of these proceedings took place in October 2018. J.G. was still living with Alyssa at the time.

As Alyssa was born just a few months before J.G., the two of them were then 15 years old. [ 35 ] According to J.G., the second incident with Mr. Hooper took place in mid-October 2018. J.G. acknowledges that by this time she had become a meth addict, and was using crack cocaine every day. Alyssa was also a regular drug user. [ 36 ] On the day in question, Alyssa and J.G. had been taking Xanax together. They were otherwise out of drugs. They therefore decided to get in touch with Mr. Hooper. J.G.'s objective in doing so was to obtain drugs from him. She testified that she was willing to have sex with Mr.

Hooper in exchange for drugs. [ 37 ] Alyssa contacted Mr. Hooper. He arrived at Alyssa's house very late, likely after midnight. Mr. Hooper was in a car similar in size to the one J.G. recalled from her June 2018 interaction with Mr. Hooper. This time, however, it had no child’s car seat. Mr. Hooper was accompanied by another person, whom J.G. later came to know as "Moose". [ 38 ] J.G. and Alyssa got into the rear of the car. J.G. was sitting behind Mr. Hooper, who was in the driver's seat. Alyssa sat behind Moose, who was in the front passenger seat. They drove to Saanich, possibly stopping at a gas station.

They eventually arrived at Mount Tolmie, where Mr. Hooper parked the car. [ 39 ] J.G. gave her pipe to Mr. Hooper. She initially understood that he had put meth in it. After smoking, however, J.G. did not experience the stimulation she was used to feeling from meth. Instead, J.G. began to feel very sleepy. In retrospect, J.G. believes that Mr. Hooper had placed fentanyl in her pipe, as she has subsequently used fentanyl knowingly and felt a similar sensation to what she was feeling on Mount Tolmie with Mr. Hooper that night. [ 40 ] According to J.G., Mr.

Hooper kicked Moose and Alyssa out of the car and J.G. moved to the front passenger seat. Mr. Hooper turned to J.G., and she reclined the seat in which she was sitting. Mr. Hooper undid his fly, pulled out his penis, and put a condom on it. Mr. Hooper then crawled over to the passenger side and got on top of J.G., who was on her back facing him. J.G. pulled her pants down and, according to her, Mr. Hooper "did what he wanted". In particular, Mr. Hooper put his penis inside J.G.'s vagina. [ 41 ] While this was occurring, J.G. was feeling really tired and "nodding off".

She testified that when she woke up, she was still in the passenger seat of Mr. Hooper's car, but the car was now parked at Alyssa's house. J.G. got out of the car and was confused. J.G. then realized that she did not receive any money or drugs from Mr. Hooper other than what he gave her to smoke prior to the intercourse. J.G. felt that she had been "played" by Mr. Hooper. [ 42 ] J.G. testified that she did not want to have sexual intercourse with Mr. Hooper, but that she wanted drugs. Mr.

Hooper did not ask J.G. how old she was, and she never told him. [ 43 ] In August 2019, J.G. reported to the police the June 2018 and October 2018 incidents that subsequently have become the subject of the present indictments regarding Mr. Hooper. The Motorhome Owner [ 44 ] Michael Walton testified that he owned a motorhome that was parked on private property located near Millstream Road in Langford. On the morning of June 16, 2018, he went to check on the motorhome with his then-girlfriend. They did so because they planned to use the motorhome for camping in a few weeks' time.

[45] Mr. Walton thought that he had locked the motor home. He therefore was surprised when he put his key in the rear side door andit was already unlocked. He was further surprised when he saw three "kids" intruding inside his motorhome: two females and a male. Herecalled that one of the females was sitting on the motorhome's couch, while the other was standing. He saw the male in the kitchen areaof the motorhome. [46] Mr. Walton described the female on the couch as thin, young, agitated, and having blonde hair. He estimated her age as beingprobably no older than 16 or 17. As for the standing female, Mr.

Walton said she looked a little older and larger than the other, withdarker long hair. Mr. Walton described the male as thin with short hair, a goatee, and a moustache. Mr. Walton also felt that he wasabout 16 or 17 years old. [47] Mr. Walton remembered that the thin female and the male demanded to be let out of the motorhome. He also recalled the largerfemale saying words to the effect that Mr. Walton had to release them or he would be charged with forcible confinement. Initially,Mr.

Walton was unwilling to let the intruders go, as his girlfriend had called the police and he wanted to keep them there until the policearrived. He tried to do so by placing his body in such a way that it was blocking the side door that he had opened. However, Mr. Waltonrealized that this was pointless since there were three of them and they would be able to escape through the motorhome's other doors inany case. Mr. Walton therefore stepped back and let them out. [48] Mr. Walton tried to grab the male, but he was too quick.

He then saw the male run out into the yard, while the two females ran toMillstream Road. [49] After the police attended, Mr. Walton gave a statement. Mr. Walton understood that the police were investigating a break andenter of his motorhome. He saw the police taking photographs of the interior and exterior of the motorhome, which were shown toMr. Walton at trial. He confirmed that the photos reflected how the motorhome looked when he came across the intruders on June 16,2018. [50] Finally, Mr. Walton testified that he was contacted by the police again approximately one year after the incident, in 2019.

At thattime, a police officer showed Mr. Walton a photo of a female and a male. Mr. Walton identified them both as having been in his motorhome when he checked it on June 16, 2018. With respect to the photo of the female, Mr. Walton said that she was the one who wassitting on the couch when he entered the motorhome. The Investigator [51] The final witness who testified at trial was Central Saanich Police Service Corporal Patrick Bryant.

From 2017 to 2020, CorporalBryant was a member of the Mobile Youth Services Team (MYST), a unit whose role is to assist high-risk youth in the Capital RegionalDistrict of Southern Vancouver Island. When he was with MYST, Corporal Bryant worked alongside Mia Golden, a family and youthcounsellor. [52] Corporal Bryant testified that he first met J.G. on the streets of downtown Victoria in 2017. He described her as a high-risk,vulnerable, and drug-addicted youth. In August 2019, Corporal Bryant and Ms.

Golden took a statement from J.G. in relation to the 2018incidents that are now the subject of the present indictments. [53] Corporal Bryant also testified that he was the officer who contacted Mr. Walton in 2019. Corporal Bryant confirmed that thephotographs he showed to Mr. Walton were mugshots of J.G. and Randy obtained from the PRIME police records database. These samephotographs were also shown to J.G. at trial. J.G. also confirmed her understanding that they were mugshots taken of her and Randy.

III Legal Framework [54] This case gives rise in particular to questions regarding the presumption of innocence, witness credibility and reliability, as wellas the elements of the offences of sexual assault and sexual interference. [55] I will now review the principles that apply to consideration of each of these issues. (

a) Presumption of Innocence and Burden of Proof [56] It is a fundamental principle of criminal law that the accused is presumed to be innocent. In order for there to be a conviction, theCrown must prove that the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. This is a high threshold, andthe burden rests solely on the Crown. The burden does not shift and the accused never bears an onus of proof. [57] While not easy to define, the concept of reasonable doubt was explained by the Supreme Court of Canada in R. v. Lifchus, [1997]3 S.C.R. 320, (SCC).

At paragraph 39, the court set out a definition for reasonable doubt that is used as a standardinstruction for criminal juries. Judges sitting without a jury on a criminal trial are also expected to apply this definition. It reads asfollows: 39 . . . A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it isbased on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [58] It should also be noted that proof beyond a reasonable doubt does not apply to individual pieces of evidence; rather, it applies tothe totality of the evidence: R. v. Morin, [1988] 2 S.C.R. 345, (SCC) at paragraphs 36 to 38. (

b) Credibility and Reliability [59] In R. v. W. (D.), [1991] 1 S.C.R. 742, , the Supreme Court of Canada grappled with the relationship between theassessment of credibility and the Crown's burden to prove the accused's guilt beyond a reasonable doubt. The Court set out a juryinstruction formula that, once again, is also to be followed by judges who hear criminal trials without a jury. It is as follows: 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. [60] This instruction also applies in cases where the accused does not testify. A clear discussion of this concept can be found in R. v.K.B., 2015 ONSC 3410, a decision of the Ontario Superior Court.

It states at paragraphs 30 and 31: [30] Without an accused testifying, evidence favourable to the defence may be grounded in evidence called by the defence or throughthe testimony of prosecution witnesses. Such evidence may engage the trier of fact in important credibility determinations respectingcontradictory evidence. At paras. 37 and 39 of R. v. Smits, 2012 ONCA 524, the court stated: There is now no doubt that in light of this court’s decision in R. v.

D.(B.), 2011 ONCA 51 , at para. 114, that, even if an accuseddoes not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arisingout of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to thosecredibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe theevidence favourable to the defence on that trial issue.

Rather, it is sufficient if, viewed in the context of all the evidence, the conflictingevidence leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt. In that event, the trier of fact must acquit. . . . [31] Accordingly, the W.(D.) instruction, or its functional equivalent has application “to other exculpatory evidence that emergesduring trial proceedings: R. v. B.D., 2011 ONCA 51…at paras. 113-114” and a trier of fact need not accept the evidence favourable tothe defence in order to acquit if it is found capable of raising a reasonable doubt: R. v.

Cyr, 2012 ONCA 919, at paras. 50, 58; R. v.Burnie, 2013 ONCA 112, at paras. 47-48; R. v. King, 2013 ONCA 417, at paras. 13-14; R. v. Dayes, 2013 ONCA 614, at paras. 51, 55-59; J.M.M., at para. 74; R. v. Grant, 2013 MBCA 95, at paras. 31-32, affd 2015 SCC 9; R. v. B.D. 2011 ONCA 51, at paras. 105, 113-114. [61] Indeed, it is only where credibility is not a central or significant issue that the W.(D.) analysis does not apply: R. v. Daley, 2007SCC 53 at paragraph 106. [62] The principles to be applied when considering the credibility and reliability of a witness who provides testimony are also wellestablished.

Credibility is the notion of a witness's truthfulness and honesty, while reliability is the notion of a witness' ability toaccurately observe, recall, and recount events. Guidance on how to assess these notions can be found in the often-quoted case ofBradshaw v. Stenner, 2010 BCSC 1398 at paragraph 186, affirmed 2012 BCCA 298, leave to appeal refused [2012] S.C.C.A. No. 392: [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 CanLII (SCC)..

The art ofassessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, theability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidencethat has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimonyseems 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.); Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (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 the evidence depends onwhether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya atpara. 356). [63] As the accused has been charged with sexual offences involving a person under the age of 16, there are additional principles thatmust also be kept in mind when assessing credibility. They were recently summarized in R. v.

Sieber, 2023 BCSC 1590, at paragraphs 21to 23: [21] Additional principles that apply in cases involving sexual offences were summarized in [R. v. Gerrard, 2022 BCSC 1833]: [124] … Our courts have unequivocally rejected the use of rape myths and discredited stereotypes to assess a complainant’s credibility.Twin myths reasoning is forbidden. Nor is it appropriate to assume that sexual assault victims will react to abuse in any objectivelyidentifiable way. There is no inviolable rule on how victims of sexual assault will behave: R. v. D.

D., 2000 SCC 43 . . . [125] No inference should be drawn regarding a complainant's credibility that is based on assumptions about how a victim of sexualassault is supposed to react to the assault: R. v. Shearing, 2002 SCC 58 . . . at para. 121. It cannot be assumed that a victim of sexual

assault will “usually” scream and yell, physically resist and fight back, report the sexual assault immediately to her family or toauthorities, or avoid the perpetrator of the sexual assault. [126] In R. v.

A.R.D., 2017 ABCA 237 . . . the Alberta Court of Appeal at para. 63 stated that an assumption or expectation about thepost-abuse conduct of a victim, "standing alone, will never give rise to an adverse inference against the credibility of the complainant." [22] As these cases instruct, I must also be cautious not to apply problematic stereotypical thinking in the other direction, therebyimproperly reversing the presumption of innocence, for example, by assuming that M.M. would not expose herself to the rigours of trialif her evidence that she did not consent to sexual activity with the accused was not true: R. v.

Snell, 2021 BCSC 673 at para. 44. [23] The complainant’s age at the time the offences are alleged to have occurred, when she gave her statement to the police, and whenshe testified are also relevant factors in assessing her evidence. M.M. was 15 years old at the time the offences are alleged to haveoccurred and 18 years old at trial. In assessing M.M.’s credibility, I must keep in mind that children may not necessarily perceive andrecall events in the same way that an adult would: E.A.G. at para. 200; R. v. M.P.H., 2022 BCCA 216 at paras. 48–50.

This does notmean that the credibility or reliability of a child’s evidence should not be carefully assessed or that the standard of proof must be loweredwhen dealing with children. A “solid foundation” is required for a verdict of guilt, whether the complainant is an adult or a child: E.A.G.at para. 202, citing R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 at 134 . . . [64] All of these principles will be applied when I analyze the evidence that was presented by the Crown in this case (

c) Elements of the Offence of Sexual Assault where a Complainant is Under 16 [65] The elements of the offence of sexual assault are well established, even though this crime is only indirectly defined by s. 271 ofthe Criminal Code: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. They were conveniently summarized in R. v. Knight,2023 BCSC 624 [Knight], as follows: [17] The actus reus of the offence involves proof that the accused touched the complainant without consent and that the contact wasof a sexual nature.

The sexual nature of the assault is determined objectively: Ewanchuk at para. 25. [18] The mens rea requires proof that the accused intended to touch the complainant and that the accused knew or was wilfully blindor reckless to the victim's lack of consent. [19] The Crown must prove the actus reus and the mens rea beyond a reasonable doubt. [66] When a complainant was less than 16 years of age at the time of the offence, however, reference must also be made to s. 150.1(1)of the Criminal Code.

Subject to some limited exceptions that do not apply in this case, it effectively provides that it is legally impossiblefor such complainants to consent to sexual touching. This has the effect of removing consent as a defence in cases involvingcomplainants younger than 16. [67] That said, s. 150.1(4) of the Criminal Code provides that it is open to an accused in such situations to raise a defence of beliefthat the complainant was at least 16 years old and all reasonable steps to ascertain age were taken.

An accused who advances such adefence bears a threshold burden of demonstrating that the defence has an air of reality: R. v. Cinous, 2002 SCC 29 at paragraph 52. Ifthe accused meets this burden, then the Crown must prove beyond a reasonable doubt either that: (

a) the accused did not honestly believethat the complainant was at least 16 years of age; or (

b) the accused did not take all reasonable steps to ascertain the complainant's age:R. v. Jerace, 2021 BCCA 94 at paragraphs 26 and 40. (

d) Elements of the Offence of Sexual Interference [68] The offence of sexual interference is prescribed by s. 151 of the Criminal Code. The elements of this offence were also noted inKnight at paragraphs 57 and 58. [69] With respect to the actus reus, the Crown must prove beyond a reasonable doubt that the accused used their body to touch thebody of the complainant while the complainant was under the age of 16. [70] With respect to the mens rea, the Crown must prove beyond a reasonable doubt that the accused: (

a) intended to touch thecomplainant for a sexual purpose; and (

b) knew that the complainant was under the age of 16 years, or was recklessly indifferentregarding the complainant's age by failing to take all reasonable steps to ascertain the complainant's age. IV Analysis [71] Counsel for the Crown's position is that it has proven beyond a reasonable doubt that Mr. Hooper engaged in the sexual activitywith J.G. that is alleged to have taken place in June and October 2018, as set out in the indictments. [72] Simply put, the Crown argues that if the Court accepts J.G.'s evidence, Mr. Hooper should be convicted on all counts. Inparticular, J.G. has identified Mr.

Hooper as the person who touched her sexually in a manner that constitutes sexual assault and sexualinterference, both in the motorhome at Langford and in the car at Saanich. J.G. did not consent to the sexual activity in Langford. WhileJ.G. intended to exchange sexual activity for drugs prior to going to Saanich, she only wanted drugs and not sex. Furthermore, J.G.became unconscious during the sexual activity in the car and therefore could not consent to it. Most significantly, J.G. was underage atthe time of both incidents and therefore lacked the legal capacity to consent in any event. [73] Counsel for Mr.

Hooper's position is that the Crown has failed to prove beyond a reasonable doubt all of the elements of all of the

offences alleged. This is because the only witness who testified directly about the alleged events was J.G., and her testimony lacked credibility, reliability, and believability. In particular, J.G. has suffered from drug addiction, mental health issues, and a concussion. She testified that she was intoxicated during the alleged incidents. There were also several inconsistencies in her testimony. Furthermore, J.G.'s testimony was not corroborated by any other witness who was present at the time the incidents are said to have taken place. [ 74 ] On the other hand, counsel for Mr.

Hooper does not dispute J.G.'s evidence regarding her age. Consistent with his position generally, counsel for Mr. Hooper has also not presented an alternative argument that Mr. Hooper had an honest but mistaken belief that J.G. was 16 or older at the time of the incidents and that she consented to the activity that is the subject of the charges. [ 75 ] Accordingly, the real issue to be decided is whether the Crown has proven beyond a reasonable doubt that Mr. Hooper engaged in the sexual activity with J.G. that is alleged to have taken place in June and October 2018, as set out in the indictments.

Therefore, I agree with counsel for both parties that this case fundamentally boils down to a determination of whether J.G.'s evidence is sufficiently credible and reliable such that the Court is left without a reasonable doubt of Mr. Hooper's guilt. [ 76 ] This is because if it is accepted at face value, J.G.'s testimony does indeed show that in June 2018 in Langford, and in October 2018 in Saanich: 1) Mr.

Hooper intentionally touched J.G. sexually by placing his penis on and in her vagina; and 2) that he did so without her consent since she was under 16 years of age at the times the touching took place; and 3) that he did not make inquiries about her age. [ 77 ] Furthermore, no evidence has been presented to contradict J.G.'s testimony. [ 78 ] However, if there is nevertheless a reasonable doubt surrounding the veracity and accuracy of J.G.'s testimony, I must find Mr. Hooper not guilty of the charges against him. [ 79 ] J.G. testified at length over the course of two days. This was not an easy task for her.

She spoke softly and had to be asked on a number of occasions by counsel to keep her voice up. Her answers would sometimes trail off and, when asked to repeat or finish her statement, she would sometimes say: "Never mind." While she only became briefly emotional at one point during final confrontation by counsel for the accused, J.G. was obviously - and understandably - uncomfortable in the courtroom. [ 80 ] That said, J.G. was responsive to questions from both counsel, and was not defensive, evasive, or argumentative. When she did not understand a question, she said so and asked for it to be restated.

She was not prone to exaggeration or embellishment, and admitted when she could not remember a fact or detail. Most importantly, her answers were coherent and generally consistent. [ 81 ] I also agree with counsel for the Crown that J.G.'s "odd ticks" and unusual mannerisms are not valid indicators of a lack of credibility. As was noted in R. v.

A.F. , 2021 BCSC 2662 at paragraph 23 , the court must be careful not to place too much reliance on the demeanour of a witness, particularly when the trier of fact has no out-of-court base line against which to assess demeanour at trial. [ 82 ] In sum, I found J.G. to be a credible and trustworthy witness. [ 83 ] Now, it is true that J.G. also testified that at the time of the incidents, she was suffering from substance abuse and mental health issues.

With respect to the former, J.G. candidly explained that by June 2018, she was smoking crack every day and became addicted to meth following the incident in the motorhome. With respect to the latter, J.G. testified that she had been hospitalized both shortly before that incident and afterwards in July 2018 for treatment of psychotic symptoms. J.G. acknowledges that these symptoms have included delusions and auditory hallucinations, such as believing that birds and people are robots, and hearing voices. J.G. has been prescribed Seroquel, an antipsychotic medication, which she has resisted taking in the past.

J.G. also testified that she suffered a concussion in January 2023 that impacted her brain functioning for three months. [ 84 ] Counsel for Mr. Hooper argues that all of these elements raise reasonable doubt regarding the reliability of J.G.'s memory with respect to what may have happened in the motorhome in Langford in June 2018, and in the car in Saanich in October 2018.

This is particularly the case since J.G. acknowledges being under the influence of drugs during both incidents, namely, meth and cocaine at the first, and meth and possibly fentanyl at the second. [ 85 ] However, no expert evidence was led by either the Crown or the accused with respect to the impact of J.G.'s drug use, mental health, or concussion on her ability to observe or recall past events. At the same time, J.G. provided extensive testimony regarding her own experience with these issues.

Indeed, J.G.'s explanation of her personal understanding of the effects of particular drugs, how they interact with each other, and their impact on persons with mental health challenges was remarkably clear and cogent. [ 86 ] In particular, she candidly admitted that she believes her teenage drug use has impacted her memory, since her brain is still developing. She also recognizes that she has experienced episodes of psychosis that have included auditory hallucinations. She further accepts that her post-incident January 2023 concussion may have impacted her memory.

However, J.G. does not believe that any of these issues caused her to incorrectly recall what occurred with Mr. Hooper in the motorhome and the car in June and October of 2018, especially the sexual activity that occurred there with him. Based on my assessment of the cogency of J.G.'s testimony, the details of which I have set out above, I find it to be reliable notwithstanding J.G.'s health challenges. [ 87 ] In reaching this conclusion, I am in a similar situation to the one described in R. v. Perrone , 2014 MBCA 74 , affirmed 2015 SCC 8 .

The accused in that case was convicted of sexual assault on the basis of the complainant's testimony alone. On appeal, the accused argued that the trial judge erred in her assessment of the complainant's credibility, notably because she had mental health issues and was intoxicated at the time of the offence. The appeal was dismissed. The Manitoba Court of Appeal noted that the existence of these factors is not a bar to finding a witness credible or reliable.

[ 88 ] Like the trial judge in R. v. Perrone , I am satisfied that J.G. knew what was transpiring around her and provided the requisite details to satisfy me that the elements of the offence of sexual assault and sexual interference have been proven beyond a reasonable doubt. [ 89 ] I am so satisfied, notwithstanding the inconsistencies in J.G.'s testimony that were highlighted by counsel for Mr. Hooper in his closing argument. They include:

a) J.G.'s assertion at trial that she would not consume cocaine and meth at the same time, and her subsequent acknowledgment that she did just that at the motorhome in June 2018;

b) J.G.'s lack of certainty at trial whether she engaged in subsequent sexual activity with Mr. Hooper in the motorhome after Maddie and Randy came over to her, and her preliminary inquiry testimony that there was such further activity;

c) J.G.'s differing estimates of the duration of the sexual intercourse with Mr. Hooper in the motorhome, which she gave as 10 minutes at trial and 20 minutes at the preliminary inquiry; and

d) J.G.'s recollection at trial that Mr. Hooper was wearing a hat at Tim Hortons, while she was uncertain about this at the preliminary inquiry. [ 90 ] In my view, none of these minor inconsistencies give rise to reasonable doubt surrounding the reliability of J.G.'s testimony generally, or J.G.'s testimony regarding the specifics of the sexual activity with Mr.

Hooper that constitute the elements of the offences he is charged with. [ 91 ] With respect to the first inconsistency, I find that J.G. was simply making an assertion regarding her current understanding of the dangers of combining cocaine and meth, one that does not undermine her evidence that she did so in June 2018 at a time when she was still relatively inexperienced with these drugs. [ 92 ] With respect to the second inconsistency, I accept J.G.'s explanation that she has repressed some of the specific details of the sexual activity she engaged in at the motorhome because the memories are unpleasant, but do not find that this undermines her evidence that Mr.

Hooper did touch J.G.'s vagina with his penis while they were on the couch in the motorhome. [ 93 ] With respect to the third inconsistency, I also accept J.G.'s explanation of the difficulty of precisely estimating time while under the influence of drugs. Furthermore, the difference between the two estimates of 10 minutes and 20 minutes is not of a great magnitude, and both are consistent with a finding that the extent of sexual touching that occurred was significant and not fleeting. [ 94 ] With respect to the fourth inconsistency, I find that the matter of whether or not Mr.

Hooper was wearing a hat when he first met J.G. is also inconsequential. Furthermore, it is notable that at the preliminary inquiry, J.G. simply answered "yeah" to the question, "hat, no hat, you don't remember?" This was part of a series of leading questions posed by counsel for Mr. Hooper designed to obtain an admission that J.D. did not remember what Mr.

Hooper was wearing, all of which she just answered "yeah." I accept J.G.'s explanation that she may have been "zoning out a bit" at this point in the preliminary inquiry, while she was more focused when asked the same question at trial. [ 95 ] Finally, I also acknowledge counsel for J.G.'s argument that it would be unsafe to convict Mr. Hooper on the basis of J.G.'s testimony since it is uncorroborated. However, I am unable to accept this argument as it is contrary to s. 274 of the Criminal Code . That

section provides that if an accused is charged with sexual assault or sexual interference under ss. 271 and 151 , no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. [ 96 ] Even if this legislative provision were inapplicable, however, I am of the view that J.G.'s evidence is sufficiently solid that corroboration from other witnesses to the events is not required to dispel reasonable doubt in this case. [ 97 ] For all of these reasons, I find that the only reasonable conclusion to draw from the totality of the evidence is that there is no reasonable doubt that Mr.

Hooper sexually assaulted and sexually interfered with J.G. on two occasions: (1) in a motorhome parked in Langford in June 2018; and (2) in a car parked in Saanich in October 2018. [ 98 ] Mr.

Hooper, will you please stand. [ 99 ] On Count 1 of the indictment, the Court finds you guilty of sexually assaulting J.G., contrary to s. 271 of the Criminal Code . [ 100 ] On Count 2 of the indictment, the Court finds you guilty of sexual interference with J.G., contrary to s. 151 of the Criminal Code . [ 101 ] On Count 3 of the indictment, the Court finds you guilty of sexually assaulting J.G., contrary to s. 271 of the Criminal Code . [ 102 ] On Count 4 of the indictment, the Court finds you guilty of sexual interference with J.G., contrary to s. 151 of the Criminal Code . “Brongers J.”