R. v. Bailey, 2023 BCPC 150

Citation: R. v. Bailey 2023 BCPC 150 Date: 20230619 File No: 17883-1 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MICHAEL GARY BAILEY BAN ON PUBLICATION – s. 486.4(2) CCC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: B. Ward Counsel for the Accused: D. Marion, K.C. Place of Hearing: [Omitted for publication], B.C. Dates of Hearing: November 24, 25, 2022 and February 14, 2023 Date of Judgment: June 19, 2023 [ 1 ] Mr. Bailey is charged with sexually assaulting D.M. on or about March 6, 2021 contrary to s. 271 of the Criminal Code . Crown

has proceeded by Indictment. [2] Mr. Bailey testified that he did engage in sexual activity including performing oral sex upon D.M. but maintains that it wasconsensual. D.M. testified and has no recollection whatsoever of any sexual activity with Mr. Bailey. She also testified that she would nothave done so or consented for a number of reasons I will refer to later. [3] There is no disagreement that what took place occurred in Mr. Bailey’s fifth wheel trailer and that D.M. and Mr. Bailey had beendrinking. [4] This case is unusual in that a witness, Mr.

Paul Leblanc, gave a statement to the RCMP about what he saw when he opened thedoor of Mr. Bailey’s fifth wheel trailer. [5] Mr. Leblanc told Cst. Sanders that at 7:24 p.m. on March 6, 2021, he opened the unlocked door of Mr. Bailey’s fifth wheeltrailer, entered, and saw D.M. laying on the bench seat by the table with her pants around her ankles and Mr. Bailey performing oral sexon her. Mr. LeBlanc also told Cst. Sanders that he left and closed the door of the fifth wheel behind him. Mr. Bailey’s evidence is thatMr. Leblanc walked in on them while he was performing oral sex on D.M. and then left. [6] Mr.

Leblanc subsequently passed away and following my ruling in a voir dire, I allowed Crown to introduce Mr. LeBlanc’sstatement for the truth of its contents. That ruling and my reasons are set out in a separate written decision. [7] There is no question that Mr. Bailey engaged in sexual activity with D.M. on the day in question. The issue is whether or notD.M. consented to him doing so or if she was even capable of consenting. Mr.

Bailey says that D.M. had a motive to tell the police thatshe did not consent because she did not want her boyfriend to find out. [8] This case requires the court to embark on an assessment of the evidence in the manner outlined in R. v. W(D), (SCC), [1991] 1 SCR 742 and R. v. C.W.H., (BC CA), [1991] BCJ No. 2753 (BCCA) and I proceed on the followingbasis:

a) Firstly, if I believe the evidence of the accused, I must acquit. Secondly, if I do not believe the testimony of the accused but amleft in reasonable doubt by it, I must acquit. Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myselfwhether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of theaccused.

b) Lastly, if after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit. [9] My decision must not be made on the basis of an “either/or” choice between the evidence of Mr. Bailey and D.M., but on thebasis of whether or not all the elements of the offence have been proven, by the Crown, beyond a reasonable doubt. In other words, thisis not a credibility contest. [10] Mr. Bailey submits that D.M. is being untruthful about what occurred between them and had a motive to fabricate her evidence.In that context, it is important to clearly state that Mr.

Bailey does not bear the onus to prove that D.M. had such a motive. It is alwaysthe Crown that carries the onus to prove, beyond a reasonable doubt, that D.M. consented to the sexual activity. [11] Furthermore, absence of evidence of motive to lie cannot be transformed into a proven lack of motive and allow a judge to jumpto the conclusion that the complainant is telling the truth: R. v.

Mirzadegan, 2019 ONCA 864 at para. 14. [12] Lastly, judges may make findings of credibility by drawing on common-sense inferences and life experience but inferences notsupported by the evidence and grounded in stereotypes is prohibited: R. v. Pastro, 2021 BCCA 149 at para. 40 and 41. In other words,factual findings including the assessment of credibility must be grounded on a case-specific determination based on the evidence. [13] With those fundamentals in mind, I turn to the evidence of Mr. Bailey and D.M. [14] D.M. was 38 years of age at the time of this trial. Mr. Bailey was 71 years of age.

The two met after D.M. and her boyfriendmoved their motor home into a trailer park and were neighbours of Mr. Bailey who lived [omitted for publication] in his fifth wheel. Mr.Leblanc also lived in a fifth wheel trailer [omitted for publication] from D.M.’s motor home. [15] D.M. considered Mr. Bailey to be like an uncle. She described him as kind and considerate and the two would sometimes go to asecond hand shop or grocery store in town. She helped him clean his trailer and they talked. She considered him family. Mr.

Baileytestified that D.M. would come over to his fifth wheel almost every day in the morning and she would paint. They would drink fireballwhisky together which he always had at his place. [16] D.M. regarded Mr. Leblanc as a friend, advisor and mentor. She described that she thought of him as family. She looked after hisdogs from time to time and they would also go into town on occasion. She testified that she introduced Mr. Leblanc and Mr. Bailey toeach other and the three would socialize together in Mr. Bailey’s fifth wheel. [17] Mr.

Bailey testified that on the day in question, D.M. came to his home earlier in the morning, left and then returned around 4p.m., 5 p.m. or 5:30 p.m. D.M. thought she returned to Mr. Bailey’s fifth wheel about 5:30 p.m. She didn’t bring alcohol with her and shedrank from Mr. Bailey’s bottle of Fireball. She recalled that Mr. Leblanc was also there for a while and then left. She described that thethree of them were sitting around the small table in the fifth wheel – she was sitting on the bench beside the table, Mr. Bailey was sittingon a chair and Mr. Leblanc had pulled up a cooler to sit on.

D.M. testified that the bench and table would fold into a bed and there was alip on the edge. [18] D.M.’s evidence is that they were there to console Mr. Bailey following the loss of an old friend who also had lived at the RVPark. Mr. Bailey agreed that he had been surprised when his friend passed away when she did. He agreed that he and D.M. talked about

his friend’s passing and that it was not a party atmosphere. According to Mr. Bailey, Mr. Leblanc was not there until later when he opened the door briefly, saw Mr. Bailey performing oral sex on D.M. and left. [ 19 ] Mr. Bailey described that notwithstanding the drinking, D.M. was not drunk and when asked about her state of mind, answered that “she was ok”. When asked what he meant, he clarified that she was in her right mind and knew what she was doing. [ 20 ] When asked to describe her sobriety, D.M. testified that she had not slept well the night before and was tired.

She was candid that she regularly takes medications that she has been told not to mix with alcohol. Her evidence is that about 6:30 p.m., she felt an overwhelming urge to sleep, that she couldn’t stay conscious anymore and nothing was going to keep her awake. She described that it felt as if she was drugged and so tired, she couldn’t stay awake. She does not recall seeing Mr. Leblanc leave. According to D.M., she has previously consumed alcohol while taking her medications and never before had she “passed out” or felt like she did that night.

She also testified that she had consumed less alcohol on the night in question compared to other times when she was also regularly taking her medication. [ 21 ] D.M.’s evidence about her state of sobriety and level of intoxication is consistent with Mr. Bailey’s evidence. I conclude that D.M. was not overly intoxicated that evening from her medications or the Fireball whiskey. [ 22 ] D.M. recalls clearly seeing the clock when she fell asleep at 6:30 p.m. and that she was sitting on the bench with her back against the wall and her legs outstretched in front of her.

She was wearing pyjama bottoms and thong underwear as well as a t-shirt. The next thing she recalls is waking up three hours later, looking at the clock which indicated 9:30 p.m. and feeling confused. She felt what she described as a “horrible shooting pain” in her lower back near her tail bone as well as in her groin and didn’t know what had happened during those three hours. It hurt to move and lean forward and she didn’t know why she was in pain. She described that it felt like someone had “punched her in (her) vagina”.

She had not felt pain or these symptoms before she fell asleep. [ 23 ] She described that Mr. Bailey was still sitting in the chair beside the bench and table where he was when she fell asleep. She felt “completely dead sober” and didn’t know why three hours was missing. [ 24 ] She got up from the bench seat and used Mr. Bailey’s washroom and saw blood on the toilet paper she had used. She went home. Mr. Bailey’s evidence is that D.M. left his place around 10 p.m. That timing is consistent with D.M.’s evidence of awakening at 9:30 p.m. [ 25 ] Mr.

Bailey’s evidence is that at about 6 p.m., the sexual activity started. In cross examination his evidence was that after he performed oral sex, D.M. laid back on the bench and then “had a little nap” until about 9 p.m. [ 26 ] According to Mr. Bailey, they were alone in his fifth wheel, listening to music when D.M. started to dance and swing her hair back and forth. He had no idea why she did that. She got up and came over to Mr. Bailey, started kissing him for about 10 or 15 minutes and asked him to “do oral sex on her” to which he replied that yes, he would. According to him they didn’t talk “hardly”.

D.M. took off all her clothes, put them on the floor and he started performing oral sex while she sat on a small footstool. He described that she slipped off the footstool, landed on the carpet and because her back was getting sore she got up and laid down on the bench. He continued oral sex while kneeling in front of her. He used his fingers to open her labia. He doesn’t know how long they were in this position before Mr. Leblanc walked in and made his observations. According to Mr. Bailey, they were finished at about 7:30 p.m.

If I assume that is correct, then D.M. would have had a “little nap” for about 1.5 hours. [ 27 ] His evidence is that during all this time the sexual activity was taking place, D.M. was awake. When asked in direct examination if she used any words that indicated if she wanted or didn’t want him to perform oral sex, his reply was “no …if she wanted to stop but she didn’t say anything.” I take that to mean that D.M. did not say anything to Mr.

Bailey after she asked him to perform oral sex other than saying her back hurt. [ 28 ] In cross examination his evidence was the oral sex started about 30 minutes after D.M. started swinging her hair back and forth. He said D.M. did not say anything to him before she started kissing him and there was no other conversation – only her request and his reply. He recalled that she was wearing underwear when she got undressed. [ 29 ] Mr. Bailey gave a warned recorded statement to Cst. Kim on March 9, 2021.

He agreed his memory of the events on March 6, 2021 was much better than in February 2023 when he testified in trial. He agreed that he did not say anything to Cst. Kim about a footstool or that D.M. said her back hurt. It was put to him that he told Cst. Kim that D.M. was on the “couch” (meaning the bench) when she took all her clothes off and he replied that D.M. was on the couch after she slipped off onto the carpet.

He agreed in cross examination that they “were at it for a couple of hours on the bench … foreplay, oral sex, kissing ….” When asked what he meant by foreplay, he testified that he was “kissing and massaging her body” specifically her “breasts, her stomach, feet, legs….” [ 30 ] In re-examination he was taken to his statement to Cst. Kim who asked Mr. Bailey if he had any knowledge about the bruise on D.M.’s lower back.

His response to the officer was “wondering” if it was when he and D.M. were on the carpet because he “had her on the carpet” while performing oral sex but added that he was “taking a guess” but he wasn’t sure and didn’t really know. [ 31 ] He said nothing to Cst. Kim about D.M. complaining about back pain, or starting the activity on the footstool, or about D.M. falling off the footstool. He said nothing prior to being asked about the visible bruise, about having oral sex on the carpet. He initially told Cst. Kim that she was on the couch, and only mentioned the carpet as a way to explain the bruising.

He told Cst. Kim nothing about D.M. dancing, swinging her hair and kissing him. [ 32 ] When D.M. arrived home after leaving Mr. Bailey’s fifth wheel, she more closely examined herself to find out why she was bleeding. She described that her vagina was red and swollen and there were scratches or gouges present internally. A photograph was taken of the bruise on her lower back which shows a large horizontal bruise close to her tailbone. In cross examination when asked about the bruise, she testified that there was a lip on the bench.

She agreed that she had no recollection of those three hours, she had no memory of how she sustained the injuries to her lower back or her vagina.

[ 33 ] D.M. testified that she was not interested in having a sexual relationship with Mr. Bailey for a few reasons. One was his age as she said, she was “not interested in 71 year old men” and “he is not my type in any way, shape or form”. In addition, she was in a relationship with her 35 year old boyfriend and in love with him. [ 34 ] D.M. was extensively cross examined about her relationship with her boyfriend. She was candid in her answers and agreed that her boyfriend had been physical with her in the past over allegations of infidelity and that if the acts with Mr.

Bailey were in fact consensual, it would be a problem for her boyfriend and by extension for her. She agreed that she was afraid of her boyfriend if he had believed the sexual activity was consensual. She denied that she made up the assault allegation to defuse her boyfriend’s perceptions. She maintained that she did not, and would not, have consented to the acts performed by Mr. Bailey. She maintained her denial that she asked him to perform oral sex on her. [ 35 ] D.M. had no recollection of those three hours.

She was not undermined in cross examination and she was a candid, careful witness doing her best to be accurate and truthful. The only reason the events of that night came to light, was because she told Mr. Leblanc about her injuries and her suspicion that something must have happened that night while she was unconscious or asleep. It was then than Mr. Leblanc told her what he had seen when he opened the door to the fifth wheel, that she was laying on the bench and Mr. Bailey was on his knees with his head between her legs and performing oral sex on her. [ 36 ] Mr.

Bailey’s evidence does not leave me with a reasonable doubt and I do not accept his evidence. He left out important details about the alleged events that night when speaking with Cst. Kim – the footstool being one of the most important. He told Cst. Kim that D.M. was on the bench. That is consistent with what was observed by Mr. Leblanc. It is also consistent, in part, with Mr. Bailey’s evidence. He said nothing to Cst. Kim about D.M. dancing, swinging her hair and kissing him before asking him to perform oral sex.

That is a significant piece of evidence that, if true, could be exculpatory but he mentioned nothing about it until he gave that evidence at trial. [ 37 ] Mr. Bailey’s evidence at trial about D.M. sitting on the footstool, how D.M. fell off and may have injured her back in that manner, is in my view contrived to offer an explanation for D.M.’s injury to her lower back. D.M.’s bruising is consistent with it resulting from having her lower back laying on the lip of the bench for a prolonged period. [ 38 ] There are other inconsistencies. Mr. Bailey described to Cst.

Kim and in court that D.M. removed all her clothes and only after she slipped off the footstool did she get up and lay down on the bench. However, Mr. Leblanc described seeing D.M. laying on the bench with her pants around her ankles while Mr. Bailey was on his knees. If Mr. Bailey’s evidence is to be believed, D.M. would not have been wearing any clothing. [ 39 ] D.M. and Mr. Bailey both testified that D.M. was wearing underwear but D.M.’s evidence is that after she went home, she discovered that her underwear was missing. If she had placed all her clothes on the floor as described by Mr.

Bailey, I do not understand why D.M. would have been missing her underwear when she arrived home. [ 40 ] I have been exceedingly careful not to apply stereotypical thinking in the circumstances of this case. However, I am entitled to use experience and common sense as long as my findings are factually grounded in the evidence. D.M. was emphatic that she was not romantically or sexually interested in Mr. Bailey who was twice her age. She also was in a relationship with her 35-year-old boyfriend with whom she lived across the street in their motor home. She regarded Mr.

Bailey as an uncle and he was someone she had befriended. She described him as like family. I accept her evidence. [ 41 ] D.M. was clear that she went to Mr. Bailey’s home to help cheer him up after the death of his friend and neighbour. Mr. Bailey agreed it was “absolutely not” a party atmosphere and they talked about the death of his friend. [ 42 ] Placed in that context, Mr. Bailey’s evidence that D.M. suddenly started dancing and swinging her hair back and forth as a prelude to the kissing and oral sex is difficult to accept.

It is difficult to accept his evidence that D.M. asked him to perform oral sex on her and there was no other conversation, other than the self-serving evidence in trial that her back was hurting so she moved herself to the bench. It is also difficult to accept that two hours of sexual activity took place with no other communication between two people who were friends and talked on an almost daily basis. [ 43 ] Mr.

Bailey says that I must carefully assess the reliability of D.M.’s evidence in the context of alcohol consumption along with medications and the concern about her boyfriend finding out about a consensual sexual relationship. The latter concern, and suggested motive to fabricate evidence of an assault, is based on the fact that Mr. Leblanc saw Mr. Bailey performing oral sex on D.M. and I am asked to infer the potential that D.M. was worried that Mr. LeBlanc might have disclosed to D.M.’s boyfriend what he saw. I accept that if D.M.’s boyfriend believed she and Mr.

Bailey had a consensual sexual encounter, he very likely would have been angry and potentially violent with her. [ 44 ] The challenge I have with Mr. Bailey’s submission is D.M’s evidence, which I accept, that she and Mr. Leblanc were friends, she regarded him as a mentor, an advisor and as family. I find it hard to accept that Mr. Leblanc would disclose what he observed if it would cause a serious problem or threat to D.M. and her relationship with her boyfriend. Indeed, Mr. Bailey suggested that one reason for his statement to the police was Mr.

Leblanc’s close friendship with D.M. and his desire to protect her, which he argued significantly undermined the reliability of his statement. [ 45 ] Mr. Bailey asserts that D.M. was so intoxicated that, being uninhibited by alcohol and medications, she did behave in the manner suggested by Mr. Bailey and simply doesn’t recall and that, at a minimum, I should have a reasonable doubt about whether she consented. The problem with that submission is Mr.

Bailey’s own evidence that D.M. was not significantly intoxicated and that she was “ok and in her right mind.” [ 46 ] The submission is also problematic because I accept D.M.’s evidence that she had previously consumed alcohol and her medications without ever “passing out” for three hours. [ 47 ] There is inconsistency about her evidence that Mr. Leblanc was initially present in the fifth wheel and what time he left but that

is not a critical aspect of evidence. It would make sense based on the evidence that Mr. Leblanc would be in Mr. Bailey’s fifth wheel when D.M. was present and that could explain why he returned and opened the door without knocking. He was expecting D.M. to be there. [ 48 ] Mr. Bailey’s evidence does not raise a reasonable doubt. After considering all the evidence, as a whole, and not piecemeal, I conclude that D.M.’s evidence that she was not able to remain conscious and remained that way for about three hours is believable and compelling. I accept her evidence on that point. I reject Mr.

Bailey’s evidence that D.M. was awake, conscious and consented to, in fact requested, the sexual activity. [ 49 ] I also accept D.M.’s evidence that she was not interested in Mr. Bailey sexually or romantically because of the significant age gap between them. He was, as she said, not her type and she was in love with her boyfriend with whom she lived. While it is highly suspicious that after drinking Mr.

Bailey’s alcohol she became completely unaware of her surroundings for about three hours, as there is no evidence before me that she may have been drugged, I make no findings in that respect and this suspicion has played no role in my decision. [ 50 ] I accept D.M.’s evidence that when she woke up, Mr. Bailey said nothing about what had taken place during those three hours. The only reason, in my view, that D.M. found out was because Mr. Leblanc happened to open the door to Mr.

Bailey’s fifth wheel, saw what he was doing and told D.M. when she told him about her injuries. [ 51 ] I conclude, beyond a reasonable doubt, that Mr. Bailey performed sexual acts upon D.M. without her consent. I conclude she was incapable of consenting and was in fact unconscious at the time. Those acts include oral sex and massaging her breasts, stomach, legs and feet. [ 52 ] The Crown has established, beyond a reasonable doubt, that Mr. Bailey sexually assaulted D.M. contrary to s. 271 of the Criminal Code . I find him guilty as charged in Count 1. _____________________________ The Honourable Judge B.

Flewelling Provincial Court of British Columbia