R. v. J.S.W., 2018 BCPC 351

Citation: R. v. J.S.W. 2018 BCPC 351 Date: 20181015 File No: 222891-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. J.S.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR PUBLICATION BAN PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE Counsel for the Crown: D. Simpkin Counsel for the Defendant: J.S. Mattoo Place of Hearing: Surrey , B.C. Dates of Hearing: July 9, 10, 11, and 16, 2018 Date of Judgment: October 15, 2018

I. INTRODUCTION [ 1 ] By way of Information No. 222891-1, the accused, J.S.W. (“J.W.” or “Mr. W.”), is charged with the following counts: Count 1 – that he, from the 1 st day of November, 2009 to the 13 th day of January, 2017, inclusive, at or near Delta, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of J.K., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . Count 2 – that he, from the 1 st day of November, 2009 to the 13 th day of January, 2017, inclusive, at or near Delta, in the Province of British Columbia, did, for a sexual purpose, invite, counsel or incite J.K., a person under the age of sixteen years, to touch, directly or indirectly, with a part of [her] body, or with an object, the body of J.W., contrary to

Section 152 of the Criminal Code . Count 3 – that he, from the 1 st day of November, 2009 to the 13 th day of January, 2017, at or near Delta, in the Province of British Columbia, did sexually assault J.K., contrary to

Section 271 of the Criminal Code . [ 2 ] The Crown proceeded by indictment, and Mr. W. pleaded not guilty to all three counts. II. ISSUES [ 3 ] The issues to be determined in this case are: did Mr. W., between the period November 1, 2009 and January 13, 2017 (the “Subject Period”): 1. touch J.K.’s body with a part of his body for a sexual purpose; 2. invite J.K. to touch a part of his body with her body for a sexual purpose; and 3. sexually assault J.K.? [ 4 ] The parties take no issue with respect to Mr. W.’s identity or age. He was an adult during the Subject Period. III. BACKGROUND [ 5 ] Mr.

W. was about 42 years old at the date of the trial. He is married to J.K.’s first cousin, S., and has two boys aged seven and one. He works in the plumbing field. [ 6 ] J.K. was born [omitted for publication]. During the Subject Period, she was between eight and 15 years old. At the date of the trial, she was 16 years old. She attends high school. [ 7 ] J.K. lives with her parents and maternal grandparents. She has one sister who is estranged from the family. She was very close to S. until January 2017 when these allegations came to light. J.K.’s mother and S.’s father are siblings.

S. is in her mid-to-late-thirties. J.K. considered S. almost like a mother to her. J.K. enjoyed spending time with S.’s children. [ 8 ] One of the Crown’s witnesses is E.K. (“Ms. K.”), who is also J.K.’s first cousin. She is 21 years old, and is in her third year of studies in health sciences at Simon Fraser University. Ms. K.’s mother and J.K.’s mother are sisters. Ms. K. and J.K. are also very close, and they consider themselves sisters and best friends. IV. WITNESSES AND EVIDENCE [ 9 ] The Crown called three witnesses at the trial proper: J.K., Ms. K. and J.K.’s ex-boyfriend, Mr.

M.K., who was 17 years old at the date of the trial. Following a voir dire, pursuant to s. 715.1(1) of the Criminal Code , J.K.’s video-recorded statement given to Cst. Aaron Pante of the Delta Police Department on February 9, 2017 (the “Video Statement”) was ruled admissible. The Video Statement forms the basis of J.K.’s evidence in chief. At the trial, J.K. testified behind a screen, as she did not want to face Mr. W. [ 10 ] The defence called two witnesses: Ms. S.K.R. (“Ms. R.”), a former landlady of Mr. W. and S., and Mr. A.J., a former co-worker of Mr. W. Certain notes made by Mr.

A.J. were entered as an exhibit. [ 11 ] The defence alleges various internal and external inconsistencies in J.K.’s evidence, and submits that it is not reliable. The defence also challenges some aspects of Ms. K.’s evidence. The Crown submits that Mr. W.’s response to Ms. K. in a telephone conversation they had in January 2017 (the “K. Call”) is either an actual admission of wrongdoing or an adoptive admission by Mr. W. Both Crown and defence agree that Mr. M.K.’s evidence is problematic. They agree that Ms. R.’s evidence is credible and reliable. While the Crown says that Mr.

A.J. was doing his best to tell the truth, it questions the reliability of his evidence due to the lack of his actual memory of what happened on January 13, 2017. Mr. A.J.’s evidence is in the nature of alibi evidence, and the question is, what weight should be given to it when the defence did not provide the Crown with any notice of the alibi defence and Mr. W. did not testify as to his alibi? [ 12 ] Needless to say, there are many evidentiary challenges to sort through. I will address them below. I will first set out the general legal framework before turning to the discussion of the issues in this case. V.

GENERAL LEGAL FRAMEWORK Standard and Burden of Proof and Assessment of Credibility and Reliability [ 13 ] This case raises issues of credibility and involves the application of the presumption of innocence. This presumption, enshrined in s. 11(

d) of the Charter of Rights and Freedoms , requires that an accused not be convicted unless each essential element of the offence

has been proven beyond a reasonable doubt. The Crown bears the burden of proof. The accused need not prove the existence or non-existence of a fact essential to guilt. This standard of proof is higher than the standard applied in civil actions of proof based upon abalance of probabilities, yet less than proof to an absolute certainty. That is, it is not proof beyond any doubt: R. v.

Lifchus, (SCC), [1997] 3 SCR 320, para. 14. [14] In a criminal trial, in assessing credibility, the test is not whose evidence I believe – that is, the evidence of the Crown or thedefence – but rather, whether, on the totality of the evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt. [15] While a witness may be credible, their evidence may or may not be reliable. As the Ontario Court of Appeal in R. v. H.C., 2009ONCA 56, said at para. 41: [41] Credibility and reliability are different.

Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

Assessment of Children’s Evidence [16] As is the case before me, in H.C., the assessment of the credibility of adults and a child was at issue. In noting the difference inthe assessment of the credibility of an adult and a child, the Ontario Court of Appeal, at para. 42, said: [42] This case required the trial judge to assess the credibility of two mature adults, T.F. and the appellant, as well as of a child of ten,K.F. Credibility requires a careful assessment, against a standard of proof that is common to young and old alike.

But the standard of the“reasonable adult” is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimonyof a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult: R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30 at pp. 54-5; R. v. S.(A.) (2002), (ON CA), 165 C.C.C. (3d) 426 at p. 437(Ont. C.A.); R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 at pp. 134-6. [17] J.K. was a child during the Subject Period and while testifying at trial. In assessing J.K.’s evidence, I am also guided by thefollowing passage in R. v.

W. (R.), [1992] 2 S.C.R. 122, (SCC), wherein the Supreme Court of Canada, at para. 26, said: 26 It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to“adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law’s approach to children’s evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she istestifying. [18] Also relevant to this case are the concepts of script memory and episodic memory which are discussed in R. v. Hughes (RulingNo. 2), [1998] B.C.J. No. 1699. This case involved a voir dire ruling, and the court was considering the Crown’s application to leadexpert evidence on the phenomenon described as script memory.

The court, at paras. 55 to 58, said: [55] As I understand the phenomenon of script memory, the complainant only clearly remembers core aspects of the alleged assaultwhile peripheral matters may be less clear or not remembered at all. Episodic memory, as I understand it involves the blending of certainepisodes but again the core details are remembered. [56] In my review of these areas, expert evidence of this sort has only been considered in cases where children have been sexuallyabused.

It has particularly been used where there is an historical sexual assault where the victim was a child at the time of the assault. Having said that, I also did not find any cases where such evidence was not admitted. [57] I note, however, that in the recent case of R. v. Gutierrez, [1998] O.J. No. 2032, (19 May 1998) Doc. No. C27741 (Ont. C.A.),which was also a case of child sexual abuse, the trial judge took judicial notice of the phenomenon of script memory which was nototherwise in evidence. On appeal, it was argued that he should not have done this without expert evidence explaining it.

The trial judgemade the following finding: [The complainant] described the first incident clearly, but could not give details of the second and third incident. I do not find thatunusual. It is well recognized that victims of repeated assaults, particularly children, will be unable to pin-point or describe with detaileach repeated act of sexual abuse. The events become blended.

It is called script memory. [58] The accused was not successful on this ground of appeal because the Court was satisfied that given that the trial judge explainedwhat he meant by script evidence he "was simply adopting what is a permissible common sense approach when dealing with thetestimony of children."

[ 19 ] The Crown points to Hughes wherein the court concluded that it does not require expert evidence, and that it can draw the common sense inference that a child or a person testifying about incidents that occurred when they were a child can remember core details, but may be weak on peripheral details, and submits that this is the situation in the case before me, and that I should take the same approach. I agree. [ 20 ] I will now turn to the discussion of the issues in this case applying the approaches I have set out above. VI.

DISCUSSION Relevant Criminal Code provisions [ 21 ] The Criminal Code provisions relevant to this case, namely, ss. 151 , 152 and 271 , provide, in part, as follows: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; . . . 152 . Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; . . . 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; . . . [ 22 ] The definition of assault in s. 265 of the Criminal Code includes sexual assault: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; . . .

(2) This

section applies to all forms of assault, including sexual assault, . . . [ 23 ] Subsection 150.1(1) of the Criminal Code provides that consent is not a defence in respect of a complainant under the age of 16 years: 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271 , 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [ 24 ] In this case, to secure conviction on all three counts against Mr. W., the Crown must prove beyond a reasonable doubt that during the Subject Period, Mr. W.: (

a) touched J.K.’s body with a part of his body for a sexual purpose; (

b) invited J.K. to touch a part of his body with her body for a sexual purpose; and (

c) applied force intentionally to J.K, committing a sexual assault. [ 25 ] The term “sexual purpose” is not defined in the Criminal Code . The allegations here are that during the Subject Period, Mr. W., on multiple occasions, grabbed J.K.’s breasts and rubbed them in a circular motion, touched J.K.’s vagina in an upward motion, made J.K. touch his penis with her hand and ejaculated in her hand, and inserted his penis into her vagina and moved it in a back and forth motion. If I find as a fact that Mr. W. did any of these acts, such touching will clearly constitute touching for a “sexual purpose”.

Allegations of various incidences of sexual abuse [ 26 ] J.K.’s evidence was that during the Subject Period, Mr. W. sexually abused her on numerous occasions. She described five incidents of which she had a vivid memory. She said there were 30 to 40 other incidences of Mr. W. touching her inappropriately on her breasts and vagina, but she could not remember their exact details. [ 27 ] I will summarize below J.K.’s description of the five vivid incidents of sexual abuse.

First Incident [ 28 ] The first incident allegedly occurred sometime at the end of 2009 or early 2010 when J.K. was about eight and a half years old, at the home of Mr. W. and S., when they were living in a basement suite in North Delta, near an elementary and high school (the “Basement Suite”).

[ 29 ] J.K. was sitting on a sofa in the living room, watching TV. S. was pregnant with her first child and was in the shower at that time. Mr. W. who was sitting on a larger sofa, came over and sat next to J.K. He then got very close to her and started touching her on her breasts and vagina. He rubbed her breasts and put his hands between her thighs and touched her vagina in an upward motion. He touched her over her clothes. She cannot remember if he used one or both of his hands. She felt strange and she did not know how to react. Mr. W. told her not to tell anyone about what he did.

Second Incident [ 30 ] The second incident allegedly also occurred at the Basement Suite sometime at the end of 2010 when J.K. was in Grade 4. J.K. cannot remember the exact date, but she remembers Mr. W.’s first child, J., was about eight or nine months old, as he was born on [omitted for publication]. She is pretty sure that it was a weekend because she would not go over to Mr. W.’s house on school nights. [ 31 ] She remembers Mr. W.’s mother came to Canada to help S. and Mr. W. with the birth of J. When Mr. W.’s mother was in Canada, J.K. would sleep with her in the second bedroom in the Basement Suite.

By the time of the second incident, Mr. W.’s mother had returned to India as her other son in India was having a baby girl. [ 32 ] One night when she was sleeping alone in the second bedroom, Mr. W. went into her room around 12:00 midnight or 1:00 a.m. The bed was against the wall. He called her name, and then laid down next to her and grabbed her arm, shook it, and woke her up from her sleep. He then started touching her breasts and vagina. J.K. did not know what was happening. When she tried to get away by moving towards the wall, Mr. W. would not let her go. He pulled her back towards him.

He took her right hand and put it on his penis. She remembers his shorts were pulled down half way and his penis was fully exposed. She cannot remember if he had an erection. He then got on top of her, took her pants and underwear off, and tried to have sexual intercourse with her. He tried to put his penis into her vagina, but it did not go in fully. J.K. was in pain and she tried to hit Mr. W. to make him stop and told him to get away, but he covered her mouth to stop her from making any noise. She cannot recall if he ejaculated. At the end, he told her not to tell anyone about what happened.

Third Incident [ 33 ] The third incident allegedly occurred at Mr. W.’s duplex on [omitted for publication] in North Delta (the “Duplex”) sometime in January or February of 2016, when J.K. was in Grade 9. [ 34 ] Mr. W.’s family had moved to the Duplex sometime in 2011, as S.’s parents came from India to live with them. The Duplex had three bedrooms upstairs and a suite downstairs. Upstairs, Mr. W. and S. were in one bedroom, their children in the second, and the third was a guest bedroom where J.K. slept when she went over there. [ 35 ] J.K. was sleeping in the guest bedroom in the Duplex when Mr.

W. went into her room at about 3:00 a.m. and started touching her breasts over her clothes and her vagina under her underwear. This time, she got up immediately and politely asked Mr. W. to leave her room because she did not want to create a scene, as there were a lot of people in the house: his wife and two children, and his mother- in-law, father-in-law, brother-in-law, and sister-in-law were downstairs. He was aware that there were a lot of people in the house, but he would not leave. This time, the bed was in the middle of the room, and he got onto the bed from J.K.’s left side.

He was rubbing her breasts and touching her vagina. He then took off his track pants and tried to get J.K. to grab his penis. She tried to put her hands behind her back, but that did not work. He made her grab his penis. He then got on top of her and pulled her pants down. Then he put on a condom and put his penis in and out of J.K.’s vagina. His penis would not go in completely. It hurt her. She told him to stop and go away, but he would not listen. He told her to be quiet, and like every other time, told her not to tell anyone about what happened.

Once he had an erection, he went to the washroom, and then went back to sleep. Essentially, he gave himself an erection by moving his penis in and out of J.K.’s vagina. [ 36 ] That night, through a mutual friend, J.K. tried to reach her best friend, with whom she had broken up earlier, to talk to him. She just wanted someone to talk to that night, although she would not have told him exactly what happened to her. However, she was unable to reach him; so, she just cried herself to sleep. Fourth Incident [ 37 ] The fourth incident allegedly occurred on January 6, 2017 at J.K.’s house.

J.K. remembers this date, because it was a Friday, and her family goes downtown every second week to feed the homeless. Her father was home a bit early that day because he wanted to get the hood on his truck installed, as he needed the truck to go feed the homeless the next day, January 7 th . [ 38 ] It was around 4:00 or 4:30 p.m. because J.K. had just come home from school. She was sitting in the upstairs living room, watching Netflix. Mr. W. is close to her parents and has a key to J.K.’s house. He knows her parents’ work schedules.

He knows that her mother leaves for work around 4:00 p.m. and her father is never home before 6:30 p.m. That day, because J.K.’s father had to get the hood of his truck installed, he came home earlier than usual and said he will not be home for a while. [ 39 ] Hardly 10 or 15 minutes after J.K.’s father left the house, Mr. W. came into the house and called her father and said he was in the house to fix the toilet seat, and asked where J.K.’s father was. J.K. heard Mr. W.’s conversation with her father. J.K. found it very strange that Mr.

W. would come to the house within a matter of a few minutes of her father leaving the house. Mr. W. knew when her mother usually goes to work, and J.K. suspects that he knew her father’s

schedule that day to have work done on his truck and that he would come home late. [ 40 ] J.K.’s grandparents were downstairs. Mr. W. went downstairs and then came upstairs to where J.K. was sitting on the sofa. He took her by her arm and stood her up. She told him to let go of her arm, and he did. But then he started grabbing her breasts underneath her clothes. She asked him to leave her alone, and tried to get away from him so that she could go to her grandmother downstairs. But he would not let go of her arm. He took her right hand and made her rub his penis up and down over his pants.

He did not have an erection at that time. He pushed her to the ground. When she tried to get up, he gave her another push and she hit her head and got hurt. He then took off his pants and got on his knees and took off her pants. She asked him not to do this, but he told her to be quiet, not say

anything and just lay there. He had an erection after he took off his pants. He then had sexual intercourse with her. His penis was not fully in her vagina, but he was moving back and forth for a few minutes. He did not wear a condom or ejaculate this time. He quickly stopped because they heard J.K.’s grandmother walking downstairs. He then went to the washroom, fixed the toilet seat and left. Fifth Incident [ 41 ] The fifth incident allegedly occurred at J.K.’s house on Friday, January 13, 2017. [ 42 ] J.K. came home from school at about 4:00 p.m.

She was in the bathroom upstairs changing her clothes, as she had just come home from school. She was on the phone with her best friend, Mr. M.K. She knew the family was having an electrical problem in the bathroom downstairs. By that time, her mother had left for work and her father would not be home before 6:30 or 7:00 p.m. [ 43 ] While she was on the phone in the bathroom, she saw through the window a red vehicle pull in. S. has a red vehicle. So, she thought maybe S. was coming to visit her grandmother. But it was not S., as she heard Mr. W.’s voice. So, she closed the bathroom door.

She told her friend that her uncle was home. She heard Mr. W. knock on the bathroom door, asking her to open it. She quickly finished changing her clothes and opened the door. Mr. W. gave her a look as she was still on the phone. She was scared of him, and she immediately hung up the phone and quickly went into the living room. She tried to go downstairs to her grandmother, but Mr. W. grabbed her arm and pulled her back. She told him to let go of her because she wanted to go downstairs and check if her grandmother had taken her medicine, but he would not let her go.

He then started to grab her breasts, and put his hand underneath her pants, touching her vagina. He then pushed her onto the couch in the living room. He took off his pants and hers, and put his penis into her vagina. This time, he did not have a condom. He told her to grab his penis. She knew what was going to happen, and she just wanted to get it over with; so, she grabbed his penis. He told her to stroke his penis and grope it until he had an erection, and he ejaculated in her hand. He then went downstairs and did his own thing, and she remained upstairs and called her friend back.

All of this happened around 4:30 or 4:45 p.m. that day. Credibility and reliability of the witnesses [ 44 ] The defence submits that J.K. was neither credible nor reliable. It challenges J.K.’s evidence on a number of fronts.

Essentially, it says that there were inconsistencies and errors in the details, such as the time and date of particular incidents, the layout of the Basement Suite where the second incident is alleged to have happened, and details regarding the alleged sexual acts themselves. [ 45 ] However, I found J.K. to be an honest and believable witness, in spite of some inconsistencies in her evidence, which I will discuss below. [ 46 ] She appeared to be rather naïve. An example of her naivety is when she told Cst.

Pante during her video interview that she had not developed breasts at the time of the first and second incidents, but she thought that they grew more quickly maybe because Mr. W. always grabbed and pulled on them. Ms. K. also said in her testimony that J.K. was always very “childlike”. [ 47 ] Given her young age and naivety, the discrepancies in her evidence regarding time, date, location and description of the layout of the Basement Suite are explainable. Besides, they are all peripheral issues.

She was, however, very clear about the core details of the sexual acts she said she endured in the five incidents, with the only exception being she was at times confused between erection and ejaculation because she said both words started with an “e”. [ 48 ] When defence suggested that she was fantasizing about being the lead role in one of the murder mysteries she liked to watch on Netflix and that she was making up all of these allegations, she categorically denied that was the case. [ 49 ] She was honest and admitted that she loved to watch murder mysteries and crime shows on Netflix, but that alone cannot lead to the conclusion that she was making up all of these allegations.

She is a teenager. It is hardly surprising or unusual that teenagers like to watch such shows. [ 50 ] More compelling is her evidence regarding the various incidents, which seems believable, given her age during those incidents. For example, during the first and second incidents, when she was between eight and 10 years old, she said she did not know what was happening to her. By the third incident, she was in Grade 9 and she knew what was happening to her, as she was more knowledgeable about sex, because she said the school teaches students a lot about sex in Grade 7. When Mr.

W. came into her room during the third incident, she told him politely to go away, as she did not want to create a scene, because a lot of the family members were in the Duplex at that time. She was afraid of what they would think about her, and whether they would believe her and blame her for telling on Mr. W. That night she tried to reach her friend to talk, but was not able to. So, she cried herself to sleep. By the fourth and fifth incidents, she knew what Mr. W. was doing to her, and because he was forceful and she could not stop him, she resigned herself to just “getting it over with”. Furthermore, Mr.

W. repeatedly told her not to tell anyone about what he did to her. Finally, after she came to the realization that she did not want Mr. W. to abuse her young niece the way he abused her, she chose to tell her cousin, Ms. K., which eventually led to the report to the police and charging of Mr. W. [ 51 ] None of this evidence seems implausible to me. There is a ring of truth to all of this: it appears that J.K. gradually appreciated what Mr. W. was doing to her as she was growing up. She was honest about not remembering the details of the 30 or 40 other incidents of abuse at Mr.

W.’s hands, consistent with the phenomenon of script and episodic memory discussed in the case law. [ 52 ] I do not believe J.K. exaggerated or embellished her evidence to bolster her case. I find her to be a credible witness. However, is all of her evidence reliable? First Incident [ 53 ] With respect to the first incident, the evidence does not indicate any reason for me to question the reliability of her evidence. I find that Mr. W. did touch J.K.’s breasts and vagina with his hands for a sexual purpose while sitting on the sofa in the Basement Suite living room.

Second Incident [ 54 ] With respect to the second incident, J.K. stated that it took place in the second or guest bedroom in the Basement Suite sometime at the end of 2010 when J.K. was about nine years old. She recalls there were two bedrooms in the Basement Suite, and she would sleep in the guest bedroom where there was no furniture except a bed. She said sometimes she would sleep with S., and Mr. W. would sleep in a different room. Under cross-examination, when defence suggested to her that only one bedroom was being rented in the Basement Suite, she said she does not remember. [ 55 ] According to Ms. R., Mr.

W. and S. rented a one-bedroom suite from her in May of 2009. Then in April of 2010, they rented from her a second bedroom in the same house because they were having a baby, and Mr. W.’s mother was coming from India to help them with the baby. They kept the second bedroom from April 2010 to October 2010, as Mr. W.’s mother stayed in Canada less than six months. Ms. R. said after Mr. W.’s mother left Canada, Mr. W. and S. never rented the second bedroom, as they bought a house. [ 56 ] On Crown’s questioning, Ms.

R. explained that the Basement Suite was in her own home and it had two bedrooms, but that she only rented one bedroom and kept the other one for storage or for use when relatives came to visit. She said the second bedroom was attached to her part of the house, and there was a door to the second bedroom suite which was kept open. [ 57 ] Obviously, there is some doubt as to whether the second incident occurred in the second bedroom in the Basement Suite at the time J.K. alleges it happened, as her evidence is inconsistent with Ms. R.’s evidence. I have no reason to doubt Ms. R.’s evidence.

However, there is no evidence as to the exact date Mr. W.’s mother left Canada in October 2010. It is possible that the second incident occurred at the end of October 2010 when Mr. W. and S. still had the use of the second bedroom, and J.K. was simply mistaken about the time of the second incident. [ 58 ] As the defence alleges, since there is a reasonable doubt that J.K. was never alone with Mr. W. in the second bedroom in the Basement Suite, I am not satisfied beyond a reasonable doubt that the second incident occurred.

Third Incident [ 59 ] With respect to the third incident, the defence argues that J.K.’s evidence regarding how frequently she stayed at the Duplex is inconsistent between the Video Statement and her testimony at trial. In the Video Statement, she says she would not stay over at the Duplex as much as before as she was older and she would make excuses to go home, whereas at trial she said she would stay over two to three times a month. I do not find this to be of any consequence. Her evidence was that when she was younger she would spend more time at Mr.

W.’s residence, as she was very close to S. and she enjoyed spending time with her nephews, but as she got older, she did not stay over as much. [ 60 ] The defence submits that J.K.’s assertion that she would take drastic steps to “block out” people in her life with whom she did not get along is contrary to her testimony that she would stay at the Duplex two to three times a month. I do not find any merit in this submission, as J.K. was referring to blocking out her friends at school if they did not get along.

That is different from her evidence that she was close to S. and she enjoyed spending time with her nephews. That is why she would go over to S.’s residence, and that because of Mr. W.’s behaviour towards her, she started making excuses to not go there as often as she used to when they lived in the Basement Suite. [ 61 ] The defence also questions whether the offence J.K. alleges could have occurred when there were at least eight people residing in the Duplex, and some were just a few feet away from where the offence allegedly occurred.

While this is a fair question, J.K.’s evidence was that this incident occurred in the middle of the night at about 3:00 a.m. when presumably everyone was asleep. Also, the evidence indicates that Mr. W. made sure that J.K. did not make any noise while he was with her. He would cover her mouth and tell her not to make any noise, and also their interactions were brief. As soon as he got an erection he would leave. [ 62 ] The defence also questions why J.K. did not produce the message she said she sent to her friend that night, or the recipient of that message as a witness, if she did send that message.

Even if she did produce them, that would not have shed any light on the offence itself, as J.K.’s evidence was that she just wanted someone to talk to, and that she would not have shared any of the details of what happened to her. [ 63 ] On the whole, I am not left in any doubt that the third incident occurred. I find that it did occur. I find that Mr.

W. touched J.K.’s breasts and vagina with his hands; made J.K. grab his penis with her hand, even though she tried to resist him by putting her hands behind her back; and forcefully inserted his penis into J.K.’s vagina, and moved it back and forth until he got an erection, even though J.K. asked him to stop and go away. Fourth Incident [ 64 ] With respect to the fourth incident, the defence submits that J.K.’s testimony is inconsistent with the Video Statement in that in the Video Statement she states that Mr.

W. took her by her arm, and when she asked him to let go, he did, but when she tried to go downstairs, he did not let go of her arm; whereas at trial, she said Mr. W. only grabbed her arm when she was going down the stairs. Even if there is some inconsistency as to exactly when Mr. W. grabbed J.K.’s arm, what is clear is that J.K. was trying to get away from Mr.

W., which is consistent with her evidence that she told him to leave her alone, but he would not, as he pulled her back and pushed her to the ground, causing her to hit her head. [ 65 ] The defence also questions if J.K. hit her head, why she did not go to a doctor. J.K.’s evidence was that her head hurt, but because she had no bump she did not go to the doctor. Again, this is inconsequential. What is clear from the evidence is J.K. trying to free herself from Mr. W., but he would not let her go; rather, he forced her to engage in the sexual acts. [ 66 ] I find that the fourth incident occurred, and Mr.

W. touched J.K.’s breasts and vagina, made her rub his penis with her right hand, and forcefully inserted his penis into her vagina and moved it back and forth, even though she was hurting and she asked him to stop and let her go.

Fifth Incident [67] With respect to the fifth incident, the defence submits that Mr. W. was not at all at J.K.’s house as she alleges, as he wasworking with Mr. A.J. on a 12-hour shift on January 13, 2017. [68] Mr. A.J. testified that he was with Mr. W. and another worker, G., on a job assignment from 7:30 a.m. to 7:30 p.m. on January13, 2017. Mr. A.J. also produced a time sheet where he recorded, in his handwriting, his daily job assignments, including details such astime in, time out, number of hours worked, job kind (that is, the nature of the work done), and job site.

His record indicates that onJanuary 13, 2017, he worked from 7:30 a.m. to 7:30 p.m., for 12 hours, at Pacemore Richmond and Wiltshire, on a boiler. Although hetestified that he worked with Mr. W. and G., his hand-written notes state: “check with G. and [J.] [referring to Mr. W.]”. It is unclear asto what this means. However, Mr. A.J. said he was with Mr. W. all day, as they went together to the job site in one vehicle and returnedto the warehouse in the same vehicle. [69] The defence acknowledges that Mr.

A.J.’s evidence is clearly alibi evidence, and submits that it is a complete defence to theallegations of the fifth incident on January 13, 2017. The defence further submits that this casts a serious doubt over J.K.’s credibility onthe whole. I disagree and I will explain why. [70] The defence informed the court that it came to know about Mr. A.J. only the day before Mr. A.J. testified, which was the thirdday of the trial, and that his time sheet was made available only on the morning of his testimony. Clearly, the Crown was not givenadequate notice as required. [71] With respect to alibi defence, in R. v.

Cleghorn, (SCC), [1995] 3 S.C.R. 175, Iacobucci, J., writing for themajority, said at paras. 3 and 4 as follows: 3. At issue in this appeal is whether the alibi defence raised by the accused at trial was properly disclosed to the Crown. Asoutlined by my colleague, proper disclosure of an alibi has two components: adequacy and timeliness. This principle was recentlyreiterated in R. v. Letourneau (1994), (BC CA), 87 C.C.C. (3d) 481 (B.C.C.A.), where Cumming J.A. wrote for aunanimous court at p. 532: It is settled law that disclosure of a defence of alibi should meet two requirements: (

a) it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, at p. 387, and R. v. Dunbarand Logan (1982), (ON CA), 68 C.C.C. (2d) 13 at pp. 62-3 . . . (Ont. C.A.); (

b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), (BC CA), 78 C.C.C. (3d) 481 at pp. 504-5 . . . (B.C.C.A.). Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trier of fact willaccord it. . . . 4. As stated above, the consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inferencewhen weighing the alibi evidence heard at trial (Russell v. The King (1936), (SCC), 67 C.C.C. 28 (S.C.C.), at p. 32).

However, improper disclosure can only weaken alibi evidence; it cannot exclude the alibi. . . . disclosure is proper when it allows theprosecution and police to investigate the alibi evidence before trial. The criteria of timeliness and adequacy are thus evaluated on thebasis of whether a meaningful investigation could have been undertaken as a result of disclosure. . . . [72] In a more recent decision, R. v.

Hansen, 2013 BCSC 2482, in discussing alibi defence, the court said at paras. 72 and 73 asfollows: [72] It is also possible for a court to draw an adverse inference from an accused’s failure to testify as to an alibi. This is a very limitedexception to the accused’s right to silence, both pre-trial and at trial. The adverse inference only goes to the weight of alibi evidence. When a court finds it can draw such an inference, it does not build the case against the accused; rather, it negatives an affirmativedefence that is put forward by the accused: R. v.

Noble, (SCC), [1997] 1 S.C.R. 874. [73] Here, the proper way to consider the alibi evidence is to determine whether Ms. Healy’s evidence is credible. This involvesconsideration of her evidence in relation to the balance of the evidence and in relation to the preponderance of probabilities. If I am leftwith doubts as to the credibility of her alibi evidence, I should also consider whether the disclosure of the alibi defence met therequirements of adequacy and timeliness. Finally, I must consider whether to draw an adverse inference from the failure of Ms. Hansento testify. [73] Here, the defence submits that Mr.

A.J. was a credible witness as he was only a former co-worker of Mr. W. and he has nocurrent friendship with Mr. W. While that may be so, I do have some concerns regarding the reliability of his evidence. On cross-examination, Mr. A.J. said that Mr. W. was senior to him, and that had it not been for his written records, he would have no memory ofwhat Mr. W. did on January 13, 2017. Also, as I said earlier, his note on his time sheet for January 13, 2017, indicates that he shouldcheck with G. and Mr. W. Was that note to check with Mr. W. whether Mr. W. was to work that day, or did it refer to something else?

There is no evidence to shed any light on this doubt. However, on the stand, Mr. A.J. was firm that Mr. W. was with him that day. [74] Therefore, I must next consider the adequacy and timeliness of the disclosure of the alibi defence. The Crown says it had nodisclosure of the alibi defence at all. It says if it had adequate disclosure, it and the police could have taken steps to investigate theveracity of the alibi evidence, including interviewing G. or the owners of Hundal Bros., who employed Mr. A.J. and Mr. W. [75] Furthermore, the Crown points out that Mr. W. did not testify at trial in support of his alibi.

It referred to the Supreme Court ofCanada’s discussion in R. v. Noble, (SCC), [1997] 1 S.C.R. 874 (at paras. 110 to 113) of the ramifications that flowfrom an accused’s failure to testify when that accused has lead evidence of an alibi defence. At paras. 112 and 113, the court said:

[112] In my view, there are two reasons supporting the alibi exception to the right to silence pre-trial which apply also to the right tosilence at trial: the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry attrial. As Gooderson stated, alibi evidence is easily fabricated through the use of perjuring witnesses. . . . [113] For these reasons, in my view Vézeau can be analyzed on the basis of a limited exception to the right to silence at trial.

While ingeneral the failure to testify cannot be used to assess credibility of witnesses (see Schwartz, supra), in the case where the defence of alibiis advanced, the trier of fact may draw an adverse inference from the failure of the accused to testify and subject him- or herself to cross-examination. While it must be conceded that this exception does undermine to a limited extent the presumption of innocence and theright to silence, it has a long and uniform history pre-dating the Charter and must be taken to have been incorporated into the principlesof fundamental justice in s. 7. [76] In Mr.

W.’s case, I agree with the Crown that there was no timely or adequate disclosure of the alibi defence. I disagree withthe defence’s submission that any meaningful investigation that the Crown may have undertaken would have only confirmed the alibi,with no rebuttal evidence coming forth. There is no evidence to suggest that outcome. It would be improper to come to that conclusion. [77] Also, for the defence to bring up the alibi defence at almost the conclusion of the trial and say that the Crown declined to agreeto an adjournment to carry out an investigation is hardly convincing. [78] Mr.

W. could have taken the stand and testified as to his alibi, but he did not. Surely, if he had worked a 12-hour shift as Mr.A.J. testified, Mr. W. would have known this information well in advance. Therefore, I have no hesitation in drawing an adverseinference from Mr. W.’s failure to testify as to his alibi. I decline to give any weight to Mr. A.J.’s evidence. [79] I also reject in its entirety any minimal evidence that Mr. MK. provided as I did not find him to be a credible witness. He hadserious problems with his memory.

He could not even recall that he had made a statement to the police in March, 2017 regarding theJanuary 13, 2017 incident. Both Crown and defence agree that his evidence is unreliable. [80] On the whole, with respect to the fifth incident, I am left with some doubt as to whether Mr. W. was at J.K.’s residence onJanuary 13, 2017, during the time the fifth incident is alleged to have happened. Therefore, I am not satisfied beyond a reasonable doubtthat the fifth incident took place. [81] Finally, what corroborates J.K.’s evidence (to the extent I have accepted it) is Mr.

W.’s own statement that he made in the K.Call. [82] Ms. K.’s evidence was that in January 2017, when her family was having a pizza dinner night and she was about to go and getthe pizza, she got a message from J.K. that it was very important and J.K. wanted to talk to her. She learned from J.K. that Mr. W. hadsexually assaulted J.K. Ms. K. was very upset. About half an hour after learning this, Ms. K. decided to confront Mr. W.

That is whenshe called him and said in Punjabi words to the effect: “[J.] brother, are you alone?” to which he replied, “Yes, I am alone.” She thensaid, “if you touch [J.K.] again, I am going to call the cops and I am going to let everyone know what you did.” After she made thosestatements, there was a slight pause at Mr. W.’s end, and he said, “okay, okay” three or four times, and then hung up on her, even thoughshe wanted to say more. After that call, she went home and cried. She tried to contact him again, but he would not answer her calls. [83] The Crown submits that Mr. W.’s response to Ms.

K.’s threat to report him to the police if he touched J.K. again amounts to an“adoptive admission”. In support, the Crown cited the following authorities: Watt’s Manual of Criminal Evidence 2017,

section 36.04: An adoptive admission is a statement “made by a third party in the presence of and adopted by the D (defendant). There is only adoptionto the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D’s i. words ii. actions iii.conduct or iv. demeanour.” R. v. Scott, 2013 MBCA 7 , [2013] M.J. No. 24, wherein the Manitoba Court of Appeal, at para 21, said: In

summary, the authorities make it clear that great caution should be exercised when considering a question of adopted or impliedadmission by silence as there may be other reasons for an accused’s silence. A statement made in the accused’s presence is not evidenceof the facts contained therein, even if it is reasonable to expect an explanation or denial, unless the accused accepts or adopts thestatement, either expressly or by inference, as his or her own. [84] In Mr. W.’s case, when Ms. K. told Mr.

W. that if he touched J.K. again she would call the cops on him, he did not remainsilent or deny her assertions, but rather said “okay, okay.” [85] The defence argues that Ms. K.’s evidence should be given little weight, because when Ms. K. called Mr. W., she did notidentify herself to him and she angrily made accusations and near threats, and as a result her evidence is of little probative value. Idisagree. [86] Ms. K.’s evidence was that she has known Mr. W. for about 10 years, as he is her cousin S.’s husband and the father of her twonephews. She has heard him speak and recognized his voice on the K. Call.

Furthermore, she said he knew who she was. I find that hedid. Otherwise, he would most likely have responded differently – such as questioned who she was or why she was making such seriousallegations or deny that he touched J.K. That is not how he responded. He said, “okay, okay.” [87] The defence also argues that Ms.

K. statement to the police in March, 2017, which was closer in time to the alleged incidents,and her testimony at trial regarding her emotions after learning about the alleged incidents are inconsistent in that in the police statement,she said she was mad and felt she had to do something and when on the phone with Mr. W. she was getting her anger out, whereas at trialshe said she was not mad or angry but rather hurt for her cousin sister and had a bizarre feeling, and might have elevated her voice as shewas in her car. I find nothing turns on this slight variation in how Ms. K. described her emotions at the time.

[ 88 ] On the whole, I found Ms. K. to be a credible and reliable witness. Since she and J.K. were very close, Ms. K.’s response in the circumstances was entirely reasonable. She was very hurt for her cousin sister and wanted to confront Mr. W. right away because she felt that was the right thing to do at the time. [ 89 ] I find Mr. W.’s response to be an express adoption of the allegation implicit in Ms. K.’s statement that Mr. W. touched J.K. in a sexual manner. I infer that Ms. K. also understood Mr. W. to be admitting to what she was saying, as he did not deny her allegations or answer her further calls.

She was hurt, and she went home and cried that day. [ 90 ] The timing of the K. Call is also important. It was in January 2017, when the fourth and fifth incidents are said to have occurred. Soon after this call, details of the alleged incidents came to light to J.K.’s family members, and by February 9, 2017, J.K. had made her statement to the police. By that time, Mr. W. had left for India rather than addressing these allegations with the family if he felt that they were truly baseless.

He was charged with the subject offences on May 25, 2017. [ 91 ] On the whole, even though there are some inconsistencies in J.K.’s evidence as discussed above, they only relate to peripheral issues such as date, time, and location, and do not detract from her evidence relating to the core of the alleged sexual acts. In that respect, I find her evidence to be reliable. Her description of Mr. W.’s sexual acts is consistent.

There is a pattern to the sexual acts: the rubbing and grabbing of the breasts; the touching of the vagina in an upward motion; the touching, grabbing and stroking of the penis; and the insertion and movement of the penis in a back and forth motion. J.K. was clear that Mr. W. did not put his fingers into her vagina, put his penis fully into her vagina or ejaculate inside her vagina. He appears to have been careful to pull his penis out as soon as he got an erection. The other consistency in the description of these incidents is Mr.

W.’s repeated warning to J.K. to not tell anyone about what happened. [ 92 ] J.K. has no vendetta or ulterior motive to pursue Mr. W. In fact, she was very close to S., her nephews, and her aunt and uncle (S.’s parents). She was worried about how her family would react to her disclosure. She struggled with her decision to tell any of her family members. It was Ms.

K. who first told her parents, and from there the news spread to other family members and eventually a report was made to the police. [ 93 ] Therefore, except as I have noted above, I have no hesitation in believing J.K. and accepting her evidence as reliable. [ 94 ] From the evidence I accept, I find as follows: (

a) During the first incident, Mr. W. touched J.K.’s breasts and vagina with his hands for a sexual purpose while sitting on the sofa in the Basement Suite living room; (

b) During the third incident, Mr. W. touched J.K.’s breasts and vagina with his hands; made J.K. grab his penis with her hand even though she tried to resist him by putting her hands behind her back; and forcefully inserted his penis into J.K.’s vagina, and moved it back and forth until he got an erection, even though J.K. asked him to stop and go away; (

c) During the fourth incident, Mr. W. touched J.K.’s breasts and vagina; made her rub his penis with her right hand; and forcefully inserted his penis into her vagina and moved it back and forth, even though she was hurting, and she asked him to stop and let her go; (

d) Mr. W. knew that it was Ms. K. who was on the K. Call; and (

e) Mr. W.’s response to Ms. K. in the K. Call was an express adoption by Mr. W. of the allegation implicit in Ms. K.’s statement that Mr. W. touched J.K. in a sexual manner. VII. CONCLUSION [ 95 ] In conclusion, I am satisfied that on the totality of the evidence before me, viewed as a whole, the Crown has proven beyond a reasonable doubt that during the Subject Period, Mr. W., did: (

a) touch J.K.’s body with a part of his body for a sexual purpose; (

b) invite J.K. to touch a part of his body with her body for a sexual purpose; and (

c) apply force intentionally to J.K, committing a sexual assault. [ 96 ] Therefore, I find Mr. W. guilty as charged on Counts 1, 2 and 3. ____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia