R. v. E.W., 2020 BCPC 241

Citation: R. v. E.W. 2020 BCPC 241 Date: 20201217 File No: 17298-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.W. BAN ON PUBLICATION –

SECTION 486.4

(2.2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: W. Silliker Counsel for the Defendant: B. Movassaghi Place of Hearing: [Omitted for publication], B.C. Date of Hearing: September 25 & October 8, 2020 Date of Judgment: December 17, 2020 Introduction:

[1] Mr. W. is charged under

section 271 of the Criminal Code with sexually assaulting L.N. on September 21, 2019. A trial tookplace on September 25 2020, and continued on October 8, 2020. [2] The elements of the offence require that the Crown establish, beyond a reasonable doubt, the following: • Mr. W. intentionally applied force, either directly or indirectly, to Ms. N.; or • Mr. W. attempted or threatened to apply force to Ms. N.; • Ms. N. did not consent; • Mr. W. knew Ms. N. did not consent; and • The force or assault was of a sexual nature. [3] I heard evidence from L. N., her husband, B. C., as well as Mr.

W. [4] The version of events as described by Ms. N. and Mr. W. are diametrically opposed. The Legal Framework: [5] The reliability and credibility of all witnesses is at issue in this proceeding. In particular, I must decide if, after a consideration ofthe evidence of the witnesses and assessed as a whole, Crown has established the offence beyond a reasonable doubt. [6] I have instructed myself and am mindful of the principles outlined in R. v. W.(D)., (SCC), [1991] 1 SCR 742and R. v. C.W.H. (BC CA) decisions. If Mr. W.'s evidence leaves me with a reasonable doubt, then he must beacquitted.

Even if his evidence does not raise a reasonable doubt, or if I disbelieve his evidence, I must ask myself whether, on the basisof the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence that Mr. W. is guilty. [7] This is not a credibility contest between Mr. W., Ms. N. or Mr. C. Rather, I must assess all the evidence and determine if Crownhas met the very high standard of proof required in a criminal proceeding and has established that Mr. W. is guilty beyond a reasonabledoubt. If I am unable to decide whom to believe, Crown has not met the standard of proof and Mr.

W. must be acquitted. It is not enoughfor Crown counsel to establish what likely occurred or probably occurred. The Evidence: Ms. N. [8] Turning now to the evidence, Ms. N. said she has known Mr. W. for a few years and that she and her husband, Mr. C., had beendrinking with Mr. W., not only on the day of the offence, but for the two to three days prior to that. She testified that she and Mr. C. didnot have a stable home of their own at that time and had been living with a variety of friends and family. E.W. had invited them to stay athis place, as well as to drink or, as Ms.

N. put it, to party. [9] According to Ms. N., the three of them started drinking early that day and was candid that she was about a seven or eight out often, if a level ten was "blackout drunk". She described Mr. W.'s apartment as a bachelor apartment that contained a mattress on the floor,two couches and a fish tank. It had a small kitchen area against one wall and a bathroom. [10] At some point in the evening, Mr. C. laid down to sleep on the mattress. Ms. N. thought that Mr. W. was asleep on the couch andshe laid down beside Mr. C. At some point during the evening she got up to use the bathroom.

She was seated on the toilet and the doorwas closed. Her evidence is that Mr. W. opened the door and told her that she had been flirting with him. In a very crude fashion, he toldMs. N. that he was going to have sex with her. She told him, in so many words, that she was not interested in that idea but he charged ather just as she was about to get up and pull up her pants. [11] She described that a struggle ensued. Mr. W. grabbed at her and her clothing and notwithstanding that she was trying to fight himoff, he was able to remove her pants and her shirt. She was finally able to break free of Mr.

W. and crawled the short distance from thebathroom into the kitchen. [12] She described in her evidence that Mr. W. followed her. She was able to get to the small kitchen. In an effort to make him stop,she grabbed whatever she could find on the counter or sink and began throwing those items at him. She couldn't recall exactly butthought she threw empty beer cans, cups, bowls and cutlery at him. [13] She testified that at that point, Mr. W. then told her that he wanted her out of his apartment and grabbed her by the hair. Shedescribed that Mr.

W. put his arm around her neck and told her that he would throw her out of the apartment naked and lock the door.She described that he had her in a choke-hold and that she was having difficulty breathing. They were struggling and standing by a fishtank and Ms. N. started rocking the fish tank and finally tipped it over, causing all its contents and the fish to spill over the floor of theapartment. Both she and Mr. W. ended up on the floor. Mr. C. [14] Mr. C., who had been sleeping on the mattress nearby, was awakened by the noise caused by the crashing fish tank.

His evidenceis that he heard a loud smash and the sound of something breaking. He looked over and saw the fish tank fall and briefly saw Mr. W.standing behind Ms. N. with his arm around her neck. [15] He described that his wife was distraught. His recollection is that she was not wearing anything and he took his shirt off to coverher. He was clear that he saw, although briefly, Mr. W. standing behind Ms. N. and that his front was facing her back. He described that

he saw the overturned and broken fish tank, the apartment was a mess, there was water and glass everywhere, and “everything was flipped over”. [ 16 ] Ms. N. and Mr. C. left Mr. W.'s apartment and, shortly afterwards, gave a statement to the [omitted for publication] RCMP. The RCMP attended at the apartment and took photographs, which were in evidence. [ 17 ] While under cross-examination, Mr. C. agreed that he did not tell the police that he saw Mr. W. placing Ms. N. in a "headlock" but disagreed with the assertion that it never happened. [ 18 ] It was suggested to Ms. N. and Mr.

C. that the fight that night was between the two of them, which started when they went into the bathroom together, while Mr. W. was “passed out on a couch”. It was put to each of them that the fish tank was flipped over and the disarray and mess depicted in the photographs of the apartment was as a result of the fight between the two of them. Ms. N. and Mr. C. denied those assertions. Mr. C. also denied an assertion that all three of them ended up in the fight. Mr. W. [ 19 ] Mr. W.'s evidence was consistent in some respects. He testified that he knew Ms. N. and Mr.

C. for a few years and they would occasionally drink together. His evidence was similar to Mr. C.'s evidence that on the day in question the three of them went to his apartment at approximately 4:00 PM and were drinking. Mr. W. also testified that he eventually passed out on a couch in his apartment. [ 20 ] That is where the consistency ends. He says that, at some point in the evening, he woke up because he could smell food, got up, ate something and then returned to his couch and fell asleep for about thirty minutes.

He says that, upon waking again, he heard moaning and groaning sounds in his bathroom coming from Ms. N. and Mr. C. His evidence was, essentially, that he was hearing sexual activity. During cross-examination he testified that he did not hear Ms. N. or Mr. C. fighting. Parenthetically, I note this is contrary to the assertion put to Ms. N. and Mr. C., in their cross-examination - that they were fighting in the bathroom. [ 21 ] Upon waking again, Mr. W. testified that he saw "a pile of stuff sitting in the middle of the floor". He clarified that he meant his belongings. He asked Ms. N. and Mr.

C. “what they were doing with all his belongings” and they told him that he owed them money for “something”. According to Mr. W., at that point Ms. N. became upset and threatened to knock over the fish tank, then grabbed it and pulled it over. That made Mr. W. "a little upset". [ 22 ] Mr. W. was cross examined about his evidence that before Ms. N. pulled over the fish tank he saw his belongings in the middle of the floor. He was shown the RCMP photographs of his apartment.

One photograph shows a clothes basket with articles in it, a duffel bag, as well as what appears to be a framed picture leaning up against a wall. All these items appear neatly placed next to the wall and not in the middle of the floor. When confronted with this contradictory evidence, Mr. W. modified his evidence and told the court that when the fish tank went over, the weight of the water pushed "everything across the room".

When asked about the fish tank stand which is clearly visible in the photograph and has been knocked over, his evidence is that he was upset and threw it “over that way". [ 23 ] He then gave evidence that the painting and the clothes basket were the items that Ms. N. and Mr. C. were going to steal or, in his words, were "going to walk out with them". He also added that Ms. N. and Mr. C. were also attempting to steal the duffel bag which he said was full of work gear.

The duffel bag can be seen in the photograph and, as mentioned earlier, is beside the picture that is neatly stacked against the wall. [ 24 ] Later, he changed his evidence again and testified that Ms. N. put the picture against the wall. This changed again in the course of his cross examination when he testified that he placed the picture against the wall. [ 25 ] Crown counsel suggested to Mr. W. that Ms. N. tipped the fish tank over because he was attacking her. He denied that assertion. It was put to him that his attack on Ms. N. occurred while Mr. C. was asleep. Mr.

W. denied that assertion and told the court that Mr. C. "was up wandering about, checking out the closets". Mr. W. appeared to suggest that to bolster his statement that Mr. C. and Ms. N. were in the process of stealing from him. Mr. C. was not questioned in cross-examination about any attempt to steal Mr. W.’s belongings. [ 26 ] When asked in cross-examination about his relationship with Ms. N., Mr. W. admitted that he was attracted to Ms. N. "in a way" but that it never went beyond "a little bit of foreplay, a hug and kiss".

He agreed that he was quite intoxicated that day and that when he drinks he doesn't make good decisions. [ 27 ] He continued to completely denied Ms. N.'s allegations. Discussion: [ 28 ] When there are significant differences in the oral evidence of witnesses, other reliable evidence tending to support or undermine a witness’ evidence plays a critical role in assisting the trier of fact to reach conclusions and make factual findings. [ 29 ] I do not accept Mr. W.'s evidence and it does not leave me with a reasonable doubt.

Aside from the many contradictions throughout his own evidence, his evidence about what occurred in his apartment is not consistent with the most compelling evidence – the photographs showing the condition of the apartment taken by the police shortly after the incident. The photographs show the apartment in complete disarray with broken plates littering the floor. That is consistent with Ms.

N.'s evidence. [ 30 ] The photographs also show the clothes basket, containing personal items placed neatly beside a blue duffel bag which was apparently full of work gear, and both are beside a picture frame also placed neatly up against the wall. It is completely implausible that the force of water from the overturned fish tank caused all those items to move from the middle of the room and come to a rest, neatly, against the wall. [ 31 ] There were some inconsistencies between Ms. N.’s and Mr. C.’s evidence. For example, contrary to Ms. N.’s evidence, Mr. C.

denied that there were drugs being consumed that night. Contrary to Ms. N., Mr. C. denied that the three of them had been drinking all day. However, Mr. C.'s evidence that they had been picking berries earlier that day was consistent with Mr. W.'s own evidence and, like Mr. C.'s testimony, that they had arrived at the W. apartment around 4:00 PM that day. [ 32 ] I regard the inconsistencies between the evidence of Mr. C. and Ms. N. as minor.

In my view, these kind of inconsistencies are often the hallmarks of witnesses who are attempting to be honest in their recollection of events compared to witnesses who have rehearsed their evidence together. These minor inconsistencies strengthens their credibility. [ 33 ] Ms. N. and Mr. C. were not confronted with Mr. W.'s version of events - that he heard Ms. N. and Mr. C. engaging in some sexual activity in the bathroom or that, when Mr. W. awakened a second time, they were about to take Mr.

W.'s belongings – the laundry basket with items, a duffel bag with work gear and a picture – because they felt he owed them money. They were not confronted with Mr. W.'s version of events that Ms. N. pulled over the fish tank when Mr. W. confronted them about stealing his belongings. Rather, they were confronted with a different version of events - that the two of them started to fight in the bathroom which then moved into the main apartment. This, in my view, is simply reflective of the fact that Mr.

W. has, to put it mildly, a fluid version of the events that occurred that night depending on the questions he was asked. [ 34 ] In my assessment the evidence of all three witnesses, I keep in mind the difference between reliability and credibility. Reliability refers to a witness’s ability to recall events, ability to observe and recount those observations. Credibility relates to whether or not a witness is telling the truth. [ 35 ] All three people had been drinking on the night in question which can affect the reliability of their evidence. Ms. N.'s evidence that Mr.

W. forcibly removed her pants and shirt is consistent with the photograph of the bathroom taken by the investigating police officer showing the pants on the floor in the bathroom. Photographs show scratch marks on Ms. N.’s back which is consistent with her evidence that Mr. W. was grabbing her in the process of forcibly removing her top. Her evidence that she threw any item at Mr. W. she could find in the kitchen in an effort to stop his attack is also consistent with the photographs showing broken dishes strewn across the floor. [ 36 ] Her evidence that she knocked over the fish tank in an effort to break Mr.

W.’s hold around her neck is also consistent with Mr. C.'s evidence that when he awoke from the noise of the fish tank breaking, he momentarily saw Mr. W.'s arm around Ms. N.’s neck and Mr. W. standing behind Ms. N. [ 37 ] I find that Ms. N. and Mr. C. were credible witnesses. Ms. N., while admittedly intoxicated, clearly recalled a traumatic and terrifying attack. In addition, Mr. C.’s evidence and the photographic evidence are consistent with her version of events. [ 38 ] Mr. W.’s evidence is simply not credible.

He contradicted his own evidence a number of times and my impression was that he was essentially making it up along the way as he was being questioned. Conclusion: [ 39 ] I am satisfied, beyond a reasonable doubt, that the Crown has established the following facts: • Ms. N., Mr. C. and Mr. W. were drinking together at his apartment during the evening of September 21, 2019 and all were intoxicated; • The three of them went to sleep at some point in the evening – Ms. N. and Mr. C. on a mattress and Mr. W. on a couch; • Ms.

N. got up sometime during the night to go to the bathroom and closed the door; • Afterwards and while Ms. N. was still in the bathroom, Mr. W. entered and told that he was going to have sex with her; • Mr. W. forcibly removed Ms. N.’s pants and top; • Ms. N. fought and struggled with Mr. W. in an attempt to stop him; • In the midst of the struggle with Mr. W., Ms. N. was able to crawl out of the bathroom into the kitchen where, in an attempt to stop him, she threw multiple items at Mr. W. including dishes; • Ms. N. did not consent to Mr.

W.s actions and she did not wish to have sex with him; • The application of force by Mr. W. was intentional and for the purpose of forcing Ms. N. to have sex with him; • Mr. W. became angered and, in an attempt to remove her from his apartment while she was at least partially nude, placed his arm around her neck causing Ms. N. to have difficulty breathing; • In an effort to stop Mr. W. from choking her, Ms.

N. knocked over the fish tank and this ended the incident. [ 40 ] After consideration of all the evidence, I am satisfied beyond a reasonable doubt that the Crown has established all the elements of the offence. [ 41 ] I find E. W. guilty of the offence of sexual assault of L. N. contrary to

section 271 of the Criminal Code .

_____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia