R. v. Williams Date, 2003 BCSC 821

Citation R. v. Williams Date: 20030320 2003 BCSC 821 Docket: 16806-2 Registry: Smithers IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Mr. Justice Halfyard March 20, 2003 HER MAJESTY THE QUEEN AGAINST CLYDE KEITH WILLIAMS Counsel for the Crown: D. Brennan Counsel for the Defence: G.

Sebastian BAN ON PUBLICATION 539(1) BAN ON DISCLOSURE 486(3) [ 1 ] THE COURT: Clyde Keith Williams is on trial on a charge that he sexually assaulted J.T.W. between April 1st, 1984 and June 30th, 1985, at or near Hazelton. [ 2 ] The case for the Crown is that in the first few days of April 1985, in the bedroom of a trailer home in Kitwanga, the accused had forcible sexual intercourse with the complainant without her consent while she was being held down by several other men. [ 3 ] The complainant had just turned 19 years of age on April 1st, 1985.

It is alleged that she and her then boyfriend Calvin Alexander had hitchhiked a ride from Kitseguecla to Kitwanga. Kitseguecla is a village on Highway 16 about 45 to 50 kilometres west of Hazelton. Kitwanga is a village on and near Highway 16 about another 30 kilometres west of Kitseguecla. It was Ronald Campbell, the complainant's future husband, who gave them a ride. [ 4 ] After being dropped off they walked to the trailer residence of a man named Alex Bright. There were a number of other people there.

It is further alleged that after they had been drinking beer for several hours, Calvin Alexander called the complainant into the bedroom, and shortly after she came in Alexander went out and closed the door behind him, leaving the complainant in the bedroom with five men. She had not met any of them before that night. All the men had been drinking. [ 5 ] The complainant was sitting on the bed and they grabbed her, held her down on the bed, took her pants off, and then Alex Bright raped her. When Bright got off the complainant, the accused raped her. The complainant physically resisted but was overpowered.

She cried and wanted to scream for help but one or more of the men told her to shut up or they would beat her, and so she did not scream. [ 6 ] She heard some of the men laughing during the incident in the bedroom. [ 7 ] After the accused raped her the complainant managed to get loose and climbed out the bedroom window and got away. She took her pants with her, put them back on, and walked or ran to the home of her grandparents in Kitwanga. It was almost daylight by this time. She told her grandparents what had happened, and they told her to go to sleep. She did so.

Later that day she hitchhiked back to her home in Kitseguecla. She had some bruises on her arms and legs from being forcibly grabbed and held. [ 8 ] The complainant broke off her relationship with Calvin Alexander. She had no further dealings with the accused or with Alex Bright, although she saw the accused around from time to time over the years. [ 9 ] The complainant never told anyone else what happened to her until she told her husband in November 2000, about 15 1/2 years later. Until then, feelings of fear and shame had kept the complainant from disclosing it.

Soon after that, the complainant made a statement to the police and a police investigation proceeded. The charge was laid on April 10, 2001. [ 10 ] That is an outline of the facts alleged and relied on by the Crown.

[ 11 ] The complainant and her husband, Ronald Campbell, were the only witnesses called by the Crown. The complainant's grandparents have died; Alex Bright has died; and it appears that the police were unable to find Calvin Alexander to serve a subpoena on him. [ 12 ] The accused elected not to call evidence.

The defence challenges the credibility of the complainant and the reliability of her evidence on several grounds: namely, first, that she made several previous statements that are inconsistent with her trial testimony; second, that she failed to make any or any meaningful complaint about the alleged offence for over 15 years; third, that she had a possible motive to falsely claim that the accused had raped her; fourth, that she had a poor opportunity to observe the accused and may have mistakenly identified him; and fifth, that there are conflicts between the complainant's evidence and the evidence of her husband. [ 13 ] The case for the Crown depends on the testimony of the complainant.

The only way in which her husband's testimony could support the complainant's evidence is to confirm that he was the person who gave the complainant, his future wife, and Calvin Alexander a ride from Kitseguecla to Kitwanga, although he could only say that that occurred on an evening in 1984 or 1985.

Ronald Campbell's evidence was not challenged except perhaps as to the frequency with which he physically abused the complainant. [ 14 ] I will deal firstly with the previous statements of the complainant that are said to be inconsistent with her trial testimony. [ 15 ] First, at trial the complainant said that Calvin Alexander came to see her at Kitseguecla at about 8 p.m. They walked around. She drank about one and a half beers and finished her second beer on the ride to Kitwanga where they arrived at 9 or 10 p.m. She said she had five or six more beers at Alex Bright's place.

But the complainant admitted she testified at the preliminary hearing that she had her first beer at Kitwanga at about 2 a.m. and that she had drank five or six beers by the time they got to Kitwanga, which she said was at about 2:30 a.m. [ 16 ] The complainant acknowledged that her preliminary hearing testimony was wrong on those points and explained that she was crying when she testified there and got confused and found it hard to talk.

In re-examination it was shown that the complainant had told the police officer on March 6th, 2001 that they had arrived at Kitwanga at about 9 or 10 p.m. in the evening. [ 17 ] I am satisfied that the inconsistent statements made at the preliminary hearing were honest mistakes.

Moreover, since the complainant admitted to drinking quite a few beers in both versions, I find the subject matter of the inconsistency is not of high significance. [ 18 ] Second, the complainant testified here at trial that the incident occurred in early April 1985 within a day or two after she turned 19 on April 1st and about two weeks before the marriage of her cousin, which occurred on April 13th, but she admitted that on November 27, 2000, in her first statement to police, she said it happened in May on a soccer tournament weekend when she was 20 years old and when it was daylight.

The complainant acknowledged that her statement to the police was wrong in these respects. She said she made a mistake, but she pointed out it was almost daylight when she escaped from the trailer. [ 19 ] Although this is a significant discrepancy in the month and year of the incident, the statement of November 27, 2000 was the complainant's first statement to police, and it is not suggested that the errors were repeated after that.

Again, I find that the inconsistencies were due to honest mistake. [ 20 ] Third, it was established in cross-examination that the complainant had failed to mention to the police that the men in the bedroom had threatened to beat her if she did not keep quiet in any of the three police statements on November 27, 2000, March 6, 2001, or March 21, 2001.

She was not asked to explain why she did not tell police about the threat, nor did she say why she did not do so. [ 21 ] I find it a little unusual that the complainant did not mention a threat in any of her police statements, but I am satisfied that the complainant's omission was not deliberate. I find the complainant's previous inconsistent statements do not adversely affect her honesty or the reliability of her evidence. [ 22 ] The complainant failed to report the alleged offence to the police for about 15 1/2 years. Mr.

Sebastian argued that it is unlikely that the complainant told her grandparents about being raped by Alex Bright and the accused because she did not say she told them to keep it a secret, and one would expect that they would raise the subject with the complainant's parents. [ 23 ] I am unable to say whether the complainant told her grandmother everything she now believes she told her, and I therefore treat the complainant's disclosure to her husband in November 2000 as her first complaint. [ 24 ] She explained that she did not tell anyone about being raped because she felt scared to tell, and ashamed, even though she seemed to believe that she had done nothing wrong. [ 25 ] A long delay in reporting an alleged crime, as exists here, can support an inference adverse to the complainant's credibility if it is not adequately explained.

In this case, I accept the complainant's explanation for her lengthy failure to complain, and I draw no adverse inference from it. [ 26 ] Defence counsel argued that the complainant had a possible motive to lie in order to cause her husband to stop verbally and physically abusing her. I find that Mr. Campbell, beginning in about 1986 after he met the complainant, heard rumours that the complainant had had a sexual encounter or relationship with the accused.

I also find that from time to time for up to 14 years he accused the complainant of having had an affair with Clyde Williams and that he physically hit the complainant on a number of occasions up until the time she told him the accused had raped her, in November 2000. [ 27 ] There appears to be no reason why the complainant would want to hurt the accused by falsely claiming that he had raped her.

They had no contact with each other for 15 years after the alleged incident. But it does appear that the complainant finally came to believe that if she told her husband that the accused raped her he might stop abusing her. Ronald Campbell even said something to the effect that he asked the complainant if she had been forced, just before she told him she had been raped, and the complainant testified that she believed it might save their marriage if she told him the truth.

Also, both the complainant and her husband testified that soon after she told him he believed her, and their relationship improved tremendously. [ 28 ] One wonders why Mr. Campbell never ever confronted the accused about his suspicions since he knew him and ran into him from time to time over the years. I suspect he did not do so because he jealously believed that the rumours he had heard might be true and that his wife had long ago had consensual sex with the accused before she started going out with him.

He could hardly blame the accused for anything if that was true, but his jealously appears to have driven him to punish his wife. In my opinion Mr. Campbell's feelings of guilt for his treatment of her are well-deserved, regardless of what I find to be the true version of events. [ 29 ] The evidence does not reveal whether the complainant denied to her husband that she had ever had sex with the accused or whether she simply stayed silent about whether she had or not. Mr. Sebastian argues that I should infer she denied it and therefore that she had lied to her husband. Mr.

Brennan says I should infer she just remained silent until November 2000. [ 30 ] I am unable to make any firm finding in this regard.

I do find that the complainant's motive in finally disclosing the alleged offence to her husband was to try to save herself from further abuse at his hands. [ 31 ] Although there exists a possibility that the complainant had a motive to lie, I find that it is not a reasonable possibility and I therefore reject it as having any bearing on the complainant's credibility. [ 32 ] Defence counsel further argued that the complainant could not give any physical description of the accused or his clothing or his hair. Mr.

Sebastian contended that the complainant may have been mistaken because she did not have a good opportunity to observe the accused. She was only introduced to him briefly by Calvin Alexander in the living room and then claims she saw his face when he was on top of her in the bedroom when she was afraid and when it was fairly dark. However, the complainant remained firm in her identification of the accused. I reject this argument and I accept the complainant's identification evidence. [ 33 ] Next, there were some discrepancies between the testimony of the complainant and that of her husband.

She said he started accusing her and abusing her after they married, which was in September 1990, but he said he started around 1986. Even if I accept his version, his abuse must have been minimal before they married or else I doubt she would have married him. This discrepancy is insignificant, in my view. [ 34 ] The complainant said she could not recall whether her husband went to jail, although she knew he had been convicted of impaired driving. Mr.

Campbell testified that he had been convicted three times of impaired driving, in 1990, 1991, and 1992, and that he had been sentenced to 14 days, 60 days, and 90 days in jail respectively. [ 35 ] The complainant's claimed lack of recollection seems odd. Mr. Sebastian argued she must have known her husband went to jail and she either lied about it or was careless with the truth when giving her evidence.

I think there is a reasonable possibility that the complainant was attempting to minimize the seriousness of her husband's criminal record, but even assuming that was true, it is my opinion that this could not support an inference that she might have tried to deceive me about any essential fact. [ 36 ] On the other hand, her version of the frequency with which her husband beat her exceeded her husband's estimate by far. I think the complainant's version is probably more accurate than her husband's.

I do not think there is much significance in that discrepancy either, except that on her version she had an even stronger reason to disclose the alleged offence to her husband. [ 37 ] Finally, it was contended that the Crown's failure to call Calvin Alexander left the complainant's evidence standing alone without any corroboration as to what occurred in the trailer. That is true. But in my opinion there is no basis on which to conclude that if Calvin Alexander had been called to testify he would have contradicted the complainant's version of events.

I find the failure to call him as a witness is a neutral fact in this case. [ 38 ] I am mindful that I should exercise caution before accepting the complainant's evidence in the circumstances of this case. But in the end, I am satisfied that the essential facts asserted in the testimony of the complainant are true beyond a reasonable doubt. It follows that I am satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant at the time and place and in the way she described, that she did not consent and that the accused knew that she was not consenting. I find the accused guilty. “D.A.

Halfyard, J.” The Honourable Mr. Justice D.A. Halfyard