R. v. B.L.J., 2022 BCPC 145

Citation: R. v. B.L.J. 2022 BCPC 145 Date: 20220613 File No: Kelowna Registry: 93493-1 IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. B.L.J. PUBLICATION BAN Pursuant to s. 486.4 (2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: D. Blumenkrans Counsel for the Defendant: L. McPheeters Place of Hearing: Kelowna , B.C. Dates of Hearing: March 28, 29, 30, 31, June 7 & 8, 2022 Date of Judgment: June 13, 2022

Introduction [ 1 ] B.L.J. (Mr. J.) is charged with a number of sexual offences as against his great-niece, Ms. D.M. whom I will call D. I do so not because of any lack of respect, but rather, during the trial, she expressed that that is her preference. The Crown alleges four separate incidents of sexual offending. And because of a change in legislation in 2008, the counts were broken down to reflect the timing of that change. In counts 1, 2, and 3, Mr. J is charged with offences contrary to ss. 151, 152, and 271 between May 1, 2002 and April 30, 2008.

Counts 4, 5, and 6 allege offences contrary to the same sections but between May 1, 2008 and December 31, 2009. [ 2 ] The first three of the four incidents were alleged to have occurred in 2003 or 2004 when D. was either 6 or 7 years old. During those years, it is not disputed that Mr. J. regularly babysat D. The last of the four incidents was alleged to have occurred in 2008 or 2009. D. was 11 at the time. Mr. J. was born in 1957 and so he would have been in his late 40’s to early 50’s during the period that spans all four incidents. At the time of this trial, D. is 24, and Mr. J. is 65.

Crown’s Evidence [ 3 ] The Crown’s case consists mainly of the testimony of D. She alleges that Mr. J. committed the various sexual offences over four separate incidents. [ 4 ] The first incident happened when D. was about 6 years old, so in 2003 or 2004. On that occasion, Mr. J. and D. were alone in a camper trailer that was parked on the property where Mr. J. lived. It was alleged that Mr. J. put his hand down D.’s pants and rubbed her vagina. He then pulled down her pants, and forced his penis into her vagina.

He thrusted a number of times and then ejaculated on her stomach. [ 5 ] The second incident was alleged to have occurred in the small house where Mr. J. lived. This was on a family property on which there was another bigger family home. On this occasion, Mr. J. was watching a pornographic video with D. The video showed a man and a woman having sex. He asked her if she wanted to do what was depicted in the video. D. said yes. She got undressed and laid down in the living room. Mr. J. put her legs up in the air. He put his finger inside her vagina. He then penetrated her vagina with his penis.

He thrusted 3 times and then ejaculated on her stomach. After the assault, Mr. J. was alleged to have gone to the store with D. to get her some candy as a reward for being so brave, and copying what was portrayed in the video. This incident also happened when D. was about 6 years old, or in other words, in 2003 or 2004. [ 6 ] The third incident was also alleged to have taken place in the small house where Mr. J. lived. On this occasion, D.’s friend, B.R., was also present. B.R. is the same age as D. It is not disputed that Mr.

J. had regularly babysat B.R. and B.R.’s older sister at the material time, including overnights on occasion. On the day in question, D. and B.R. were taking a bath and during the bath, Mr. J. came into the bathroom and asked D. whether she wanted to put his penis into her mouth. She replied in the affirmative and put his penis into her mouth. Mr. J. then told her to lick it like a lollipop. B.R. also said that she wanted to try it. At that time, D. noticed something on Mr. J.’s penis that looked like a wart and made a comment about it. Mr. J. said to not worry and that it was just a mole. Mr.

J. then placed the girls on their backs and licked their vaginas. Mr. J. then put his finger in D.’s vagina and when he pulled it out, he commented that “it looks like I popped your cherry”. B.R. wanted to know whether her cherry was popped as well. Mr. J. then put his tongue on B.R.’s vagina and his finger inside it. He then went on to confirm that he had in fact popped B.R.’s cherry as well. This incident was alleged to have happened when D. was 7 years old, in other words in 2004 or 2005. [ 7 ] The fourth and last incident happened a few years later when D. was 11 years old, or in other words, in 2008 or 2009.

During this time, Mr. J. was no longer babysitting D. On the day in question, D. was visiting the property and went to look for Mr. J. D. entered the small house and went into his bathroom. Mr. J. then went into the bathroom and asked D. to go onto her knees. He then unzipped his zipper and asked if he could put his penis into her mouth. He did put his penis into her mouth and after a short time, he pushed D. away and started crying. He got onto his own knees and hugged D. He told her that he loved her and then left the house. [ 8 ] Ultimately, D. made a complaint to the police in 2019.

During the police investigation, D. drew a sketch of what she recalled Mr. J.’s penis looked like - specifically the size, appearance, and location of the wart or mole. D. said that the growth was about the size of a pea, and it was on the left side of the penis. In colour, it was slightly darker than the rest of his body. [ 9 ] In addition to D.’s viva voce evidence, there were also a number of admissions made at this trial which include a number of photographs taken of Mr. J.’s genitals on March 10, 2020.

These photographs were taken pursuant to a general warrant which the defence concedes was validly issued. [ 10 ] D.’s mother (T.H.) and brother (D.J.) also testified and they generally set the timeline of when Mr. J. would have been babysitting D. as well as who was living where and when. A general description of Mr. J.’s residence as well as its contents were also canvassed. Defence Evidence [ 11 ] Mr. J. testified on his own behalf. He categorically denies any sexual contact with D. or any of her friends.

There was otherwise no material disagreement as to where he was living and the fact that at one point, he babysat D. with some regularity. Mr. J.’s current partner, Ms. D.H., also testified. She gave evidence as to when she lived in the little house with Mr. J. and how the place was furnished at various times. Application of R. v. W.(D.) [ 12 ] Both counsel correctly pointed out that, in a case where the accused testifies or proffers evidence, the analysis set out in R. v. W. (D.) applies. In order to properly honour the presumption of innocence, the Court must first ask whether I believe Mr. J.

If I do, I must acquit him. Even if I do not, I must ask myself whether his evidence raises a reasonable doubt. If it does, I must acquit him. And even if the defence evidence does not raise a reasonable doubt, I must go onto consider whether, on the basis of the evidence that I do accept, guilt has been proven beyond a reasonable doubt. Only an affirmative answer to that last question may a conviction follow. Anything

short of that runs afoul of the presumption of innocence. Assessment of Mr. J.’s Evidence [ 13 ] I agree with Ms. McPheeters that there were parts of Mr. J.’s evidence where he had a good command of his recollection. For example, he recalls walking out on his ex-wife and their 5 children on January 2, 2002. And that his current partner, Ms. D.H., moved in on February 15, 2008. He does acknowledge that, as he is now 65 years old, it is becoming more difficult for him to remember some dates. For example, he had trouble remembering in what year his children were born.

He also mis-remembered the year of the forest fire at Okanagan Mountain Park. Those minor difficulties could be expected, and in any event, they do not cause the Court to have any significant trouble with his general reliability or memory. In addition, his evidence on those peripheral matters is not particularly at odds with any other witness on anything that is material to the allegations. [ 14 ] When it comes to his credibility, however, the Court does have significant concerns. In fact, having reviewed Mr.

J.’s evidence in its entirety, I do not believe his evidence and in my mind, it does not raise a reasonable doubt. While it is often difficult to cross-examine a bare denial of an offence, I find that the Crown has established why Mr. J. was not a credible witness. On several occasions, rather than trying his best to answer the questions honestly, I agree with Mr. Blumenkrans that Mr. J. would get ahead of the questioner, trying to anticipate what the questioner was getting at, rather than answering the questions asked.

For example, when asked whether beer or cigarettes would cause someone to have unpleasant breath, rather than answering the question, he would simply deny using breath mints. I also find his distinction between mints and breath mints not compelling. It seems to me that he set out to deny using any kind of mints in order to contradict D.’s evidence. When he was pressed into admitting that he did in fact consume the mints that his father kept around the house, he made this artificial distinction to differentiate mints from breath mints.

This is a nonsensical distinction and his treatment in this area significantly undermined his credibility. In addition, when asked whether he had affection for the R. girls, he jumped ahead instead to deny having had any sexual contact, or any sexual feelings for them. When asked simply to confirm that he provided a statement to Cst. Moon, Mr. J. jumped immediately to explain the reason why his door was often locked at his house. Again, this is not someone who was testifying in a straightforward manner. Rather, Mr.

J. presented as someone who was constantly sparring with counsel for the Crown. [ 15 ] Further, I agree with Mr. Blumenkrans that Mr. J. was quite prepared to improvise his answers in order to suit his agenda. This is apparent during the cross-examination about his previous family physician. His answers in this area were generally vague and evasive. Initially, Mr. J. told the Court that Dr. White died a few years ago. He was then pressed further as to whether he made any efforts to obtain medical records to substantiate his diagnosis of blackheads on his penis. Mr.

Blumenkrans even asked the very simple question of Dr. White’s first name. Mr. J.’s story then changed to Dr. White having died in the early 2000’s. Why his evidence changed is obvious. Mr. J. wanted to proffer a convenient explanation as to why he does not recall Dr. White’s first name, or why it is that he was having such difficulty obtaining his medical records. His evidence regarding the efforts he made, when he made them, and the reasons he made them were also evasive. To be clear, Mr. J. has no obligation or onus to furnish any proof whatsoever.

But his contradictory answers to some very simple questions in this area has caused the Court to conclude that Mr. J. was not always truthful with his answers. He was quite prepared to improvise them on the fly in order to support his case. [ 16 ] Furthermore, Mr. J. was materially impeached on the previous statement he gave Cst. Moon. During his evidence in Court, he said that his door at his home would be unlocked most of the time. In his previous statement to the investigating officer, he said that it was almost always locked. This, in my view, was not an insignificant inconsistency.

It was aimed to counter the suggestion that he was alone in his house with young children and had many opportunities to commit sexual improprieties behind locked doors. Saying that the door was mostly unlocked tends to suggest that he was not hiding anything and reduces these opportunities. [ 17 ] But in his statement to the police, he gave a completely different explanation. He confirmed to the officer that his door was indeed almost always locked, but it was for an innocent purpose – namely because his mother had a habit of walking in on him unannounced.

The two versions are contradictory and the Court is left with absolutely no confidence with respect to Mr. J.’s testimony. Mr. J. will say whatever in order to provide an innocent explanation for something that may otherwise appear incriminating. [ 18 ] But the most significant reason for the Court finding Mr. J. not credible is his treatment of the photos taken of his genitals. He described as having a skin tag that he has had since his circumcision, presumably when he was a young boy. This skin tag is apparent on photograph 6, attached to the admissions.

However, he claims that the growth seen on photographs 7, 9, and by extension 11 is something different. He said that “I would have to call that a zit” and confirmed that this “zit” is something that is different than the skin tag depicted in photo 6. [ 19 ] I disbelieve Mr. J. entirely on this point. If the “zit” and the “skin tag” were indeed different things, one would have been able to see both of them on photo 7, 9, and especially 11. In the Court’s view, the growth depicted in those photos are one and the same. The “zit” is the same as the skin tag. [ 20 ] Mr.

J.’s evidence about the photographs becomes very significant when one takes into account the diagram that D. had drawn for the police. The diagram depicts the growth accurately with respect to its size, appearance and location on Mr. J.’s genitals. The Court concludes, therefore, that Mr. J. attempted to call this growth a zit in order to claim that it was not there at the time D. said she saw it. But rather, he got this zit later. And that its appearance would have been different at the time. All of this, clearly, was an attempt to refute the suggestion that D. had in fact seen Mr.

J.’s penis at the material time. [ 21 ] Having found that the growths depicted in photos 6, 7, 9, and 11 are one and the same, the Court concludes that Mr. J. was lying about it in order to escape the irresistible conclusion that D. was being truthful about her allegations. This was not a zit. It does not appear to be a zit and the Court rejects this claim. It appears exactly as how D. remembered it. It could be described as either a mole or a wart. To be clear, I am not comparing Mr. J.’s evidence as against D.’s to see which is more likely to be true. Rather, the Court concludes that Mr.

J. was lying about the growth depicted in these photos and attempted to mislead the Court by calling it a zit and saying that it is different than the skin tag. Mr. J. was also lying when he said that it was not present at the material time, and that its appearance would have changed throughout the years.

[ 22 ] For the above reasons, the Court rejects Mr. J.’s evidence on any material issue, and it does not raise a reasonable doubt with respect to his guilt. The third step of W.(D.) [ 23 ] That, of course, does not end the matter. The Court must still go onto consider whether, on the basis of the evidence that I do accept, guilt has been proven beyond a reasonable doubt. [ 24 ] In a general sense, I have no difficulty accepting the evidence of D. She testified clearly, thoughtfully, and responsively.

Notwithstanding the fact that she was testifying about events that happened almost 20 years ago when she was 6 or 7 years old, she gave an appropriate and compelling level of detail with respect to the evidence. For example, she remembered that after Mr. J. ejaculated during the first incident in the camper trailer, he used a blue rag to clean off her stomach and that it hurt when she peed subsequently. During the second incident, D. recalled playing a video game called Castle Cat on Mr. J.’s computer when he approached her to show her a pornographic video.

None of her evidence that is of any significance was materially contradicted. To be sure, she may not have all of the details correct with respect to some peripheral matters. For example, she may have been wrong about the number of cats living at Mr. J.’s house at a particular time, or what year Mr. J. started keeping a fish tank, or whether Mr. J. always kept his pillows in pillow cases. But that is to be expected for someone who is recounting events almost 20 years earlier at a time when she would have been very young.

Higher Courts have time and again instructed trial judges to assess reliability in the context of the circumstances of the witness, including his or her age. The fact that she may have some peripheral details wrong, in my mind, does nothing to discredit her evidence. Her recollection of all four events was otherwise compelling and detailed. [ 25 ] During cross-examination, she was responsive to the questions. She was not evasive with her answers. And she readily conceded any legitimate points that Ms. McPheeters had to make. When she did not understand a question, she asked to clarify.

And she was clear with the Court with respect to what she remembered and what she did not. She was also candid with respect to the family dynamics, for example, the animus that sometimes existed between her brother D.J. and Mr. J. She was also candid in saying that she loved Mr. J. and trusted him. There is no evidence that D. harbours any ill feelings toward Mr. J. even to this day. [ 26 ] But the most compelling part of D.’s evidence is that it is materially corroborated by the photographs that depict the growth on Mr. J.’s penis.

In her viva voce evidence, D. described the mole as something the size of a pea, on the left side of the penis, and in the middle, between the body and tip. And that this mole was slightly darker than the rest of Mr. J.’s skin. If his skin were a 1 out of 10 in colour, then the mole would be a 2. When providing a statement to the police, D. drew a diagram of what she recalled. When I compare this diagram and her evidence, as against the actual photos of Mr. J.’s genitals, especially photo #11, the resemblance is uncanny. This is so especially when one takes into account that the photographs were taken when Mr.

J. was some 15 years older than when D. said she saw his penis, and that she saw it in an erect state, as opposed to it being in a flaccid state in the photo. Before the trial, D. had never seen the photographs. In other words, this aspect of the Crown’s case really was the smoking gun, to borrow a phrase from counsel’s submissions. There is really no other plausible explanation as to how D. was able to so accurately describe the appearance of Mr. J.’s genitals. Consequently, the Court has no difficulty accepting D.’s version of events and her recollection about them.

Some Defence Arguments [ 27 ] But before coming to any final conclusions, I wish to address some of the arguments raised by the defence. [ 28 ] Ms. McPheeters urged the Court to conclude that what D. described as being on Mr. J.’s penis is different from what was depicted in the photographs. With respect, I am not able to accede to that submission. On Mr. J.’s own evidence, the lesions that could be seen on the front side of his penis, so for example, as can be seen in photographs 3 and 5, were developed after he started working as a flag person which would have been in 2010.

As such, even on his own evidence, those would not have been there at the time of the third incident in 2004 or 2005, when D. said she saw his penis. I conclude, therefore, that those growths were not what D. had seen and not what she described to the police or the Court. Rather, what Mr. J. calls a skin tag in photograph 6, or what he called a zit in #7, 9, and by extension, #11, that is what D. saw. And that, in my view, is a compelling match to how she described it, and how she drew it. [ 29 ] Ms.

McPheeters submitted that the Court ought to have some reservation in accepting D.’s evidence because with respect to the first two incidents, they were eerily similar, involving brief vaginal penetrations, culminating in Mr. J. ejaculating on D.’s stomach. In my view, while the two incidents did have some similarities, there were sufficient details to distinguish one from the other. To begin with, the first incident happened in the camper trailer, whereas the second incident happened inside Mr. J.’s little house. D. recalls watching a pornographic video during the second incident but not the first.

D. associates the sound of a lawn mower during the first incident, but not the second. Moreover, during the first incident, D. was wearing underwear and that she recalled it to be white with little purple, blue and yellow stars, whereas during the second incident, she was not wearing underwear. She remembers this because her shorts kept rubbing against her painfully when she walked to the store afterwards. In other words, D. had related two separate incidents with sufficiently detailed differences to not cause the Court any concern about her recounting a generic vignette. [ 30 ] Ms.

McPheeters also submitted that D.’s behaviour was inconsistent with the lack of animosity or ill feelings. After the age of 7, D. saw very little of Mr. J., nor did she want to. This change was confirmed by D.’s mother. Ms. McPheeters said that this behaviour was inconsistent with D. professing not to have any bad feelings for Mr. J. Firstly, as both counsel correctly pointed out, it would be an error for the Court to have any preconception as to how a victim of sexual assault should behave. Victims can and do react in a variety of ways.

And the fact that there was no animosity or bad feelings, of itself, is no reason to conclude that an assault did not happen. This is especially true in this case because D. was very young at the time. She loved and trusted Mr. J. She was led to believe that this was their little secret and that it was completely normal for family members to behave in this fashion. As such, she did not know any better. And the fact that there was no bad feelings is hardly surprising. [ 31 ] Further, D. provided a perfectly sensible explanation as to why it is that she no longer wanted to see Mr. J.

This was because that, after the third incident when her friend B.R. was there, the secret that was supposed to be hers and Mr. J.’s alone was no longer theirs alone. B.R. was now part of that secret and Mr. J. and B.R. also had their own secret. Since that incident, D. lost that trust or special relationship she thought she had with Mr. J. and became uncomfortable with him. This is a perfectly sensible explanation with respect to

her behaviour in the subsequent years. [ 32 ] It was also submitted that D., in some key respects, was describing a different person. Specifically, she recalls her abuser as having brown eyes and is someone with a smaller stature. Clearly, Mr. J. in fact has blue eyes and is by no means a short person. However, this is not a case of stranger identification. Mr. J. and D. have known each other since she was young. There really is no question that they recognize and can identify each other. Further, by the time D. gave her statement to the police in 2019, she had not seen Mr. J. for a number of years.

As such, it was simply a matter of being mistaken about some features of Mr. J. There is no risk of a mis-identification in this case. In any event, D. correctly identifies the tattoo on Mr. J. as well as the growth on his penis. She also distinctly recalls the incidents to have occurred at Mr. J.’s home. To entertain the possibility that some other perpetrator abused D. and then she transferred that onto Mr. J. is sheer speculation. That possibility is not founded on the evidence. D. was simply wrong about the colour of Mr. J.’s eyes and his height.

This by no means undermines her credibility or reliability with respect to the heart of the allegations. [ 33 ] The defence also asks the Court not to accept D.’s evidence because she so readily identified the photographs as that of Mr. J.’s penis when it should not be obvious from the photographs. In this respect, I agree with Ms. McPheeters in part that the in-court identification is of limited weight. Given the context of the trial process, there really could be no one else’s penis in those photographs other than Mr. J.’s. That said, I share Mr.

Blumenkrans’ recollection of D.’s reaction when she was shown those photographs. She had never seen those before the trial and clearly had an emotional reaction to seeing them. She was extremely uncomfortable and very much wanted that part of the examination to be over with. It was all she could do just to get through it. Over all, I place very little weight on her in-court identification of the photographs. But the strength of the Crown’s case lies in her description of the penis to the Court, her description of the penis to the police, and the drawing that she had sketched out.

All of these remain extremely probative, notwithstanding what she said about the photographs in court. [ 34 ] An argument was also made with respect to the discrepancy in how many people to whom D. had told this story before she went to the Elizabeth Fry Society. At one point, she left the Court with the impression that it was no one, but after cross-examination, it turned out that she had told her ex-boyfriend, her new boyfriend, her mother, B.P., and M.F., her cousin. That said, it is equally clear that, with some of these people, D. only gave a very general description as to what happened.

Her mother and B.P. for example, only knew in a general way that D. was the victim of a sexual assault. The other people did not testify. As such, the Court is not overly concerned about this apparent inconsistency. In any event, the thrust of D.’s evidence remains the same, even if she were wrong about whether she had or had not told other people about these events prior to her going to the Elizabeth Fry Society. This error does not detract from her evidence in the main. [ 35 ] I do not need to deal with the evidence of T.H. or D.J. Suffice it to say that I found both witnesses generally credible.

Both answered questions responsively and conscientiously. But their evidence went really to corroborate the timeline of when Mr. J. babysat D., where the families were living and where, and to some degree, how Mr. J.’s place was furnished. That evidence is either not in dispute or not material. They added not all that much to the Crown’s case other than setting the scene for D.’s evidence. Even if I were to disregard T.H.’s and D.J.’s evidence in their entirety, I am still left with the very convincing evidence of D.M.

Final Conclusion [ 36 ] Returning to that evidence, I remain of the view that it is credible and reliable. It is also corroborated to an extremely high degree by her description of Mr. J.’s penis and the sketch she was able to make. I think Ms. McPheeters has said everything that could be said on behalf of Mr. J. But despite those very able, thorough, and thoughtful submissions, they do not cause the Court any hesitation in accepting what D. has had to say.

There is really no dispute that, if D.’s version is accepted beyond a reasonable doubt, then all of the elements of all of the offences before the Court will necessarily have been proven. Consequently, I am not left with any reasonable doubt whatsoever about Mr. J.’s guilt with respect to the offences before the Court. And I so find him guilty as charged on all counts. ________________________ The Honourable A. Tam Provincial Court Judge