R. v. A.A., 2019 BCPC 299

Citation: R. v. A.A. 2019 BCPC 299 Date: 20191029 File No: 20200-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH CRIMINAL JUSTICE ACT REGINA v. A.A. BAN ON PULBICATION --

SECTION 486 OF THE CRIMINAL CODE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: K.H. Johnston Counsel for the Defendant: L.J. Helps Place of Hearing: Surrey , B.C. Dates of Hearing: September 24-27, 2019, October 1 and 3, 2019 Date of Judgment: October 29, 2019 A Corrigendum was released by the Court on December 13, 2019. The corrections have been made to the text and the

Corrigendum is appended to this document. Introduction [ 1 ] A.A. is charged on a 12 count Indictment with sexual assault and touching for a sexual purpose persons under the age of 16 years, contrary to Sections 271 and 151 of the Criminal Code respectively. As A.A. was under 18 years of age at the time of these alleged offences, the matter has been prosecuted under the jurisdiction of the Youth Criminal Justice Act. [ 2 ] The Crown called five of the six complainants named on the Information.

The Crown called no evidence with respect to the complainant named in Counts 1 and 2, and I have been invited to acquit on those counts. A.A. did not testify. [ 3 ] The accused and the remaining five complainants attended school together at a high school in Surrey. The complainants are females; four were in grade 8 and one was in grade 9 at the time of these allegations, which span the years 2016 and 2017. [ 4 ] All five complainants talked about encounters they had with a grade 10 student who was known to them by the name D. Defence counsel concedes that D and A.A. are one and the same.

Each of the complainants described D. as a popular student who was well known throughout the school, and was something of a jokester and class clown. The complainants described encounters with D. which featured unwanted grabbing or groping of their buttocks or chest area, either on top of or underneath their clothing, and in some cases the complainants were physically restrained. In this case, Crown counsel seeks a ruling that the evidence given by each complainant be admitted as similar fact evidence in relation to the allegations made by the other complainants.

I will return to that issue later in these Reasons.

Summary of the Evidence [ 5 ] I will set out here a brief

summary of the allegations made by each of the complainants, who I refer to here by their initials. These summaries will be somewhat more detailed in light of the Crown’s similar fact application. 1. E.N . [ 6 ] E.N. is the complainant on Counts 7 and 8. As is the case with each complainant, the charges are alternatively sexual assault and touching of a person under 16 for a sexual purpose. E.N. was 17 years old when she testified before me, and 13 when she started her grade 8 year at high school in 2015. [ 7 ] E.N. testified that she met D. when she was in grade 9 and he was in grade 10.

She would message him from time to time on a service called Snapchat. At one point she agreed to give D. her Snapchat password, and he gave her his own password. I am told this is fairly typical for teens when communicating with friends on this platform. D. also asked for her password to a private Snapchat file called “My Eyes Only”, which E.N. declined to do. [ 8 ] E.N. described an encounter with D. at the high school, which she believes happened around December of her grade 9 year, when she was 14 years old.

She went to the school with her step-father to attend an organizing meeting for a school soccer trip to Europe. E.N. said she did homework on one side of the library, while the parents only meeting was held on the other side of that room. After starting her homework, she received a message from D. who asked if she was at the school, and suggested they meet. [ 9 ] E.N. met D. in what she referred to as the “hub”, which is outside the gym.

He immediately snatched her phone out of her hands, and said “if I guess your phone password then I can go into your Snapchat.” D. then ran into the gym, out the back door, and to an area behind the school where there are a number of school portables. E.N. ran after D., who was near one of the portables holding her phone. There was snow on the ground. E.N. was wearing a tie dye shirt and baggie soccer shorts. [ 10 ] E.N. reached for her phone and tried to get it back. D. held the phone up and out of her reach.

E.N. testified that as she was jumping up and grabbing for her phone, D. brought his free hand inside her shirt from the bottom and touched her chest. She says that she was wearing a bralette under her shirt, and that D.’s hand touched her skin for “like ten seconds”. She said D. then put his hand under her leggings and touched her backside. [ 11 ] E.N. testified that she tried to push him off and said “no”, then got more aggressive and used both hands, palms out, to try to push him away.

D. responded by saying “give me the password.” She was finally able to snatch the phone away and walked quickly back into the school, and from there to the washroom. D. came into the washroom briefly then retreated. E.N. testified that D. sent her a message on Snapchat apologizing for touching her. 2. D.D. [ 12 ] D.D. is the complainant on Counts 3 and 4. She was also 17 years old when she testified before me. She testified that she was 13 and in grade 8, and that D. was in grade 9 during two separate incidents she described in her evidence.

She described D. as an acquaintance from school with whom she would exchange Snapchat messages from time to time. [ 13 ] The first of two incidents began when D. approached D.D. at her school locker and asked if she wanted to come over to his house for lunch. She agreed, although she had never been there before, and they walked to the townhouse complex where he lived. When they arrived there was no one at home. They went upstairs and she sat on a couch in the living room. D.D. testified that D. started to “come on” to her. She says he stood in front of her and tried to kiss her.

Using both hands she tried to push him away, and said “what are you doing, stop, I am not interested in that”, to which D. replied, “I’m interested in you.” [ 14 ] D.D. says D. made her lie down on the couch and he lay over top of her while still trying to kiss her, and while she continued her attempts to push him off. She said he had his hands over her wrists, he was a lot bigger and stronger than she was, and she could not push him or kick him off. She says he then took one hand away from her wrist and touched her “boobs and butt” in what she called a mixture of a grab and a caress.

It was not clear on her evidence whether this happened above or under her clothing. She yelled at him to

stop and get off. He said, “just let me do this” and “this is what I want from you.” She testified that she did not want it from him. [ 15 ] This incident ended when D.D. noticed the time. She told D. that she was going to be late for her next class. The two of them walked back to school together. [ 16 ] D.D. testified that there was a second incident which happened after the first; she dates this incident to sometime during spring break in March of 2016, when she was still 13 years old.

She was at home with her mother when D. unexpectedly turned up at the door one afternoon; her mother answered the door, and D. asked if D.D. was home. D.D. came downstairs and D. asked her if she wanted to “hang out”. She testified that she agreed to go with him because she had not told her mother about the first incident, and believed that she would be asked questions if she said no. [ 17 ] D.D. and D. left the house; he asked if she wanted to come to his house, and she said no. They then walked to a path in a forested area near the school, then walked off that path.

She testified that D. tried to kiss her, she tried to push him away, but he kept coming closer. He said it was fine, no one would see, and D.D. said it was not what she wanted. He tried to kiss her again, and put his hand under her shirt, touched her bra, and caressed her breasts. D.D. said she told him to stop, and tried to push him away. Finally, she told him she had a babysitting job and had to leave, he stopped, and she walked home alone. 3. A.H. [ 18 ] A.H. is the complainant on Counts 5 and 6.

She was 15 when she testified before me, and 13 years old and in grade 8 at the time of the events she described in her evidence. She believes that D. was two years older than her and in grade 10 when she was introduced to him by her friend J.P. She described D. as an acquaintance, someone she would talk with from time to time at school, and messaged using Instagram and Snapchat as often as once a week. [ 19 ] A.H. testified that she believes it was in January of her grade 8 year that she was leaving school at the end of the day when D. approached and asked if he could talk to her, and invited her out for a walk.

They walked out of the back of the school to where the portables were and he started to touch her “boobs and butt.” She told him to stop, and he said “it’s fine, don’t worry about it.” She said she wanted to go home, but he continued to touch her. She said she told him to stop “maybe 10 times.” [ 20 ] A.H. testified that the touching was under clothes. He put two hands up her shirt, and touched her “skin on skin”, touched her bra, and put a hand down her pants underneath her underwear and touched her butt. He then grabbed both of her hands as she tried to walk away.

She said she was going home, and would not let her walk away. She said that he eventually gave up and let go, and she left the area. 4. S.M. [ 21 ] S.M. is the complainant on Counts 11 and 12. She was 17 year old when she testified. She graduated from high school last June. She was in grade 9 and D. was in grade 10 during the events she described in her evidence. She and D. associated with the same group of friends. She talked with him every day and they messaged each other regularly on social media.

S.M. testified that although D. asked her to be his girlfriend a couple of times, they were never more than just friends. [ 22 ] S.M. testified that on March 14, 2017, a date she recalled from a Snapchat photo with a friend taken on that day, she and a group of friends which included D., met at a Tim Hortons’ restaurant. The plan that day was a surprise party for a friend named J. at a clubhouse located at the same complex where D. lived.

S.M. testified that while seated at the Tim Hortons, D. repeatedly reached behind her to plug his phone into an outlet, pretended that he was dropping the phone, and grabbed her butt. She testified that D. often grabbed her butt at school; he thought it was a joke, as did the others who were there, but she did not like it. [ 23 ] The group left Tim Hortons and began to walk to the townhouse complex. S.M. testified that D. ran up behind her and smacked her on the butt, hard enough to leave an imprint that was visible the next day. The group arrived at a townhouse where J. lived.

S.M. testified that there was a lot of joking around, and that at one point she slapped D.’s butt. She laughed and ran away, and he chased after her. [ 24 ] S.M. testified that she went down to the basement, and then into J’s bedroom, which was located just off the garage. D. and a couple of other boys from the group were outside that bedroom, and D. followed her inside. She recalled that the boys were joking that D. was going to have sex with her. The door to the bedroom was left slightly open. [ 25 ] S.M. testified that she tried to leave, but D. would not let her.

He kept pulling her back, and then grabbed her from behind and pushed her onto the bed. S.N. told him to stop, and let go. D. got on top of her and sat on the area of her pelvis, just below her stomach. He took hold of her wrists and held her arms back on either side of her head. S.M. testified that she tried to push him off and to get her hands free, but could not. They talked; D. said, “you like it”, and S.M. believes that she said “stop, get off,” and probably “no.” D. released his grip and reached under her shirt and touched her stomach, skin to skin.

She testified that his hands did not go higher than her bra line. Once again she said “stop, get off”, then finally “no means no.” D. got off, left the room and angrily slammed the door behind him. She estimates that D. had held her in place for 15-25 minutes. S.M. testified that she believes D. left the house, because he was not there when she went back upstairs. [ 26 ] After coming upstairs, S.M. texted D. numerous times because the rest of them did not know what they were supposed to do for J’s party.

Eventually D. responded with the message “fuck you.” The group eventually moved to the clubhouse for the party; although D. was there, S.M. did not talk to him. [ 27 ] D. phoned S.M. the following day when she was at home in her bedroom with her friend J.P. (this is the same young woman referred to by these initials in my

summary of the evidence of A.H.). S.M. answered the call, and J.P. recorded the call on her iPhone; that recording and transcript have been marked as exhibits. 5. R.S.

[28] R.S. is the complainant on Counts 9 and 10. She was 16 years old and in grade 11 when she testified here. She was 13 when shebegan grade 8, and turned 14 in [omitted for publication] of her grade 8 year. An older friend introduced her to D. at school when shewas in grade 8 and he was in grade 10. R.S. testified that she did not spend much time with D., but she did see him in the hallways atschool and after school at Tim Horton’s, and that some of her friends were also friends with D.

She messaged D. on Snapchat “maybeevery two weeks.” [29] R.S. attended a basketball game at school in about February of her grade 8 year. She would not turn 14 until [omitted forpublication]. She began to walk home after the game and D. offered to come along. She testified that she was wearing a backpack. Asthey walked along [omitted for publication] Street, she says D. reached under her backpack and put his hand down her pants, over top ofher underwear, and touched the outside of one buttock. She testified that she told him to stop.

He kept his hands down her pants for sometwo to three minutes as they walked together. [30] R.S. testified that she was able to separate herself from D. and continued to walk towards home, and that D. followed. As sheentered a path in a treed area, he walked up from behind, put his hands around her on both sides, reached under her shirt and into her bra,and squeezed her breasts until they hurt. She told him to stop. D. lifted her up onto an embankment, took her to the ground and lay on topof her. She told D. to get off of her, and she was able to get up and walk away.

She testified that D. sent her a Snapchat messageafterwards and told her not to tell anyone about what had happened. [31] R.S. testified about a second incident that happened during spring break in March of 2017. She received a text from D. asking ifshe wanted to meet him at Tim Hortons. She agreed to meet with him because she had seen D. at school since the first incident and hadnot felt uncomfortable. They met at Tim’s and then walked to the clubhouse at his townhouse complex. They entered a media room andD. turned off the lights.

She was sitting on the floor “crouched up into a ball,” and D. came over and lay on top of her. She had troublebreathing and told him to get off. D. replied “not until you do stuff with me.” She said she did not know what he meant by that. After atime, R.S. collapsed flat onto the ground, and D. got up and sat down in a chair. [32] R.S. testified that she felt bad about “not doing anything with him,” and walked over to where he was sitting to apologize. Shesays that D. put his hand on her hips and pulled her onto his lap. For the next two minutes nothing really happened.

R.S. said she had toleave, walked out of the room and went home. [33] After relating these events in direct, R.S. was asked if she could recall anything that was said in the media room. Her reply wasthat D. said “let me finger you” a few times when he was lying on top of her.

Section 150.1 – Is Consent a Defence? [34]

Section 150.1(2)(

a) of the Criminal Code provides that the defence of consent is available where the complainant is 12 years ofage or more but under the age of 14 years, and the accused is less than two years older than the complainant. [35] I find that three of the complainants were 13 years of age during their alleged encounters with A.A: D.D, R.S. and A.H. Thisbrings into play s. 150.1(2)(a). [36] A.A. is less than two years older than D.D., so the defence of consent applies to the allegations advanced by D.D.

Conversely,A.A. is more than two years older than R.S. and A.H; a defence that the complainants R.S. and A.H. consented to the activity, which isthe subject matter of those charges, is not available to A.A. for the charges related to those complainants. The Similar Fact Issue [37] “Evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as ageneral rule, inadmissible.”: R. v. Arp, (SCC), [1998] 3 S.C.R. 339 at para. 41.

This category of evidence gives rise tothe twin evils of moral prejudice (the risk of an unfocused trial and a wrongful conviction), and reasoning prejudice (propensityreasoning, which distracts the jury from its proper focus). [38] Similar fact evidence is a narrow exception to this rule which applies where the Crown is able to demonstrate, on a balance ofprobabilities, that the propensity evidence is also relevant to another issue at trial, and that the probative value of that evidenceoutweighs its prejudicial effect: R. v.

Handy, 2002 SCC 56 at 55. [39] In Handy at paragraph 41 the court observed that in some cases, an issue may arise “where evidence of previous misconductmay also be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.” The courtthen cited the following passage from R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717, at 751: The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore,supportive of the evidence of the complainant.

In order to be admissible, however, it would be necessary to conclude that the similaritieswere such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence:...[Emphasis added in original.] [40] The court in Handy commented on evidence which might tip the scales towards admissibility when balancing the probativevalue versus the prejudicial effect of the evidence: Canadian case law recognizes that as the "similar facts" become more focussed and specific to circumstances similar to the charge (i.e.,more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent.

As the differences and variablesthat distinguish the earlier "similar facts" from the subject matter of the charge in this type of case are reduced, the cogency of thedesired inferences is thought to increase. Ultimately the policy premise of the general exclusionary rule (prejudice exceeds probativevalue) ceases to be true. R. v. Handy, supra, at para. 48

[ 41 ] As a general proposition, similar fact evidence will not be admitted solely to buttress the credibility of the witnesses for the Crown, but where the similar fact evidence is relevant to some other issue, the fact that it is also relevant to the credibility of a complainant will not render the evidence inadmissible.

In Handy , the court found that the issue of the complainant’s credibility “was inextricably tied to proof of the actus reus ”, and that it was no error of law to admit the evidence as being relevant to both credibility and proof of the actus reus of the offence: Handy , supra , at paras. 39-40, 116 ; R. v. D.L.W ., 2013 BCSC 1016 at paras. 15-18 , 63; R. v. Mostowy , 2019 BCCA 216 at paras. 40-43 . [ 42 ] Whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered; it cannot be assessed in the abstract.

It follows that a necessary first step is identifying the precise purpose for which the evidence is being proffered.

General disposition of the accused does not qualify as an issue in question: Handy , supra , at paras. 69, 71 and 73 . [ 43 ] Once the issue has been identified, the court will turn to a consideration of the degree of similarity of the alleged acts: The principal driver of probative value in a case such as this is the connectedness (or nexus ) that is established between the similar fact evidence and the offences alleged, particularly where the connections reveal a "degree of distinctiveness or uniqueness" B.(C.R.), supra , at p. 735).

As stated by Cory J. in Arp , at para. 48 : ...where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. [Emphasis added] Handy , supra , at para. 76 . [ 44 ] The degree of similarity required may vary depending upon the issue for which the evidence is being tendered: Handy , supra , at para. 78 .

And the court must “pay close attention to similarities in character, proximity in time and frequency of occurrence”: Handy , supra , at para. 81 . The court in Handy produced a non-exhaustive list of factors at paragraph 82 derived from cases where specific areas of similarity have been considered: 1. Proximity in time of the similar acts; 2. Extent to which the other acts are similar in detail to the charged conduct; 3. Number of occurrences of the similar acts; 4. Circumstances surrounding or relating to the similar acts 5. Any distinctive features unifying the incidents; 6. Intervening events; and 7.

Any other factor which would tend to support or rebut the underlying unity of the similar acts. [ 45 ] As noted above, the theory of similar fact evidence turns on the improbability of coincidence. The trial judge performs a gatekeeper function which must take account of evidence of collusion between witnesses which, if present, offers an alternative explanation for this apparent coincidence, which imbues the evidence with its probative value. As a result, it is impossible to assess “the objective improbability of coincidence” without addressing the issue of collusion.

If collusion is present, it destroys the foundation upon which admissibility is sought: Handy , supra , at paras. 104 and 106 ; R. v. Shearing , 2002 SCC 58 at 40 . [ 46 ] Where there is evidence sufficient to lend an air of reality to an allegation that the evidence has been tainted by collusion, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not the product of concoction: Shearing , supra , at para 41 .

If the Crown manages to overcome that hurdle, the evidence may be admitted for the trier of fact to determine its weight and overall value: Handy , supra , at para. 112 . [ 47 ] In Handy , the court was dealing with communication between the complainant and Handy’s ex-wife which raised the spectre of collusion and concoction: Charron J.A. found, and I agree, that there was an issue of potential collusion between the complainant and the ex-wife. The evidence went beyond mere "opportunity", which will be a feature in many cases alleging sexual abuse with multiple complainants.

The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury. Here there is something more. It is the whiff of profit. The ex-wife acknowledged that she had told the complainant of the $16,500 she received from the Criminal Injuries Compensation Board on the basis, she agreed, that "[a]ll you had to do was say that you were abused".

A few days later the complainant, armed with this information, meets the respondent and goes off with him to have sex in a motel room. [Emphasis added. ] Handy , supra , at para. 111 [ 48 ] Conversely, in Shearing the court found that “although there was some opportunity for collusion or collaboration and motive, that evidence was not sufficient to trigger the trial judge’s gatekeeper function: Shearing , supra , at para. 44 . [ 49 ] The court must also consider any frailties in the evidence Crown tenders as similar fact.

The credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function, is entitled to take into consideration. To get over this threshold the judge must be able to find that the similar fact evidence is reasonably capable of belief: Handy , supra , at para. 134 . Similar Fact – Analysis

[ 50 ] Crown counsel submits here that the evidence of each complainant is admissible count to count because it is relevant to proof of the actus reus of the offences of sexual assault and sexual touching of a person under the age of 16. Crown also argues that the evidence is properly admissible to buttress the credibility of each of the complainants. I have considered the submissions of counsel for A.A.

I believe I must also consider the possibility that this evidence may be relevant to rebut what I perceive to be a defence of honest but mistaken belief in consent with respect to the allegations brought by S.M.: See R. v. Stewart , 2004 BCCA 56 at para. 37 . That defence is raised by counsel as a result of what was said by A.A. in a post encounter recorded phone conversation with S.M. [ 51 ] Crown counsel submits that there are key areas of similarity. All of the events occurred within a limited time frame during the school years 2016 and 2017.

With the exception of S.M., A.A. was an acquaintance and occasional correspondent on social media, but not a friend or part of the same friend group. And again with the exception of S.M., the complainants were approximately two years younger and relatively new to the high school, where A.A. was known as one of the more popular students. Four of the complainants described encounters where they ended up alone with A.A. While there were other people in the house where S.M. said she was held down and assaulted by A.A., she said that event took place when the two were alone in a bedroom.

All five complainants have testified that A.A. employed force to restrain them or hold them in place, and that he refused to stop when repeatedly asked to do so. Four of the complainants say that A.A. forced his hands under shirts and into pants, and that he grabbed their buttocks and groped their breasts, or he touched them in the same areas over their clothing. S.M. testified that while A.A. held her down on a bed, he reached under her shirt and touched her stomach, skin to skin.

Some of the witnesses testified that A.A. made comments which suggested to them that he wanted to engage in some form of sexual activity. [ 52 ] Defence counsel argues that there is an air of reality to collusion in this case, and that Crown counsel has not met its onus of showing on a balance of probabilities that the evidence was not the product of that collusion. Defence counsel argues that I should adopt the test set out in R. v.

Wilkinson , 2017 ONCA 756 , where that court appeared to expand the test set out in Handy and Shearing to include evidence of “unintentional” as well as actual collusion. [ 53 ] On the topic of collusion, defence counsel points to evidence that rumour and gossip about A.A. and his conduct with female students was rife at the school they all attended. Most of the complainants knew each other at least to some extent, and some of them spoke to others and learned that something had happened to them as well.

There is evidence that S.M. and E.N., who worked together at McDonald’s for a time, may have discussed the details of their respective allegations with one another. There is also evidence that some of the complainants were friends with another student who learned of some of these details, and may have spread them to others in the school.

And several of these complainants were approached first by a school counsellor to tell their respective stories, which implies that the counsellor had heard about these allegations from one or more sources. [ 54 ] Defence counsel also submits that if the evidence survives the collusion hurdle, there are significant dissimilarities in the stories told by the complainants which greatly reduces the probative value of the evidence, leaving only an invitation to engage in the forbidden fruit of propensity reasoning. [ 55 ] I find that here there is not an air or reality that the evidence from these witnesses was the product of collusion, as that term has been defined in Handy and Shearing .

While there is some evidence of communication between the complainants and perhaps others at the school where some of these details may have been discussed, there is nothing here which would allow me to conclude that one or more of these complainants have, together with one or more others, deliberately concocted allegations against A.A. [ 56 ] The test of “inadvertent” or “unintentional” collusion set out by the Ontario Court of Appeal in Wilkinson does not appear to align with what the Supreme Court of Canada has said in Handy and Shearing , and I am not aware of any court having adopted that test in this province.

I find that I am bound to follow the test as laid out in the Supreme Court of Canada. [ 57 ] I have considered frailties in the evidence raised by defence counsel in her submissions. She points in particular to some inconsistencies as between police statements and court testimony. The bar at this gatekeeping stage of the process is relatively low, and I find here that the evidence proffered through these complainants is reasonably capable of belief.

It should be emphasized that this is not a finding on the ultimate credibility and reliability of the evidence, which must await my consideration of the whole of the evidence: R. v. J.G.E.S ., 2005 BCSC 1915 ; R. v. Pickton , 2006 BCSC 1448 at para. 35 . [ 58 ] I also find that there are striking similarities in the stories told by the complainants. That evidence is relevant with respect to the issues identified by the Crown, and may also be employed to rebut the defence of mistaken belief in consent with respect to the counts involving S.M.

I find that the probative value of this evidence outweighs its prejudicial effect. [ 59 ] I note as well that the twin dangers of moral and reasoning prejudice are greatly diminished at a judge alone trial, where the evidence is properly before the court in any event, and the Crown has not tendered evidence of similar acts regarding incidents outside the four corners of the Information: R. v. D.L.W. , 2013 BCSC 1016 at paras 73 and 75 ; R. v.

Mostowy , 2019 BCCA 216 at para. 35 . [ 60 ] In the result, I find the evidence of each complainant to be relevant and admissible with respect to all other counts on the Information. Analysis of the Evidence [ 61 ] Before engaging in an analysis of the evidence and making my findings, I can dispose of three of the twelve counts. [ 62 ] The Crown did not call evidence on Counts 1 and 2. I find A.A. not guilty on those counts. [ 63 ] Count 11 is an allegation that A.A. touched for a sexual purpose S.M., a person under the age of sixteen years, contrary to s. 151 of the Criminal Code .

The Crown did not tender evidence of S.M.’s date of birth, so I am not able to find that she was under the age of sixteen years at the time of the alleged offence, which is an essential element of the offence. With respect to Count 11, I find A.A. not guilty. [ 64 ] With respect to the balance of the counts on the Information, the central issue is the credibility and the reliability of the five

complainants. I must also consider, in addition to proof of the actus reus for these offences, the mens rea for the offences of sexualassault in s. 271, a general intent offence (see R. v. Chase, (SCC), [1987] 2 S.C.R. 293), and the specific intent whichattaches to an allegation of touching for a sexual purpose in s. 151.

At the end of the process, I must answer the following question: doesthe body of evidence tendered by the Crown rise to the level of proof beyond a reasonable doubt that A.A. committed the offencesalleged in Counts 3-10 and 12 with the requisite criminal intent? [65] Although A.A. did not testify, the Crown tendered into evidence a phone call between S.M. and A.A. which happened after theallegations which form the subject matter of that complaint. Relying on the reasoning in R. v.

Park, 2018 BCSC 1632 at para. 119-124, acase which deals with confession evidence which has both inculpatory and exculpatory portions, defence counsel submits that the well-known credibility analysis set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 must be applied to the phone callevidence. [66] I agree that the rule in W. (D.) applies to the phone call. If I find that some aspect of what A.A. said on that call is exculpatory,and if I accept that evidence, I must acquit on Count 12. If I do not accept that evidence but I am left in a reasonable doubt by it, onceagain, I must acquit.

If I do not accept that exculpatory evidence and I am not left in a reasonable doubt by it, I must go on to consider thebalance of the evidence I do accept, and go on to determine whether the Crown has proved the allegation in Count 12 beyond areasonable doubt. [67] I will now deal with the remaining counts on the Information. S.M. [68] I turn first to Count 12, the alleged sexual assault of S.M.

During the course of submissions, Crown counsel particularized thiscount to the encounter between S.M. and A.A. in the bedroom at the townhouse. [69] Having considered the whole of the evidence specific to this count, I find that S.M. was generally a credible witness. I accepther evidence about the events at Tim Hortons, including A.A.’s repeated grabbing of her buttocks, and that he slapped her on the behindas the group of friends were walking through the parking lot on their way to the complex where the surprise party would be held.

I alsoaccept her evidence that she and A.A. would frequently slap each other on the bum, and that she slapped him on the bum and ran awayafter they arrived at J’s townhouse. I also accept her evidence that A.A. asked her to be his girlfriend on a number of occasions and thatshe declined. Finally, I accept that a certain amount of physical horseplay was a common practice between these two friends. [70] There may have been elements of horseplay in what happened between A.A. and S.M. in the bedroom at J’s townhouse whichperhaps exceeded the boundaries of what had transpired between these two in the past.

The recorded phone call supports S.M.’s evidencethat she was restrained by A.A., or “pinned down” as she put it in that call, and that she told him to stop and to get off and he would not.In that call, A.A. appears to accept that he pinned her down, but countered that he did get off. Later in the call he said, “I didn’t knowyou were serious you just say it like laughing and smiling how am I supposed to know.” S.M. suggests that maybe she was laughingwhen being tickled; A.A. says he was not tickling her. S.M. tells him that his hands were all over her stomach and even up her shirt andon her skin.

A.A. denied that his hands were up her shirt, but agrees they were on her stomach. In the phone call, S.M. does not comeright out and accuse A.A. of touching her in a sexual way, but she quite clearly expresses her objection to having been pinned to the bedand held down. [71] Applying the test in W. (D.) to the exculpatory aspects of this exchange, and having considered the whole of this evidence, I findthat I am left in a reasonable doubt that A.A.’s conduct was of a sexual nature, such that S.M.’s sexual integrity was violated: R. v.Chase, supra.

While S.M. says she was touched on the stomach, skin to skin, that touching did not progress to a part of the body where itmight be more straightforward to draw the inference that the touching was sexual in nature. In coming to this conclusion, I have alsoconsidered the similar fact evidence. [72] I find A.A. not guilty of the offence of sexual assault alleged in Count 12. [73] I must also consider whether the Crown has proved the lesser included offence of common assault contrary to s. 266 of theCriminal Code. The actus reus for this offence is made out.

A.A. applied force to S.M. when he pinned her to the bed and would not lether get up. With respect to mens rea, common assault is a general intent offence. My review of what A.A. said on the phone call isenough to persuade me that he intentionally applied force when he pushed S.M. onto the bed and pinned her into place. [74] What remains then is the question of whether this application of force was without consent, which is an essential element theCrown must prove beyond a reasonable doubt.

Given the history of physical horseplay between S.M. and A.A, I have a reasonable doubtas to whether S.M. was consenting when she was first pushed to the bed and held down. S.M. testified that she repeatedly told A.A. toget off and he did not. In the phone call, A.A. said that he did get off. I must consider that conflict in the evidence and decide whathappened at this stage.

I find that I am unable to determine whether A.A. released S.M. when asked to do so, or continued to pin herdown despite repeated requests to let her go, which leaves me with a reasonable doubt overall on the issue of consent. [75] I find A.A. not guilty of the lesser included offence of assault in Count 12. E.N. [76] This incident also features elements of horseplay, but here E.N. asserts that A.A. put his hand up her shirt and touched herbralette, and touched her skin. She also asserts that he put his hands down her pants and touched her on the backside.

All of this followedA.A. taking her phone, running away with it, and holding it over head and refusing to return it to E.N. [77] E.N. agreed in cross-examination that when she gave her statement to police in May of 2017, she said only that A.A. “tried tograb her butt”; she did not say that A.A. put his hand down her pants and touched her backside. She agreed that this was a detail sherecalled only recently. She also testified that she worked for a short time with S.M. at McDonald’s, and that S.M. told her she was goingto police with her complaint against A.A.

She could not remember what S.M. told her about that complaint. E.N. also testified for the

first time in cross-examination that during her encounter with A.A., he picked her up, flipped her upside down, and held her in that position for some 15 seconds. She testified that he only put her down when she agreed to give him her My Eyes Only password. When asked why she did not mention this during her evidence in chief, she said she did not think it was relevant.

She also agreed that it was cold outside, and at one point A.A. pressed against her in what she interpreted as an attempt to keep her warm. [ 78 ] While I do not question E.N.’s credibility, I do find that cross-examination exposed concerns with respect to the reliability of her account. I have no doubt that this event unfolded more or less as described by E.N. up to the point of the alleged touching. The evidence that he went down her pants and touched her backside is weakened by her failure to mention that to police when she gave her statement.

I accept that A.A. sent her a text afterwards when she was in the washroom apologizing for touching her, so it follows that I also accept that there was touching of some kind. [ 79 ] This was an event triggered by A.A.’s exercise of physical domination over a younger and physically weaker female student during what began as something of a prank. His behaviour was immature and boorish. There was clearly physical contact as E.N. was jumping up trying to get the phone, and I accept this included A.A.’s hand coming up and under E.N.’s shirt, and contact in the area around and on her bralette.

There is otherwise nothing else in the evidence, for example things said by A.A. or by E.N., which add a sexual context to what happened here. [ 80 ] I have considered this evidence and the similar fact evidence, and I cannot find proof beyond a reasonable doubt that this touching happened in circumstances of a sexual nature. [ 81 ] Given that conclusion, I find A.A. not guilty on Counts 7 and 8.

D.D. [ 82 ] I find that D.D. was a reliable and a credible witness. [ 83 ] There is some evidence that D.D. learned from her friend J.P. that something like what she described in her evidence had also happened to S.M., but there is no direct evidence before me that she ever learned the details of those allegations, or the details of the allegations made by any of the other complainants. [ 84 ] D.D. was aware of a rumour around the school that she had accused A.A. of rape, and that he was subject to a restraining order. She was clear in her evidence that neither of these things were true.

She was cross-examined on a text message she sent to A.A., where she apologized for spreading these stories. She insisted in her evidence that she had not been the source of the rumour, and that she apologized only because she did not think A.A. would believe her if she denied it, and she did not want any more “drama”. She also said in the text message that she was stupid when she was in grade 8, and would lie to get attention.

She clarified that the lie she was referring to in that note was the rape and restraining order story. [ 85 ] D.D.’s explanation for having apologized for the rape rumour does not make a lot of sense to an adult, but D.D. was not an adult at the time (or today), and I cannot ignore the context of high school and the many social pressures which might cause a young person to act in ways which do not seem reasonable or logical. I accept her evidence that she did not in fact make these accusations.

It was not suggested in cross-examination that she said these things to police in her statement. [ 86 ] D.D. was taken to her police statement, and agreed that while she told police that A.A. grabbed her butt during the second incident, she could no longer recall that detail. I do not find her failure to mention this particular detail sufficient to undermine her credibility or the reliability of her account of that event. [ 87 ] I find that the two incidents with A.A. happened essentially as described by D.D. In contrast to E.N., the context here was clearly sexual.

During the first incident A.A. was, as she said, “coming on” to her, an approach that began with kisses, and continued to touching areas on the body which cause me to infer that this touching was for a sexual purpose. He said, “just let me do this”, and that this was what he wanted from her. During the second incident A.A. touched D.D. in those same areas of her body. He said that what he was doing was “fine”, and no one would see. I infer from this evidence that the touching here was sexual in nature, and was for a sexual purpose.

I find as well that D.D. did not consent to the touching during either of these incidents, and that on each occasion she made her objection to this conduct clear to A.A. [ 88 ] I make these findings without resort to the similar fact evidence. [ 89 ] I find A.A. guilty on both Counts 3 and 4. A.H. [ 90 ] Cross-examination of A.H. uncovered significant issues which I find have undermined both her credibility and the reliability of her account.

I do not find that the similar fact evidence is enough to overcome these problems. [ 91 ] A.H. agreed that having reviewed her statement with the Crown prior to giving evidence, there were “big things” there that she can no longer recall. A.H. told police that A.A. pulled out his penis and “put it in her pants” during their encounter in the forest; this is something she cannot remember now. She agreed that she had heard from either J.P. or S.M. that this had happened to another girl.

She also agreed that she had a “bit of a crush” on A.A. in grade 8, and was open to kissing him when the two of them went into the forest together. This was not something that she said during in her evidence in chief. She told police in her statement that after this event A.A. did not contact her, and she agreed with counsel that she was “kind of” annoyed about that. [ 92 ] Her evidence does not rise to the level of proof beyond a reasonable doubt that A.A. committed the actus reus of the offences of sexual assault and touching for a sexual purpose. [ 93 ] I find A.A. not guilty on Counts 5 and 6.

R.S. [ 94 ] R. S. described two incidents, the second of which was an encounter in the clubhouse media room at A.A.’s townhouse complex. There is simply no evidence that an assault occurred on this occasion, let alone a sexual assault, despite a comment attributed to A.A. (“let me finger you”) which was clearly sexual in nature. While some sort of sexual encounter may have been on A.A.’s mind, that thought was not translated into conduct of a sexual nature. [ 95 ] The issues which arise on the first incident are different.

R.S. says that during a walk home from a school basketball game, A.A. put his hands down her pants and touched a buttock, and that he held his hands in place during that walk for some 2-3 minutes. As they entered a pathway off the sidewalk, he walked up from behind her and reached his hands around to her front, went under her shirt and bra, and squeezed her breasts until they hurt. He then took her to the ground and lay on top of her.

She also testified that A.A. sent her a Snapchat message after this incident; in that message he asked her not to tell anyone about what had happened. [ 96 ] As noted earlier, by operation of s. 150.1(2) (

a) of the Criminal Code , the Crown is not required to prove the absence of consent for Counts 9 and 10. [ 97 ] Cross-examination established that R.S. spoke with A.H., S.M., J.P. and perhaps others regarding rumours going around the school about A.A. and other girls. She had heard that A.H. was raped in the forest, but says she did not know if that was true. She agreed that some of the details attached to that story matched what happened to her, but she was not able to be more specific than that. She was told about this before giving her statement to police.

She also agreed that after she spoke to the school counsellor, but before speaking to the police, S.M told her about her own experience with A.A. [ 98 ] She also agreed with counsel in cross-examination that her first report of these events was to her mother during an argument about her cell phone, which her mother had taken away from her. She agreed that part of the reason she told her mother she had been sexually assaulted was to make her mother feel guilty; she hoped this would cause her to return the phone.

She said that it was only after she told her mother that she started to think more about what happened with A.A., and that she then became more upset about it. [ 99 ] R.S. was also cross-examined on her statement with respect to the first incident; she told police that A.A. pulled her pants down, which was not part of her evidence in chief. She testified that although there was a possibility this happened, she did not really recall it happening. She agreed that it was “weird” that she could not recall this. [ 100 ] This one is a very close call.

The similar fact evidence helps here to some extent, at least insofar as it tends to establish a pattern of behaviour: A.A. was behaving in a physically aggressive manner with these young women. I accept that this is what happened with R.S. during the walk home after the basketball game. The Snapchat message A.A. sent to her afterwards shows that he recognized he may well have crossed some sort of line with A.H. [ 101 ] Having said that, I am troubled by the manner in which R.S. first disclosed this allegation to her mother, and the discussion R.S. had with others about allegations of sexual misconduct by A.A.

Her now forgotten allegation that A.A. pulled her pants down during the second incident is also troubling. These aspects of her evidence affect the weight that I attach to her allegation of conduct in that first incident that might be interpreted as being sexual in nature.

Having taken account of the whole of the evidence, I find that the Crown has not proved beyond a reasonable doubt that the first incident was a touching for a sexual purpose (Count 9), or a sexual assault, (Count 10). [ 102 ] I do however find that after the two of them started down the pathway, A.A. picked her up from behind, took her to the ground and pinned here there for approximately 1-2 minutes, and that R.S. did not consent to that application of force.

In the result on Count 10, I find that the Crown has proved the lesser included offence of common assault contrary to s. 266 of the Criminal Code , and I find A.A. guilty of that offence.

Summary of Verdicts [ 103 ] I have found A.A. not guilty on Counts 1, 2, 5, 6, 7, 8, 9, 11 and 12. [ 104 ] I have found him guilty on Counts 3 and 4. With respect to Count 10, I have found him not guilty of sexual assault, but guilty of the included offence of common assault. _____________________________ The Honourable Judge M.

Jetté Provincial Court of British Columbia CORRIGENDUM - Released December 13, 2019 In the REASONS FOR JUDGMENT dated October 29, 2019, the following changes have been made: [78] While I do not question E.N.’s credibility, I do find that cross-examination exposed concerns with respect to the reliability of her account. I have no doubt that this event unfolded more or less as described by E.N. up to the point of the alleged touching. The evidence that he went down her pants and touched her backside is weakened by her failure to mention that to police when she gave her statement.

I accept that A.A. sent her a text afterwards when she was in the washroom apologizing for touching her, so it follows that I also accept that there was touching of some kind.

[79] This was an event triggered by A.A.’s exercise of physical domination over a younger and physically weaker female student during what began as something of a prank. His behaviour was immature and boorish. There was clearly physical contact as E.N. was jumping up trying to get the phone, and I accept this included A.A.’s hand coming up and under E.N.’s shirt, and contact in the area around and on her bralette. There is otherwise nothing else in the evidence, for example things said by A.A. or by E.N., which add a sexual context to what happened here. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia