R. v. N.B.C. Date:, 2016 BCPC 360

Citation: R. v. N.B.C. Date: 20161108 2016 BCPC 360 File No: 102061 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. N.B.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON BAN ON PUBLICATION PURSUANT TO s. 486.4 CCC Counsel for the Crown: Mr. Andrew Duncan Counsel for the Accused: Mr. Donald Campbell Place of Hearing: Kamloops , B.C. Dates of Hearing: September 27 and October 20, 2016 Date of Judgment: November 8, 2016

[ 1 ] The Crown has alleged that N.B.C. sexually assaulted the complainant, K.J., on or about June 3, 2016 at Kamloops, British Columbia. N.B.C. also goes by the name “[omitted for publication]”, a name K.J. knew him by. The Evidence [ 2 ] The complainant is a woman in her late twenties. She gave evidence that prior to the events complained of, she was out with her boyfriend of several years, Mr. A. They were socializing with others, including her brother, another man named T., the accused N.B.C. and a young woman. Alcohol was being consumed. [ 3 ] K.J. related that Mr.

T. suggested that the group should go to and stay the night at N.B.C.’s Kamloops apartment. The group went to N.B.C.’s apartment, though at some point thereafter T. and the other young woman left. [ 4 ] It is clear on all the evidence that the accused was intoxicated that evening. K.J. observed the accused talking to himself and described him as “tweaked out”. She said she spoke to him between 1:30 and 2:00 a.m. and calmed him down. [ 5 ] K.J. said that she had suffered “stomach ‘flu” that day and did not herself have much to drink.

She said that she drank about three one-ounce shots of tequila from a mickey bottle and nothing more. She said she shared three marijuana joints with others through the evening. [ 6 ] By about 3:00 a.m. K.J. said she had decided it was time to go to sleep. There was a discussion about the sleeping arrangements. It was agreed that K.J. and her boyfriend would have the bedroom, her brother would sleep on a mattress on the living room floor and N.B.C. would be on the couch. [ 7 ] In evidence, K.J. said that she and Mr. A. went into the bedroom, closed the door and went to sleep in the bed.

She estimated that she went to sleep not later than about 4:30 a.m. [ 8 ] The bed was positioned in the room such that there was space on both sides sufficient for a person to walk. K.J. said that she was sleeping under the blankets on the left side of the bed, as one would look at it from the foot. Mr. A. was next to her on the right side. She said that she went to bed wearing a blue shirt, a bra and black yoga pants. She was not wearing underwear. [ 9 ] K.J. said that she awoke to find her yoga pants pulled down to her knees.

She felt something moving in her vaginal area and at first believed that her boyfriend was touching her sexually. [ 10 ] As she came awake, it became apparent that her boyfriend was in front of her and that she was being touched from behind. She realised that it was not her boyfriend who was touching her. K.J. rolled over to see that it was N.B.C. who was touching her. She said there was light coming through the open bedroom door, which had previously been closed.

She could see the accused there and recalled seeing the tattoos on his arms. [ 11 ] When asked by counsel to provide greater detail about the touching, K.J. did so. She provided a thorough description of how the accused rubbed his penis into her genitals. She also described how he had pushed his penis into her anus and how this had caused her pain. She estimated this unwanted sexual contact lasted for about three to five minutes. [ 12 ] K.J. told her boyfriend that someone was touching her and was doing things to her he shouldn’t be.

She said she spoke up when she realised that it was not her boyfriend touching her, but the accused. After she spoke, she said, the accused tried to pull her pants back up. K.J. agreed that in her statement to police she had said he was sitting there, trying to pull her pants up. [ 13 ] She gave evidence that the accused was under the blankets with her and her boyfriend. When K.J. threw off the covers to get out of the bed, she could see the accused there. She described him as being in the bed and wearing a red shirt and blue shorts.

His pants were down. [ 14 ] K.J. said she told her boyfriend to “look right there” at the bed where she said the accused was then rolled over, pretending to be asleep. She said she was angry with her boyfriend for allowing this to happen to her and for not knowing what had happened. Her boyfriend was awake but groggy, she said. [ 15 ] K.J. described herself as “flipping out” at the time and telling others that the accused had been touching her. The accused N.B.C. asked Mr. A. “What is she flipping out about?” K.J. said she left the bedroom. Mr. A. followed her into the kitchen, asking her what was going on.

She asked Mr. A. and her brother, who was then also awake, to gather her things. [ 16 ] The accused asked K.J. why she was upset. K.J. told him he had been molesting her as she slept. K.J. said that the accused tried to hug her but she left saying that she was going to call the cops. Mr. A. and her brother followed her from the apartment. An ambulance and the police were called and both services attended K.J.’s location. [ 17 ] Constable Martin of Kamloops RCMP gave evidence that she was dispatched to investigate K.J.’s complaint at about 6:50 a.m. on June 3, 2016. On arrival, Cst.

Martin spoke to the complainant while she was in the ambulance. The constable described K.J. as being very upset, crying and angry, but said she was able to listen. There was no evidence that K.J. showed any signs of intoxication. Ms. K.J. was taken to the hospital and gave a statement there to police at about 8:00 a.m. [ 18 ] K.J.’s boyfriend, Mr. A., also gave evidence at trial. He described the events of the evening. He related that he had three beers before arriving at N.B.C.’s and had more beer and tequila after.

Five people had shared a case of beer between them as well as a “mickey” bottle on tequila, he said. K.J. only had a few shots of tequila, he said. She didn’t drink beer. No drugs were consumed, according to Mr. A., as he doesn’t mix drugs and alcohol. He described himself as being sober when he was woken up.

[19] Mr. A. recalled that N.B.C. was pretty drunk when they arrived at the apartment and that the accused continued to drink. [20] In the course of the evening, Mr. A. said, N.B.C. fell asleep or passed out at the table. The accused had said that he wouldsleep on the couch and K.J. and Mr. A. could have the bedroom. [21] Mr. A. said that he and K.J. went to N.B.C.’s bedroom. They went to bed and fell asleep holding each other. [22] Mr. A. said he was woken by his girlfriend yelling that the accused was pushing his penis into her. She was screaming andcrying that he was trying to rape her.

K.J. got out of bed right away, he said. When she got out of the bed, Mr. A. found the accusedN.B.C. was lying next to him on Mr. A’s right side. [23] Mr. A. said the accused asked him what was going on, why was she screaming and crying. Mr. A. got up from the bed, left thebedroom and went to K.J. He said that that at one point she was too upset to tell him what had happened. She was distraught and hervoice was trembling. He said she told him what the accused had done. Mr. A. said that K.J. was angry with him for doing nothing toprevent the assault. [24] Mr.

A. said K.J. stormed out of the apartment and the building. He followed her and called police on his cell phone. Mr. A.later provided a statement to police. [25] Constable Martin and two of her colleagues then attended N.B.C.’s apartment where they arrested N.B.C. She recalled that hewas wearing a T shirt and a pair of boxers. He was described as being confused and very intoxicated. Officers removed him to thepolice detachment and he was placed in cells.

The officers abandoned an attempt to take a statement from the accused at about 3:00 p.m.that day as he was deemed still too intoxicated to give a police statement. [26] N.B.C. elected to give evidence and said that he was drinking with the group and got “pretty intoxicated” that night. He said hewas an alcoholic and that he had passed out as he sat at the table. He said he later made it onto the couch. [27] N.B.C. said that he spilled alcohol on himself. He also described waking up and finding his shorts were wet. His shorts werewet from the area around his belly button down to his crotch.

He said he went into his bedroom to change his shorts. The wet shortswent into his laundry hamper. [28] On the floor beside the bed, nearest the side where K.J. was sleeping, N.B.C. said he found a pair of dry shorts he hadpreviously worn. It was dark. He said the two people in the bed were in the middle of the bed, under the covers. [29] In the course of trying to put on the fresh shorts, N.B.C. said that he lost his balance and fell back onto the bed. He said indoing so he bumped into K.J. just one time when he hit the bed.

There was no response from K.J. [30] The accused said he got up and pulled his shorts on. He was walking out of the room when K.J. spoke and asked him, “Whatthe fuck did you do to me?” He said he was in the hallway outside the bedroom and answered, “I didn’t do nothing.” This was followedby commotion, arguing, screaming and yelling. The accused said he told everyone that they had to clean the place up as he had familycoming over later in the day. N.B.C. estimated the time of these events to be somewhere between three and five o’clock in the morning. [31] The accused then moved to the kitchen. Mr.

A. and K.J.’s brother were trying to collect their things. K.J. again asked theaccused what had he done to her. The three left the apartment, leaving the accused behind. N.B.C. said he was annoyed that he had beenaccused of something and he started drinking again. He got sick and passed out in the bathroom. He was there when the police arrivedand arrested him. Witness Credibility [32] Witness credibility in cases where the accused has given evidence was addressed by the Supreme Court of Canada in R. v.D.W., (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, and the British Columbia Court of Appeal in R. v.

C.W.H.(1991), (BC CA), 68 C.C.C. (3d) 146, 3 B.C.A.C. 205, paras. 23-24. [33] In R. v. D.W., the trier of fact is invited to consider the question of credibility along the following lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [34] Mr. Justice Wood stated in R. v. C.W.H. that he would add one more instruction in such cases, which ought to be second in theorder, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [35] In Bradshaw v.

Stenner, 2010 BCSC 1398 at para. 186, Madam Justice Dillon summarised some of the factors to be consideredin assessing witness credibility. She stated: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (SCC), (1919), 59 S.C.R. 452, 50D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-

examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour 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.) [Faryna]; 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 on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time (Faryna at para. 356).

Analysis [36] To be clear, I found the account of K.J. to be believable, reliable and convincing. This was in contrast to the evidence of theaccused. K.J. was not a witness, as she said, who had any reason to make up false allegations against N.B.C. Indeed, she hardly knewhim. [37] There is no evidence that K.J. suffered from any impairment of her faculties at the time of these events other than she was sleepwhen it started. She was very clear in describing N.B.C.’s actions.

It is difficult to accept that she could have so completelymisunderstood the actions of N.B.C. if they had occurred as clumsily, briefly and innocently as he described them. [38] The acts she alleged against the accused were of some duration and were recalled by K.J. in particular and specific detail. Incross examination she was not moved with respect to the essentials of her allegations against N.B.C. Her evidence was supported insignificant respects by the evidence of Mr. A. [39] In evidence K.J. said that she suffered from anxiety attacks and was so during her evidence.

More than once during hertestimony she became teary and emotional. She took a moment to collect herself before continuing with her evidence. This is not anunusual occurrence for a complainant giving evidence in such a case and did not in this case render her evidence any less credible as aresult. [40] K.J. agreed in cross examination that in her statement to police she had referred to N.B.C. at one point as sitting on the bed,pulling her pants up after she spoke out to Mr. A.

She said that she had been distraught and upset while giving her statement at thehospital and that it had been hard to be precisely accurate in those circumstances. She was firm in her evidence that the accused was notmerely sitting beside her but that he had been lying beside her and had been touching her sexually. [41] There was a broad consistency between the evidence of K.J. and Mr. A. For example, both witnesses said the accused was stilllying in the bed when K.J. loudly got out of it.

The evidence of both witnesses contradicted the account of N.B.C., who said that he fellonly briefly into the bed and got himself up before K.J. had said anything at all. [42] The discrepancies that existed between the evidence of K.J. and Mr.

A. were the sort often seen where people have viewed thesame events from different perspectives and are trying to recall months later particular detail as to words spoken or what was done, or theordering of the chain of events. [43] Neither did I find discrepancies alleged between the evidence given at trial and the portions of witness statements sufficient toundercut the credibility of K.J.’s complaint. I saw no indication of collusion in the evidence of K.J. or Mr. A. Conclusion [44] In the result, I find the evidence of K.J. and Mr.

A. to be both credible and reliable with respect to the acts of the accusedcommitted on K.J. To be clear, I don’t accept the evidence of N.B.C. nor do I find that I am left in a reasonable doubt by his evidence orupon consideration of the evidence as a whole. [45] The Crown has proved the case against the accused beyond a reasonable doubt and I find him guilty as charged. S.R. Harrison Provincial Court Judge